04.15.13

Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the Nomination of Judge Beverly O’Connell

Since the American people first elected President Obama, Senate Republicans have been engaged in a concerted effort to filibuster, obstruct and delay his moderate judicial nominees.  They have already, during the last four years, filibustered more of President Obama’s moderate judicial nominees than were filibustered during President Bush’s entire eight years – 67 percent more, in fact – and there is no dispute that President Bush was engaged in an effort to pack the courts with ideological extremists. 

In connection with the wrongheaded filibuster of the nomination of Caitlin Halligan, an outstanding nominee to the D.C. Circuit, I urged them to abandon their misguided efforts that sacrifice outstanding judges for purposes of partisan payback.  Regrettably, their response seems to be to expand their efforts through a “wholesale filibuster” of nominations to the D.C. Circuit and a legislative proposal to strip three judgeships from the D.C. Circuit. 

I am tempted to suggest that they amend their bill to make it effective whenever the next Republican President is elected.  I say that to point out that they had no concerns with supporting President Bush’s four Senate-confirmed nominees to the D.C. Circuit.  Those nominees filled the very vacancies for the ninth, tenth and even the eleventh judgeship on the court that Senate Republicans are demanding be eliminated now that President Obama has been reelected by the American people.  The target of this legislation seems apparent when its sponsors emphasize that it is designed to take effect immediately and acknowledge that “[h]istorically, legislation introduced in the Senate altering the number of judgeships has most often postponed enactment until the beginning of the next President’s term” but that their legislation “does not do this.”  It is just another foray in their concerted efforts to block this President from appointing judges to the D.C. Circuit.

It its April 5, 2013 letter, the Judicial Conference of the United States, chaired by Chief Justice John Roberts, sent us recommendations “based on our current caseload needs.”  They do not recommend stripping judgeships from the D.C. Circuit but state that they should continue at 11.  Four are currently vacant.  According to the Administrative Office of U.S. Courts, the caseload per active judge for the D.C. Circuit has actually increased by 50 percent since 2005, when the Senate confirmed President Bush’s nominee to fill the 11th seat on the D.C. Circuit.  When the Senate confirmed Thomas Griffith – President Bush’s nominee to the 11th seat in 2005 – the confirmation resulted in there being approximately 119 pending cases per active D.C. Circuit judge.  There are currently 188 pending cases for each active judge on the D.C. Circuit, more than 50 percent higher.

Senate Republicans also seek to misuse caseload numbers.  The D.C. Circuit Court of Appeals is often considered “the second most important court in the land” because of its special jurisdiction and because of the important and complex cases that it decides.  The Court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11.  These cases make incredible demands on the time of the judges serving on this Court.  It is misleading to cite statistics and to accuse hardworking judges of having a light or easy workload.  All cases are not the same and many of the hardest, most complex and most time-consuming cases in the Nation end up at the D.C. Circuit.

As the former Chief Judge of the D.C. Circuit Court of Appeals explained again recently, “The nature of the D.C. Circuit’s caseload is what sets it apart from other courts.”  She correctly noted in her recent column: 

The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.  These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions. 

I ask that a copy of that article again be included in the record at the conclusion of my remarks. 

Today, the Senate will vote on only one of the 15 judicial nominees ready for final action.  While I am glad that we are being allowed to fill one of the 86 judicial vacancies around the country, I wish we were allowed to make more progress more quickly.  After all, there are 14 judicial nominees voted out of the Judiciary Committee without objection who are currently pending before the Senate.  All members of the Committee, Republicans and Democrats agreed that they were qualified and should be confirmed.  Some were held over from last year.  Indeed, there are still five judicial nominees pending on the Executive Calendar who could and should have been confirmed last year.

There are currently three times as many judicial nominees on the Executive Calendar as there were at this point in President Bush’s second term.  Of course by then the Senate had proceeded to confirm almost two dozen more judges than we have been allowed to proceed to consider.  Before Senate Republicans pat themselves on the back too hard, they should help us clear the nominees backlogged from last year and acknowledge that there was just one judicial nominee confirmed this year whose hearing was held this year.  The others were all nominees they needlessly held over for months and who should have been confirmed last year.

It is really incomprehensible that so many judgeships were forced to remain vacant for so long when there was no actual opposition to these consensus nominees.  That is not what Democratic Senators did during the Bush administration.  This is a new and destructive tactic.  Despite the progress we have been allowed to make this year, we remain more than 20 circuit and district nominees behind the pace set during President Bush’s administration.  Just 183 of President Obama’s circuit and district nominees have been confirmed, compared to 206 of President Bush’s at the same point, and vacancies today are nearly double what they were in April 2005.  We can make up much of that ground if Senate Republicans would just agree to a vote on all 15 nominees currently pending on the Executive Calendar.  All of them received bipartisan support in Committee, and all but one were unanimous.  There is no good reason for further delay.

At this point in President Bush’s presidency, when his district nominees were reported by the Judiciary Committee, it took, on average, just 35 days for them to receive a vote.  The comparable average for President Obama’s district court nominees is nearly three times as long, 102 days.  This number is has a firm foundation – arithmetic.  It is derived simply by adding up the number of days each nominee waited and dividing by the number of nominees.  That is how an average is calculated. 

During President Bush’s first term alone, 57 district nominees were confirmed within just one week of being reported.  Only two of President Obama’s district nominees have been confirmed within a week of being reported by the Committee.  Digging deeper into the numbers, the Congressional Research Service has found that during President Bush’s first term, 85 percent of his district nominees waited 60 days or fewer for a vote.  In President Obama’s first term, 78 percent of his district nominees waited 60 days or longer.  What these data show is that President Obama’s district nominees have been facing unprecedented delays.  There is an undeniable pattern of Republican obstruction and delay that has faced district nominees during the last four years, a pattern that is without precedent.

While these delays and backlogs are without precedent, Republicans point to April 2004 as the one time that there were a number of President Bush’s nominees pending on the floor.  Of course back in April 2004, President Bush had bypassed the Senate and recess appointed two individuals to be circuit judges, while Republican Committee staff hacked into a shared server to pilfer Democratic files.  Still, we were able to clear the backlog that resulted by confirming more than 20 consensus nominees in just one month.  There is nothing like that to explain the years of backlogged judicial nominees during this administration.  In truth, 17 of the judicial nominations for which Senate Republicans take credit over the past two years should have been confirmed more than two years ago in the preceding Congress.  They allowed only 60 judicial confirmations to take place during President Obama’s first two years in office, the lowest total for a President in over 30 years.  This is not a new phenomenon.  During President Obama’s first year in office, Senate Republicans stalled all but 12 of his circuit and district nominees.  That was the lowest one-year confirmation total since the Eisenhower administration, when the Federal bench was barely one-third the size it is today.

The fact is that we have these 15 nominees waiting for a vote.  All Senate Democrats are prepared to vote on all of them today.

Before Republicans take refuge in the number of vacancies without a nominee, they should be honest about their slow-walking the President on recommendations for nominees from their home states.  For example, there are 24 emergency vacancies in states represented by Republican Senators.  Over 40 percent of all judicial emergency vacancies are in just three states, each of which is represented by two Republican Senators.  Those Senators should be working with the White House to fill those vacancies.  I encourage Republican Senators to work with this President, just as I encouraged Democratic Senators to work with President Bush, to find good nominees for those important vacancies and to allow qualified nominees to move forward.  I take very seriously our responsibilities of both advice and consent on nominations.

Today, the Senate is being allowed to confirm Judge Beverly O’Connell to a judicial emergency vacancy on the Federal trial court for the Central District of California, one of the busiest courts in the Nation.  She currently serves on the Superior Court for the County of Los Angeles in California, where she has served for the last eight years.  She is also currently an Adjunct Professor of Law at Loyola Law School and at Pepperdine University School of Law.  Prior to becoming a judge, she served in the U.S. Attorney’s Office for the Central District of California for 10 years and worked in private practice as an associate at Morrison & Foerster LLP.  She received the ABA Standing Committee on the Federal Judiciary’s highest possible rating, unanimously “well qualified,” and has the support of her home state Senators, Senator Feinstein and Senator Boxer.  She originally had her hearing last December, was unanimously approved by the Judiciary Committee, will be overwhelming approved by the Senate, and should and could have been confirmed last year.

Finally, last month, I spoke about the damaging effect of sequestration on our Federal courts and our system of justice and how these indiscriminate cuts have caused both Federal prosecutors and Federal public defenders to be furloughed.  The effects have become all too real as even terrorism prosecutions are being delayed.  Chief Judge Loretta Preska of the Southern District of New York called these cuts “devastating.”  The head of the Federal Defenders Office stated: “On a good day, we’re stretched thin…. Sequestration takes us well beyond the breaking point.  You simply can’t sequester the Sixth Amendment.”  He is right.  Sequestration is causing grave harm to our judicial system.  I ask that a copy of an article dated April 8 be included in the Record at the conclusion of my statement.

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