02.13.12

Statement Of Senator Patrick Leahy On The Nomination Of Judge Adalberto Jordan To The 11th Circuit

[The Senate will vote at 5:30 p.m. Monday evening on the motion to invoke cloture on the nomination of Judge Adalberto Jordan to be a judge on the U.S. Circuit Court of Appeals for the 11th Circuit.  Jordan’s nomination was reported by the Senate Judiciary Committee unanimously in October, but Senate Republicans have not consented to scheduling a vote on his confirmation.  Judge Jordan’s nomination is supported by his two home state Senators, Democrat Bill Nelson and Republican Marco Rubio.  Monday’s vote on the motion to invoke cloture will pave the way to a vote on final confirmation.]

 

Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Cloture On The Nomination Of Judge Adalberto Jordan To The Eleventh Circuit

February 13, 2012

As Prepared for Delivery

This is the eighth time the Majority Leader has had to file a cloture petition to overcome yet another Republican filibuster of one of President Obama’s superbly-qualified judicial nominees.  A former Federal prosecutor and current Federal district court judge in the Southern District of Florida, Judge Adalberto Jordan is the kind of nominee who in the past would have been confirmed without delay, rather than wait four months for Senators to consent to proceed on his nomination. 

This is a nomination that has the strong and committed support of Senator Nelson, as well as that of Senator Rubio. He had the unanimous support of every Republican and every Democrat on the Judiciary Committee when we voted last October, although some Republicans may now decide to switch their votes. When he was nominated to the District Court by President Clinton in 1999, even while Senate Republicans were pocket filibustering more than 60 of President Clinton’s judicial nominees, Judge Jordan was confirmed without delay by a vote of 93 to one.

The needless delay in Judge Jordan’s confirmation is the latest example of the tactics that have all but paralyzed the Senate confirmation process and are damaging our Federal courts.  It should not take four months and require a cloture motion to proceed to a nomination such as that of Judge Jordan to fill a judicial emergency vacancy on the Eleventh Circuit. It should not take more months and more cloture motions before the Senate finally votes on the nearly 20 other superbly-qualified judicial nominees who have been stalled by Senate Republicans for months while vacancies continue to plague our Federal courts and delay justice for the American people.

When confirmed, Judge Jordan will be the first Cuban-born judge to serve on the U.S. Court of Appeals for the Eleventh Circuit, which encompasses Florida, Georgia and Alabama.  Born in Havana, Cuba, Judge Jordan immigrated to the United States at age six.  He went on to graduate summa cum laude from the University of Miami law school.  Following law school, he clerked for Judge Thomas Clark on the U.S. Court of Appeals for the Eleventh Circuit, the Court to which he is nominated, and Justice Sandra Day O’Connor on the U.S. Supreme Court.  He then became a Federal prosecutor in the Southern District of Florida, where he served as Deputy Chief and then Chief of the Appellate Division.  Judge Jordan has also been a professor.  Since 1990, he has taught at his alma mater, the University of Miami School of Law, as well as the Florida International University College of Law. 

It is no surprise that the ABA’s Standing Committee on the Federal Judiciary unanimously rated Judge Jordan “well qualified” to serve on the Eleventh Circuit, the highest possible rating from its nonpartisan peer review.  His is a nomination to be commended and supported, not filibustered and obstructed. 

Judge Jordan is a consensus nominee.  He is the kind of consensus nominee I have been urging Senate Republicans to stop stalling.  He represents the kind of consensus nominees that this President has sent the Senate but that have been needlessly and harmfully stalled for months and months for no good reason.  It needs to stop.  Last Thursday, Professor Carl Tobias wrote:  “Most troubling has been Republican refusal to vote on noncontroversial, strong nominees—inaction that conflicts with a venerable Senate tradition.  When the chamber has eventually voted on nominees, the Senate has overwhelmingly approved many.”  I expect Judge Jordan to be confirmed with a strong, bipartisan vote, as well.  There was no justification for delaying this action over the last four months while a judicial emergency vacancy went unfilled.   

There is no justifiable reason for requiring the Majority Leader to file cloture for the Senate to hold a vote on this qualified, consensus nominee.   Similarly there is no justification for Senate Republicans’ refusal to hold votes on the nearly 20 qualified judicial nominees who also remain stalled before the Senate awaiting a final vote. 

This filibuster of Judge Jordan is just the current example of Senate Republicans’ delay tactics with respect to President Obama’s qualified, consensus nominees.  As we enter the fourth year of President Obama’s administration, we are far behind the pace set by the Senate during President George W. Bush’s first term.  By the end of 2004, the Senate had confirmed 205 district and circuit nominees, including 100 during the 17 months that I was Chairman of the Judiciary Committee.  In contrast, the Senate has confirmed only 126 of President Obama’s district and circuit nominees, leaving 86 judicial vacancies.  The vacancy rate is likely to remain twice what it was in 2004.

The slow pace of confirmations of President Obama’s judicial nominees is no accident or happenstance.  It is the result of deliberate obstruction and delays.  For the second year in a row, the Senate Republican leadership ignored long-established precedent and refused to schedule any votes before the December recess on the nearly 20 consensus judicial nominees who had been favorably reported by the Judiciary Committee.  Here we are in the middle of February fighting to hold a vote on one of the 19 nominees who should have been confirmed last year.  Fifteen of the nominees stalled by Senate Republicans were reported with the unanimous support of their home state Senators and every Republican and every Democrat on the Senate Judiciary Committee. 

During President George W. Bush’s administration, Republican Senators insisted that filibusters of judicial nominees were unconstitutional.  They threatened the “nuclear option” in 2005 to guarantee up-or-down votes for each of President Bush’s judicial nominees.  Many Republican Senators declared that they would never support the filibuster of a judicial nomination—never.  Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama’s very first judicial nomination, that of Judge David Hamilton of Indiana, a widely- respected 15-year veteran of the Federal bench who had the support of the most senior and longest-serving Republican in the Senate, Senator Lugar.  The Senate rejected that filibuster and Judge Hamilton was fortunately confirmed. 

But the partisan delays and opposition have continued.  Senate Republicans have required cloture votes even for nominees who ultimately were confirmed unanimously when the Senate finally overcame those filibusters and voted on their nomination.  So it was with Judge Barbara Keenan of the Fourth Circuit, who was confirmed 99-0 when the filibuster of her nomination finally ended in 2010, and Judge Denny Chin of the Second Circuit, an outstanding nominee with 16 years judicial experience, who was ultimately confirmed 98-0 when the Republican filibuster was overcome after four months of needless delays. 

Regrettably, Senate Republicans have successfully filibustered the nominations of Goodwin Liu and Caitlin Halligan.  I have warned that Senate Republicans have imposed a new standard that threatened to make confirmation of any nominee to the D.C. Circuit virtually impossible in the future.  At the time, The Washington Post noted: “GOP senators are grasping at straws to block Ms. Halligan’s ascension, perhaps in hopes of preserving the vacancy for a Republican president to fill.”  I urged Senate Republicans to stop playing politics with the D.C. Circuit, and to allow an up-or-down vote on Ms. Halligan after more than 15 months of delay.  Regrettably, the nomination of such a highly-qualified public servant, who had the support of law enforcement, appellate advocates, former Supreme Court clerks, academics and practitioners from across the political spectrum, was prevented from an up or down vote. 

This obstruction is particularly damaging at a time when judicial vacancies remain at record highs.  There are currently 86 judicial vacancies across the country, meaning that nearly one out of every 10 Federal judgeships remains vacant.  The vacancy rate is nearly double what it had been reduced to by this point in the Bush administration, when we worked together to bring judicial vacancies down to 46. 

It is the American people who pay the price for the Senate’s unnecessary and harmful delay in confirming judges to our Federal courts.  It is unacceptable for hardworking Americans who are seeking their day in court to find one in 10 of those courts vacant.  When an injured plaintiff sues to help cover the cost of medical expenses, that plaintiff should not have to wait for years before a judge hears his or her 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 18 more judicial nominees stalled and cloture motions being required for consensus nominees, the Senate is failing in its responsibility, harming our Federal courts and ultimately hurting the American people.  Is it any wonder that only 10 percent of the American people view Congress favorably?  Are Senate Republicans intent on bringing that approval rating even lower, into single digits?

Some Senate Republicans are now seeking to excuse these months of delay by blaming President Obama for forcing them to do it.  They point to President Obama’s recent recess appointments of a Director for the Consumer Financial Protection Bureau and members of the National Labor Relations Board.  Of course, those appointments were made a few weeks ago, long after the delay of Judge Jordan’s nomination began.  Moreover, the President took his action because Senate Republicans had refused to vote on those executive nominations and were intent on rendering the government agencies unable to enforce the law and carry out their critical work on behalf of the American people.  Some Senate Republicans are doubling down on their obstruction in response.  They are apparently extending their blockage against nominees beyond executive branch nominees to these much-needed judicial nominees.  This needless obstruction accentuates the burdens on our Federal courts and delays in justice to the American people.   We can ill afford these additional delays and protest votes.  The Senate needs, instead, to come together to address the needs of hardworking Americans around the country. 

Judge Adalberto Jordan is precisely the type of qualified, consensus nominee the Senate should be confirming without delay. There is no basis for refusing to hold a vote on his nomination.  When introducing Judge Jordan to the Senate Judiciary Committee last October, Senator Rubio praised his knowledge of the law, his experience, and his participation in his community, stating that he “looks forward to [Judge Jordan’s] appointment.”  I am sorry that Senate Republicans have delayed that day for the last four months.  I look forward to the Senate finally being allowed to vote to confirm this nomination.  I, again, urge Senate Republicans to stop the destructive delays that have plagued our nominations process. The American people deserve Federal courts ready to serve them, not empty benches and long delays.

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