11.18.13

SJC Chairman Leahy: D.C. Circuit Vacancies Must Be Filled

“I am especially concerned with how Republican obstruction is damaging our ability to fulfill our constitutional responsibility of advice and consent.”

WASHINGTON  – U.S. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), the Senate’s longest-serving member, spoke out against the growing obstruction to highly-qualified judicial nominees in a floor statement Monday.

Speaking in favor of Judge Robert Wilkins, a nominee to the United States Court of Appeals for the District of Columbia Circuit, Leahy stated “Over the course of almost four decades, I have seen dramatic changes in Senate majorities and leadership styles.  But nothing in all that time compares to the change that has occurred over the last five years.”

Wilkins currently serves on the United States District Court for the District of Columbia, a position to which he was confirmed in 2010 on a voice vote. Now appointed to serve on the powerful D.C. Circuit, Wilkins’s nomination is being blocked by Republicans. Wilkins is the third D.C. Circuit Court nominee in as many weeks to require a procedural vote.

“Republicans once insisted that the filibustering of judicial nominations was unconstitutional.  The Constitution has not changed but when a Democrat was elected to the White House, they reversed course and filibustered this president’s very first judicial nomination despite that nominee having the support of the most senior Republican then serving in the Senate,” Leahy said, suggesting that a filibuster of Wilkins’s nomination would be a “tipping point” for efforts to change Senate rules to ensure consideration of judicial nominees.

Leahy also wrote about the issue of GOP obstruction to D.C. Circuit Court nominees in an op-ed appearing in the National Law Journal. The Washington Post also highlighted the issue in a Monday editorial.

“After tonight the talk about changing the cloture rules for judicial nominations will no longer be just talk.  There will be action,” Leahy said.  “We cannot allow this unprecedented, wholesale obstruction to continue without undermining the Senate’s role provided in the Constitution and without harming our independent federal judiciary.”    

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Statement of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Nomination of Judge Robert Wilkins
November 18, 2013

Over the course of almost four decades, I have experienced dramatic changes in Senate majorities and leadership styles.  But nothing in all that time compares to the change that has occurred over the last five years.  

Since President Obama was sworn in as President of the United States, Senate Republicans have made it their priority to obstruct at every turn the consideration of nominations that he has put forward.  Confirmation votes that regularly occurred by consent, now require a lengthy cloture process.  Bipartisan and home state support for a nominee no longer ensures a timely confirmation.  Through this obstruction, Senate Republicans have crossed the line from use of the Senate rules to abuse of the rules.  This same abuse that recently shut down our Federal government is also posing a threat to an independent branch of government, the Federal judiciary.

As Chairman of the Judiciary Committee, I am especially concerned with how Republican obstruction is damaging our ability to fulfill our constitutional responsibility of advice and consent.  Republican obstruction has left the Federal judiciary often with 90 or more vacancies over the last five years.  This severely impacts the ability of our Federal justice system to serve the interests of the American people.

Republicans once insisted that the filibustering of judicial nominations was unconstitutional.  The Constitution has not changed but when a Democrat was elected to the White House, they reversed course and filibustered this president’s very first judicial nomination despite that nominee having the support of the most senior Republican then serving in the Senate.  This is the pattern Senate Republicans continued to follow, filibustering 34 of President Obama’s judicial nominees.  This is nearly twice as many nominees than required cloture during President Bush’s two terms.  Almost all of these nominees were, by any standard, noncontroversial, but it took a great deal of effort by the Senate Judiciary Committee members and by Majority Leader Reid to get to a simple up or down vote on those confirmations.  

Most recently, Senate Republicans have decided to filibuster well-qualified nominee after well-qualified nominee for the United States Court of Appeals for the D.C. Circuit.  That court has three vacant seats.  During the Bush Administration the Senate confirmed his nominees to the 9th, 10th, 11th and again the 10th seats.  But suddenly, Senate Republicans want to strip those very same seats now that a different President was elected (and re-elected) by the American people.  The Senate Republican blockade of D.C. Circuit nominees is an unprecedented level of obstruction.  As Maine’s former senior Senator Olympia Snowe recently said, “When you have these back-to-back rejections of nominees, at some point it may be trying to reverse the results of the election.”

I fear that the obstruction will continue tonight, when we will try to end the filibuster being waged against Robert Wilkins.  Judge Wilkins was unanimously confirmed to the U.S. District Court for the District of Columbia less than three years ago.  He has presided over hundreds of cases and issued significant decisions in various areas of the law, including in the fields of administrative and constitutional law.  Prior to serving on the bench, he was a partner for nearly 10 years in private practice and served more than 10 years as a Public Defender in the District of Columbia.  

During his time at the Public Defender Service, Judge Wilkins served as the lead plaintiff in a racial profiling case, which arose out of an incident in which he and three family members were stopped and detained while returning from a funeral in Chicago.  This lawsuit led to landmark settlements that required systematic statewide compilation and publication of highway traffic stop and search data by race. These settlements inspired an Executive Order by President Clinton, legislation in the House and Senate, and legislation in at least 28 states prohibiting racial profiling or requiring data collection.

Despite the progress made in the past several decades, the struggle to diversify our Federal bench continues.  If confirmed, Judge Wilkins would be only the sixth African American to have ever served on what is often considered the second most powerful court in our country, the D.C. Circuit.

Judge Wilkins again earned the ABA’s highest possible rating of unanimously well qualified.  He also has the support of the National Bar Association, the nation’s largest professional association of African-American lawyers and judges, as well as several other prominent legal organizations.  I ask unanimous consent to include a list of support in the Record.

The D.C. Circuit should be operating at full strength as it was when President Bush held office.  The Senate should consider Judge Wilkins based on his qualifications, and not hide behind some pretextual argument that most Americans can see through.  As today’s Washington Post editorial states, “It’s transparently self-serving of GOP lawmakers to oppose D.C. Circuit nominees only when it’s a Democrat’s turn to pick them.” I would like to enter a copy of this editorial into the Record.

If the Republican caucus continues to abuse the filibuster rules and obstruct these fine nominees without justification, then I believe this body must consider anew whether a rules change should be in order.  As I stated above, that is not a change that I want to see happen but if Republican Senators are going to hold nominations hostage without consideration of their individual merit, drastic measures may be warranted.  I hope it does not come to that.

Earlier this year, nearly every single Senate Democrat pushed the Majority Leader for a rules change in the face of Republican obstruction.  I was one of the few members of the majority who voiced concern about changing the Senate rules.  I believe that if Republicans filibuster yet another well-qualified nominee to this court tonight, it will be a tipping point.  Senate Republicans have blocked three well-qualified women in a row from receiving a confirmation vote and now they are on the brink of filibustering the next nominee, Robert Wilkins.  I fear that after tonight the talk about changing the cloture rules for judicial nominations will no longer be just talk.  There will be action.  We cannot allow this unprecedented, wholesale obstruction to continue without undermining the Senate’s role provided in the Constitution and without harming our independent federal judiciary.    

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