05.14.14

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

Statement of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Judicial Nominations

May 14, 2014

This week, we are voting to overcome Republican filibusters of seven highly qualified judicial nominees.  Every single one of the nominees we will be voting on this week has been nominated to fill a judicial emergency vacancy.  This means that the non-partisan Administrative Office of the U.S. Courts has designated them as emergency vacancies due to high caseloads.  We continue to seek consent from Republicans to vote on much needed judges to our Federal judiciary, and yet, they continue to refuse.  Republicans have objected to moving to a vote on every single judicial nominee this year.  I can only hope that they will eventually come to see the error of their ways. 

Before proceeding with the qualifications of these judicial nominees, I would again like to clarify and address some questions regarding the nomination of David Barron.  Mr. Barron has been nominated to fill a vacancy on the U.S. Court of Appeals for the First Circuit.  There have been press accounts that have inaccurately stated what the Administration has made available for Senators to review relevant to this nomination. As I said last week, the Administration has made available unredacted copies of any memo issued by Mr. Barron regarding the potential use of lethal force against Anwar Al-Awlaki.  This week, the Administration has made clear that this material included all written legal advice by Mr. Barron regarding potential use of lethal force against U.S. citizens in counterterrorism operations. Senators therefore have had the opportunity to conduct their due diligence before voting on this nomination.

In an Internet post titled “Why Civil Libertarians and Drone Critics Should Support David Barron,” Georgetown Law Professor David Cole – one of the foremost critics of the Administration over its failure to publicly disclose legal material addressing the use of lethal force against U.S. citizens – has stated that:

“It is a mistake to conflate the issues of the appointment of David Barron and disclosure of the memos.  Barron is a highly qualified lawyer who I know personally to be thoughtful, considerate, open-minded, and brilliant.  His confirmation would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law.  That long-term value should not be sacrificed because of a short-term battle over memos that every Senator already has the opportunity to review.”

Professor Cole is right.  I have personally pressed the Administration for greater transparency on these matters as well, but that is a separate debate and we should not be waging it at the expense of harming our Federal judiciary and denying the American people an individual who will make a first-rate judge.  Not only is this tactic unwise, but it also does not help advance the cause of those who are seeking public disclosure of the memos.  As Professor Cole has further explained:

“[H]olding up Barron’s nomination is unlikely to expedite disclosure of the memos.  It will only undermine the confirmation of someone who would make an excellent judge.  The Administration has been ordered (unanimously) to release the memo, and will in short order either comply with that order or seek further review.  Barron has no control over that decision, and should not be held hostage to it…

“I am second to none in my support for transparency.  And I will continue to fight for that value on its own terms.  But it is a huge mistake to let our legitimate concerns about transparency get in the way of the confirmation of a judge who will faithfully protect our liberties and hold government accountable – especially when the Senate already has been given access to all the information they need to exercise their ‘advise and consent’ role.”

I agree completely with Professor Cole, and I ask unanimous consent to include the full posting in the Record after my remarks.

I would further ask unanimous consent to include a joint op-ed in the Boston Globe by Harvard Law professors Charles Fried and Laurence Tribe – two legal luminaries who often disagree in their views on the Constitution and other legal issues.  As the two of them have written,

“The nation badly needs the best possible judges — men and women of integrity, intelligence, judicial temperament, respect for the rule of law, and an understanding of the role of judges within our legal system.  Barron understands and exemplifies those values.  He should be released from the destructive tangle in which he has become quite undeservedly enmeshed and placed on the First Circuit Court of Appeals where he can serve our nation with great distinction.”

We should proceed to Mr. Barron’s nomination and confirm him so he can get to work on behalf of the American people.  Delays are simply depriving the Federal judiciary and all Americans of a tremendous public servant.

This week, we will proceed to vote to end filibusters on the following seven nominations:

Judge Gregg Costa has been nominated to fill a judicial emergency vacancy on the U.S. Court of Appeals for the Fifth Circuit in Texas.  He has served since 2012 as a U.S. District Judge in the Southern District of Texas.  He previously served as an Assistant U.S. Attorney in the Southern District of Texas from 2005 to 2012.  He worked in private practice as an Associate at Weil, Gotshal & Manges from 2002 to 2005.  After graduating from law school, he served as a law clerk to Judge Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit from 1999 to 2000, and to Chief Justice William Rehnquist of the Supreme Court of the U.S. from 2001 to 2002.  He also served as a Bristow Fellow in the Office of the Solicitor General from 2000 to 2001.  Judge Costa earned his B.A. from Dartmouth College in 1994.  He earned his J.D. with the highest honors from the University of Texas Law School in 1999.  He has the support of his home state senators, Senator Cornyn and Senator Cruz.  The Judiciary Committee reported him favorably to the full Senate by voice vote on March 27, 2014.

Judge Steven Logan has been nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Arizona.  He has served on the Military Court of Appeals since 2013 and as a United States Magistrate Judge in the District of Arizona since 2012.  He also served as a Staff Judge Advocate in the U.S. Marine Corps Reserves from 2012 to 2013.  Previously, from 2010 to 2012, he served as a U.S. Immigration Judge in the Executive Office for Immigration Review.  From 2009 to 2011, he served as an Article I Deputy Chief Reserve Military Judge, and from 2005 to 2009, he served as an Article I Military Judge to the United States Department of the Navy.  Prior to becoming judge, he served as an Assistant U.S. Attorney in the District of Arizona from 2001 to 2010, and as an Assistant U.S. Attorney in the District of Minnesota from 1999 to 2001.  From 1993 to 1999, he worked for the Department of Defense, where he served as a Prosecutor (1996-1999) and as a Contracting Officer (1993-1996).  Judge Logan has completed three deployments of active duty in Afghanistan (2008-2009) and Iraq (2004, 2007-2008).  During his military service, he received numerous awards that include the Bronze Star (2008), the Meritorious Service Medal (2004, 2012), and the Global War on Terrorism Expeditionary Medal (2004).  Judge Logan has the support of his Republican home state senators, Senator McCain and Senator Flake.  The Judiciary Committee reported him favorably to the full Senate by voice vote on February 27, 2014.

John Tuchi has been nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Arizona.  He has served since 2012 as the Chief Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Arizona, where he also has served as the U.S. Attorney for an interim period in 2009, and as an Assistant U.S. Attorney since 1998.  From 2001 to 2007, he served as an Adjunct Professor at the Arizona State University Law School, teaching courses on Professional Responsibility.  From 1995 to 1998, Mr. Tuchi worked in private practice at Brown & Bain, P.A. as an Associate.  After graduating from law school, he served as a law clerk to Judge William C. Canby, Jr. of the United States Court of Appeals for the Ninth Circuit from 1994 to 1995.  In 2010, he received the Director’s Award for Outstanding Performance in Indian Country from the United States Department of Justice.  Mr. Tuchi has the support of his Republican home state senators, Senator McCain and Senator Flake.  The Judiciary Committee reported his nomination favorably by voice vote to the full Senate on February 27, 2014.

Diane Humetewa has been nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Arizona.  She has served as a Professor of Practice and Special Advisor to the President at the Arizona State University Law School since 2011.  From 2009 to 2011, she worked in private practice as a Counsel at Squire, Sanders & Dempsey.  From 1998 to 2009, she served in the United States Attorney’s Office in the District of Arizona, as an Assistant U.S. Attorney (1998-2007) and then as the United States Attorney from 2007 to 2009.  From 2005 to 2006, she served as a detailee with the United States Senate Committee on Indian Affairs.  Ms. Humetewa also served as an Appellate Court Judge for the Hopi Tribe from 2002 to 2007.  Prior to her service in Arizona, she served as Counsel to the Deputy Attorney General for the U.S. Department of Justice from 1996 to 1998.  After graduating from law school, she served as Deputy Counsel to the United States Senate Committee on Indian Affairs from 1993 to 1996.  She has the support of her Republican home state senators, Senator McCain and Senator Flake.  The Judiciary Committee reported her nomination favorably by voice vote to the full Senate on February 27, 2014.  When confirmed, Ms. Humetewa will be the first Native American woman to serve as a Federal judge, and the third Native American ever to do so.

Rosemary Márquez has been nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Arizona.  She has served since 2008 in private practice as a sole practitioner in Tucson, Arizona.  She previously served as a Partner at Montoya & Márquez, PLLC from 2000 to 2008, an Assistant Federal Public Defender in the Federal Public Defender’s Office in Tucson, Arizona from 1996 to 2000, a County Legal Defender in the Pima County Legal Defender’s Office from 1994 to 1996, and a Deputy County Attorney in the Pima County Attorney’s Office in 1994.  Ms. Márquez earned her B.A. from the University of Arizona in 1990.  She earned her J.D. from the University of Arizona Law School in 1993.  She has the support of her Republican home state senators, Senator McCain and Senator Flake.  The Judiciary Committee reported her favorably to the full Senate by a roll call vote of 15-2 on February 27, 2014.

Judge Douglas Rayes has been nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Arizona.  He has served since 2000 as an Arizona State Judge in Maricopa County Superior Court, including as Associate Presiding Civil Judge from 2008 to 2010, and as Presiding Criminal Judge from 2010 to 2013.  He has presided over thousands of complex criminal, civil, and family cases that have gone to judgment by settlement, plea agreement, summary judgment or dismissal.  He previously worked in private practice as a Partner at Tryon, Heller & Rayes from 1989 to 2000, a Partner at McGroder, Tryon, Heller & Rayes from 1986 to 1989, McGroder, Tryon, Heller, Rayes & Berch from 1984 to 1986, and as an Associate at McGroder, Pearlstein, Peppler & Tryon from 1982 to 1984.  Following his graduation from law school, he served as Judge Advocate General in the U.S. Army JAG Corps from 1979 to 1982.  He served in the U.S. Army from 1970 to 1982, and in the Army Reserve from 1982 to 1985.  Judge Rayes has the support of his Republican home state senators, Senator McCain and Senator Flake.  The Judiciary Committee reported him favorably to the full Senate by a roll call vote of 16-2 on February 27, 2014.

Judge James Soto has been nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Arizona.  He has served since 2001 as a Superior Court Judge in the Superior in the Santa Cruz County Court.  During his time on the bench, he has presided over 1,100 cases that have gone to verdict or judgment.  Prior to his judicial service, he worked in private practice for over two decades, including as a Shareholder and President of Soto, Martin and Coogan, P.C from 1992 to 2001.  He worked as a Sole Practitioner from 1976 to 1979.  He previously served as Town Attorney for the Town of Patagonia from 1975 to 1992, Deputy City Attorney for the Office of the Nogales City Attorney from 1974 to 1983, and Deputy County Attorney for Santa Cruz County in 1975.  Judge Soto has the support of his Republican home state senators, Senator McCain and Senator Flake.  The Judiciary Committee reported him favorably to the full Senate by voice vote on February 27, 2014.

All of these nominees have the experience, judgment, and legal acumen to be terrific judges in our Federal courts.  I thank the Majority Leader for filing cloture petitions and I hope all Senators will join me to end these filibusters so that these nominees can get working on behalf of the American people. 

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