Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the Nominations of Patricia Campbell-Smith and Elaine Kaplan

Today, we are voting on 2 nominees to serve 15-year terms in the United States Court of Federal Claims.  The Court of Federal Claims is an Article I court that is authorized to hear monetary claims that arise from the Constitution, federal statutes, executive regulations, or contracts with the United States.  We are finally voting on two well qualified nominees for these positions, but we should also be voting on any of the nine other Article III judicial nominees that are pending on the Executive Calendar. 

As I have consistently noted, Senate Republicans have unnecessarily and persistently delayed nominees on the floor throughout this president’s tenure and today’s vote is another example.  Rather than moving these two uncontroversial Article I nominees by unanimous consent, we are forced to take up scarce time on the Senate Floor, when we know that both of these nominees will be confirmed by overwhelming margins.  There is no good reason why we could not also vote to confirm the consensus and noncontroversial Article III nominees on the Calendar.  One effect of these unnecessary delays is that for the first time in nearly two years, our Federal district courts are again facing what the nonpartisan Congressional Research Service calls “historically high” vacancies.  This means that there are now more seats empty on the districts courts than there were during 90 percent of the time during the 34 years after the Ford Administration.  Despite this, judicial nominees languish on the Executive Calendar.

The two women we are considering today for the Court of Federal Claims are highly qualified, and their nominations have been stalled unnecessarily.  Patricia Campbell-Smith has served as a Special Master for the United States Court of Federal Claims since 2005 and as Chief Special Master since 2011.  Ms. Campbell-Smith previously served as a law clerk to Emily Hewitt, chief judge of the United States Court of Federal Claims, from 1998 to 2005, as an associate in private practice at the firm of Liskow & Lewis from 1993 to 1996, and again from 1997 to 1998.  She served as a law clerk for Judge Sarah Vance of the Eastern District of Louisiana from 1996 to 1997, and for Judge Martin Feldman of the same court from 1992 to 1993.

Elaine Kaplan is currently the General Counsel for the U.S. Office of Personnel Management, and has served as the Acting Director of the Office of Personnel Management since April 2013.  She previously served as Senior Deputy General Counsel and in other legal capacities for the National Treasury Employees Union from 2004 to 2009, and as the Senate-confirmed head of the U.S. Office of Special Counsel from 1998 to 2003.  From 2003 to 2004, Ms. Kaplan served in private practice as a counsel at Bernabei and Katz PLLC.  She has also served as a staff attorney for the State and Local Legal Center in Washington, D.C., and as an attorney with the Office of the Solicitor of the U.S. Department of Labor.  The Senate Judiciary Committee reported these nominations to the Senate by voice vote on June 6, 2013.

As we vote on these nominees today, it is also important that we begin taking steps to address the urgent needs of our Federal judiciary.  Last week, Senator Coons chaired a hearing before the Subcommittee on Bankruptcy and the Courts to consider these urgent needs.  At that hearing, we heard testimony from a Federal judge from the District of Delaware, who stated that while she loved her job, she felt sorry for the judges who were just coming on because of the daunting caseload that many of these judges would be facing.  A law firm partner testifying on behalf of the American Bar Association explained that the shortage of judges and resources were leading to harmful delays in resolving cases brought by individual civil litigants and businesses.

These delays have a real life impact on the American people and the economy.  It does not benefit anyone if litigants have their cases delayed for months and months because our Federal courts are understaffed.  When an injured plaintiff sues to help cover the cost of his or her medical expenses, or when two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.  Americans are rightly proud of our legal system and its promise of access to justice and speedy trials.  This promise is embedded in our Constitution.

Sequestration has also had an especially damaging impact on the Federal judiciary.  I continue to hear from judges and other legal professionals about the serious problems that sequestration presents.  Chief Justice John Roberts said in July that these cuts “hit [the judiciary] particularly hard… When we have sustained cuts that means people have to be furloughed or worse and that has a more direct impact on the services that we can provide.”  We must look to streamline our Federal budget wherever we can, but we should do so with care and not simply cut indiscriminately across the board.  The Federal judiciary’s budget takes up substantially less than one percent of the entire Federal budget.  That is correct.  We have the benefit of the greatest justice system in the world for less than one percent of our budget.  Yet, we refuse to provide this co-equal branch with the adequate resources it needs.  Let us work to reverse the senseless cuts to our legal system from sequestration so that we can to help our coequal branch meet the Constitution’s promise of justice for all Americans. 

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