09.20.11

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

President Obama came to Congress two weeks ago and made a compelling case for passing the American Jobs Act.  The bill he asked us to pass includes bipartisan proposals that have received broad approval in the past from members of both parties, including extensions of tax relief for businesses to encourage hiring.  They are consensus proposals we can enact today.  We should answer the President’s call and act right away to help get Americans back to work and grow the economy.  With the unemployment rate at an unacceptable nine percent, we in Congress should be doing all we can to help our fellow Americans.

There is another unacceptable rate that we can help change to the benefit of all Americans.  That is the judicial vacancy rate.  It now stands at 11 percent, with 94 vacancies on Federal courts around the country.  We can act today to bring down that rate dramatically by considering and confirming 29 judicial nominations approved by the Senate Judiciary Committee that are awaiting final Senate action.  With very few exceptions, the judicial nominations now on the calendar are not controversial and could be confirmed today.

Twenty-five of the 29 judicial nominations on the Senate calendar were reported unanimously, and all but one of the 29 was reported with significant bipartisan support.  All 28 of these consensus nominees have been favorably reported after a fair but thorough process, including an extensive background material on each nominee and the opportunity for all Senators on the Committee, Democratic and Republican, to meet with and question the nominees.  They have a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution.   These are the kinds of consensus nominees that in past years would have been considered and confirmed within days or weeks of being reported, not delayed for weeks and months. 

Certainly this was the practice we followed during President Bush’s two terms, when consensus judicial nominees reported without any objection by the Judiciary Committee were confirmed an average of 28 days after they were reported.  In President Obama’s nearly three years in office that wait time for unanimously reported nominees to be considered by the Senate has nearly tripled to 78 days, and that number continues to climb as the delays continue.  It is taking nearly three times as long for nominees that are by every measure consensus, noncontroversial nominations.  They are nearly all confirmed unanimously when the Senate is finally allowed to vote.  We should act today and not delay further.

The effects of these unnecessary delays have been dramatic and damaging.  During the first years of the Bush and Clinton administrations, we were able to reduce vacancies significantly by confirming judges.  The vacancies that had numbered over 100 early in those administrations were dramatically reduced by this juncture.  By early September in the third year of the Bush administration judicial vacancies had been reduced to 54.  By early September in the third year of the Clinton administration they had been reduced to 55.  In contrast, the judicial vacancies now in September of the third year of the Obama administration stand at 94, with a vacancy rate of 11 percent, nearly double where it stood at this point in President Bush’s third year. 

As the Congressional Research Service confirmed in a recent report, this is an historically high level of vacancies, and this is now the longest period of historically high vacancy rates on the Federal judiciary in the last 35 years. 

Even though Federal judicial vacancies have remained near or above 90 for more than two years, the Senate’s Republican leadership continues to delay votes on qualified, consensus nominations.  Republican obstruction has led to a backlog of over two dozen judicial nominations pending on the Senate’s Executive Calendar, nearly half of them to fill judicial emergency vacancies.  No consensus nomination to fill a judicial vacancy should be left to languish on the calendar one day longer than necessary, let alone for months and months.

Millions and millions of Americans are directly affected by this obstruction.  More than half of all Americans—nearly 170 million—live in districts or circuits that have a vacancy that would be filled today if the Senate would act.  More than half of all states—27—are served by courts that have nominations currently pending on the Senate’s Executive Calendar.  The Republican leadership should explain to the millions of Americans in these states why they will not vote.  They should explain to the people of Louisiana, Maine, New York, Texas, Arkansas, Pennsylvania, Florida, Wyoming, Alaska, California, Delaware and Arizona why there continue to be vacancies on the Federal district courts in their states that could easily be filled if the Senate would vote on the President’s qualified, consensus nominees.  They should explain to the people of the many states that comprise the Second Circuit—Vermont’s circuit—and the Fourth, Fifth and Ninth Circuits why those important Federal appeals courts are short on badly needed judges who could be confirmed today. 

These 170 million Americans should not have to wait more weeks and months for the Senate to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.  They should not have to bear the brunt of having too few judges available to do the work of the Federal courts.  At a time when judicial vacancies remain above 90, these needless delays perpetuate the judicial vacancies crisis that Chief Justice Roberts wrote of last December and that the President, the Attorney General, bar associations and chief judges around the country have urged us to join together to end.  The Senate can and should be doing a better job working to ensure the ability of our Federal courts to provide justice to Americans across the country. 

Some have pointed to delays on judicial nominations in the past, real or imagined, to justify the continuing failure to take serious action to address the vacancies crisis.  They recall selected instances where Democrats voted against some of President Bush’s controversial nominees to justify the across the board freeze on dozens of consensus nominees.  They forget the progress we were able to make in those years to confirm judicial nominees and fill vacancies.  We confirmed 100 judges in the 17 months I chaired the Judiciary Committee in 2001 and 2002.  The Senate has yet to confirm 100 judges in this, the 32nd month of the Obama administration.  This is another issue on which I hope that we can rise above what the President called “the political circus’ to return to Senate’s tradition practice of quickly considering and confirming consensus judicial nominations.

At the end of President Bush’s first four years in office, the Senate had confirmed 205 of his judicial nominees.  We have a long way to go to reach that total before the end of next year.  At this point in the presidency of George W. Bush, 149 Federal circuit and district court judges had been confirmed.  On September 19 of the third year of President Clinton’s administration, 162 Federal circuit and district court judges had been confirmed.  By comparison, although there are 29 judicial nominees stalled and awaiting final consideration by the Senate -- many of them stalled since May and June – we have yet to confirm even 100 of President Obama’s circuit and district court nominees. 

I hope that we can come together to return to regular order in the consideration of nominations as we have on the Judiciary Committee.  I have thanked the Judiciary Committee’s Ranking Member, Senator Grassley, many times for his cooperation with me to make sure that the Committee continues to make progress in the consideration of nominations.  Regrettably, it has not been matched on the floor, where the refusal by Republican leadership to come to regular time agreements to consider nominations has put our progress—our positive action—at risk. 

The two judicial nominations we consider today are the kind of nominees we can and should consider more quickly. 

The nomination of Timothy Cain to fill a judicial emergency in the District of South Carolina has the support of both his Republican home state Senators – Senators Graham and DeMint.  Senator Graham was a law partner with Judge Cain in the 1990s, and he has spoken to the Committee with enthusiasm about Judge Cain’s experience and qualifications.  During his 25-year legal career, Judge Cain has served as a City and County Attorney, as an Assistant Prosecutor and a Public Defender, and as a judge in family court for the past 11 years.  He has been selected to sit by designation on the South Carolina Supreme Court on five occasions.  Judge Cain has seen the practice of law from all sides, and he will be a strong addition to the Federal bench.

John Ross is nominated to fill a judicial emergency in the Eastern District of Missouri and has the bipartisan support of his home state senators.  Judge Ross has served as a state judge in Missouri for over a decade.  Since 2009, he has been the Presiding Judge for Missouri’s 21st Judicial Circuit.  He previously spent nine years as the St. Louis County Counselor, and 12 years as a State Prosecutor, where he rose through the ranks to become the Chief Trial Attorney in the St. Louis County Prosecutor’s Office.  Judge Ross has served the people of Missouri for his entire professional career.  I am glad that the Senate will vote on his nomination today.

Both of these nominees will fill judicial emergency vacancies.  Both have the support of their home state Republican Senators.  Both were reported by the Senate Judiciary Committee unanimously, without any objection from a single Republican or Democratic member of the Committee.  They are both by any measure consensus nominees.  Yet, their nominations have been pending on the Senate’s Executive Calendar for 117 days, since May 26, with no reason or justification given for the delay. 

While I am pleased we will consider these two nominations today and confirm them, this has taken far too long.  More troubling still, these nominations are only two of the 29 judicial nominations reported favorably by the Committee and ready for final Senate action.  Despite a serious judicial vacancies crisis on Federal courts around the country, where vacancies have remained at or above 90 for over two years, Senate Republicans refuse to consent to consider nominations more efficiently.  I hope that this month Senators will finally join together to act to bring down the excessive number of vacancies that have persisted on Federal courts throughout the Nation for far too long.  We can and must do better for the nearly 170 million Americans being made to suffer by these unnecessary delays.

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