04.28.14

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

Last Thursday, the Senate voted to end the filibuster on the nomination of John Owens of California to a judicial emergency vacancy on the U.S. Court of Appeals for the Ninth Circuit.  This is the longest running vacancy in our entire Federal court system.  Today the Senate will finally vote to confirm this outstanding nominee to a court that is in desperate need of judges. 

                                        

The Ninth Circuit is the busiest circuit court in the country, and yet, it has not been operating at full strength for more than nine years.  It has the highest number of appeals filed, the highest pending appeals per panel and the highest pending appeals per active judge.  It also takes far longer than any other circuit court to resolve an appeal.  The delay in resolving these appeals hurts the American people.  After confirming John Owens, the Senate should proceed to Michelle Friedland’s nomination to the Ninth Circuit as soon as possible.

The nomination of John Owens is an example of how the process of judicial nominations and consultation with home state senators should work.  Under Article II of the Constitution, the Senate has a significant role to play regarding our independent judiciary.  We are called upon to work with the President by providing advice and consent for Federal judicial appointments.

Some have recently questioned the rationale behind the so-called “blue slip” process that solicits the views of the home state senators before a judicial nomination moves in the Senate.  I have explained that this blue piece of paper reflects the “advice” prong of the Senate’s role.  If an administration does not consult with home state senators to seek their advice on a nominee, it is far less likely the nominee will receive their support.  This support is crucial to the successful confirmation of judicial nominees.  In the almost four decades I have served in the Senate, I cannot recall a single judicial nominee confirmed over the objection of his or her home state senators.  Today’s confirmation to the Ninth Circuit is yet another example of that reality.    

In the prior administration, rather than working with the California senators to fill this seat on the Ninth Circuit, President Bush unnecessarily complicated and delayed filling this vacancy by nominating Judge Randy Smith of Idaho.  In doing so, President Bush attempted an end-run around home state Senators Feinstein and Boxer.  Instead, he consulted with the senators from Idaho – both of whom were Republican senators. Judge Smith was not a Californian and did not receive support from the California Senators. When President Bush took my advice and re-nominated Judge Smith to fill an Idaho vacancy on the Ninth Circuit at the beginning of 2007, Judge Smith received the support of both Idaho Senators and was confirmed quickly. 

The Bush administration also tried to get around home state senators in Maryland to fill a vacancy on the Fourth Circuit.  President Bush chose to nominate Claude Allen of Virginia, a controversial nominee with limited experience who received a partial “not qualified” rating from the American Bar Association and the Maryland senators understandably objected.  Mr. Allen’s nomination did not move forward due to the objection of the proper home-state senators from Maryland.  Meaningful consultation and support of the appropriate home state senators continues to be important to the confirmation of nominees, and the vote we are taking today on John Owens is proof of that.

President Obama nominated Mr. Owens last August and his early October hearing date had to be moved after Republicans forced a shutdown of our government.  A hearing on his nomination was finally held in late October.  Mr. Owens could and should have been confirmed before we adjourned last year.  Instead, because Republicans refused to consent to hold any nominations in the Senate, every single one had to be returned to the President at the end of last year.  They then had to be re-nominated and re-processed through Committee this year.  Mr. Owens was voted out of committee on a voice vote, without dissent, on January 16, 2014.

Born in Washington, DC, Mr. Owens earned his B.A., with high distinction, from the University of California, Berkeley, and his J.D., with distinction, Order of the Coif, from Stanford Law School.  At Stanford, he was the Nathan Abbott Scholar, an award given to the student with the highest cumulative point average in the class.  Mr. Owens served as executive editor of the Stanford Law Review where he earned the Stanford Law Review Board of Editors Award. 

After law school, Mr. Owens served as a law clerk to Judge J. Clifford Wallace of the Ninth Circuit and for Associate Justice Ruth Bader Ginsburg of the United States Supreme Court.  He has been a litigator in both public and private practice.  In 1998, he joined the U.S. Department of Justice, where he would later serve as an Assistant U.S. Attorney for the Central District of California and the Southern District of California.  In 2008, Mr. Owens was promoted to serve as the Deputy Chief of Major Frauds and later the Chief of the Criminal Division.  In 2012, he rejoined private practice as a partner at Munger, Tolles & Olson where he presently works.  Over the course of his legal career, he has been counsel of record in more than 20 cases before the court on which he is nominated to serve.    

Mr. Owens has the support of his home state senators – Senator Feinstein and Senator Boxer.  I hope my fellow senators will join me today to confirm Mr. Owen’s nomination to the Ninth Circuit so that he can get to work for the American people.

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