07.31.14

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

For the fifth year in a row, more than a dozen qualified, consensus judicial nominees pending before the full Senate will remain on the Executive Calendar during the August recess.  Each year, I have come before the Senate to remind my fellow Senators that their refusal to take action on these nominations prior to the August recess is an unfortunate departure from Senate tradition, and to urge them to stop their obstructive practices and delay tactics.  Again, I am disappointed to see partisanship and senseless obstruction continue to keep the Senate from fulfilling its constitutional duty of advice and consent.

We could be voting today to confirm 13 nominees to serve on our federal courts, 12 of whom were reported favorably by the Senate Judiciary Committee by unanimous voice vote.  Instead, we are voting to invoke cloture on only one nomination, that of Jill Pryor, to fill a judicial emergency vacancy on the U.S. Court of Appeals for the 11th Circuit.  She has received the American Bar Association’s highest rating of unanimously well qualified and has the support of both of her Republican home state Senators.  She will no doubt be confirmed unanimously, or near unanimously, when we return in September.  As the senior Senator from Georgia, Senator Chambliss, noted at her confirmation hearing, “Jill Pryor has been in private practice in Atlanta for nearly 25 years.  During that time she has played a pivotal role in some of the largest and most complex cases in Georgia history.”  We have before us an outstanding candidate to serve on the Federal bench – and yet, her nomination is being filibustered by Senate Republicans who are delaying her vote for the sake of obstruction.

Despite this unyielding and irrational partisan strategy, the Senate has made great strides to fill vacancies on courts around the nation by confirming 61 circuit and district court nominees this year.  I have heard some Republican Senators point to these confirmations to claim that today’s Senate is treating judicial nominees fairly.  These Senators overlook an important truth: this progress was made because of the persistent dedication of the Majority Leader and Democratic Senators to confront vacancies on the Federal bench, and despite the unprecedented levels of opposition and obstruction from Republican Senators.

Because of our Democratic leadership in the Senate, there are now fewer vacancies on the Federal courts than at any time since January 2009.  Since the beginning of this year, we have reduced the vacancies on our Federal courts by over a third, from 92 to 57, and reduced the number of judicial emergency vacancies by nearly half, from 37 to 19.  There are now only eight vacancies on the U.S. Courts of Appeals.  Not since December 1990 – over 23 years ago – have there been so few.  This is real progress for the millions of Americans who depend on our courts for justice.

Many of these confirmations were of nominee to courts that began the year with record high numbers of vacancies.  In Arizona, I worked with Senator McCain and Senator Flake, to confirm six nominees to fill judicial emergency vacancies on their district court.  In Florida, I worked with Senator Nelson and Senator Rubio, to confirm seven nominees to fill judicial emergency

vacancies in the Southern and Middle Districts of Florida as well as on the 11th Circuit.  These states are success stories, and the people of Arizona and Florida are better served for having trial and appellate judges ready to hear their cases.

No Senator should believe, however, that our work is done.  There are 13 judicial nominees pending on the Senate floor who should be confirmed without delay.  Yet, even if the Senate were to confirm these nominees today, the Federal judiciary would remain understaffed.  In addition to the 57 current vacancies, the Judicial Conference has identified the need for 91 new judgeships in some of America’s judicial districts and circuits with the most burdensome caseloads.  Last year, Senator Coons and I introduced the Federal Judgeship Act of 2013 to enact these recommendations into law.  The timely administration of justice should not be a partisan issue.  It is an issue that affects all Americans, and that the Senate should take it seriously by passing this bill.

The recommendations of the Judicial Conference only underscore how, despite the 61 judicial confirmations so far in 2014, the Senate continues to fall short of its obligations to the Federal judiciary and the American people.  I have heard some Republican Senators claim the opposite by citing the total judicial confirmation figures of current and former Presidents.  It is true that the Senate has now confirmed 277 of President Obama’s circuit, district, and U.S. Court of International Trade nominees, compared to 253 confirmations at the same point in the last administration.  Yet, these numbers are meaningless without providing their proper context.  These confirmations were sorely needed.  There remain 57 vacancies on the Federal bench – far more than the 42 vacancies at this point during the Bush administration.  There are an additional 24 announced future vacancies on our Federal courts that will also need to be filled in the coming months. 

Vacancies remain high not because of a failure of Senate Democrats or President Obama to make judicial confirmations a priority.  Americans seeking justice around the country face delays because of the endless obstruction of partisan Republicans who take every opportunity they can to shut down the important work of the Senate.  Last year, no longer content to block individual judges, Senate Republicans attempted a wholesale filibuster of three nominees to the D.C. Circuit, without even considering their qualifications.  Then, instead of confirming the consensus judicial nominees pending on the Executive Calendar prior to the end of the congressional session, Republicans forced the President to renominate each nominee, and for the Senate Judiciary Committee to report them again this year.     

This year, Senate Republicans have proceeded to filibuster each and every judicial nominee.  After today, the Senate will have taken 62 cloture votes on judicial nominations so far this year, amounting to well over 400 hundred wasted hours that the Senate should have been spent considering legislation to help the American people.  Never before has the Senate seen the systematic filibuster of every judicial nominee, or such unfair treatment of qualified, consensus nominees.

The result of these tactics has been high vacancy levels on the Federal courts.  The implications of these vacancies were made clear by a recent Brennan Center for Justice paper titled, “The Impact of Judicial Vacancies on Federal Trial Courts.”  In it, judges and attorneys in districts with high levels of vacancies describe the way empty court rooms slow the administration of justice, “raise the cost of litigation, cause evidence to go stale, make it harder to settle civil cases, and even put pressure on criminal defendants to plead guilty.” Chief Judge Leonard Davis in the Eastern District of Texas said the impact of vacancies comes down to “simple math.”  Vacancies lead to heavier caseloads and judges “have less time to give to [an individual] case…It affects the quality of justice that’s being dispensed and the quantity of work you can complete.”  

The incredible burden facing Federal courts in Texas is understandable with its nine current district court vacancies—more than any other state.  Therefore, I hope that Republicans on the Judiciary Committee, including both Senators from Texas, will be ready to proceed with a hearing on the three pending Texas district court nominees as soon as the Senate returns to session in September.  I also hope that the Texas Senators will continue to work with the Administration on nominees to fill the six other current district vacancies in their state as well as the four known future district court vacancies.

The continued high number of vacancies across our Federal courts is unacceptable to me, and should be unacceptable to every member of this body.  The Senate should act quickly to confirm the consensus nominees pending on the Senate floor.  The Senate should also pass the Federal Judgeship Act of 2013 to ensure that our co-equal branch of government has the resources it needs to serve its constitutionally-mandated function. 

I am glad that we are voting to overcome the Republican filibuster of the nomination of Jill Pryor, and I thank the Majority Leader for taking action on her nomination.  If the Senate were operating as it once did, without this partisan treatment of judicial nominations, she would have been confirmed weeks ago.

I hope that in the weeks following the August recess Senators will start working together to continue the progress we have made so far in 2014.  The American people deserve courts capable of providing access to swift justice, not empty courtrooms and delays.

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