12.22.10

Statement Of Senator Patrick Leahy On Recent Judicial Confirmations

At long last, the Senate is being allowed to consider long-pending, consensus judicial nominations.  This action has been long overdue.  President Obama has reached out and worked with Senators from both sides of the aisle in selecting well-qualified judicial nominees.  As Chairman of the Judiciary Committee, I have bent over backwards to be fair to all sides. There has been consultation and a thorough and fair process for evaluating nominations. 

Scott M. Matheson is finally being confirmed to become a Federal Circuit Judge for the United States Court of Appeals for the Tenth Circuit.  In his 30-year legal career, he has been both a state and a Federal prosecutor, worked in private practice, and served on the faculty of the

S.J. Quinney College of Law at the University of Utah, including eight years as the school’s dean.  The Judiciary Committee unanimously reported his nomination on June 10, more than six months ago.  We did so unanimously.  The Republican Senators from Utah supported this nomination.  It has still taken more than six months to get a Senate vote.

Ten years ago, Mary Murguia became the first Latina to serve as a Federal Judge in Arizona when she was nominated by President Clinton to serve on the U.S. District Court for the District of Arizona.  She will now become the first Hispanic—and only the second woman—from Arizona to serve on the Ninth Circuit.  The Judiciary Committee unanimously voted to report her nomination favorably more than four months ago.  Judge Murguia’s nomination was supported by her home state Senators, both Republicans.  It has still taken more than four months to get a Senate vote.  

Kathleen M. O’Malley has for the last 16 years served as a Federal Judge in the Northern District of Ohio.  When Judge O’Malley, a breast cancer survivor, was appointed to that court in 1994, she was one of the two youngest women on the Federal bench.  She has been nominated to serve on the United States Court of Appeals for the Federal Circuit.  The Judiciary Committee unanimously reported her nomination to the Federal Circuit in September, three months ago. The Committee received a letter of support from Senator Voinovich, who urged an expeditious confirmation process.  It has still taken three months to get a Senate vote.

The Senate is finally being allowed to fill some of the vacancies on the hard-pressed United States District Court for the District of Columbia.  The Judiciary Committee unanimously reported the nominations of Beryl Howell and Robert Wilkins back in September.  It has taken three months to get Senate votes.  The Chief Judge of the District Court for the District of Columbia wrote the Senate some time ago urging prompt action to fill the four vacancies that exist on that Court.

There was a time when having served for 10 years as a respected member of the Judiciary Committee staff would lead to expeditious consideration of a nomination. For example, when Kristi Lee Dubose of Alabama, who had served on Senator Sessions’ Judiciary Committee staff, was nominated, her hearing was expedited despite the lack of an ABA peer review, her nomination was reported by the Committee within two days of her hearing and that nomination was then confirmed promptly.  Indeed, from the time Judge Dubose’s questionnaire was received by the Committee to her confirmation was 61 days, which includes a three-week recess period. 

By contrast, Ms. Howell’s nomination was delayed after her hearing for 57 days before the Committee was allowed to vote and has been stalled for 89 days on the Senate Executive Calendar.  Since her questionnaire was received by the Committee it has been 160 days.  This is no reflection on Ms. Howell, whose credentials, work experience, temperament and qualifications are beyond reproach. 

There are more than a dozen additional consensus judicial nominations that have been through the entire process but are being denied a final vote.  I know of no precedent for this.  Indeed, in the lame duck session at the end of President Bush’s second year in office, we proceeded to report and confirm controversial circuit court nominees.  That the Senate is not being allowed to consider these consensus nominees is a shame and an unnecessary burden on them and their families and for the courts and people they would serve.  It is a travesty that all of the well-qualified nominees favorably reported by the Judiciary Committee could not be confirmed before this Congress adjourns.  That is what we did when we confirmed 100 judicial nominees of President Bush in 2001 and 2002.  All 100 of the nominees reported favorably by the Judiciary Committee received Senate votes and were confirmed, all 100.  They include 20 during the lame duck session that year and circuit court nominees reported after the election.   

This year consensus nominees are not being allowed to be considered.  These nominees include one unanimously reported circuit court nominee, and another circuit court nominee supported by 17 of the 19 Senators on the Judiciary Committee. 

President Obama has nominated James E. Graves to fill one of two emergency vacancies on the Fifth Circuit.  Currently, Justice Graves is the only African American on the Mississippi Supreme Court.  If confirmed, he would be the second African American to sit on the Fifth Circuit, the first from Mississippi.  His nomination has the strong support of both of his Republican home state Senators.  The ABA Standing Committee on the Federal Judiciary unanimously rated him well qualified, its highest possible rating.  The Judiciary Committee reported him unanimously.  Yet he is not being allowed a vote.   

Susan Carney is nominated to fill one of three emergency vacancies on the Second Circuit.  After working for 17 years in private practice, she served as Associate General Counsel of the Peace Corps, and she is currently the Deputy General Counsel of Yale University.  Ms. Carney’s nomination has the strong support of both of her home state Senators.  Her nomination was reported with the support of five of the seven Republicans serving on the Judiciary Committee and by a vote of 17 to two.  She is not being allowed a vote.

There are 13 more district court nominees who were reported unanimously by the Judiciary Committee that the Senate is not being allowed to consider.

President Obama nominated Amy Totenberg to fill an emergency vacancy on the U.S. District Court for the Northern District of Georgia in March.  Ms. Totenberg’s nomination has the support of her two Republican home state Senators.  Currently a lawyer in private practice in Atlanta, she also serves as a Special Master for the U.S. District Court for the District of Maryland and as a Court-Appointed Mediator for the U.S. District Court for the District of Columbia.  Previously, she was general counsel to the Atlanta Board of Education and a part-time municipal court judge.  She earned the highest possible rating, unanimously well qualified, from the ABA Standing Committee on the Federal Judiciary.  Her nomination was reported unanimously by the Judiciary Committee.

James E. Boasberg was nominated to fill another of the vacancies on the U.S. District Court for the District of Columbia.  Since 2002, Judge Boasberg has served as a judge on the Superior Court of the District of Columbia, a position to which he was appointed by President George W. Bush.  Previously, Judge Boasberg was a Federal prosecutor and an attorney in private practice.  The ABA Standing Committee on the Federal Judiciary rated him unanimously well qualified, its highest possible rating, to become a Federal judge.  His nomination was reported unanimously by the Judiciary Committee.

Amy Berman Jackson was nominated to fill the other current vacancy on the U.S. District Court for the District of Columbia.  Ms. Jackson is currently a partner at Washington, D.C.  law firm Trout Cacheris.  Previously, she was a partner in Venable’s Washington, D.C. office, and she also served as a Federal prosecutor in the District of Columbia.  Ms. Jackson earned the highest possible rating, unanimously well qualified, from the ABA Standing Committee on the Federal Judiciary.  Her nomination was reported unanimously by the Judiciary Committee. 

President Obama nominated James E. Shadid to fill an emergency vacancy on the U.S. District Court for the Central District of Illinois, a court that currently has only one active judge.  Judge Shadid is currently a judge on the Tenth Judicial Circuit in Peoria County, Illinois.  Previously, he was a sole practitioner in Peoria, a part-time commissioner on the Illinois Court of Claims, and a part-time Assistant Public Defender in the Peoria County Public Defender’s Office.  When he was appointed to serve as a state judge, Judge Shadid became the first Arab-American judge in Illinois.  He will become the only Federal Arab-American judge in the state, and one of only approximately four Arab-American Federal judges in the country.  His nomination was reported unanimously by the Judiciary Committee.

Sue E. Myerscough was also been nominated to fill an emergency vacancy the U.S. District Court for the Central District of Illinois.  She is currently the Presiding Justice on the Fourth District Appellate Court of Illinois, and she previously sat on the Seventh Judicial Circuit of Illinois, first as associate judge and then as circuit judge.  In all, Justice Myerscough has more than 23 years of judicial experience.  She also serves as an adjunct associate professor in the Department of Medical Humanities at the Southern Illinois University School of Medicine.  Justice Myerscough was first nominated to serve as a Federal judge in 1995, but her nomination was returned to the President after the Senate failed to act on it.  Her nomination was reported unanimously by the Judiciary Committee.

President Obama nominated Paul K. Holmes, III to fill an emergency vacancy on the U.S. District Court for the Western District of Arkansas.  Mr. Holmes is currently Of Counsel at the Fort Smith, Arkansas law firm where he formerly worked for more than two decades as an associate and a partner.  Previously, he was the U.S. Attorney for the Western District of Arkansas.  As U.S. Attorney, Holmes served for two years on the Attorney General’s Advisory Committee.   Mr. Holmes earned the highest possible rating—unanimously well qualified—from the ABA Standing Committee on the Federal Judiciary, and he has the strong support of his two home state Senators.  His nomination was reported unanimously by the Judiciary Committee.

Anthony J. Battaglia was nominated to become a Federal Judge on the U.S. District Court for the Southern District of California, the Court he has served as a Magistrate Judge for 17 years.  He is a former president of the Federal Magistrate Judges Association and of the San Diego County Bar Association.  Prior to taking the bench, Judge Battaglia worked for nearly two decades as a civil litigator in private practice.  He has the strong support of both of his home state Senators, and the ABA Standing Committee on the Federal Judiciary gave him its highest possible rating, unanimously well qualified.  His nomination was reported unanimously by the Judiciary Committee.

Judge Edward J. Davila was nominated to fill an emergency vacancy on the U.S. District Court for the Northern District of California.  Currently a judge on the Superior Court of California, Judge Davila previously spent 20 years as a trial lawyer, first as a deputy public defender in the Santa Clara County Public Defender's Office and then as a lawyer in private practice.  He also has taught trial advocacy course sessions at Stanford Law School, Santa Clara University School of Law, and the University of San Francisco School of Law.  If confirmed, Judge Davila will become the first Latino to take the Federal bench in the Bay Area in more than 15 years.  He has the strong support of his two home state Senators.  His nomination was reported unanimously by the Judiciary Committee.

President Obama nominated Diana Saldana to fill an emergency vacancy in the Southern District of Texas, the district she has served as a Magistrate Judge since 2006.  Before taking the bench, Judge Saldana served the Southern District for five years as a Federal prosecutor, and she previously was a lawyer in private practice and a trial attorney in the Civil Rights Division of the U.S. Department of Justice.  The child of migrant farm-workers, Judge Saldana began working alongside her family in the sugar beet fields at age 10, and she continued to do so for more than a decade.  After graduating from law school, she served as a law clerk to then-Chief Judge George P. Kazen.  If confirmed, Judge Saldana will fill the vacancy created by Judge Kazen’s retirement.  Judge Saldana earned the highest possible rating—unanimously well qualified—from the ABA Standing Committee on the Federal Judiciary.  She has the strong support of her two Republican home state Senators.  Senator Cornyn called her “one of the toughest law enforcers in South Texas,” and Senator Hutchison added that Judge Saldana “has some of the finest qualities we expect in our judges.”  Her nomination was reported unanimously by the Judiciary Committee.

Max O. Cogburn was nominated to sit on the U.S. District Court for the Western District of North Carolina, the district that he previously served for nine years as a Magistrate Judge and for 12 years as an Assistant U.S. Attorney.  Mr. Cogburn is currently a partner in the Asheville, North Carolina law firm, Cogburn and Brazil, and he also serves as an appointed member of the North Carolina Education Lottery Commission.  In addition to practicing law, Mr. Cogburn owns and maintains with his siblings the Pisgah View Ranch, a dude ranch that has been in his family for generations.  Mr. Cogburn has the strong, bipartisan support of his two home state Senators,  a Republican and a Democrat.  His nomination was reported unanimously by the Judiciary Committee.

Marco A. Hernandez was nominated to fill an emergency vacancy on the U.S. District Court for the District of Oregon.  He has served as a judge in Oregon’s 20th Judicial District for the last 15 years, first on the district court and now as a circuit court judge.  Previously, Judge Hernandez was a deputy district attorney in Washington County, Oregon and a lawyer for Oregon Legal Services.  Judge Hernandez has the strong support of his two home state Senators, and he has now been nominated to this position by Presidents of both parties.  If confirmed, he will become the first Latino to serve as a Federal Judge in Oregon. His nomination was reported unanimously by the Judiciary Committee.  I also note that Senator Sessions made quite a fuss that he was not confirmed at the end of the Bush administration while Senator Sessions proceeded to delay Committee consideration of his nomination and while Republicans still refuse to allow it to be considered before adjournment.

President Obama nominated Steve Jones to fill an emergency vacancy on the U.S. District Court for the Northern District of Georgia.  For the last 15 years, Judge Jones has been a superior court judge in the Tenth Superior Court District of Georgia, and he currently serves that district as the presiding judge on the Felony Drug Court as well.  Previously, he was a judge on the Athens-Clarke County Municipal Court and an Assistant District Attorney for the Western Judicial Circuit.  Judge Jones was the first African American to serve the Western Judicial Circuit as a Superior Court judge.  He will be the only active African-American judge on the Northern District of Georgia, and one of only two active African-American judges in the state.   Judge Jones earned the highest possible rating—unanimously well qualified—from the ABA Standing Committee on the Federal Judiciary, and he has the strong support of his two Republican home state Senators. His nomination was reported unanimously by the Judiciary Committee.

Michael Simon was nominated to the U.S. District Court for the District of Oregon.  He is currently a partner at the law firm of Perkins Coie LLP, where he serves as head of the litigation practice at the Portland office.  In that capacity, Mr. Simon has handled several high-profile First Amendment cases on a pro-bono basis.  Before joining that firm, Mr. Simon was a trial attorney in the Antitrust Division of the U.S. Department of Justice.  Mr. Simon has the strong support of his two home state Senators.  His nomination was reported by the Committee with strong bipartisan support.

These consensus nominees are in addition to the other highly qualified nominations on which the Senate has not been allowed to vote for many months.

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