Statement Of Senator Patrick Leahy On The Nomination Of Margo Brodie To The Eastern District Of New York

Remarks As Prepared For Delivery

[The Senate is now voting on the nomination of Margo Brodie to the Federal District Court for the Eastern District of New York.  Brodie’s nomination was unanimously reported to the full Senate by the Judiciary Committee nearly five months ago.]

Earlier this month the Senate finally ended a four-month and two-day filibuster of the confirmation of Judge Adalberto Jordan and he is now the first Cuban-American to serve on the Eleventh Circuit.  We also finally ended the five-month filibuster of the nomination of Jesse Furman, a former counselor to Attorney General Mukasey, and he is now a confirmed Federal trial judge in the Southern District of New York.  

The Majority Leader should not have had to file cloture petitions for the Senate to vote on these outstanding judicial nominations.  Senate Republicans have filibustered nine of President Obama’s judicial nominations despite the fact that he has reached out to both Republican and Democratic home state Senators and nominated qualified, ideologically moderate men and women to fill vacancies on our Federal courts. 

Before I turn to the nomination of Margo Brodie, another nomination that should have been confirmed last year after being reported by the Senate Judiciary Committee unanimously in October, I want to spend a moment reflecting on Senate Republicans’ treatment of Jesse Furman.  Judge Furman was a Federal prosecutor who also served as a top legal advisor to Attorney General Michael Mukasey during the George W. Bush administration.  He was involved with the prosecutions of the Times Square bomber, the infamous Russian spies, and a Pakistani scientist with ties to Al Qaeda whose actions were responsible for the 1998 bombings of the U.S. embassies in Kenya and Tanzania.  He has impeccable credentials including having clerked for Justice David Souter on the United States Supreme Court.  Based on his superior qualifications and bipartisan support, the Senate Judiciary Committee reported his nomination last September unanimously, without a single Republican Senator dissenting. 

His nomination, like so many others, was then subjected to obstruction and delay.  From the start of his term, Republican Senators have applied a double standard to President Obama’s nominees.  Senate Republicans have chosen to depart dramatically from the long tradition of deference to home state Senators on district court nominees.  Instead, an unprecedented number of President Obama’s highly-qualified district court nominees have been targeted for opposition and obstruction.  That approach is a serious break from the Senate’s practice of advice and consent.  Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate.  Of these 2,100 nominees, only six have been reported by party-line votes – only six total in the last 65 years.  Five of those six party-line votes have been by Republican Senators against President Obama’s highly-qualified district court nominees.  In fact, only 22 of those 2,100 district court nominees were reported by any kind of split roll call vote at all, and eight of those, more than a third, have been by Republican Senators choosing to oppose President Obama’s nominees. President Obama’s nominees are being treated differently than those of any President, Democratic or Republican, before him.

Despite his qualifications and bipartisan supporters, Jesse Furman’s nomination was stalled for more than five months by Senate Republicans.  When the Majority Leader was able to break through and schedule debate and a vote, I saw something else I have not seen until recently.  Republican Senators who had supported the nomination after studying it for months when it was before the Judiciary Committee for a hearing and vote, flipped and changed their votes. 

In total, 34 Republican Senators voted against this highly-qualified nominee.  I am at a loss as to why.  It appears that Senators decided to ignore Jesse Furman’s record and be swayed by mischaracterizations of a brief he had written in a religious freedom case or by something he wrote as an 18-year old freshman in college.  I urge Senators, as I have for years, not to listen to the extreme special interests but to make their own judgments.  I suspect that in this case it was the last-minute campaign by narrow special interests groups that accounted for the number of negative votes. 

Today the Senate will vote on the confirmation of another highly-qualified, consensus nominee to the Federal bench.  Margo Brodie has practiced law for 20 years including working as a Federal prosecutor in Brooklyn for the last12.  She has risen from the ranks of Assistant U.S. Attorney to Deputy Chief of General Crimes to Deputy Chief of the Criminal Division.  Ms. Brodie has successfully prosecuted numerous cases on matters ranging from violent crimes and drug offenses to white collar crimes.  She has also led public corruption cases, successfully prosecuting criminals who embezzled funds and tried to bribe government agencies in her home state of New York. 

Ms. Brodie has the support of both her home state Senators and was reported by the Senate Judiciary Committee on October 6, 2011, without a single dissent.  She has demonstrated her commitment to the rule of law, her legal abilities and knowledge of the law.  It is past time for the Senate to confirm this outstanding African-American woman to the Federal bench.

Margo Brodie is one of 20 judicial nominations approved by the Senate Judiciary Committee still awaiting a final vote.  Fifteen of these nominations have been pending since last year and should have been confirmed before the end of last year.  Eighteen of these nominees received strong bipartisan support from the Senate Judiciary Committee. 

These nominees should be confirmed without further delay.  Now in the fourth year of President Obama’s first term, the number of judicial vacancies remains at 85.  That is nearly double what they were at this point in President Bush’s administration.  One hundred and thirty million Americans live in circuits or districts with a judicial vacancy that could be filled if Senate Republicans would vote on judicial nominees that have already been voted on by the Senate Judiciary Committee and are stalled awaiting final Senate consideration. 

The Senate is more than 40 confirmations behind the pace we set confirming President Bush’s judicial nominees in 2001 through 2004.  For the second year in a row, the Senate Republican leadership ignored long-established precedent and refused to allow votes before the December recess on the nearly 20 consensus judicial nominees who had been favorably reported by the Judiciary Committee. 

Ultimately, it is the American people who pay the price for Senate Republican’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 seats on 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. 

I, again, urge Senate Republicans to stop the destructive delays that have plagued our nominations process.  I urge them to stop the slow-walking of highly-qualified, consensus nominees.  The American people deserve no less.       

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