Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On Judicial Nominations

Earlier this month, the Senate Judiciary Committee approved the PATENT Act with a strong, bipartisan vote. As the Senate continues to consider this important, balanced legislation aimed at curbing abusive patent litigation practices, it is critical that the court of appeals that considers patent claims be at full strength. Legislation alone cannot solve the problems facing main street businesses from abuses of the patent system; we also need dedicated judges, like Kara Farnandez Stoll, on the bench to faithfully apply the law.  

Ms. Farnandez Stoll was first nominated to serve on the U.S. Court of Appeals for the Federal Circuit more than seven months ago.  Her hearing was held more than three months ago and two months ago she was unanimously reported by the Senate Judiciary Committee.  The American Bar Association’s Standing Committee on the Federal Judiciary unanimously rated her “well qualified” to serve on the Federal Circuit – its highest possible rating.  The Hispanic National Bar Association, the Federal Circuit Bar Association, and the American Intellectual Property Law Association strongly support her confirmation. Once confirmed, Ms. Farnandez Stoll will be the first woman of color to serve on the Federal Circuit.  Yet her nomination has been languishing on the Senate Executive Calendar.

Nearly six months into this new Congress, the Republican leadership has scheduled votes to confirm only four district court judges.  We have not confirmed a single judge this work period.  Not one.  This is simply unacceptable.  In addition to Ms. Farnandez Stoll, there are 11 other consensus judicial nominations pending on the Senate Executive Calendar. 

The other nominees pending on the Calendar include five U.S. Court of Federal Claims (CFC) nominees.  We are well past the one year anniversary of when each were first nominated and are closing in on the anniversary of all five having had hearings before they were first reported unanimously out of Committee.  The five CFC nominees were again reported out of Committee unanimously at the beginning of this year.  We have heard no opposition to any of these nominees, yet they have been in limbo for months and months because the Republican Leader has refused to schedule a vote.  The U.S. Court of Federal Claims is where our citizens go to seek redress against the Federal government for monetary claims.  The cases this court hears include claims of unlawful takings of private land by the U.S. government without proper compensation under the 5th Amendment, claims of veterans seeking disability benefits for combat-related injuries, and vaccine compensation claims.    

We are debating trade policy in the Senate, yet the nomination to fill one of four current vacancies on the U.S. Court of International Trade (CIT) has sat idle on the Senate Executive Calendar for months.  Like the CFC nominees, the CIT nominee had a hearing last year, was favorably reported out of the Judiciary Committee unanimously by voice vote last Congress, and again earlier this year. 

Also pending on the Calendar are nominees to fill vacancies on the Western District of Missouri, the Western District of New York, and three nominees to fill judicial emergency vacancies – two on the Eastern District of New York and one on the Eastern District of California.  All but one of whom were first nominated last year. 

There is nothing keeping the Senate from confirming all 12 nominees – nothing, except for the mindset of delay for delay’s sake, which is unfortunately the hallmark of the majority’s leadership on judicial nominations.

The Senate has a duty to consider judicial vacancies no matter which party holds the majority.  In the 17 months I chaired the Senate Judiciary Committee during President Bush’s first two years in office, the Senate confirmed 100 Federal circuit and district court judges.  I also served as Chairman during the last two years of the Bush administration and we confirmed another 68 district and circuit court judges.

In contrast to the 4 district judges we have confirmed this year, when the Democrats were in an equivalent position in the seventh year of the Bush administration, we had confirmed 18 judges – including 15 district and 3 circuit court judges – by June 24, 2007.

That’s 18 judges under a Democratic majority compared to 4 under the Republican majority.  That is nearly five times as many judges confirmed under a Democratic majority with a President of the opposite party than today’s Senate Republican majority.

Nevertheless, the Republican majority continues to make excuses for their continued obstruction and delay on confirming President Obama’s judicial nominees.  Their excuse is that the Democratic majority was able to confirm those 18 judges by this date in 2007 only because those nominees were held over from the previous year.  What the Republicans fail to note is that 6 of the 18 judges confirmed by June 24, 2007 first had their hearing in 2007, were reported out of Committee without needless delay, and were confirmed promptly.   

We began this Congress with 38 district and circuit court vacancies, including 12 vacancies deemed “judicial emergencies” by the nonpartisan Administrative Office of the U.S. Courts.  While 38 is the lowest number of vacancies during the entire Obama administration, it is still higher than the low of 28 district and circuit court vacancies during the Bush administration, which was achieved due to Democratic cooperation. 

There are now 55 district and circuit court vacancies, including 27 that have been deemed “judicial emergency” vacancies.  Of the 55 vacancies, 41 are in states with at least one Republican home state Senator.  Of great concern to the timely administration of justice are four circuit court vacancies that are “judicial emergencies” – two in Texas, one in Alabama, and one in Kentucky – that have each been vacant and without nominees for well over a year, including one Texas circuit court vacancy that has been vacant for nearly three years.  These 3 states alone also account for 12 district court vacancies without a currently pending nominee, half of which are “judicial emergency” vacancies.

While I know that the senior senator from Texas, who is also the Assistant Republican Leader, likes to say that it is the president who “has to nominate the judges,” we are all well aware of the central role home state Senators have in making recommendations to the President to fill vacancies in our states.   I urge all Senators to work meaningfully with President Obama to get these vacancies filled.

As we head into July 4th recess, the Senate Republican Leadership should be allowing us to clear the calendar of the 12 uncontroversial, consensus judicial nominees to let them get to work for the American people. 

I would remind the current Majority Leader of his floor remarks from June 2008, the last year of the Bush administration when Democrats held the majority in the Senate:

“On the issue of judicial confirmations, my good friend the majority leader and I discussed this matter publicly at the beginning of this Congress, and we agreed that President Bush, in the last 2 years of his term, should be treated as well as President Reagan, Bush 41, and President Clinton were treated in the last 2 years of their tenures in office because there was one common thread, and that was that the Senate was controlled by the opposition party.”

I hope he stays true to the words he spoke when the shoe was on the other foot.  I urge the Majority Leader to immediately schedule a vote for Kara Farnandez Stoll and the CFC and CIT nominees so they can get to work serving the American people.

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