10.21.09

Senate Unanimously Confirms District Court Judge

WASHINGTON – The Senate Wednesday unanimously confirmed Roberto A. Lange to serve as a U.S. District Court Judge for the District of South Dakota.  Lange is just the third lower court nomination to be confirmed by the Senate this year.  Ten judicial nominations remain pending before the full Senate.

“The American Bar Association’s Standing Committee on the Federal Judiciary reported that its peer review of the President’s nomination of Mr. Lange resulted in the highest rating possible, a unanimous rating of well qualified,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).  “His nomination has the support of both home state Senators.  It has been three weeks since Mr. Lange’s nomination was unanimously reported by the Judiciary Committee to the Senate.  It should not take three weeks to confirm a consensus nominee.”

Objections to consent agreements for the consideration of pending nominations have prevented the Senate from acting on judicial nominations.  On September 17, the Senate confirmed the first lower court nomination of the Congress, confirmed the second nomination on September 29.

The Judiciary Committee first considered Lange’s nomination during a hearing on September 9.  The Committee unanimously reported Lange’s nomination to the full Senate on October 1.

“There are 10 other judicial nominations on the Senate Executive Calendar awaiting action, but are stalled by the other side of the aisle.  All 10 were reported favorably by the Senate Judiciary Committee.  Two were reported in June and have been waiting more than four months for Senate consideration.  These are things we’ve always done by voice vote when there is no controversy.  I wish my colleagues would allow these nominations to move forward.”

Information on executive and judicial nominations pending in the Judiciary Committee is available online.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee
On The Nomination Of Roberto A. Lange To The District Of South Dakota
October 21, 2009

Today, the Senate will finally consider the nomination of Roberto A. Lange to the District of South Dakota.  It has been three weeks since Mr. Lange’s nomination was unanimously reported by the Judiciary Committee to the Senate.  It should not take three weeks to confirm a consensus nominee.  I will be interested to hear from Senate Republicans who have stalled this confirmation for the last three weeks why they did so.  

There are 10 other judicial nominations reported favorably by the Judiciary Committee to the Senate that remain pending without consent from Senate Republicans to proceed to their consideration.  These are 10 other judicial nominations on the Senate Executive Calendar awaiting action and being stalled by Republican holds.  All 10 were reported favorably by the Senate Judiciary Committee.  Two were reported in June and have been waiting for more than four months for Senate consideration.  These are things that we have always done by voice vote when there is no controversy.

It is not only a dark mark on the Senate for holding us up from doing our work, but it means that the nominees have their lives on hold.  They have been given this nomination, and everything has to come to a stop.  They know they are going to be confirmed.  They know that whenever the Republicans allow a vote, it will be virtually unanimous.  It makes the Senate look foolish, and I wish my colleagues would allow these people to move quickly.

The American Bar Association’s Standing Committee on the Federal Judiciary, reported that its peer review of the President’s nomination of Mr. Lange resulted in the highest rating possible, a unanimous rating of well qualified.  His nomination has the support of both home state Senators, Senator Johnson, a Democrat, and Senator Thune, a Republican, and was reported out of the Judiciary Committee by unanimous consent on October 1.  I expect the vote on the President’s nomination of Mr. Lange to be overwhelmingly in favor, as was the 99-0 vote for the only other district court confirmation so far this year, that of Judge Viken.  I will be listening intently to hear why then Senate Republicans -- despite the support of Senator Thune, the head of the Republican Policy Committee and a member of the Senate Republican leadership -- have stalled this confirmation needlessly for three weeks.

This is one of the 13 judicial nominations reported favorably by the Committee to the Senate since June to fill circuit and district court vacancies on Federal courts around the country.  Ten of those nominations were reported without a single dissenting voice. This is unfortunately only the third of those judicial nominations to be considered all year.

It is October 21. By this date in the administration of George W. Bush, we had confirmed eight lower court judges. By this juncture in the administration of Bill Clinton, we had likewise confirmed eight circuit and district court nominations.  The Senate has confirmed just three circuit and district court nominees this year—less than half of those considered by this date during President Bush’s tumultuous first year in office and confirmed by this date during President Clinton’s first year.  This is despite the fact that President Obama sent nominees with bipartisan support to the Senate two months earlier than did President Bush.  Moreover, President Clinton’s term also began with the need to fill a Supreme Court vacancy.

The first of these circuit and district court confirmations this year did not take place until September 17, months after the nomination of Judge Gerard Lynch had been reported out of Committee with no dissent.  Finally, after months of needless delay, the Senate confirmed Judge Lynch to serve on the Second Circuit by an overwhelming vote of 94 to three.  That filled just one of the five vacancies this year on the Second Circuit.  The Second Circuit bench remains nearly one-quarter empty with four vacancies on its 13-member bench.

Judge Viken, the first of just two district court judges the Senate has been allowed to vote on this year, was confirmed on September 29, by a unanimous 99-0 vote.  Today, the Senate is finally being allowed by Republicans to vote to confirm Roberto Lange, who was reported by the Committee on October 1.  It took three weeks to proceed to Mr. Lange’s nomination despite the fact that he, like Judge Viken, had the support of both his home state Senators, one a respected Democratic Senator and the other a Republican Senator who is a member of the Republican Senate leadership.

South Dakota has had its two vacancies filled this year but vacancies in 35 other states remain unfilled and the Senate’s constitutional responsibilities are going unfulfilled. There was – there is – no reason for the Republican minority to impose these unnecessary and needless delays to judicial confirmations.  When will Senate Republicans allow the Senate to consider the nominations of Judge Hamilton to the Seventh Circuit, Judge Davis to the Fourth Circuit, Judge Martin to the Eleventh Circuit, Judge Greenaway to the Third Circuit, Judge Berger to the Southern District of West Virginia, Judge Honeywell to the Middle District of Florida, Judge Nguyen to the Central District of California, Judge Chen to the Northern District of California, Ms. Gee to the Central District of California and Judge Seeborg to the Northern District of California?

In a recent column, Professor Carl Tobias wrote:

“President Obama has implemented several measures that should foster prompt appointments.  First, he practiced bipartisanship to halt the detrimental cycle of accusations, countercharges and non-stop paybacks.  Moreover, the White House has promoted consultation by seeking advice on designees from Democratic and GOP Senate members, especially home state senators, before official nominations.  Obama has also submitted consensus nominees, who have even temperaments and are very smart, ethical, diligent and independent.”

I ask that a copy of Professor Tobias’s column be included in the record following my statement.

When I served as chairman of the Senate Judiciary Committee during President Bush’s first term, I did my best to stop the downward spiral that had affected judicial confirmations.  Throughout my chairmanship I made sure to treat President Bush’s judicial nominees better than the Republicans had treated President Clinton’s. During the 17 months I chaired the Judiciary Committee during President Bush’s first term, we confirmed 100 of his judicial nominees.  At the end of his presidency, although Republicans had chaired the Judiciary Committee for more than half his tenure, more of his judicial nominees were confirmed when I was the chairman than in the more than four years when Republicans were in charge.

In spite of President Obama’s efforts, however, Senate Republicans began this year threatening to filibuster every judicial nominee of the new President.  They have followed through by dragging out, delaying, obstructing and stalling the process.  The result is that 10 months into President's Obama's first term, the Senate has confirmed only three of his nominations for circuit and district courts while judicial vacancies skyrocket around the country. The delays in considering judicial nominations pose a serious problem in light of the alarming spike in judicial vacancies on our Federal courts.

There are now 96 vacancies on Federal circuit and district courts and another 24 future vacancies already announced.   These vacancies are at near record levels.  Justice should not be delayed or denied to any American because of overburdened courts.  We can do better.  The American people deserve better.

Professor Tobias’ observations about the Second Circuit hold true throughout the country and with respect to this President’s efforts to work cooperatively with respect to judicial nominations. President Obama made his first judicial nomination, that of Judge David Hamilton to the Seventh Circuit, in March, but it has been stalled on the Executive Calendar since early June, despite the support of the senior Republican in the Senate, Senator Lugar.  The nomination of Judge Andre Davis to the Fourth Circuit was reported by the committee on June 4 by a vote of 16 to three, but has yet to be considered by the Senate.  The nomination of Judge Beverly Baldwin Martin to the Eleventh Circuit has the support of both of Georgia’s Senators, both Republicans, and was reported unanimously from the Committee by voice vote on September 10, but has yet to be considered or scheduled for consideration by the Senate.  The nomination of Joseph Greenaway to the Third Circuit has the support of both Pennsylvania Senators, and was reported unanimously from the Committee by voice vote on October 1, but has yet to be considered or scheduled for consideration by the Senate.   All of these nominees are well-respected judges.  All will be confirmed, I believe, if only Republicans would consent to their consideration by the Senate.  Instead, the President’s good efforts are being snubbed and these nominees stalled for no good purpose.

President Obama has been criticized by some for being too solicitous of Senate Republicans.  As Wade Henderson, the Executive Director of the Leadership Conference on Civil Rights, said to The Washington Post recently: “I commend the President’s effort to change the tone in Washington.  I recognize that he is extending an olive branch to Republicans on the Judiciary Committee and in the Senate overall.  But so far, his efforts at reconciliation have been met with partisan hostility.”  As usual, Wade has it right.  The efforts the President has made have not been reciprocated.

The Senate can and must do a better job of restoring our tradition of regularly considering qualified, noncontroversial nominees to fill vacancies on the Federal bench without needless and harmful delays. This is a tradition followed with Republican Presidents and Democratic Presidents.  We should not have to overcome filibusters and spend months seeking time agreements to consider consensus nominees.

In addition, four nominations to be Assistant Attorneys General at the Department of Justice remain on the Executive Calendar, three of them for many months.  Republican Senators have also prevented us from moving to consider the nomination of respected Federal Judge William Sessions of Vermont to be Chairman of the United States Sentencing Commission for over five months, even though he was twice confirmed as a member of that Commission.  The Majority Leader has been forced to file a cloture motion in order to end the obstruction of that nomination.

Four out of a total of 11 divisions at the Department of Justice remain without Senate-confirmed presidential nominees because of Republican holds and delays--the Office of Legal Counsel, the Tax Division, the Office of Legal Policy, and the Environment and Natural Resources Division.  Earlier this month, with the hard work of Senator Cardin, we were finally able to move forward to confirm Tom Perez to head the Civil Rights Division at the Justice Department.  His nomination was stalled for four months, despite the fact that he was approved 17 to two by the Judiciary Committee.  At the last minute, Senate Republicans abandoned an ill-fated effort to filibuster the nomination, and asked that the cloture vote be vitiated.  He was finally confirmed with more than 70 votes in the Senate.

During the 17 months I chaired the Judiciary Committee during President Bush’s first term, we confirmed 100 of his judicial nominees and 185 of his executive nominees referred to the Judiciary Committee.  And yet, 10 months into President's Obama's first term, we have confirmed only two of his nominations for circuit and district courts and 40 of the executive nominees that have come through our Committee.

I hope that, instead of withholding consents and filibustering President Obama’s nominees, the other side of the aisle will join us in treating them fairly.  We should not have to fight for months to schedule consideration of the President’s judicial nominations and nomination for critical posts in the executive branch.

I look forward to congratulating Mr. Lange and his family on his confirmation today.  I commend Senator Johnson for his steadfastness in making sure his state is well served.

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