12.17.11

Statement Of Senator Patrick Leahy On Judicial Nominations

With the conclusion of the first session of the 112th Congress, the Senate Republican leadership has cost us the opportunity to take long overdue steps to address the serious vacancies crisis on Federal courts throughout the country.  With one out of every ten Federal judgeships vacant we can and should be doing all that we can to consider and confirm judicial nominations without unnecessary delays.  Regrettably, Senate Republicans have chosen instead to continue their tactics of unexplained delay and obstruction and to repeat their damaging decision at the end of last year to refuse to consent to votes on even consensus judicial nominations.  Such delaying tactics are a disservice to the American people.  The Senate should fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country. 

There are 21 judicial nominees awaiting final Senate action, all but two of them reported with significant bipartisan support, 16 of them unanimously.  That means nearly every judicial nomination can and should be confirmed before the Senate adjourns.  Yet, the Senate’s Republican leadership is repeating the terrible practice at the end of last year in which 19 judicial nominees were blocked by Republicans and stalled at the end of the year.  It then took until June to take action on 17 of those nominees.   

The recent filibuster of the D.C. Circuit nomination of Caitlin Halligan, a highly-regarded appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit, set a new and damaging standard.  By refusing to consent to votes on consensus nominees before the end of the session, Senate Republicans are setting another damaging standard that will make it difficult for future Presidents of either party to fill judicial vacancies. 

I am speaking about the kinds of qualified, consensus nominees who in past years would have been considered and confirmed by the Senate within days of being reported with the support of every Democrat and every Republican on the Judiciary Committee.  Yet, due to Republican refusal to give consent, it will take many months for the Senate to confirm them to start serving on the Federal bench.  Meanwhile millions of Americans who are served by the Federal courts in those districts and circuits are left with overburdened courts and unneceesary delays in having their cases determined.

All of these consensus nominees have been through an extensive evaluation process before being reported to the Senate for final approval.  Senator Grassley and I have ensured all of these nominees were fully considered by the Judiciary Committee after a thorough, fair process, including completing our extensive questionnaire and questioning at a hearing.  Before each of these nominees was selected by the President, the White House worked with the nominees’ home state Senators who support them, the FBI completed an extensive background review, and each nominee was reviewed by the American Bar Association’s Standing Committee on the Federal Judiciary.  When the nominations have been approved by the Judiciary Committee after this thorough process, there is no reason for the Senate failing to vote on them before the end of the session. 

It is wrong to dismiss the delays resulting from the Senate Republicans’ obstruction as merely political tit for tat.  This is a new and damaging tactic Senate Republicans have devised.  They are stalling action on noncontroversial nominees. Meanwhile, millions of Americans across the country who are harmed by delays in overburdened courts bear the cost of this obstruction.  Nearly half of all Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar.  It is wrong to delay votes on these qualified, consensus judicial nominees.  The Senate should be helping to fill these multiple, extended judicial vacancies before adjourning.

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who are seeking their day in court to suffer unnecessary delays.  When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three years before a judge hears the case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute. 

With one in ten Federal judgeships currently vacant, the Senate should have come together to address the serious judicial vacancies crisis on Federal courts around the country.  Bill Robinson, the president of the American Bar Association, warned recently in a letter to Senate leaders that excessive vacancies and high caseloads “deprive… our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.”  Justice Scalia, Justice Kennedy and Chief Justice Roberts have also warned of the serious problems created by persistent judicial vacancies.  This is an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts.

If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have blocked us from voting to confirm consensus nominees to fill judicial emergency vacancies.  They would have consented to consider the nomination of Judge Adalberto Jordan of Florida which was reported unanimously on October to fill a judicial emergency vacancy on the Eleventh Circuit.  He is a well-respected Federal judge and his nomination is strongly supported by Florida’s Republican Senator, Senator Rubio.  Yet, despite the judicial emergency Republicans continue to delay consideration of that nomination.  If they were really concerned with caseloads, they would have consented to move forward to confirm Judge Jacqueline Nguyen of California, a well-qualified nominee to fill a judicial emergency vacancy on the Ninth Circuit, the busiest Federal appeals court in the country, with judges called upon to handle double the caseload of the other Federal circuit courts.  Her nomination was reported unanimously by the Judiciary Committee and needs only a final vote by the Senate.  Judge Nguyen is nominated to fill the judicial emergency vacancy that remains after the Republican filibuster of Goodwin Liu. 

If they cared about caseloads, they should also have consented to votes on the nominations of David Nuffer to the District of Utah, Michael Fitzgerald to the Central District of California,  Gregg Costa to the Southern District of Texas, and David Guaderrama to the Western District of Texas, all nominations to fill judicial emergency vacancies.  Instead, those vacancies will not be filled for several more months.

If Republican Senators were concerned about ensuring that our courts have the judges they need to administer justice for the American people, they would not have refused consent for the Senate to consider these consensus judicial nominees.  The secret holds and obstructive blocks remind me of the Republican pocket filibusters that blocked more than 60 of President Clinton’s judicial nominations from Senate consideration.  When I became Chairman in 2001 and made the Committee blue slip process public for the first time and worked to confirm 100 judicial nominees of a conservative Republican President in 17 months, I hoped we had gotten past these partisan tactics.  I am disappointed after working for more than a decade to restore transparency and fairness to the process of considering judicial nominations that we see the Senate Republicans again using anonymous holds to block progress at filling judicial vacancies.

The actions of the Senate Republican leadership today to block action on 18 qualified, consensus judicial nominations  mirrors their action last year when they stalled consideration of 19 judicial nominations that had been reported by the Judiciary Committee and were ready for final Senate action at the end of last year.  That was an abusive exercise in unnecessary delay that I believe was without precedent with respect to such consensus nominees.  In contrast, Democratic Senators proceeded to up or down votes on all 100 of President Bush’s judicial nominations reported by the Judiciary Committee during his first two years in office, and all 100 were confirmed before the end of the 107th Congress.

I had hoped and urged that such damaging obstruction not be repeated.  I had urged that before we adjourned the Senate at least consider the 18 judicial nominees voted on by the Judiciary Committee who are by any measure consensus nominees.  With vacancies continuing at harmfully high levels, the American people and our Federal courts cannot afford these unnecessary and damaging delays.  It took until June of this year, halfway into 2011, to consider and confirm 17 of the nominations that could and should have been considered before the end of 2010.  Yet Senate Republicans are employing the same destructive tactics.

For the second year in a row, Republicans have rejected the Senate’s traditional longstanding practice of considering all of the consensus nominations before the end of the Senate session, setting a standard that before they did it last year was without precedent.  We consented to consider all of the consensus nominations at the end of President Reagan’s third year in office and President George H.W. Bush’s third year in office, when no judicial nominations were left pending on the Senate Calendar.  That is what we did at the end of the 1995 session, President Clinton’s third year in office, when only a single nomination was left pending on the Senate calendar. 

That is also what we did at the end of President George W. Bush’s third year.  Although some judicial nominations were left pending, they were among the most controversial, extreme and ideological of President Bush’s nominees.  They had previously been debated extensively by the Senate.  The standard then was that noncontroversial judicial nominees reported by the Judiciary Committee were confirmed by the Senate before the end of the year.  That is the standard we should have followed this year.  Had we done so, another 18 judges would have been confirmed.  

The Senate remains far behind where we should be in considering President Obama’s judicial nominations.  Nearly three years into his first term, the Senate has confirmed a lower percentage of President Obama’s judicial nominees than those of any President in the last 35 years.  The Senate has confirmed just over 70 percent of President Obama’s circuit and district nominees, with more than one in four not confirmed.  In stark contrast, the Senate confirmed nearly 87 percent of President George W. Bush’s nominees, nearly nine out of every 10 nominees he sent to the Senate over two terms.  That was a higher percentage of judicial nominees confirmed than President Clinton achieved and is far higher than President Obama’s nominees. 

Despite Senate Democrats joining Senate Republicans in confirming a high percentage of President Bush’s judicial nominees, Republican Senators continue to point to the handful of President Bush’s nominees who were not confirmed to justify their across the board delays and obstruction of President Obama’s nominees.  During their filibuster last week of Caitlin Halligan, President Obama’s first nominee to fill the 9th seat on the D.C. Circuit, we heard several Republicans seek to justify the misguided filibuster by pointing to the fact that Peter Keisler was not confirmed to fill the 11th seat on that same court.  Their selective recollection omits that the Senate did confirm four of President Bush’s D.C. Circuit nominees, twice filling the 10th seat and once the 11th.

In her recent column on the New York Times website, Linda Greenhouse wrote about how low the judicial confirmation process has sunk with the Caitlin Halligan filibuster and the disparate treatment of President Obama’s nominees.  She wrote:

But it seems to me that this tit-for-tat goes only so far. President Bush succeeded in putting four decidedly conservative nominees on the D. C. Circuit. Three remain there today: Janice Rogers Brown, Thomas B. Griffith, and Brett M. Kavanaugh. The fourth was John G. Roberts Jr. It was his seat, which Chief Justice Roberts vacated on Sept. 29, 2005, to which Ms. Halligan was nominated. True, the Republicans didn’t get everything they wanted. But they seem determined to make sure that President Obama gets nothing.

I ask unanimous consent that a copy of Ms. Greenhouse’s column appear at the conclusion of my remarks.

We remain well behind the pace set by the Senate during President Bush’s first term.  By the end of his first term, the Senate had confirmed 205 district and circuit nominees, had already confirmed 168 by this point in his third year, and had lowered judicial vacancies to 46.  In contrast, the Senate has confirmed only 124 of President Obama’s district and circuit nominees, leaving judicial vacancies at more than 80.  The vacancy rate remains nearly double what it had been reduced to by this point in the Bush administration.  Senate action on the 18 consensus judicial nominations pending before the Senate as it ends it session would have gone a long way to helping resolve the longstanding judicial vacancies that are delaying justice for so many Americans in our Federal courts across the country. 

When the Senate returns in January, I hope that Senate Republicans will abandon these destructive practices and join with us to confirm the qualified, consensus judicial nominations they have stalled.  This cycle of unnecessary delays must end. 

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