05.07.12

Statement Of Senator Patrick Leahy On The Nominations Of Jacqueline Nguyen, Kristine Baker, and John Lee

For the last four months, the Senate has been forced to slowly work its way through the backlog created by Republican objections at the end of last year to consensus nominees.  Finally, with consideration today of the long-delayed nomination of Judge Nguyen to fill a longstanding judicial emergency vacancy on the overburdened Ninth Circuit, the Senate will have completed the confirmations that could and should have taken place last year.

Today, five months into the year, is the first time the Senate is considering judicial nominations reported by the Judiciary Committee this year.  Confirmations of the nominations of Kristine Baker to fill a judicial emergency vacancy in the Eastern District of Arkansas and John Lee to fill a judicial emergency vacancy in the Northern District of Illinois have been delayed for nearly three months.  These nominees have the support of their home state Senators and of a bipartisan majority of the Judiciary Committee.  Yet these consensus nominees have been delayed for months for no good reason. 

The nominations we consider today are but three of the 22 judicial nominees available for final Senate action.  Most are by any measure consensus nominees who could and should be confirmed without further delay.  That would go a long way toward getting us on track to make real progress in reducing judicial vacancies that have plagued the Federal courts around the country.

I want to share with the Senate and the American people a chart comparing vacancies during the first terms of President Bush and President Obama.  This chart shows that the lack of real progress during the last three and one-third years is in stark contrast to the way in which we moved to reduce judicial vacancies during the last Republican presidency. 

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.  See how sharply the line slopes as we reduced vacancies in 2001 and 2002. 

We continued when in the minority to work with Senate Republicans and 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. The chart notes where we stood in May 2004, having reduced judicial vacancies under 50 on the way to 28 that August.  By comparison, see how long vacancies have remained near or above 80 and how little comparative progress we have made during the four years of President Obama’s first term.  Again, if we could move forward to Senate votes on the 22 judicial nominees ready for final action, the Senate could reduce vacancies to less than 60 and make progress. 

Today also marks the first Senate action this year to address the needs of the Ninth Circuit, by far the busiest Federal appeals court in the country.  The Senate should have voted on the long-delayed nomination of Judge Jacqueline Nguyen of California to the Ninth Circuit over five months ago, after it was reported unanimously by the Judiciary Committee.  Her nomination is one of three Ninth Circuit nominations currently pending and awaiting a Senate vote to fill judicial emergency vacancies plaguing that circuit.  With nearly three times the number of cases pending as the next busiest circuit, we cannot afford to further delay Senate votes on the other two nominations to the Ninth Circuit, Paul Watford of California, reported favorably by the Committee over three months ago, or Andrew Hurwitz of Arizona, reported favorably over two months ago.

There is no good reason for Senate Republicans to further delay votes on these Ninth Circuit nominees.  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 not only of Judge Jacqueline Nguyen, but also of 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, wrote to the Senate months ago 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 the end of 2011, the Ninth Circuit had 13,913 cases pending before it, far more than any other 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 votes on Paul Watford and Justice Hurwitz and allow for up or down votes by the Senate without these months of unnecessary delays.

Given that all three are superbly qualified mainstream nominees with bipartisan support, the long delays that have plagued these nominations are hard to understand.  Judge Nguyen, whose family fled to the United States in 1975 after the fall of South Vietnam, was confirmed unanimously to the district court in 2009 and the Senate Judiciary Committee unanimously supported her nomination to the Ninth Circuit last year.  When confirmed, she will be the first Asian Pacific American woman to serve on a U.S. Court of Appeals in our history.  She is the kind of nominee who should have been confirming in five days, not five months.

We still await Republican agreement to vote on the other two nominees, neither of whom would have been considered controversial by past Congresses.  Paul Watford was rated unanimously well qualified by the ABA’s Standing Committee on the Federal Judiciary, the highest rating possible.  He clerked at the United States Supreme Court for Justice Ruth Bader Ginsburg and on the Ninth Circuit for now-Chief Judge Alex Kozinski.  He was a Federal prosecutor in Los Angeles.  He has the support of his home state Senators and bipartisan support from noted conservatives such as Daniel Collins, who served as Associate Deputy Attorney General in the Bush administration; Professors Eugene Volokh and Orin Kerr; and Jeremy Rosen, the former president of the Los Angeles chapter of the Federalist Society.

Justice Hurwitz is a respected and experience jurist on the Arizona Supreme Court.  He also received the ABA’s Standing Committee on the Federal Judiciary’s highest rating possible, unanimously well qualified.  This nomination has the strong support of both his Republican home state Senators, Senator John McCain and Senator Jon Kyl.

We have much more work to do to help resolve the judicial vacancy crisis that has persisted for more than three years.  Today the Senate finally votes on three of the 22 judicial nominations that have been reported by the Judiciary Committee after a thorough review.  Despite vacancies in nearly one out of every 10 Federal judgeships, Senate Republicans continue to delay votes and are stalling action on nearly 20 current judicial nominations on which the Senate could be taking final action.  If confirmed those judges would serve 150 million Americans.

When the Majority Leader and the Republican leader came to their interim understanding in March, it resulted in votes on 14 of the 22 judicial nominations then awaiting final consideration.  Because the arrangement took months to implement what the Senate could have done in hours, the backlog of judicial vacancies and judicial nominees continues.  Today we are right back where we started with 22 judicial nominees awaiting action.  I know that the Majority Leader is working to continue seeking Republican agreement to debate and vote on the remaining judicial nominees.  It should not require overcoming filibusters and political standoffs for the Senate to do its job of promptly considering judicial nominations, especially when so many of them have bipartisan support and are consensus nominees.   

The backlog of nominations ready for final action is not necessary or typical.  It is an artificial backlog created by the refusal of Senate Republicans to consider judicial nominees at the end of each of the last two years and their insistence of delays of months before confirmation of consensus nominees.  These practices have meant that the Senate’s confirmations have barely kept up with attrition on the Federal bench.  When Republicans refused to consent to consider 19 judicial nominations at the end of 2010, it took us until June of last year to work through those nominations.  When they did so again at the end of last year, it took us until today, a week into May, to catch up with last year’s nominations.  That is not how to reduce judicial vacancies.

The Senate needs to continue working and continue consideration of judicial nominees recommended by the Judiciary Committee if we are to make real progress in reducing the burden of judicial vacancies.  That is what we did in the most recent presidential election years of 2004 and 2008 and what we should be doing this year.  Before we hear any more talk of slowing down or shutting off judicial confirmations, we have a long way to go.  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.

At this same point in the Bush administration, we had reduced judicial vacancies around the country to under 50.  Today they stand at nearly 80.  And by August 2004, we reduced judicial vacancies to just 28 vacancies.  Despite 2004 being a presidential 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 significantly reduce judicial vacancies.

In 2008, another presidential election year, we again worked to reduce judicial vacancies and by October we were able to reduce judicial vacancies back down to 34 vacancies.  I accommodated Senate Republicans and continued holding expedited hearings and votes on judicial nominations into September 2008. 

We lowered vacancy rates more than twice as quickly during President Bush’s first term as Senate Republicans have allowed during President Obama’s first term.  The vacancy rate remains nearly twice what it was at this point in the first term of President Bush.  The Senate is 30 behind the number of circuit and district court confirmations at this point in President Bush’s fourth year in office.  We are 63 confirmations from the total of 205 that we reached by the end of President Bush’s fourth year. 

Today’s consensus nominees are examples of those who have been unnecessarily stalled for months. 

Kristine Baker, nominated to fill a judicial emergency vacancy on the Eastern District of Arkansas, has spent nearly 15 years in private practice after graduating with honors from the University of Arkansas School of Law and clerking for Judge Susan Weber Wright on the court to which she has been nominated.  Ms. Baker’s nomination has the bipartisan support of her home state Senators.  Her nomination was favorably reported by the Judiciary Committee with the support of nearly every Senator on February 16.

 

John Lee, nominated to fill one of three judicial emergency vacancies on the Northern District of Illinois, has worked in private practice for almost 20 years.  His personal story is remarkable.  Born to a coal miner and a nurse of Korean descent, Mr. Lee immigrated to the United States when he was five years old and went on to graduate from Harvard College and Harvard Law School.  If confirmed, he will become the second Korean-American to serve as a Federal district court judge, and the second Asian-American to serve as a Federal judge in the courts encompassed by the Seventh Circuit.  Mr. Lee’s nomination has the bipartisan support of his home state Senators.  They both also support the confirmation of John Tharp, a former nominee of President George W. Bush, to another judicial emergency vacancy in that district.  With Republican consent we could also be voting on the Tharp nomination.  Both Illinois nominations were favorably reported by the Judiciary Committee with only one Senator dissenting on February 16.

Today’s votes must be a starting point for considering this year’s judicial nominations if we want to bring down judicial vacancies and hope to match the progress we were able to make in 2004 and 2008, both Presidential election years in which we considered the nominations of a Republican President and continued to reduce judicial vacancies.  I hope that Senate Republicans will stop blocking prompt confirmation of consensus nominees.  That is a destructive development and new practice that has contributed to keeping the Senate behind the curve, keeping Federal judicial vacancies unfilled, overburdening the Federal courts, and keeping Americans from securing prompt justice.  The American people deserve better. 

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