02.13.13

Senate Votes To Confirm First Judicial Nominee This Year

. . . Kayatta’s Nomination Has Lagged For Ten Months

WASHINGTON – The Senate voted overwhelmingly Wednesday to confirm William Kayatta, a circuit court nominee whose nomination has lagged for ten months since he was first reported by the Judiciary Committee last year.

Senator Patrick Leahy welcomed the Senate’s approval of Kayatta’s nomination to the First Circuit, which received 88 bipartisan votes on the floor, and called on Senators to take up and vote on other pending nominees to reduce the judicial backlog plaguing the nation’s courts.  

“While it is good that William Kayatta will finally receive a vote today, it is also well past time for the Senate to vote on Robert Bacharach and Richard Taranto,” Leahy said, noting that two more circuit court nominees are awaiting Senate action. “Perpetuating these vacancies on the Tenth and Federal Circuits, and preventing Judge Bacharach and Mr. Taranto from getting to work on behalf of the American people, does not benefit anyone.”

 Kayatta was first nominated in January 2012, and voted out of the Judiciary Committee in April. Maine Republican Senators Olympia Snowe and Susan Collins supported Kayatta last year, but despite that support, Senate Republicans refused to agree to a vote on his nomination so it was returned to the White House at the end of session. This year Kayatta’s nomination is again supported by Collins and also by Sen. Angus King (I-Maine).

With 90 judicial vacancies across the country, Leahy said the Senate should act early this year to consider judicial nominees.

“I hope that this year and over the coming four years, Senate Republicans will end their misguided and harmful obstruction and work with us in a bipartisan manner to do what is right for the country,” Leahy said.  “President Obama has nominated qualified, mainstream lawyers, and the Senate should consider them in regular order, without unnecessary delays.  That is what we had done for as long as I have served in the Senate, whether the nominations came from a Democratic or a Republican president.  We should work together to restore and uphold the best traditions of the Senate.”

 

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
February 13, 2013

 

Today the Senate is finally being allowed to confirm William Kayatta of Maine, a consensus circuit nominee who has had the consistent support of his home state Senators-- Senator Collins, Senator Snowe when she served last year, and Senator King.  This nominee received the ABA Standing Committee on the Federal Judiciary’s highest possible rating, that of unanimously “Well Qualified.”  He was first reported by the Senate Judiciary Committee with strong bipartisan support last April, 10 months ago.  He has unimpeachable credentials.  There was no good reason why he should not have been confirmed last year.  Republicans continued to stall him without a final confirmation vote until this moment, 10 months after he was approved by the Senate Judiciary Committee. 

It makes no sense for Senate Republicans to have stalled nominations like that of William Kayatta, but this is their track record and their pattern over the last four years.  Senate Republicans used to insist that the filibustering of judicial nominations was unconstitutional.  The Constitution has not changed, but as soon as President Obama was elected they reversed course and filibustered President Obama’s very first judicial nomination.  Judge David Hamilton of Indiana was a widely-respected 15-year veteran of the Federal bench nominated to the Seventh Circuit and was supported by Senator Dick Lugar, the longest-serving Republican in the Senate.  They delayed his confirmation for seven months.  Senate Republicans then proceeded to obstruct and delay just about every circuit court nominee of this President, filibustering 10 of them.  They delayed confirmation of Judge Albert Diaz of North Carolina to the Fourth Circuit for 11 months.  They delayed confirmation of Judge Jane Stranch of Tennessee to the Sixth Circuit for 10 months.  They delayed confirmation of Judge Ray Lohier of New York to the Second Circuit for seven months.  They delayed confirmation of Judge Scott Matheson of Utah to the Tenth Circuit and Judge James Wynn, Jr. of North Carolina to the Fourth Circuit for six months.  They delayed confirmation of Judge Andre Davis of Maryland to the Fourth Circuit, Judge Henry Floyd of South Carolina to the Fourth Circuit, Judge Stephanie Thacker of West Virginia to the Fourth Circuit, and Judge Jacqueline Nguyen of California to the Ninth Circuit for five months.  They delayed confirmation of Judge Adalberto Jordan of Florida to the Eleventh Circuit, Judge Beverly Martin of Georgia to the Eleventh Circuit, Judge Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit, Judge Denny Chin of New York to the Second Circuit, and Judge Chris Droney of Connecticut to the Second Circuit for four months.  They delayed confirmation of Judge Paul Watford of California to the Ninth Circuit, Judge Andrew Hurwitz of Arizona to the Ninth Circuit, Judge Morgan Christen of Alaska to the Ninth Circuit, Judge Stephen Higginson of Louisiana to the Fifth Circuit, Judge Gerard Lynch of New York to the Second Circuit, Judge Susan Carney of Connecticut to the Second Circuit, and Judge Kathleen O’Malley of Ohio to the Federal Circuit for three months.

The nonpartisan Congressional Research Service had reported that the median time circuit nominees have had to wait before a Senate vote has skyrocketed from 18 days for President Bush’s nominees to 132 days for President Obama’s.  This is the result of Republican obstruction.

This obstruction is also why a damagingly high level of judicial vacancies has persisted for over four years.  While such tactics are bad for the Senate, they are also bad for our Nation’s overburdened courts.  Persistent vacancies force fewer judges to take on growing caseloads, and make it harder for Americans to have access to justice.  While they have delayed and obstructed, the number of judicial vacancies has remained historically high and it has become more difficult for our courts to provide speedy, quality justice for the American people.  There are today 89 judicial vacancies across the country.  By way of contrast, at this point in the Bush administration vacancies were 45 percent less.  The 173 circuit and district judges that we have been able to confirm over the last four years fall more than 30 short of the total for President Bush’s first term. 

Over the last four years, Senate Republicans have chosen to depart dramatically from Senate traditions in their efforts to delay and obstruct President Obama’s judicial nominations.  Until 2009, Senators who filibustered circuit court nominees generally had reasons to do so, and were willing to explain those reasons.  When Senate Democrats filibustered President Bush’s controversial circuit court nominees, it was over substantive concerns about the nominees’ records and Republicans’ disregard for the rights of Democratic Senators.  On the other hand, Senate Republicans have filibustered and delayed nearly all of President Obama’s circuit court nominees even when those nominees have the support of their Republican home state Senators. 

At the end of each calendar year, Senate Republicans now deliberately refuse to vote on several judicial nominees who could and should be confirmed in order to consume additional time the following year confirming these nominees.  At the end of 2009, they left 10 nominations on the Executive Calendar without a vote.  Two of those nominations were returned to the President, and it subsequently took nine months for the Senate to take action on the other eight.  This resulted in the lowest one-year confirmation total in at least 35 years.   For the next two years, Senate Republicans left 19 nominations on the Senate Executive Calendar at the end of each year.  It then took nearly half the following year for the Senate to confirm these nominees.  Last year they insisted on leaving 11 judicial nominees without action and another four have had hearings but they refused to expedite their consideration.  William Kayatta is one of those judicial nominees who should have been confirmed last year.

Until 2009, when a judicial nominee had been reported by the Judiciary Committee with bipartisan support, they were generally confirmed quickly.  Until 2009, we observed regular order, usually confirmed nominees promptly, and we cleared the Senate Executive Calendar before long recesses.  Until 2009, if a nominee was filibustered, it was almost always because of a substantive issue with the nominee’s record.  We know what has happened since 2009.  District nominations are stalled on average 4.3 times as long as it took to confirm them during the Bush administration, and circuit court nomination are stalled on average 7.3 times as long as it took to confirm them during the Bush administration.  Nor has any other President’s judicial nominees had to wait an average of over 100 days for a Senate vote after being reported by the Judiciary Committee.

Senate Republicans have also forced the Majority Leader to file cloture on 30 nominees, which is already more than 50 percent more nominees than had cloture filed during President Bush’s eight years in office.  Almost all of these 30 nominations were noncontroversial and were ultimately confirmed overwhelmingly.  Barely 80 percent of President Obama’s judicial nominees were confirmed during his first four years compared to almost 90percent of President George W. Bush’s first term nominees.

While this is not even close to a full account of the precedents broken in the last four years, the record is clear: Senate Republicans have engaged in an unprecedented effort to obstruct President Obama’s judicial nominations.  Pretending it has not taken place is an insult to the American people.  The American people know better.  Chief Justice Roberts, in his year-end Report on the Federal Judiciary in 2010 pointed to the “[P]ersistent problem [that] has developed in the process of filling judicial vacancies…. This has created acute difficulties for some judicial districts.  Sitting judges in those districts have been burdened with extraordinary caseloads… . There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem.”  Despite bipartisan calls to address the judicial vacancy crisis, Senate Republicans have continued their obstruction of judicial confirmations.

Today, the Senate is finally being allowed to vote on one of the nominees held over from last year.   Judicial vacancies stand at almost 90.  Recall that during President Bush’s entire second term, the four years from 2004 through 2008, vacancies never exceeded 60.  So far during President Obama’s first four years in office and as far into the future as we can see there have never been less than 60 vacancies, and for much of that time many, many more.   This is a prescription for overburdened courts and a Federal justice system that does not serve the interests of the American people.

I commend President Obama for nominating such a diverse group of qualified judges.  In his first four years, President Obama has appointed as many women judges as President Bush did during his entire eight years in office.  In just four years, President Obama has also nominated more African Americans, more Asian Americans, and more openly gay Americans than his predecessor did in eight years.  Americans can be proud of President Obama’s efforts to increase diversity in the Federal judiciary and to ensure that it better reflects all Americans.

I hope that this year and over the coming four years, Senate Republicans will end their misguided and harmful obstruction and work with us in a bipartisan manner to do what is right for the country.  President Obama has nominated qualified, mainstream lawyers, and the Senate should consider them in regular order, without unnecessary delays.  That is what we had done for as long as I have served in the Senate, whether the nominations came from a Democratic or a Republican president.  We should work together to restore and uphold the best traditions of the Senate.

Last Thursday, the Senate Judiciary Committee reported three judicial nominees, William Kayatta, Robert Bacharach, and Richard Taranto.  They are all superbly qualified, consensus nominees.  All have received the highest possible rating of unanimously well qualified from the ABA’s Standing Committee on the Federal Judiciary, and with last Thursday’s Judiciary Committee votes, all have twice now received overwhelming, bipartisan support from members of the Judiciary Committee from both sides of the aisle.  All have something else in common too: Their nominations were stalled before the Senate for at least seven months last year without a vote.  That is why they each had to be re-nominated by the President this year.

This is sadly typical of how Senate Republicans have treated President Obama’s consensus judicial nominees.  Even nominees who are supported by Republican home state Senators and by all the Republican members of the Judiciary Committee are stalled for months for no good reason.  They are delaying votes on all nominees, including nominees they support.  This is unprecedented. 

For example, Senator Coburn said that “[Judge Bacharach] has no opposition in the Senate. . . . There’s no reason why he shouldn’t be confirmed.”  That was before Senator Coburn joined a filibuster against voting on his nomination last year.   Last year’s filibuster of the Bacharach nomination was the first time in the history of the Senate that a circuit nominee reported with bipartisan support had been successfully filibustered.   When I say unprecedented, I mean unprecedented. 

I am glad that William Kayatta is finally getting a vote.  The nominee spent the entirety of his 32-year legal career in private practice in the Portland, Maine, law firm Pierce Atwood LLP, where he is currently a partner.  Over his career, he has personally argued over three dozen appeals, including two before the United States Supreme Court.  He graduated magna cum laude from Harvard Law School, where he served on the Harvard Law Review.  Upon graduation, he clerked for Chief Judge Frank Coffin on the U.S. Court of Appeals for the First Circuit, the court to which he is nominated.

William Kayatta has held a prominent leadership role in numerous professional organizations, including serving as the lead investigator for the American Bar Association Standing Committee of the Federal Judiciary during its review of Justice Kagan’s nomination to the Supreme Court.  He was also appointed by the U.S. Supreme Court to serve as Special Master in an interstate dispute, where he was charged with managing proceedings and submitting a report and recommendation to the Court.  The ABA’s Standing Committee on the Federal Judiciary unanimously rated Mr. Kayatta well qualified to serve on the First Circuit, its highest possible rating. 

While it is good that Mr. Kayatta will finally receive a vote today, it is also well past time for the Senate to vote on Judge Bacharach and Mr. Taranto.  Perpetuating these vacancies on the Tenth and Federal Circuits, and preventing Judge Bacharach and Mr. Taranto from getting to work on behalf of the American people, does not benefit anyone.  The Judiciary Committee has again done its work to vet, consider, and vote on these nominations.  It is time for the other two circuit nominees who were renominated and considered again by the Judiciary Committee and again reported to the Senate, be given an up-or-down vote. 

The Senate could confirm all three nominees this week.  In June 2005, the Senate confirmed four circuit court nominees of a Republican President in just two days, including highly controversial nominees such as Janice Rogers Brown to the D.C. Circuit and William Pryor to the Eleventh Circuit.  In July 2006, the Senate confirmed Bobby Shepherd to the Eighth Circuit, Neil Gorsuch and Jerome Holmes of the Tenth Circuit in one week.  There is ample recent precedent for confirming Judge Bacharach and Richard Taranto without further delay.  Neither is controversial.

William Kayatta is strongly supported by both of Maine’s Senators, Republican Senator Susan Collins and Independent Senator Angus King.  When George W. Bush was President, Senate Democrats worked quickly to hold votes on consensus circuit nominees.  According to the nonpartisan Congressional Research Service, half of President Bush’s circuit nominees received a confirmation vote within just 18 days of being reported by the Judiciary Committee.  Not a single one of President Obama’s circuit nominees has received a vote so quickly.  In fact, the median wait time for President Obama’s circuit nominees is more than seven times that for President Bush’s circuit nominees.

This continued obstruction is one of the reasons we remain so far behind the pace set during President Bush’s time in office.  By February of President Bush’s fifth year, the Senate had confirmed 205 of his circuit and district nominees, and judicial vacancies stood at 40.  In contrast, just 173 of President Obama’s circuit and district nominees have been confirmed, and the vacancy rate has risen again to 89, or 10 percent of the Federal bench.  Judicial vacancies are again at historically high levels.

Perpetuating these vacancies on the Tenth and Federal Circuits, and preventing Judge Bacharach and Gary Taranto from getting to work on behalf of the American people, does not benefit anyone.  The Judiciary Committee has again done its work to vet, consider, and vote on these nominations.  It is time for the Senate to act to confirm them.

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