03.10.14

Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Judicial Nominations

In the last few weeks, we have wasted precious floor time and energy to overcome filibusters on several judicial nominations.  The Majority Leader was forced to file cloture on judicial nominees in Arkansas, California, Connecticut, Puerto Rico, and Tennessee.  This was the case, even though every single one of those nominations had the support of home state Senators –whether Democrat or Republican.  In fact, seven of the eight judges confirmed in the last two weeks after filibusters were defeated were confirmed overwhelmingly with 90 or more votes.  So why were we forced to overcome unnecessary procedural obstacles even though these judges were non-controversial and were filling longstanding vacancies in their districts?  It is because Senate Republicans continue to try to slow down all confirmations in the Senate.

Today, we must again vote to end a filibuster on a judicial nomination.  Carolyn McHugh, nominated to fill a vacancy on the U.S. Court of Appeals for the Tenth Circuit, is a distinguished jurist who has served on the Utah Court of Appeals for nearly a decade.  She has the support of both her home state Republican senators – Senator Hatch and Senator Lee.  Her nomination could and should have been confirmed last year.  She was unanimously reported out of the Judiciary Committee on November 14, 2013, but because Republicans refused to consent to a confirmation vote by the full Senate and Senate Republicans would not consent to holding her nomination in the Senate, Judge McHugh’s nomination was returned to the President at the end of last year.  She then had to be re-nominated and re-processed through Committee this year and was again reported out of the Judiciary Committee without opposition on January 16, 2014.

After tonight’s vote to end this unnecessary Republican filibuster, the Senate will waste up to 30 hours waiting for post-cloture time to burn, even though Judge McHugh will then be confirmed overwhelmingly.  It is unlikely that much, if any, of the 30 hours will be used to explain why Republicans found it necessary to block the Senate from promptly considering Judge McHugh’s nomination last year and again this year.

Republicans continue to obstruct on every nomination, even though there are currently 89 Federal judicial vacancies, 34 of which have been deemed emergency vacancies by the Administrative Office of the U.S. Courts.  In stark contrast, there were only 56 judicial vacancies at the same point in President Bush’s tenure.  The comparison is even more troubling when you consider the 33 judicial nominees currently pending on the Executive Calendar.  We could lower the number of judicial vacancies today to less than 70 if Senate Republicans would simply consent to voting on the pending nominees.  We have not had fewer than 70 vacancies since May 2009, more than 4 years ago.  And for most of President Obama’s tenure in office, judicial vacancies have hovered around 80 and 90 because of Senate Republican obstruction.  Nevertheless, Senate Republicans continue to object to votes on judicial nominations even when they cannot muster anything upon which to justify their delay.

There are no excuses for the delays except sheer partisanship.  Twenty-one of the 33 judicial nominees currently pending on the Executive Calendar had hearings before the Senate Judiciary Committee last year.  And 31 of the 33 judicial nominees currently pending on the floor were voted out of Committee with bipartisan support.  It is clear that Senate Republicans have decided to use the rules change as another excuse to further accomplish their partial government shut down.  Before the rules change, Senate Republicans used anonymous holds to delay confirming qualified judicial nominees, and dragged their feet every step of the way to slow down the confirmation process.  Senate Democrats changed the rules precisely because of these delay tactics, which were causing great harm to the judicial system and negatively impacting those Americans who were seeking justice in our Federal courts.  The American people who have sought to obtain justice in our Federal courts deserve speedy and prompt justice.  These petty partisan tactics on display are not worthy of the United States Senate.

Shortly, I hope we can overcome the filibuster of the nomination of Judge Carolyn McHugh to fill a vacancy in the Tenth Circuit Court of Appeals.  She has served since 2005 as a judge on the Utah Court of Appeals and as the Presiding Judge of that court since 2012.  She previously worked in private practice at Parr Brown Gee & Loveless as an Associate (1983-1987) and subsequently as a Shareholder (1987-2005).  She has served as an Adjunct Professor at the University of Utah Law School and at the University of Utah College of Social and Behavioral Science.  Judge McHugh earned her J.D., Order of the Coif, from the University of Utah Law School in 1982.  After law school, she clerked for Judge Bruce S. Jenkins of the United States District Court for the District of Utah.  The ABA Standing Committee on the Federal Judiciary unanimously rated Judge McHugh “Well Qualified” to serve on the U.S. Circuit Court of Appeals for the 10th Circuit, its highest rating.  She has the support of her home state senators, Senator Hatch and Senator Lee.  The Judiciary Committee reported her unanimously by roll call vote to the full Senate on November 14, 2013, and by voice vote on January 16, 2014.

I thank the Majority Leader for filing a cloture petition to end the filibuster of Judge McHugh’s nomination.  I hope my fellow senators will join me today to end this filibuster so that she can begin working on behalf of the American people.  

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