Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee On the Nominations of Shelly Dick and Nelson Román

Over the last month, Senate Republicans have failed to refute the facts of what they have done to President Obama’s judicial nominations.   The Senate’s work on judicial nominations should not be about partisan point-scoring; it should be about ensuring the American people have access to justice.  I rejected that partisan tit-for-tat approach while moving to confirm 100 of President Bush’s judicial nominees in just 17 months in 2001 and 2002.

The question for the Senate is, are we doing enough to ensure that hardworking Americans have access to justice so that they can have their rights protected?  At a time when 10 percent of the Federal bench remains vacant, I do not think that we are.  The standard we set during the Bush administration for quickly moving to confirm noncontroversial nominees is not being met. 

Senate Republicans who take such pride in the number of nominees being confirmed this year ignore how many were needlessly delayed from confirmation last year and what they have done during the last four years.  That is why after the 14 confirmations this year, we remain more than 20 confirmations behind the pace we set for President Bush’s circuit and district nominees, and vacancies remain nearly twice as high as they were at this point during President Bush’s second term.  For all their self-congratulatory statements they cannot refute the following: We are not even keeping up with attrition. Vacancies have increased, not decreased, since the start of this year.  President Obama’s judicial nominees have faced unprecedented delays and obstruction by Senate Republicans.  We have yet to finish the work that could and should have been completed last year.  There are still a dozen judicial nominees with bipartisan support being denied confirmation. 

A recent report by the nonpartisan Congressional Research Service compares the whole of President Obama’s first term to the whole of President Bush’s first term, and the contrast could not be more clear.  The median Senate floor wait time for President Obama’s district nominees was 5 times longer than for President Bush’s.  President Obama’s circuit nominees faced even longer delays, and their median wait time was 7.3 times longer than for President Bush’s circuit nominees.  The comparison is even worse if we look just at nominees who were reported and confirmed unanimously.  President Bush’s unanimously confirmed circuit nominees had a median wait time of just 14 days.  Compare that to the 130.5 days for President Obama’s unanimous nominees.  That is more than 9 times longer.  Even the nonpartisan CRS calls this a “notable change.”  There is no good reason for such unprecedented delays, but those are the facts.

The confirmations in the last few months does not change the reality of what has happened over the last four years.  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.

So while I welcome the confirmations this year, I note both that 10 of the 14 could and should have been confirmed last year and that there are another dozen nominees pending before the Senate, including four who also could have been confirmed last year.  We can and must do more for Americans who look to our courts for justice.  They deserve better than long delays and empty courtrooms. With 10 percent of our Federal bench vacant, and a backlog of nominees on the Senate Executive Calendar, it is clear that the Senate is not working up to its full capacity on nominations. 

It is true that some vacancies do not have nominees.  I wish Republican home state Senators would work with President Obama to fill these vacancies.  Nor do those vacancies excuse their unwillingness to complete action on the consensus judicial nominees who are ready to be confirmed but whose confirmations are being delayed.  Mark Barnett, Claire Kelly, Shelly Dick, William Orrick, Nelson Román, Sheri Chappell, Michael McShane, Nitza Quinones Alejandro, Luis Restrepo, Jeffrey Schmehl, Kenneth Gonzales, and Gregory Phillips are awaiting confirmation and Sri Srinivasan, Ray Chen, and Jennifer Dorsey can be reported to the Senate  today, without  further delay.  So long as there is a backlog of nominees before the Senate, the fault for failing to confirm these nominees lies solely with Senate Republicans.

The Judicial Conference recently released their judgeship recommendations.  Based upon the caseloads of our Federal courts, the Conference recommended the creation of 91 new judgeships.  That is in addition to the 86 judgeships that are currently vacant.  This means that the effective vacancy rate on the Federal bench is over 18 percent.  A vacancy rate this high is harmful to the individuals and businesses that depend on our courts for speedy justice.  The damage is even more acute in the busiest district courts, such as those in border states that have heavy immigration-related caseloads.  In a Washington Post article about the CRS report Jonathan Bernstein wrote: “Ordinary people who just want to get their legal matters taken care of promptly have suffered because of all the vacancies on federal courts.”  I ask that that article, entitled “New Report Confirms GOP Obstructionism is Unprecedented,” appear in the Record at the conclusion of my statement.

Unneccessarily prolonged vacancies are not the only way that partisanship in Washington is hurting our courts.  Sequestration continues to affect our justice system.  The Chief Judge of the Fourth Circuit, William B. Traxler, Jr., has written: “The impact of sequestration on the Judiciary is particularly harsh because the courts have no control over their workload.  They must respond to all cases that are filed… .”  He went on to say:

            “[A] significant problem arises when budget cuts impact our responsibilities under

the Constitution.  This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes.  The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently.  This will cost us all in many different ways.”

I share Chief Judge Traxler’s concern, and I ask that his statement appear in the Record at the conclusion of my statement.

Our Federal judiciary provides justice to 310 million Americans and gives full effect to the laws that we pass here in the Senate.  We have a constitutional responsibility to those 310 million Americans to make sure that they can count on our Federal courts to provide justice.  Federal courts should not be held hostage to partisan obstruction, and we need to keep our courts fully funded so that they can continue to meet the promise of timely justice that is embedded in our Constitution.

Shelly Dick is nominated to fill a vacancy on the United States District Court for the Middle District of Louisiana.  Since 1994, she has been in private practice at the Law Offices of Shelly D. Dick, LLC in Baton Rouge and was previously an associate with the law firm of Gary Field Landry and Dornier.  Additionally, since 2008, she has served as an ad hoc hearing officer for the Louisiana Workforce Commission.  Shelly Dick has the bipartisan support of her home state Senators, Senator Landrieu and Senator Vitter, and was reported unanimously by the Judiciary Committee over two months ago.  She is one of the pending nominees who could have been expedited and confirmed last year.  When confirmed, Shelly Dick will be the first woman to serve on the U.S. District Court for the Middle District of Louisiana.

Nelson Román is nominated to fill a judicial emergency vacancy on the United States District Court for the Southern District of New York.  He currently serves as an Associate Justice for the New York State Supreme Court, Appellate Division, First Department.  He previously served as a Justice of the New York State Supreme Court, Civil Term, Bronx County, as a Judge for the New York City Civil Court, Bronx County, and as a Judge of the Housing Part of the New York City Civil Court, Bronx County.  Prior to becoming a judge, he was an Assistant District Attorney in Kings County, New York as well as a Special Narcotics Assistant District Attorney in New York City.  From 1995 to 1998, Justice Román served as a law clerk to the Honorable Jose A. Padilla, Jr. of the New York County Civil Court.  He has the support of his home state Senators, Senator Schumer and Senator Gillibrand, and was reported unanimously by the Judiciary Committee over two months ago.

Senate Republicans have a long way to go to match the record of cooperation on consensus nominees that Senate Democrats established during the Bush administration, but I hope that the confirmations so far this year indicate that they are finally reconsidering their wholesale obstruction of President Obama’s nominees.  After today’s votes, 10 more judicial nominees remain pending, and all were reported with bipartisan support.  All Senate Democrats are ready to vote on each of them to allow them to get to work for the American people.  We can make real progress if Senate Republicans are willing to join us.

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