06.06.12

Statement Of Senator Patrick Leahy On The Nomination Of Jeffrey Helmick

Remarks As Prepared For Delivery

Today, the Senate will vote on the nomination of Jeffrey Helmick to fill a judicial emergency vacancy on the U.S. District Court for the Northern District of Ohio.  I commend Senator Brown and Senator Portman for their diligence in securing a vote on this nomination.  Mr. Helmick has the strong bipartisan support of his home state Senators.  His nomination was voted out of the Judiciary Committee nearly three months ago by a bipartisan majority.  I thank the Majority Leader for his work in bringing this nomination up for a final vote. 

This is one of the nominations that I noted on Monday had been skipped, when we confirmed another district court judge.  I look forward to working with Senator Kyl and Senator McCain to secure a vote on the nomination of Justice Andrew Hurwitz to fill a judicial emergency vacancy on the Ninth Circuit, working with Senator Menendez and Senator Lautenberg to secure a vote on the nomination of Judge Patty Shwartz to fill a vacancy on the Third Circuit, and with Senator Graham and Senator DeMint to set a vote on the nomination of Mary Lewis to fill a vacancy in South Carolina.  

I spoke on Monday about a recent Congressional Research Service report on judicial nominations.  I ask consent to include in the Record key excerpts from that report.  The report demonstrates what I have been saying for some time, that the time that nominations are being delayed from a final Senate vote is extraordinary.  Pages 17 through 19 and figure 4 demonstrate the unprecedented obstruction.  The median number of days President Obama’s circuit court nominees have been delayed, from Committee report to a vote, has skyrocketed to 132 days, “roughly 7.3 times greater than the median number of 18 days for the 61 confirmed circuit nominees of his immediate predecessor, President G.W. Bush.” 

That delay is being demonstrated again with respect to the nominations of  Justice Hurwitz to the Ninth Circuit, Judge Shwartz to the Third Circuit, Richard Taranto to the Federal Circuit, and William Kayatta to the First Circuit.  These are not controversial or ideologically driven nominees.  Justice Hurwitz is strongly supported by Senator Kyl and Senator McCain; William Kayatta is strongly supported by Senator Snowe and Senator Collins.  Another point made by the Congressional Research Service is that fewer circuit court nominees have been confirmed than were confirmed during the first terms of any of President Obama’s four predecessors—President Reagan, President Geroge H.W. Bush, President Clinton, or President George W. Bush.

Similarly, district court nominees like Mr. Helmick are being unnecessarily delayed.  The median time from Committee vote to Senate vote has gone from 21 days during the George W. Bush presidency to 90 days for President Obama’s district nominees.  I wish Mr. Helmick had been confirmed back in March when he was first ready for a final Senate vote.  He has been stalled for nearly three months.  The Congressional Research Service report also notes that in contrast to President George W. Bush’s district court nominees, who were confirmed at a rate of almost 95 percent, President Obama’s district court nominees are being confirmed at a rate below 80 percent.  And it concludes that “the average time in the current Congress during which circuit and district court nominations have been pending on the Senate Executive Calendar before being confirmed has reached historically high levels.” 

Once the Senate is allowed to vote on this nomination, we need agreement to vote on the 14 other judicial nominees stalled on the Executive Calendar.  There are five more judicial nominees who had their hearing back on May 9 and should be voted on by the Judiciary Committee tomorrow.  They too will need Senate votes for confirmation.  Another point made by the Congressional Research Service in its recent report is that fewer of President Obama’s district court nominees have been confirmed than were confirmed during the first terms of his four predecessors and vacancies remain higher now than when President Obama took office.  Not a single one of the last three presidents has had judicial vacancies increase after their first term.  In order to avoid this, the Senate needs to act on these nominees before adjourning this year.

Nor would that be unusual.  As the Congressional Research Service Report makes clear, in five of the last eight presidential election years, the Senate has confirmed at least 22 circuit and district court nominees after May 31.  The notable exceptions were during the last years of President Clinton’s two terms in 1996 and 2000 when they would not allow confirmations to continue.  Otherwise, it has been the rule rather than the exception.  So, for example, the Senate confirmed 32 in 1980; 28 in 1984; 31 in 1992; 28 in 2004 at the end of President George W. Bush’s first term; and 22 after May 31 in 2008 at the end of President Bush’s second term. 

The Congressional Research Service Report about the treatment of President Obama’s judicial nominations confirms what we already know – that Senate Republicans have held President Obama’s nominees to a different and unfair standard and engaged in unnecessary and harmful delays of consensus nominees. 

James Fallows, a well-respected journalist at The Atlantic authored an internet article dated June 5, 2012 based on his reading of the CRS Report, which is entitled “American Dysfunction Watch: State of the Judiciary.”  In this article, Mr. Fallows notes that Mr. Obama “is the only president in the past few decades … to have more seats vacant as he began his re-election year than he inherited when he took office.”  Moreover, Mr. Fallows further highlights the following:  “During the Obama presidency thus far, fewer circuit court nominees have been confirmed by the Senate than were confirmed during the first terms of any of the four preceding Presidents (Reagan through G.W. Bush).  Likewise, fewer Obama district court nominees have been confirmed by the Senate than were confirmed during the first terms of the four preceding presidents.”

The Ranking Member on Judiciary Committee has noted that we are doing better than when his predecessor was the Ranking Republican on the Committee, and that is accurate.  But we have not made up for the historically low confirmations allowed during that period or for the fact that in each of the last two years the Senate has adjourned without acting on 19 judicial nominations ready for final action each year. 

Some seek to compare this first term of President Obama to President Bush’s second four year term, but as the Congressional Research Service Report demonstrates, the proper comparison is to President Bush’s first term.  Nonetheless, I would remind the Senate that during President Bush’s second term, the Republican majority managed the confirmation of 52 circuit and district court nominees while the Senate Democratic majority worked to confirm 68 judicial nominees during the last two years of that presidency and reduced vacancies to 34 while holding hearings and votes on judicial nominees well into September 2008.

The simple fact is that the Senate is still lagging far behind what we accomplished during the first term of President George W. Bush.  During President Bush’s first term we reduced the number of judicial vacancies by almost 75 percent.  When I became Chairman in the summer of 2001, there were 110 vacancies.  As Chairman, I worked with the administration and Senators from both sides of the aisle to confirm 100 judicial nominees of a conservative Republican President in 17 months.

Senate Democrats continued when in the minority to work with Senate Republicans to confirm President Bush’s consensus judicial nominations well into 2004, a presidential election year.  At the end of that presidential term, the Senate had acted to confirm 205 circuit and district court nominees.  In May 2004, we reduced judicial vacancies to below 50 on the way to 28 that August.  Despite 2004 being an election year, we were able to reduce vacancies to the lowest level in the last 20 years.  At a time of great turmoil and political confrontation, despite the attack on 9/11, the anthrax letters shutting down Senate offices, and the ideologically-driven judicial selections of President Bush, we worked together to promptly confirm consensus nominees and to significantly reduce judicial vacancies.

By comparison, the vacancy rate remains nearly twice what it was at this point in the first term of President Bush.  While vacancies were reduced to 43 by June of President Bush’s fourth year, in June of President Obama’s fourth year they remain in the mid-70s.  They remained near or above 80 for nearly three years.  We are 30 confirmations behind the pace we set in 2001 through 2004.  Of course, we could move forward if the Senate were allowed to vote without further delay on the 15 judicial nominees ready for final action.  The Senate could reduce vacancies below 60 and make progress.

The Judiciary Committee should be voting on more judicial nominees this Thursday and we held a hearing for another three judicial nominees this afternoon.  With cooperation from Senate Republicans, the Senate could make real progress and match what we have accomplished in prior years. 

After today, we still have much more work to do to help resolve the judicial vacancy crisis that has persisted for more than three years.  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 turn to their courts for justice 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 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.

We need to work to reduce the vacancies that are burdening the Federal judiciary and the millions of Americans who rely on our Federal courts to seek justice.  Let us work in a bipartisan fashion to confirm these qualified judicial nominees so that we can address the judicial vacancy crisis and so they can serve the American people.  

Jeffrey Helmick was rated well qualified by a substantial majority of the ABA’s Standing Committee on the Federal Judiciary.  In his 22-year legal career as a litigator in private practice, Mr. Helmick has tried approximately 40 cases to verdict or judgment.  Currently a principal at his law firm, Mr. Helmick has the strong support of his home state Senators, Democratic Senator Sherrod Brown and Republican Senator Rob Portman.

I join Senator Brown and Senator Portman in supporting the confirmation of Jeffrey Helmick. 

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