Statement Of Senator Patrick Leahy, Chairman, Senate Judiciary Committee, On Consideration Of Judicial Nominations

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) issued the following Congressional Record statement today on consideration of judicial nominations.

In the closing days of the 111th Congress, a brief flurry of activity led to the confirmation of 19 long-pending judicial nominations.  Regrettably, the stalemate that had prevented the Senate from confirming a single nomination between September 13 and December 16 resumed when Senate Republicans denied action on 19 other well-qualified, consensus judicial nominations reported by the Senate Judiciary Committee.  Ultimately, these nominations were returned to the President, including 15 nominations that received unanimous or near unanimous support in the Committee.  I suspect that when the President renominates these qualified individuals, they will be confirmed with overwhelming bipartisan support.  The only question will be why we were unable to take action on them sooner.

In his “Year-End Report on the Federal Judiciary,” Chief Justice Roberts rightly called attention to the problem facing many overburdened district and circuit courts across the country.  The rise in judicial vacancies, which topped 110 in 2010, and an increasing number of judicial emergencies is of great concern to all Americans who seek justice from our courts. 

Unfortunately, the unprecedented obstruction of judicial nominations seen in the last Congress, and the dramatic departure from the Senate’s long-standing tradition of regularly considering consensus, noncontroversial nominations, marked a new chapter in what Chief Justice Roberts calls the “persistent problem” of filling judicial vacancies.  A New York Times editorial from January 4, 2011, refers to Senate Republicans’ “refusal to give prompt consideration to noncontroversial nominees” a “terrible precedent.”  I agree, and I would ask consent that the Times’ editorial be placed in the Record. 

Nearly all of the mere 60 district and circuit court nominations the Senate was allowed to consider last year were confirmed with the overwhelming, bipartisan support of the Senate.  Yet nearly a third of these nominations – 19 – were held up for more than 100 days, only to be confirmed unanimously.  As the Times editorializes, “apart from partisan gamesmanship, there was no reason that Republicans held up these nominations for months only to unanimously approve nearly all of them in the waning days of the lame duck session.”  Among these nominations was that of Kimberly Mueller, nominated to fill a vacancy in the Eastern District of California.  Chief Justice Roberts cited this confirmation as one of the most sorely needed.  Yet, for more than seven months, the Senate was prevented from considering the nomination to fill this vacancy.  Judge Mueller’s nomination was unanimously reported by the Judiciary Committee in May; her nomination was unanimously confirmed on December 16.  No Senator objected to her qualifications, her record, or her fitness to serve.  This sort of delay is the real crisis facing the Federal judiciary.

Lifetime appointments to the Federal bench should not be granted without due consideration.  No Senator, Democrat or Republican, should simply rubber stamp the nominations of any President.  In the first Congress of the Bush administration, the Democratic Majority worked to confirm 100 judicial nominations, turning the page on the Republicans’ pocket-filibusters of the 1990s.  We proceeded with regular consideration of non-controversial, consensus nominations, most of which received unanimous support in the Senate.  We confirmed 20 nominations during the lame-duck session in 2002, including two controversial circuit court nominations which were favorably reported by the Senate Judiciary Committee in the lame duck session.  Senate Republicans’ decision in December to object to consideration of 19 judicial nominations favorably reported by the Judiciary Committee – including 15 nominations with overwhelming bipartisan support – has established a new low with regard to judicial nominations.  They set back the progress we have tried to make in confirming judges. 

I suspect that President Obama will renominate these qualified individuals.  I hope to work with the Judiciary Committee’s new ranking Republican, Senator Grassley, to promptly consider and report these nominations to the full Senate.  I hope that Senator Grassley will work with me to ensure the timely confirmation of these and other non-controversial, consensus nominations, which will help reduce vacancies and address the judicial crisis. 

The American people turn to our courts for justice.  Likewise, the Senate must return to the time-honored traditions of the Senate, and work together to secure the confirmation of the President’s judicial nominations.  Judicial vacancies hinder the Federal judiciary’s ability to fulfill its constitutional role.  Working together, we can restore the judicial confirmation process.

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