Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the Nominations of Judge Luis Restrepo and Kenneth Gonzales

Last week the Senate failed to complete action on one of the three nominations pending for vacancies in the Eastern District of Pennsylvania.  Even though Senate Democrats had expedited three of President Bush’s nominees to that court, confirming them all by voice vote just one day after they had been reported by the Judiciary Committee, Senate Republicans refused to do the same for President Obama’s nominees.  They refused even though all three had the bipartisan support of their home state Senators and the unanimous support of all Republicans on the Committee.  Two were confirmed last week but one was held back.  After waiting 98 days for a vote, Judge Alejandro and Judge Schmehl were confirmed unanimously last week.  Today, after another unnecessary delay, the Senate will finally vote on the nomination of Judge Luis Restrepo, more than 100 days after he was voted out of the Judiciary Committee unanimously.  When the Senate is finally allowed to act, we will confirm a judge to fill a four-year vacancy.

The Eastern District of Pennsylvania is a court that needs judges.  Even with today’s vote, it will remain nearly 20 percent vacant.  The Senate should be taking swift action to fill these kinds of vacancies, not delaying for no good reason.  This obstruction does a disservice to the people of Pennsylvania, and to all Americans who depend on our Federal courts for justice. 

I regret that I must correct the record, again.  The recent assertion by Senate Republicans that 99 percent of President Obama’s nominees have been confirmed is not accurate.  President Obama has nominated 237 individuals to be circuit or district judges, and 195 have been allowed to be confirmed by the Senate.  That is 82 percent, not 99 percent.  By way of comparison, at the same point in President Bush’s second term, June 17 of his fifth year in office, President Bush had nominated four fewer people, but had seen 215 of them confirmed, which is 20 more confirmations.  The truth is that 92 percent of President Bush’s judicial nominees had been confirmed at the same point, 10 percentage points more than have been allowed President Obama.  That is an apples to apples comparison, and it demonstrates the undeniable fact that the Senate has confirmed a lower number and lower percentage of President Obama’s nominees than President Bush’s nominees at the same time in their presidencies.

I noted at the end of last year, while Senate Republicans were insisting on delaying confirmations of 15 judicial nominees that could and should have taken place then, that we would not likely be allowed to complete work on them until May.  That was precisely the Republican plan.  So when Senate Republicans now seek to claim credit for their confirmations in President Obama’s second term, they are inflating the confirmation statistics.  The truth is that only nine confirmations have taken place this year that are not attributable to those nominations Senate Republicans held over from last year and that could and should have taken place last year.  To return to the baseball analogy, if a baseball player goes 0-for-9, and then gets a hit, we do not say he is an all-star because he is batting 1.000 in his last at bat.  We recognize that he is just 1-for-10, and not a very good hitter.  Nor would a fair calculation of hits or home runs allow a player to credit those that occurred in one game or season to the next because it would make his stats look better.

If President Obama’s nominees were receiving the same treatment as President Bush’s, today’s votes would bring us to 215 confirmations, not 197, and vacancies would be far lower.  The nonpartisan Congressional Research Service has noted that it will require 31 more district and circuit confirmations this year to match President Bush’s five-year total.   Even with the confirmations finally concluded during the first six months of this year, Senate Republicans have still not allowed President Obama to match the record of President Bush’s first term.  Even with an extra six months, we are still 10 confirmations behind where we were at the end of 2004.

Luis Restrepo has served as a U.S. Magistrate Judge in the Eastern District of Pennsylvania since 2006.  Prior to his appointment to the Federal bench, he was a founding partner of Krasner & Restrepo, a firm that focused on civil rights and criminal defense work.  He has also worked as an adjunct professor at Temple University, Beasley School of Law and the University of Pennsylvania Law School.  Before co-founding his own law firm, Judge Restrepo was an Assistant Federal Defender for the Eastern District of Pennsylvania, an Assistant Defender for the Defender Association of Philadelphia, and a Law Clerk for the ACLU’s National Prison Project.  The nonpartisan ABA Standing Committee on the Federal Judiciary has unanimously rated Judge Restrepo “well qualified.”  He is supported by both his home state Senators, Senator Casey and Senator Toomey.

Kenneth Gonzales has been the United States Attorney for the District of New Mexico since 2010.  He served as an Assistant U.S. Attorney in that office for the previous 11 years.  Prior to working with the U.S. Attorney’s Office, Kenneth Gonzales spent three years as a Legislative Assistant to former Senator Jeff Bingaman and two years as law clerk to the Honorable Joseph F. Baca of the New Mexico Supreme Court.  He also serves in the United States Army Reserve as a Judge Advocate General.  Kenneth Gonzales has the support of his home state Senators, Senator Tom Udall and Senator Martin Heinrich, and was reported unanimously from the Judiciary Committee two months ago.  He is supported by both his home state Senators, Senator Udall and Senator Heinrich.

I want the Senate to make real progress on filling judicial vacancies so that the American people have access to justice.  In President Bush’s first term, half of his consensus district nominees waited 18 days or fewer for a vote, so we know the Senate is capable of swift action on nominations.  There is no reason consensus nominees like Judge Restrepo and Kenneth Gonzales should have to wait two or three months for a vote.  The only reason for these delays is because of Republican refusal to allow votes.  These nominees deserve better, and the American people deserve better.

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