07.23.15

Statement of Senator Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary Committee, On the Pending Nominees to the U.S. Court of Federal Claims

Last week, the junior senator from Arkansas objected to a request to vote on any of the five nominations to the U.S. Court of Federal Claims that have been awaiting confirmation for more than ten months.  He refused to debate the merits of any of these eminently qualified nominees.  It is unfortunate that the junior senator from Arkansas appears to be dusting off the Republican playbook from the last Congress to try to do to the U.S. Court of Federal Claims what he could not to do to the D.C. Circuit. 

The caseload statistics of the U.S. Court of Federal Claims – as in other courts – have increased and decreased at various times.  This does not mean that one Republican should be permitted to put up a wholesale blockade of nominees to a specific court preventing every single one of them from being considered on their merit by the full Senate.  Furthermore, in contrast to the assertions made by the junior senator for Arkansas, the number of new cases filed with the court since 2007 has actually increased by 13.4 percent. 

Early in the last Republican Administration, there was discussion about the caseload of the U.S. Court of Federal Claims, but no Senate Republican voiced concerned then.  In fact, during the Bush administration, the Senate confirmed nine judges to the CFC – with the support of every Senate Republican.  Only three CFC judges nominated by President Obama have received confirmation votes.  This is the same double standard that Senate Republicans tried to apply to President Obama’s D.C. Circuit nominees, when they filibustered and refused to permit any of President Obama’s three pending D.C. Circuit nominees from receiving a vote last Congress.

Not a single Republican on the Senate Judiciary Committee raised a concern about the court’s caseload either during the Committee hearings on these nominations last year or during the Committee debate last year or this year.  In blocking these five nominees, the junior senator from Arkansas ignores the Senate Judiciary Committee’s unanimous votes on these nominations in 2014 and again this year.  He also disregards the Chief Judge who speaks on behalf of the entire court and the five past presidents of the U.S. Court of Federal Claims Bar Association who have urged the Senate to fill these vacancies.

In 2003, the now-Chairman of the Senate Judiciary Committee engaged in a debate on the caseload of this court.   He said then: “I feel it is unfair to these Court of Federal Claims nominees to deny them a seat by bringing up this point at this late date.”  I hope that the junior senator from Arkansas will heed these words and remove his objection to an up or down vote on these nominees.  If he personally does not believe these judges need to be confirmed, he can certainly vote against them.

The fact is that all five of these nominees are impeccably qualified.  One of the nominees, Armando Bonilla, would be the first Hispanic judge to hold a seat on the Court.  He is strongly endorsed by the Hispanic National Bar Association and has spent his entire career – now spanning over two decades – as an attorney for the Department of Justice.  He was hired out of law school in the Department’s prestigious Honors Program, and has risen to become the Associate Deputy Attorney General in the Department.

Another nominee, Jeri Somers, retired with the rank of Lieutenant Colonel in the United States Air Force.  She spent over two decades serving first as a Judge Advocate General and then as a Military Judge in the United States Air Force and the District of Columbia’s Air National Guard.  In 2007, she became a Board Judge with the U.S. Civilian Board of Contract Appeals and currently serves as its Vice Chair.  

Mr. Bonilla and Ms. Somers are just two of the five nominees that are being blocked from consideration by one Senator.  Both of them have dedicated the majority of their careers in service to our nation.  They deserve better than the treatment they are receiving from this Senate.  I urge the Senate Majority leader to move to confirmation votes on these well qualified nominees without further delay.

Unfortunately, the obstruction of judicial nominees is not limited to just one court.  Since President Obama was sworn in as President of the United States, Senate Republicans have made it their priority to obstruct the consideration of nominations that he has put forward. 

More than half a year into this new Congress, the Republican leadership has scheduled votes to confirm only five judicial nominees.  This is in stark contrast to the 25 district and circuit court judges confirmed by July 23, 2007, when the shoe was on the other foot and Democrats had regained the Senate majority in the seventh year of the Bush administration.  That’s 25 district and circuit court judges under a Democratic majority compared to 5 under the Republican majority.  That is five times as many judges confirmed under a Democratic majority with a President of the opposite party than today’s Senate Republican majority.  Through this obstruction, Senate Republicans have crossed the line from use of the Senate rules to abuse of the rules. 

I am concerned that the majority’s wholesale obstruction is politicizing the federal judiciary.  This is no way to treat an independent branch of government. 

It is up to the Majority Leader and the Senate Republicans to demonstrate that they are not applying a double standard that is solely driven by who occupies the White House.  The Senate should be confirming these long delayed U.S. Court of Federal Claims nominees and then proceeding to nine other judicial nominees pending on the Senate Executive Calendar.

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