10.31.13

Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the Nomination of Patricia Millett to the Circuit Court of Appeals for the District of Columbia Circuit

Patricia Millett is unquestionably qualified to be the next judge on the D.C. Circuit.  The Senate will soon vote to end debate on her nomination and I hope that the rank partisanship that shut down our government earlier this month will not be on display again with this upcoming vote.  I hope the moderates who prided themselves in finding a solution to the shutdown will agree that Ms. Millett is an extraordinary nominee who should not be filibustered.   

Over the last few weeks, I have heard those who want to filibuster Ms. Millett make some unfounded claims to justify their partisan agenda.  First they asserted that the President is somehow packing the court by nominating judges to vacant seats.  No student of history can honestly say that nominating candidates to existing vacancies is court-packing. 

Next, they claimed that because the last of President Bush’s nominees to this court was not confirmed, Ms. Millett should be filibustered as payback.  These partisans fail to note that by the time Peter Keisler was nominated, four of President Bush’s nominees to the D.C. Circuit had been confirmed.  Only one of President Obama’s nominees to this court has been confirmed and another has been filibustered. 

Mr. Keisler was nominated to the 11th seat on the D.C. Circuit – and would have marked the fifth time a President Bush nominee was confirmed the court and the second time a Bush nominee was confirmed to be the 11th  judge on the court.  At that time, Democrats noted the hypocrisy of Republicans pushing to confirm a second judge to the 11th seat on the D.C. Circuit after they had blocked Merrick Garland’s nomination in 1996 to be the 11th judge.  Judge Garland’s nomination was held up until another judge retired and he was confirmed to be the 10th judge on the court.  Patricia Millett, however, is nominated to be the 9th judge.  Those who are determined to filibuster this highly qualified nominee should at least get their facts straight. 

For all the discussion about the D.C. Circuit’s caseload, you would think that it had the lowest caseload of any circuit court in the country.  But you would be wrong.  The circuit court with the lowest caseload is actually the Tenth Circuit Court of Appeals, which as of June 30, 2013, has 1,341 total pending appeals and 134 pending appeals per active judge.  In contrast, the D.C. Circuit has 1,479 total pending appeals and 185 pending appeals per active judge.

Despite the lower caseload on the Tenth Circuit, the Senate has continued to confirm nominees to that court without any complaints from Republicans about the workload.  Just this past year, we confirmed Robert Bacharach of Oklahoma to be the ninth judge on the Tenth Circuit and Gregory Phillips of Wyoming to be the tenth judge on the Tenth Circuit.  We also recently held a hearing for Carolyn McHugh of Utah to be the eleventh judge on the Tenth Circuit.  And in the next few weeks, we will hold a hearing for Nancy Moritz of Kansas to be the twelfth judge on the Tenth Circuit.  If Ms. McHugh and Ms. Moritz are both confirmed, the Tenth Circuit will be at full strength with 12 active judges.  Again, in all the hearings and votes we have had for these Tenth Circuit nominees, I cannot recall a single instance where Republican senators questioned the need for judges on that court.

Some have also cited the D.C. Circuit’s six senior judges as a reason to filibuster Patricia Millett’s nomination.  Of course, the Tenth Circuit has 10 senior judges, and yet, we never hear this cited as a reason for not confirming nominees to existing vacancies in the Tenth Circuit.  I hope the Senators from Oklahoma, Wyoming, Utah, and Kansas will hold Patricia Millett to the same standard that the circuit nominees from their home state were held to or which they expect to be held to. 

Today’s Washington Post editorial calls for Patricia Millett to be confirmed and concludes that Republicans “shouldn’t insist on altering the size of a court only when it’s a Democratic president’s turn to pick judges or filibuster highly qualified nominees on that pretext.”  I ask unanimous consent that the editorial be included in the record. 

Patricia Millett is an outstanding nominee who deserves to be treated on her merits.  No argument has been lodged against her that would rise to the level of an extraordinary circumstance.  If the Republican caucus finds that despite her stellar legal reputation and commitment to her country that somehow a filibuster is warranted, I believe this body will need to consider anew whether a rules change should be in order.  That is not a change that I want to see happen but if Republican Senators are going to hold nominations hostage without consideration of their individual merit, drastic measures may be warranted.  I hope it does not come to that.  I hope that the same Senators who stepped forward to broker compromise when Republicans shut down the government, will decide here to put politics aside and vote on the merits of this exceptional nominee.  I also hope the same Senators who have said judicial nominees should not be filibustered barring extraordinary circumstances will stay true to their word.

Ten years ago John Roberts, President Bush’s nominee received a voice vote by the Senate.   Today President Obama’s nominee to that same seat, Patricia Millett, is being filibustered. What has changed in ten years? The caseload of that court under any measure has remained constant or gone up slightly in the past ten years so that is just a partisan pretext. 

Let us treat this extraordinary nominee based on her qualifications.  Patricia Millett has honorably served this Nation for so many years and we are better off for it.  I urge my fellow senators to vote for cloture.  Do not filibuster this brilliant lawyer, this military spouse, this exceptional nominee.

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