Statement Of Senator Patrick Leahy On The Nomination of Judge Brian Wimes of Missouri

Today, the Senate will finally vote on the nomination of Brian Wimes to fill a judicial vacancy in the U.S. District Court for the Western and Eastern Districts of Missouri.  This nomination has had the support of both his home state Senators, Senator McCaskill and Senator Blunt.  The Judiciary Committee voted to report the nomination favorably over four months ago.  There is no justification for this unnecessary delay. 

The Senate is still so far this year only considering judicial nominations that could and should have been confirmed last year.  We will conclude the first four months of this year having only considered judicial nominees who should have been confirmed before recessing last December.  We have yet to get to any of the nominees we should be considering this year because of Republican objections to proceeding more promptly. 

With nearly one in 10 judgeships across the Nation vacant, the judicial vacancy rate remains nearly twice what it was at this point in the first term of President George W. Bush when we lowered vacancy rates more than twice as quickly.  The Senate is 33 confirmations of circuit and district court judges behind the number at this point in President Bush’s fourth year in office.  We are also 66 confirmations from the total of 205 that we reached by the end of President Bush’s fourth year.

As I noted earlier this month, the Federal judiciary has been forced to operate with the heavy burden of 80 or more judicial vacancies for nearly three years now.  There are 22 judicial nominees on the Senate Executive Calendar ready for final consideration and a vote, not just this one.  Action on those 22 nominees would go a long way toward easing the burden on the Federal courts and ensuring that all Americans have Federal judges available so that they can have the quality of justice that they deserve.

Some Senate Republicans seek to divert attention by suggesting that these longstanding vacancies are the President’s fault for not sending us nominees.  The fact is that there are 22 outstanding judicial nominees that can be confirmed right now, but who are being stalled.  Let us act on them.  Let us vote them up or down.  When my grandchildren say they want more food before they finish what is on their plate, my answer is to urge them to finish the food already on their plate before asking for seconds or dessert.  To those Republicans that contend it is the White House’s fault that they are not agreeing to proceed to consider the judicial nominees we do have more quickly, I say let us complete Senate action on these 22 judicial nominees ready for final action.  There are more working their way through Committee, and the Senate can act responsibly to help fill some of the most pressing vacancies plaguing some of our busiest courts if we proceed to these nominations now.

For instance, the Ninth Circuit is by far the busiest circuit in the country.  The Senate has yet to vote on the long-delayed nomination of Judge Jacqueline Nguyen of California to fill one of the judicial emergency vacancies plaguing the Ninth Circuit.  Hers was one of the nominations ready to be confirmed last year that will be delayed five months before her confirmation to fill that judicial emergency vacancy.  Republicans have insisted that her vote be delayed until next month.  There are two additional Ninth Circuit nominees to fill judicial emergency vacancies who are ready for final votes but for which Senate Republicans have not agreed to schedule votes.  Paul Watford of California and Justice Andrew Hurwitz of Arizona were both voted favorably from the Senate Judiciary Committee earlier this year.  There is no good reason for delay.  The 61 million people served by the Ninth Circuit are not served by this delay.  The Circuit is being forced to handle double the caseload of any other without its full complement of judges.  The Senate should be expediting consideration of the nominations of Judge Jacqueline Nguyen, Paul Watford, and Justice Andrew Hurwitz, not delaying them. 

The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan appointee, along with the members of the Judicial Council of the Ninth Circuit, have written to the Senate emphasizing the Ninth Circuit’s “desperate need for judges,” urging the Senate to “act on judicial nominees without delay,” and concluding “we fear that the public will suffer unless our vacancies are filled very promptly.”  The judicial emergency vacancies on the Ninth Circuit are harming litigants by creating unnecessary and costly delays.  The Administrative Office of U.S. Courts reports that it takes nearly five months longer for the Ninth Circuit to issue an opinion after an appeal is filed, compared to all other circuits.  The Ninth Circuit’s backlog of pending cases far exceeds other Federal courts.  As of September 2011, the Ninth Circuit had 14,041 cases pending before it, more than three times that of the next busiest circuit. 

If caseloads were really a concern of Republican Senators, as they contended last year when they filibustered the nomination of Caitlin Halligan to the D.C. Circuit, they would not be delaying the nominations to fill judicial emergency vacancies in the Ninth Circuit.  If caseloads were really a concern, Senate Republicans would consent to move forward with all three of these Ninth Circuit nominees to allow for up or down votes by the Senate without these months of unnecessary delays.

Delay is harmful for everyone, but mostly to the American public.  Right now, 150 million Americans live in districts and circuits with vacancies that could be filled if Senate Republicans would simply vote on the 22 judicial nominations ready for final Senate action. 

I also note that of the current vacancies without a nomination, 28 involve Republican home state Senators.  This is a President who has tried to work with home state Senators from both parties on his nominations.  There are also an additional seven nominations on which the Senate Judiciary Committee cannot proceed because Republican Senators are withholding support. 

I congratulate Senator McCaskill for her success in getting this vote on the nomination of Judge Wimes.  He is currently a judge on the 16th Judicial Circuit Court of Missouri.  He previously served as the Jackson County Drug Court Commissioner and as an assistant prosecuting attorney in the Jackson County Prosecutor’s Office.  Judge Wimes has the strong support of Senator Claire McCaskill and is also supported by Senator Blunt.  He and his family have been waiting for this day since the Judiciary Committee in an overwhelming, bipartisan manner voted to send his name to the Senate on December 15th of last year.

Today’s vote is pursuant to the agreement reached by the Majority Leader and the Republican leader last month.  To make real progress, however, the Senate needs go beyond the nominations included in that limited agreement to include the other 16 judicial nominations currently before the Senate for a final vote and the three judicial nominees who should be reported by the Judiciary Committee this week.  Let us work in a bipartisan fashion to confirm these qualified judicial nominees so that we can help alleviate the judicial vacancy crisis and so they can serve the American people.   

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