Senate Unanimously Confirms Long-Pending Nomination To Second Circuit Court Of Appeals

Chin Nomination Pending Before Full Senate Without Explanation For More Than Four Months

WASHINGTON – The Senate Thursday unanimously confirmed the long-pending nomination of Denny Chin to fill a vacancy on the Second Circuit Court of Appeals.  Chin’s nomination was unanimously reported by the Senate Judiciary Committee in December. 

Chin will be the only active Asian Pacific American judge on the federal circuit courts of appeals.  He appeared before the Senate Judiciary Committee in November.

There remain 23 judicial nominations pending on the Executive Calendar.  The nominations were reported as long ago as November.  Of the 23 nominations pending, 17 were reported by the Judiciary Committee without dissent.  Committee Chairman Patrick Leahy (D-Vt.) delivered the following remarks on the Senate floor before the vote.  Chin was confirmed, 98-0.

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Denny Chin To The Court Of Appeals For The Second Circuit
April 22, 2010

Yesterday the Senate was forced to devote the entire day to “debate” on two nominations that Republican objections had stalled for months.  The good news is that the majority leader’s filing of cloture petitions to end the filibusters of those nominations succeeded and the votes took place.  Each was confirmed with more than 70 votes, a bipartisan majority of the Senate.  The debate amounted to statements by Senators in support of the nominations.  That is right -- during the entire day not a single Republican Senator came to the floor to oppose the nominations, nor did they come to explain the months of delays that had left a key office at the Justice Department without its head for the last year, and a longstanding vacancy on the United States Court of Appeals for the Third Circuit unfilled.  Instead, there was silence and no explanation for what continues to be a practice by Senate Republicans of secret holds and a Senate Republican leadership strategy of delay and obstruction of this President’s nominations.  That is wrong.

Throughout the week a number of Senators have come before the Senate to discuss this untenable situation and to ask for consent to proceed to scores of noncontroversial nominations.  Republicans objected.  Pursuant to Senate rules, enacted after bipartisan efforts, the Republican Senators who are objecting have an obligation to come forward and justify those objections.  I will be very interested to see which Senators are objecting to proceeding on 18 judicial nominees all reported unanimously from the Judiciary Committee, and which are held hostage in the Senate by these secret holds.  I will be interested to hear what basis there is for not proceeding on those 18 judicial nominees, as well as the 11 Justice Department nominees who were reported without objection to serve as U.S. attorneys, U.S. marshals and directors of important institutes and bureaus within the Justice Department.  These stalled nominations extend back into last year.  This is wrong and should end. 

Today the Senate has another opportunity to make progress by completing action on the long-stalled nomination of Judge Denny Chin of New York to the United States Court of Appeals for the Second Circuit.  The vacancy he has been nominated to fill which has been delayed by some anonymous Republican objection has been classified as a judicial emergency by the Administrative Office of the U.S. Courts. It is one of more than 40 such judicial emergency vacancies.  It is one of the four current vacancies on the Second Circuit’s panel of 13 judges and all are judicial emergencies.  Almost one quarter of the court is being held vacant.  That is wrong and recalls the years during the Clinton administration when similar Republican practices led to Chief Judge Winter having to declare the entire Circuit in an emergency in order to continue to operate with panels containing only a single Second Circuit judge. 

Yesterday Republicans insisted on three hours of “debate” before a vote on Judge Vananskie, and another three hours of “debate” before a vote on Professor Schroeder.  We should be thankful that today they have insisted on only one hour before this long overdue vote.  I will be interested to see whether a single Republican Senators comes to speak in opposition to Judge Chin’s nomination or to explain why they have delayed this vote for 19 weeks.  Given their recent record, I will be surprised is any Republican Senator does.  

The Judiciary Committee unanimously voted to report Judge Chin’s nomination last December.  None of the Republican Senators serving on the Committee opposed him.  Not Senator Sessions, Senator Hatch, Senator Grassley, Senator Kyl, Senator Graham, Senator Cornyn or Senator Coburn.  Not one. He is an outstanding district court judge and has the strong support of both his home state Senators and of a number of conservative leaders.  Yet his nomination has been stuck on the Senate Executive Calendar since December 10, 2009.  Judge Chin has been waiting 133 days for the Senate to act.  Contrast this with the practice Democrats followed during the first two years of the Bush administration when we proceeded to vote on his circuit court nominations on average within seven days of their being reported by the Judiciary Committee.

This long delay is unfortunately part of a pattern of Republican obstructionism that we have seen since President Obama took office.  In a dramatic departure from the Senate’s traditional practice of prompt and routine consideration of noncontroversial nominations, Senate Republicans have refused month after month to join agreements to consider, debate and vote on nominations.  This unprecedented practice has led to a backlog of nominations and a historically low rate of judicial confirmations.  

By this date in George W. Bush’s presidency, the Senate had confirmed 45 Federal circuit and district court judges.  As of today, only 19 Federal circuit and district court confirmations have been allowed with Judge Vanaskie finally being voted on and confirmed just last night.  Despite the fact that President Obama began sending judicial nominations to the Senate two months earlier than President Bush, the Senate is way behind the pace we set during the Bush administration.  In the second half of 2001 and through 2002 the Senate confirmed 100 of President Bush’s judicial nominees.  Given Republican delay and obstruction this Senate will not likely achieve half that.   Last year the Senate was allowed to confirmed only 12 Federal circuit and district court judges all year.  That was the lowest total in more than 50 years.  Meanwhile, judicial vacancies have skyrocketed to more than 100.

Judge Chin is a well-respected jurist who has sat on the Southern District of New York District Court for nearly 16 years.  He was widely celebrated for one of his more newsworthy decisions, in which he sentenced Ponzi scheme operator Bernard Madoff to 150 years in prison.  He previously served for four years as a Federal prosecutor, and he spent a decade as a lawyer in private practice. 

This impressive track record garnered the respect of former judge and former Attorney General Michael Mukasey who wrote to the Judiciary Committee:  “I believe him to be an intelligent and highly qualified nominee, who brings to the job not only experience but also demonstrated good judgment and skill.  He . . . [has] a temperament that has shown him to be both firm and fair.” 

James Comey, a former Deputy Attorney General and the former U.S. Attorney in the Southern District of New York, echoed this praise.  “In a district with many fine trial judges, he was a star—smart, fair, honest, careful, firm, apolitical, and a brilliant writer. . . . [W]hile always in control of the proceedings, he never lost the sense of humility that allowed him to listen to an argument with an ear toward being convinced and to give all a fair hearing,” wrote Mr. Comey. 

Judge John S. Martin, appointed by President George H.W. Bush, wrote to emphasize that Judge Chin “is an exceptionally able lawyer” and a “decent and thoughtful individual . . . who has earned the respect of those who have appeared before him.” 

When he is confirmed today, Judge Chin will become the only active Asian Pacific American judge to serve on a Federal appellate court.  He was also the first Asian Pacific American appointed as a U.S. district court judge outside the Ninth Circuit. 

Why the stall on this nomination? Why the obstruction of all these matters?  I look forward to the Republican explanation and I trust it will not devolve into a distorted look back at history.  Those “tit for tat” excuses are wrong on the facts and the wrong way to approach these matters.  It is time for the Senate to get its work done and fulfill its constitutional responsibilities.  I, again, urge the Senate Republican leadership to abandon its destructive delaying tactics and allow the Senate to act on the backlog of two dozen judicial nominees and more than a dozen Executive nominees reported by the Senate Judiciary Committee over the last six months who they have stalled for no good purpose.

Today I look forward to congratulating Judge Chin and his family on this historic achievement. I commend both Senator Schumer and Senator Gillibrand for their persistence in supporting this important nomination and bringing this matter to fruition.  His confirmation is long overdue.

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