Statement Of Senator Leahy On Judicial Nominations

[Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke Tuesday morning on the Senate floor about the growing backlog of judicial nominations awaiting final action by the Senate.  A total of 19 nominations – including 16 which received unanimous support from Republicans and Democrats on the Judiciary Committee – are pending on the Senate’s Executive Calendar, including nominations reported as long ago as September.  Contrary to Senate tradition, Republicans did not consent to confirming a single, consensus judicial nominee before the end of the session in December.  For more information about pending nominations, visit the Judiciary Committee’s website.]


Statement Of Senator Patrick Leahy (D-Vt.)

Chairman, Senate Judiciary Committee,

On Judicial Nominations

February 7, 2012


Full Statement, As Prepared For Delivery

Two weeks ago, when the Senate confirmed only one of the 19 judicial nominations on which votes were delayed from last year,  I urged Senate Republicans to join with Democrats and take long overdue steps to remedy the serious vacancies crisis on Federal courts throughout the country.  Nearly one out of every 10 Federal judgeships is vacant.  Nonetheless, Senate Republicans refuse to consent to votes on consensus nominees who could fill many of those vacancies without further delay.  These are well-qualified judicial nominees who were reported unanimously by the Judiciary Committee many months ago; there has been no explanation for the delay in their confirmation.  During the last two months, Senate Republicans have consented to votes on only two of the 23 judicial nominees ready for final Senate action.

Of the 19 judicial nominations now awaiting a final vote by the Senate, 16 were reported by the Judiciary Committee with the support of every Senator on the Committee, Democratic and Republican.  No Senator can or should have any reason to oppose these nominees in the Senate.  But, month after month and year after year, Senate Republicans find new reasons and new tactics to delay confirmation of consensus judicial nominees for no good reason.  I have never seen anything like this.  These delays are a disservice to the American people.  They prevent the Senate from fulfilling its constitutional duty.  And they are damaging to the ability of our Federal courts to provide justice to Americans around the country.

Regrettably, the last two weeks evidences more of the same, a continuation of the delaying tactics we have seen for years, as Senate Republicans continue their across-the-board obstruction of President Obama’s judicial nominations.  For the second year in a row, Senate Republicans refused to consent to votes on judicial nominations before the end of the Senate’s session in December.  At the end of 2011, they again refused to follow Senate’s traditional, longstanding practice of voting to confirm consensus nominations before the end of the Senate session, a practice followed by Democrats and Republicans with Presidents Reagan, George H.W. Bush, Clinton and George W. Bush. 

Their tactics have worked, to the detriment of the Federal courts and the American people.  By nearly any measure we are well behind where we should be.  Three years into President Obama’s first term, the Senate has confirmed a lower percentage of President Obama’s judicial nominees than those of any President in the last 35 years.  The Senate has confirmed just over 70 percent of President Obama’s circuit and district nominees, with more than one in four not confirmed. This is in stark contrast to the nearly 87 percent of President George W. Bush’s nominees who were confirmed, nearly nine out of every 10 nominees he sent to the Senate.  

We remain well behind the pace set by the Senate during President Bush’s first term.  By this date in President Bush’s first term, the Senate had confirmed 170 Federal circuit and district court nominations on the way to 205, and had lowered judicial vacancies to 46.  By the time Americans went to the polls in November 2004, we had reduced vacancies to 28 nationwide, the lowest level in the last 20 years.  In contrast, the Senate has confirmed only 125 of President Obama’s district and circuit nominees, and judicial vacancies remain over 85.  The vacancy rate is double what it was at this point in the Bush administration. 

I wonder when I hear some Republican Senators claim credit for progress on nominations -- and point to what they like to call “positive action” -- how they can ignore the 19 judicial nominations being blocked for no reason.  I wonder how they can claim progress for the American people when judicial vacancies remain well above 80 more than three years into President Obama’s first term.  In this setting, after years of delay and lack of real progress, it is troubling to hear Senate Republicans already talking about how they plan to resort to the Thurmond Rule to shut down all judicial confirmations for the rest of the year. Their obstruction has already resulted in the Senate having confirmed 45 fewer judicial nominations after three years of the Obama administration than after three years of the Bush administration. We still have a long way to go to catch up and to lower judicial vacancies before anyone talks about a confirmation shutdown.  

I wish Senate Republicans would abandon their rhetoric and do as Senate Democrats did when we worked to confirm 100 of President Bush’s judicial nominees in 17 months.  In fact, we continued to work to reduce judicial vacancies by considering and confirming President Bush’s judicial nominations late into the Presidential election years of 2004 and 2008, reducing the vacancy rates in those years to their lowest levels in decades.

The cost of this across-the-board Republican obstruction is born by the American people.  More than half of all Americans, nearly 160 million, live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations that have been reported favorably by the Judiciary Committee.  It is wrong to delay votes on these qualified, consensus judicial nominees.  The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason.

The result of the Senate Republicans’ inaction is that the people of New York, California, West Virginia, Florida, Nebraska, Missouri, Washington, Utah, the District of Columbia, Nevada, Louisiana, and Texas are without the judges they need.  The result is that judicial emergency vacancies in Florida, Utah, California, Nevada and Texas remain unfilled.  

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court.  It is unacceptable for hardworking Americans who seek their day in Federal court to suffer unnecessary delays.  When an injured plaintiff sues to help cover the cost of medical expenses, that plaintiff should not have to wait for three years before a judge hears the case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute. With one in 10 Federal judgeships currently vacant, the Senate should have come together to remedy the serious judicial vacancies crisis on Federal courts around the country. 

This Republican obstruction began long before President Obama’s recent recess appointment of a handful of Executive branch nominees needed for the Consumer Financial Protection Bureau and the National Labor Relations Board to function.  Indeed, despite three years of delays and across-the-board obstruction of his judicial nominations, President Obama has not recess appointed a single judicial nominee.  That is something President Bush did, not President Obama.  Senate Democrats that year consented to consider noncontroversial judicial nominations, confirming a total of 205 circuit and district court nominations in President Bush’s first term and lowering judicial vacancies dramatically.  In fact, the Senate proceeded to an up-or-down vote and confirmed one the judicial nominees President Bush had recess appointed, William Pryor to the Eleventh Circuit. 

Senate Republicans have been blocking votes on 18 of the President’s judicial nominees since last year.   Eight of the judicial nominations Republicans are blocking were reported unanimously by the Judiciary Committee in September and October last year.  Another five nominations were reported in November, and four in December.  All of these judicial nominations could and should have been considered by the Senate last year.  Indeed, when Republicans held up scores of nominees in December, including these judicial nominees, they did so to “punish” the administration for not assuring them that the President would not use  his recess appointment power.  That delay, now of more than two months, has already taken a measure of revenge.  They continue to hurt the country by engaging in more obstruction and delay now to seek a double measure of retaliation.

Instead of exacerbating the conflict, Senate Republicans should reconsider their tactics and moderate their use of filibusters and stalling. This President has reached out to work with Senators from both parties with respect to judicial nominations.  Every one of the 19 judicial nominations awaiting final Senate action has the support of his or her home state Senators, Republican as well as Democratic. There is no excuse for continued stalling of President Obama’s consensus judicial nominees.  The courts and the country cannot afford another year of across-the-board delays of President Obama’s judicial nominations. I urge votes on Jesse Furman for the Southern District of New York, Cathy Bencivengo for the Southern District of California, Gina Groh for the Northern District of West Virginia, Margo Brodie for the Southern District of New York, Adalberto Jordan for the Eleventh Circuit, Beth Phillips for the Western District of Missouri, Thomas Rice for the Eastern District of Washington, David Nuffer for the District of Utah, Stephanie Thacker for the Fourth Circuit, Michael Fitzgerald for the Central District of California, Ronnie Abrams for the Southern District of New York, Rudolph Contreras for the District of Washington DC, Susie Morgan for the Eastern District of Louisiana, Jacqueline Nguyen for the Ninth Circuit, Gregg Costa for the Southern District of Texas, David Guaderrama for the Western District of Texas, and Brian Wimes for the Eastern and Western Districts of Missouri.

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