09.30.09

Senate Unanimously Confirms First District Court Judge

WASHINGTON – The Senate Tuesday night unanimously confirmed the first district court judge of the 111th Congress.  Jeffrey Viken was confirmed to an appointment on the U.S. District Court for the District of South Dakota.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) praised the nomination, saying, “President Obama nominated Mr. Viken with the bipartisan support of both Senators from South Dakota.  Mr. Viken’s wide range of experience makes him particularly well qualified to serve on the Federal bench.”

Viken is just the second nomination to lower, Article III courts to be confirmed this year.  Two weeks ago, the Senate confirmed Gerard Lynch to the Second Circuit Court of Appeals.  Three judicial nominations remain pending on the Senate’s executive calendar, and the Judiciary Committee is scheduled to vote on four pending judicial nominations at a business meeting Thursday.  For more information about nominations, visit the Senate Judiciary Committee website.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,

On The Nomination Of Judge Jeffrey Viken,
To The United States District Court For District of South Dakota

September 29, 2009

Today the Senate considers the nomination of Jeffrey Viken for a lifetime appointment to the U.S. District Court for the District of South Dakota.  This will be the first Senate confirmation this year for a Federal district court judge, and the first to fill one of 74 current Federal trial court vacancies.  Judicial vacancies are on the rise overall, with more than 90 current vacancies throughout the Federal judiciary.  More are anticipated that will bring Federal judicial vacancies to near record levels.

President Obama nominated Mr. Viken with the bipartisan support of both Senators from South Dakota, Senator Johnson and Senator Thune.  After accommodating the Ranking Member and other Republicans on the Judiciary Committee by postponing a hearing on Mr. Viken's nomination while we considered the recent Supreme Court nomination, I am pleased that the Committee unanimously reported the nomination earlier this month by voice vote.  I hope that the Senate's consideration of this nomination today is a sign that we will make more progress on judicial nominations, and do so more expeditiously.

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.  During the 17 months I chaired the Judiciary Committee during President Bush’s first term, we confirmed 100 of his judicial nominees.  We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations.    

I want to thank the Committee’s Ranking Member, Senator Sessions, for his cooperation in moving Mr. Viken’s nomination through the Committee at our business meeting on September 10, without an unnecessary holdover period.   Unfortunately, once on the Senate Executive Calendar, it has still taken two and one-half weeks to schedule Senate approval of a noncontroversial nominee who will likely be confirmed unanimously.

Mr. Viken’s wide range of experience makes him particularly well qualified to serve on the Federal bench.  He is currently the Federal Defender for the combined districts of North Dakota and South Dakota.  He has served as an Assistant U.S. Attorney and Acting U.S. Attorney for South Dakota, and has spent more than two decades in private practice.  Mr. Viken's nomination received a rating of “well qualified” from the American Bar Association’s Standing Committee on the Federal judiciary.  I expect his nomination to be confirmed by a strong bipartisan vote.

The Senate must do a better job helping to fill the rising number of judicial vacancies to ensure that justice is not delayed, or denied, to any American because of over burdened courts.   I hope that instead of withholding consents and threatening filibusters of President Obama’s judicial nominees, the other side of the aisle will join together to treat the nominees of President Obama fairly.  I made sure that we treated President Bush’s nominees more fairly than President Clinton’s nominees had been treated.  By this time in President Bush’s first term, we had confirmed six of his nominations to Federal circuit and district courts.  Nine months into President Obama’s first term, the Senate has confirmed only one of his lower court nominees, despite the fact that President Obama made his first nomination nearly two months earlier than did President Bush.  We can do better.  The American people deserve better.

After months of delay, on September 17, the Senate finally confirmed Judge Gerard Lynch to serve on the Second Circuit.  Despite the fact that Judge Lynch’s nomination was noncontroversial, despite the fact that it was reported out of Committee unanimously and with strong words of support from Ranking Member Sessions, it still took more than three months after his nomination was reported by the Committee for the Senate to confirm him.  When we finally voted, we confirmed Judge Lynch by an overwhelming, bipartisan vote of 94 to three.  There was simply no reason for that kind of delay.  

Thirteen nominations reported by the Judiciary Committee remain pending on the Senate’s Executive Calendar, seven of them from before the last recess.  Five of the these nominations are for appointments to be Assistant Attorneys General at the Department of Justice-- five out of a total of 11 Divisions at the Department.  As a result of the Senate's delays and inaction, five critical divisions at the Department -- the Office of Legal Counsel, the Civil Rights Division, the Tax Division, the Office of Legal Policy, and the Environment and Natural Resources    Division -- remain without Senate-confirmed presidential nominees.

Judicial nominations have not fared any better.  President Obama made his first judicial nomination in March when he nominated David Hamilton to the Seventh Circuit.  The nomination has been 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 3, but has yet to be considered by the Senate.  The nomination of Judge Beverly Baldwin Martin to the Eleventh Circuit 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.

Federal judicial vacancies will soon number 120 unless we begin to move judicial nominations in regular order.  I urge Republican Senators to work with us to confirm qualified nominees without unnecessary delay.  

I congratulate Mr. Viken and his family on his confirmation today.

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