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

Today, we will vote on the nomination of Travis McDonough to be a Federal district judge in the Eastern District of Tennessee.  He was nominated over a year ago, and his nomination was voted out of the Judiciary Committee by unanimous voice vote nearly five months ago.  Despite having the support of his home state Republican Senators, Mr. McDonough’s nomination has nevertheless been held up by Republican leadership for no good reason.

I will further note that while Mr. McDonough’s vote is long overdue, Republican leadership has skipped over Judge Luis Felipe Restrepo – who is ahead of Mr. McDonough on the Executive Calendar.  I recall Republican leadership promising regular order when they took over the majority, so they should explain how skipping over a consensus and eminently qualified nominee with bipartisan support is following regular order.

Judge Restrepo was nominated to a judicial emergency vacancy in the Third Circuit over a year ago.  If confirmed, he would be the first ever Hispanic judge from Pennsylvania on the Third Circuit.  Judge Restrepo has the strong support of the Hispanic National Bar Association, and has bipartisan support from his home state Senators, Senator Toomey and Senator Casey.  Senator Toomey has said not only that he strongly supports Judge Restrepo’s confirmation, but that he also recommended him to the President.  I hope that the Republican leadership or Senator Toomey can explain to the people of Pennsylvania why Judge Restrepo is not being confirmed today.

As we approach the end of the year, the Senate Republican majority is coming closer and closer to matching the record for confirming the fewest number of judicial nominees in more than half a century.  While most Senators I have served with over the last 40 years would shudder at this fact, the current Republican leadership seems content to accomplish as little as possible when it comes to confirming nominees to our Third Branch of government.

In the 11 months that Republicans have controlled the Senate, only 11 judges will have received a confirmation vote, including today.  When Senate Democrats were in the majority during the seventh year of the Bush presidency, we had already confirmed 36 judges by this point.  We should take action right now and hold confirmation votes on the 19 other judicial nominees pending on the floor.  If we did confirm the remaining 19 nominees, thereby fulfilling a basic duty of the Senate, that would make a total of 30 judicial nominees confirmed this year.  That number is still short of the 36 nominees that Senate Democrats confirmed at the same point of the George W. Bush administration, but it would mark a significant effort by this Senate to reduce vacancies.  There is no reason not to do this.  All 19 of the nominees were voted out of the Judiciary Committee by voice vote, yet as of today, Republicans refuse to bring them up for a vote.

This obstruction has resulted in needless delays for hard working Americans who seek justice in our Federal courts.  Currently pending on the Senate floor are nominees who would fill judicial emergency vacancies in Pennsylvania, Tennessee, Minnesota, New Jersey, Iowa, New York, and California.  Senate Republicans have refused to respond to the urgent needs of those states to the detriment of their own constituents.

Throughout his tenure in office, President Obama has worked with Senators to have the Federal judiciary better reflect the people they serve.  Today there are more women and minorities than ever before on the Federal bench.  This is an accomplishment that helps ensure the public’s confidence in their court system.  Unfortunately, that meaningful progress has slowed down under the Senate’s Republican control.  Today, several nominees of color with outstanding qualifications are being held up for no good reason, including Judge Luis Felipe Restrepo.

Senate Republicans are also holding up four exceptional African American district court nominees and an exceptional Hispanic district court nominee.  Two of the African American nominees – Waverly Crenshaw and Edward Stanton – have been nominated to district court positions in Tennessee.  Both have the support of their home state Republican Senators and were unanimously approved by the Judiciary Committee by voice vote, and yet, continue to wait for the Majority Leader to schedule their votes.  The three other nominees of color – Wilhelmina Wright to the District of Minnesota, and John Vazquez and Julien Neals to the District of New Jersey – are all nominated to judicial emergency vacancies.  They all have the support of their home state Senators and were voted out of the Judiciary Committee by voice vote.  And yet, they continue to wait for their confirmation votes to be scheduled.

In addition to the Article III nominees, there are also five nominees to the U.S. Court of Federal Claims that were all nominated more than a year ago who all continue to be held up by a single Republican Senator – the junior Senator of Arkansas.  The Court of Federal Claims has been referred to as “the People’s Court” because it allows citizens to seek prompt justice against our government.  Of the five nominees, one is a Cuban American who has devoted his entire career to public service at the U.S. Department of Justice; another is an African American woman who spent over two decades serving as a Judge Advocate General and as a Military Judge.  All five were voted out of the Judiciary Committee by unanimous voice vote, but Senator Cotton continues to object to any of them receiving an up-or-down vote.  He claims to have concerns with the caseload, but a recent letter from the Chief Judge of the Court of Federal Claims to the Judiciary Committee has indicated that only one of the nine senior judges is willing to be recalled for full time duty, and the other three would only agree to be recalled on a limited basis.  Moreover, the court’s overall caseload has increased nine percent over the last year.  There are no good reasons for Senator Cotton to continue blocking these nominees.  They deserve to have their confirmation votes scheduled.  Senators can vote for or against them but they should not be denied a simple up-or-down vote.

In a letter dated December 2, 2015 from the American Bar Association to Majority Leader McConnell, the President of the ABA states that “our courts are unfortunately worse off today than they were at the start of this Congress.”  The letter urges that the Majority Leader schedule votes on the confirmation of all the Article III judicial nominees currently pending on the Executive Calendar.  I ask unanimous consent to include a copy of this letter in the Record at the conclusion of my remarks.

The process of confirming judges is about ensuring that the American people have a fully functioning judiciary.  Because of Republican obstruction, judicial vacancies have increased by more than 50 percent since they took over the majority and caseloads are piling up in courts throughout the country.  And judicial emergencies have more than doubled since the beginning of this year. 

I am concerned that the Republican leadership’s refusal to confirm judicial nominations this year is undermining the Judicial Branch and harming the American people who seek justice.  I urge Senate Republicans to conclude this year by showing some semblance of leadership by scheduling confirmation votes on the remaining judicial nominees pending on the Executive Calendar. 

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