Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Judicial Nominations in 2013

Republicans are once again—for the fifth year in a row—rejecting the longstanding Senate practice of scheduling confirmation votes on consensus nominees before the end of the session. 

Rather than working in a bipartisan fashion to confirm consensus nominees to fill judgeships as we wind down for the year, Senate Republicans have deliberately refused to agree to vote on consensus nominees who could and should be confirmed without delay.  The result is that we will spend a significant portion of the next year on the Senate floor doing work that should have been completed this year.  And now the Republican abuse of Senate rules has further escalated—Republicans have for the first time ever, refused to allow any currently pending judicial nominees to be held over so that they could be ready for immediate action next year.  For purely political reasons, Senate Republicans are forcing us to duplicate work next year that we have already completed in 2013.  It is a waste of taxpayer dollars and valuable resources that could be spent addressing the difficult issues facing our Nation.          

As it stands, nine judicial nominations pending on the Senate Executive Calendar—all reported by the Judiciary Committee unanimously or with significant bipartisan support—are being returned to the President.  Another 15 judicial nominees who could have been reported to the full Senate and confirmed by the end of this year had Senate Republicans not blocked the Judiciary Committee’s ability to meet to report these nominees to the full Senate are being returned to the President.  Another 31 judicial nominees pending in the Senate Judiciary Committee will also be returned to the President.  Each of these nominations represents a significant amount of work by the nominees themselves, the White House, the Department of Justice, and Senate staff on both sides of the aisle.  The only judicial nomination not being returned to the President is Robert Wilkins’ nomination to the U.S. Court of Appeals for the D.C. Circuit, because the procedural posture of his nomination enables the Senate to hold his nomination over until next year.  I am pleased that Judge Wilkins’ nomination will not be returned, which allows for quick action next year, but there is no good reason to return any of the other 55 judicial nominations pending in the Senate. 

Senate Republicans’ persistent obstruction over the last five years has led to record high vacancies in Federal courts throughout the country.  At the end of 2009, Senate Republicans left 10 nominations on the Executive Calendar without a vote.  Two of those nominations were returned to the President, and it subsequently took nine months for the Senate to take action on the other eight.  This resulted in the lowest one-year confirmation total in at least 35 years.  At the end of 2010 and again in 2011, Senate Republicans left 19 nominations on the Senate Executive Calendar.  It then took nearly half the following years for the Senate to confirm these nominees.  Last year they blocked 11 judicial nominees from votes and refused to expedite consideration of others who had already had hearings.  And this year, they have escalated their obstruction and delay of judicial nominations by indiscriminately requiring that nominees be sent back to the President at the end of this first session of the 113th Congress.  The effect of which is to needlessly cause delay in the Senate’s ability to process these nominations and prevent more judges from getting to work for the American people.

Senate Republicans will argue that the change in Senate precedent a few weeks ago on nominations is the cause of their refusal to cooperate, but history shows that this is simply not true.  The truth is, from the first day President Obama took office, Senate Republicans pursued a path of delay and obstruction on judicial nominees that departed dramatically from Senate tradition.  That it took five years into this presidency for the rules to change has been the result of certain senators, including me, who have been reluctant to change prior Senate practice.  But once the government stops functioning, the right course of action is to do what needs to be done so that the American people have a government that works to make their lives better.  The American people do not want to hear about tit-for-tat politics or their representatives playing the blame game.  They are tired of Congress wasting time and resources when there is so much to be done.  They want their representatives to work, vote, and fulfill their constitutional obligations.  They want their representatives to fulfill their duty of advice and consent so that our courts have the necessary judges to provide speedy, quality justice.

The reality, unfortunately, falls short of the American peoples’ expectation.  During 2013, the same obstruction that has plagued the Senate during the first term of the Obama Administration continued to delay the rate of confirmations to appointments on the Federal bench.  The 113th Congress began with a high level of vacancies on the Federal Judiciary.  As of January 2013, there were 77 vacancies in the Federal judiciary, and, of these, the Administrative Office of the U.S. Courts determined 27 of them to be “judicial emergencies.”  Over the course of 2013, the number of vacancies has hovered around 90.  Right now, at the end of the fifth year of the Obama administration, there are a total of 88 judicial vacancies, 36 of which are judicial emergency vacancies.  In stark contrast, at the end of the fifth year of the Bush administration, there were less than 50 judicial vacancies, and only 16 of those were judicial emergency vacancies. 

As the year closes, judicial vacancies remain at crisis levels.  However, despite these high levels, Republican obstructionism continues to impose severe delays on the confirmations process, particularly in those states that faced significant obstruction from Republican home state Senators, such as Arizona and Texas. 

A year after the American people voted to re-elect President Obama, Senate Republicans decided to escalate their obstruction to an unimaginable level this year, preventing the President from filling any of the three vacancies on what is often considered the second most important court in the Nation—the U.S. Court of Appeals for the D.C. Circuit.  Senate Republicans chose to filibuster all three nominees to that court, without even considering their qualifications.   This type of wholesale obstruction was simply unacceptable.

Republicans attempted to ­justify their opposition to filling any of the three vacancies on the D.C. Circuit by arguing that the court’s caseload did not warrant the appointments.  We all knew that this was a transparent attempt to prevent a Democratic president from appointing judges to this court.  In 2003, the Senate unanimously confirmed John Roberts by voice vote to be the ninth judge on the D.C. Circuit—at a time when its caseload was lower than it is today.  In fact, his confirmation marked the lowest caseload level per judge on the D.C. Circuit in 20 years.  Not a single Senate Republican raised any concerns about whether the caseload warranted his confirmation, and during the Bush administration, they voted to confirm four judges to the D.C. Circuit, providing the court with 11 active judges.  In light of this double-standard, I finally agreed that past precedent had to be revisited because a faction of the minority party should not be permitted to nullify an election by blocking the President’s nominees without regard to their qualifications. 

I am pleased to say that in the last few weeks, after taking action, we were finally able to confirm Patricia Millett and Nina Pillard – two highly qualified attorneys – to the ninth and tenth seats on the D.C. Circuit.  With the confirmation of these two women, there will now be five women and five men actively serving as judges on the D.C. Circuit—this is an historic first for any Federal appellate court.  I am, however, disappointed that Senate Republicans refused to allow us to take a vote on Judge Robert Wilkins, another well qualified nominee whose confirmation would enable the D.C. Circuit to function at full strength, with 11 judges.  I am hopeful that we will have a vote on his nomination early next year.

Other historic firsts for women serving on our Federal judiciary also occurred this year.  In April, Jane Kelly became the first woman from Iowa to sit on the U.S. Court of Appeals for the Eight Circuit, and, in May, Shelly Dick was confirmed as the first woman to serve on the U.S. District Court for the Middle District of Louisiana.  Late last week, after the Majority Leader was forced to file cloture over Republican opposition to moving forward on district court nominees, three more nominees were confirmed to serve as the first women on their respective courts: Elizabeth Wolford, to be U.S. District Judge for the Western District of New York; Landya McCafferty, to be U.S. District Judge for the District of New Hampshire; and Susan Watters to be U.S. District Judge for the District of Montana. 

After an extraordinarily long delay of nearly 22 months since his nomination, we were also finally able to confirm Brian Davis to fill a judicial emergency vacancy on the U.S. District Court for the Middle District of Florida.  I am disappointed that it required overcoming a Republican filibuster on his nomination.  He is a superb nominee.  The ABA Standing Committee on the Federal Judiciary has unanimously rated him to be “Well Qualified” to serve on the Federal bench.  For the past 20 years he has served as a state court judge, where he has presided over 600 cases in both civil and criminal matters that have gone to verdict or judgment.  Prior to becoming a state court judge, he served for a total of nine years as a state prosecutor, including three years as Chief Assistant State Attorney.  Judge Davis also has experience in private practice, where he was a partner at the law firm of Terrell Hogan.  He will make a fine Federal judge.

I am pleased that despite continued Republican attempts to block or delay confirmation of judicial nominees, we were able to continue to move forward on these and other nominees this year.  I have heard, however, some suggestion that Republicans will now seek to delay judicial nominations by exploiting a Senate tradition known as the “blue slip.”  The Constitution requires that judicial appointments be made “with the Advice and Consent of the Senate.”  For nearly 100 years, Chairmen of the Senate Judiciary Committee have sought to give meaning to this constitutional edict by a blue slip policy to ensure that senators are given an opportunity to advise the President about potential judicial nominees before they are nominated to fill lifetime positions in their home state.  A blue slip is a piece of paper sent by the Chairman to home state senators asking that it be signed and returned with an indication of whether they approve of or oppose the judicial nomination made by the President. 

Over the years, other Chairmen have taken a more flexible view of the blue slips, but during my chairmanship of the Senate Judiciary Committee, I have protected the rights of Senators – whether Republican or Democrat – to be meaningfully consulted.  Honoring the blue slip policy allows judicial nominations to move forward in committee only after receiving positive blue slips from home state senators.  Another improvement I made when I first became Chairman of the Senate Judiciary Committee in 2001 was to make home state senators more accountable for their blue slip decisions by making the process transparent for the first time.  I will continue to honor the blue slip policy as it currently stands, but I hope that Republicans will not abuse this tradition and force me to reconsider.   

As we approach the new year, I hope that reasonable Republicans will join us in restoring the Senate’s ability to fulfill its constitutional duties and do its work for the American people.

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