Statement Of Senator Patrick Leahy On The Nomination Of Morgan Christen To The Ninth Circuit

Today, the Senate will finally consider the nomination of Justice Morgan Christen of Alaska to fill one of four vacancies on the Court of Appeals for the Ninth Circuit, all of which are judicial emergency vacancies.  With today’s long overdue vote, the Senate will take the first step towards addressing a serious vacancy crisis on the busiest Federal appeals court in the country. 

I thank the Majority Leader for scheduling today’s vote.  It should not have taken more than three months to obtain Republican consent to consider the nomination of Justice Christen after it was reported unanimously by the Judiciary Committee on September 8.  Her nomination has the strong support of both of Alaska’s Senators, Republican Senator Lisa Murkowski and Democratic Senator Mark Begich, who introduced Justice Christen to the Judiciary Committee at her hearing on July 13.  Several Republican leaders from Alaska also wrote to the Judiciary Committee to express their support, including former Alaska State Senator Arliss Sturgulewski, and Walt Monegan, the former Alaska Commissioner for Public Safety appointed by then-Governor Sarah Palin.  Connecticut State Representative Lile Gibbons, a Republican, has also written to the Committee to express her support.

Justice Christen is the kind of qualified, consensus nominee who in past years would have been considered and confirmed by the Senate within days of being reported unanimously by the Judiciary Committee, not stuck for months unnecessarily on the Senate calendar.   She is an experienced jurist who has served on Alaska’s highest court for the past three years.  She was nominated to that position by then-Governor Sarah Palin, and she is the second woman in Alaska’s history to serve on its Supreme Court.  Justice Christen previously served for seven years as a judge on the Superior Court for Alaska’s Third Judicial District, three of those years as the Presiding Judge.  She worked in private practice for 13 years in Anchorage, clerked for Judge Brian Shortell of the Alaska Superior Court, and has demonstrated a deep commitment to her community throughout her career.  Once she is confirmed, Justice Christen will be the first woman from Alaska to serve on the United States Court of Appeals for the Ninth Circuit.   

The unexplained Republican delay in consenting to consider her nomination has caused unnecessary delays in filling judicial emergency vacancies on the Ninth Circuit, the busiest Federal circuit court in the country.  Sixty-one million Americans live in the jurisdiction served by the Ninth Circuit.  At a time when judges on that circuit are being called upon to handle double the caseload of the other Federal circuit courts, the Senate should have expedited the consideration of Justice Christen’s nomination, not needlessly slowed it down.  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 that they “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 March 2011, the Ninth Circuit had 13,913 cases pending before it.  The second closest – the Sixth Circuit – had 5,231 cases pending.  

If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have delayed Justice Christen’s nomination to fill a judicial emergency vacancy for over three months.  If caseloads were really a concern, Senate Republicans would consent to move forward to confirm Judge Jacqueline Nguyen of California, another well-qualified nominee to fill a judicial emergency vacancy on the Ninth Circuit.  Her nomination was also reported unanimously by the Judiciary Committee and needs only a final up-or-down vote by the Senate.  Judge Nguyen is nominated to fill the judicial emergency vacancy that remains after the Republican filibuster of Goodwin Liu.  I hope that the Senate will be allowed to take up and confirm her nomination to finally fill that vacancy before the Senate concludes its work for the year. 

I also hope that we can continue to make progress early in the New Year by considering two nominations to the Ninth Circuit now pending before the Judiciary Committee.  Earlier this week we held a hearing with Paul Watford of California, nominated to fill yet another judicial emergency vacancy on the Ninth Circuit.  I would have included another nominee to the Ninth Circuit at that hearing, Justice Andrew Hurwitz of Arizona, who has the support of Senator Kyl, but Committee Republicans were not ready to proceed on that nomination.  I hope both can be considered and confirmed early next year. 

The Senate should act to address the continuing crisis in judicial vacancies that affects not only the Ninth Circuit, but Federal courts around the country.  It is now December 15, with only days left in the Senate’s 2011 session.  There is no time to further delay votes on the other 20 judicial nominations now pending on the Senate calendar and awaiting a final vote.  Sixteen of these nominations, in addition to that of Justice Christen, were reported unanimously by the Judiciary Committee.  Many were reported last summer and early in the fall.  At a time when nearly one in 10 Federal judgeships remains vacant, further delays are damaging.  Judicial vacancies have remained at or above 80 for over two and a half years.  This hurts the millions of Americans who live in those districts and circuits and rely on our Federal courts.   

We should not repeat the mistakes of last year, when the Senate Republican leadership held back its consent at the end of the year to consideration of 19 judicial nominations that had been reported by the Judiciary Committee and were ready for final Senate action.  That was an abusive exercise in unnecessary delay that I believe was without precedent with respect to such consensus nominees.  It took us until June of this year, halfway into 2011, to consider and confirm 17 of the nominations that could and should have been considered before the end of 2010.  

In contrast, Democratic Senators proceeded to up or down votes on all 100 of President Bush’s judicial nominations reported by the Judiciary Committee during his first two years in office, and all 100 were confirmed before the end of the 107th Congress.

Before we adjourn this year, there is no reason the Senate cannot at least consider the other 16 judicial nominees reported unanimously by the Committee this session, who are by any measure consensus nominees.  I hope that we do not see a repeat of the damaging decision by Senate Republican leadership at the end of last year to refuse to agree to votes on those nominations. 

With vacancies continuing at harmfully high levels, we cannot afford to repeat these unnecessary and damaging delays.  There is no reason we cannot make significant progress during the days left in this session and consider all of the consensus nominations now pending on the Senate calendar.  That is what we did at the end of President Reagan’s third year in office and President George H.W. Bush’s third year in office, when no judicial nominations were left pending on the Senate Calendar.  That is what we did at the end of the 1995 session, President Clinton’s third year in office, when only a single nomination was left pending on the Senate calendar. 

That is, in fact, also what we did at the end of President George W. Bush’s third year.  Although nine judicial nominations were left on the calendar, they were among the most controversial, extreme and ideological of President Bush’s nominees.  They had previously been debated extensively by the Senate.  The standard then was that noncontroversial judicial nominees reported by the Judiciary Committee got Senate action before the end of the year.  That is the standard we should follow this year.  If we do, another 16 judges will be confirmed. 

Chief Justice Roberts, the Attorney General and the White House counsel have all spoken about the serious problems created by persistent judicial vacancies.  More than 160 million Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans would just agree to vote on the nominations now pending on the Senate calendar.  The Senate should act to bring an end to the harm caused by delays in overburdened courts.  The Republican Senate leadership should consent to votes on the qualified, consensus candidates nominated to fill these judicial vacancies before the Senate adjourns for the year.  Their consideration should not be unnecessarily delayed until next spring.

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