Statement Of Senator Patrick Leahy On The Nominations Of Mary Elizabeth Phillips To The Western District Of Missouri And Thomas Owen Rice To The Eastern District Of Washington

As Submitted To The Congressional Record

Today the Senate will vote on the confirmation of two highly-qualified, consensus nominees to the Federal bench:  Mary Elizabeth Phillips to the U.S. District Court for the Western District of Missouri and Thomas Owen Rice to the U.S. District Court for the Eastern District of Washington.  I thank the Majority Leader for pressing for these votes.  These are nominees who were reported unanimously by the Senate Judiciary Committee last October, almost five months ago.  They are both supported by their home state Senators, Democrats and Republicans, as are all of the judicial nominations of this President have been who have been voted on by the Senate Judiciary Committee. 

Last month the Majority Leader had to file cloture petitions to end a four-month and two-day filibuster of the confirmation of Judge Adalberto Jordan of Florida, and to end the five month filibuster of the nomination of Jesse Furman, a former counselor to Attorney General Mukasey.

The Majority Leader should not have had to file cloture petitions for the Senate to vote on these outstanding judicial nominees.  Senate Republicans have filibustered 9 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. 

From the start of President Obama’s term, Republican Senators have applied a double standard to this President’s nominees.  Last week, at a meeting of the Judiciary Committee, the Senator from Utah conceded that a “new standard” is being applied to President Obama’s nominations.  Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home state Senators.  Instead, an unprecedented number of President Obama’s highly-qualified district court nominees have been targeted for opposition and obstruction. 

The nominations the Senate considers today did not receive a single negative vote in the Judiciary Committee.  Still, they have been stalled from confirmation for almost five months.  It is good that Senate Republicans are finally allowing them to be considered.  But we need to do much more.   These are only two of the 14 remaining judicial nominations voted on by the Judiciary Committee last year that have been stalled by Senate Republicans for months.  They all should have been considered and confirmed last December.  President Obama’s nominees are being treated differently than those of any President, Democratic or Republican, before him.

Of those 14 judicial nominations still on the calendar from last year, none are the kind of divisive ideological nominees that should lead to the kinds of delay we have seen, let alone filibusters.  President Obama should be praised by Republicans and Democrats for making consensus picks like his two nominations to fill vacancies on Federal Circuit courts, Stephanie Dawn Thacker of West Virginia, nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of California, nominated to fill one of the many judicial emergency vacancies on the Ninth Circuit.  Ms. Thacker, an experienced litigator and prosecutor, has the strong support of her home state Senators, Senators Rockefeller and Manchin.  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 would become the first Asian Pacific American woman to serve on a U.S. Court of Appeals.  Both were reported unanimously by the Judiciary Committee last year and both should be considered and confirmed by the Senate without additional damaging delays.

With one out of nearly every 10 Federal judgeships vacant, the Senate should be acting on all of the judicial nominations approved by the Senate Judiciary Committee but that Republican objections are stalling from final action.  Regrettably, delay and obstruction have stalled action on President Obama’s judicial nominees since the beginning of his administration.  After the first year of President Obama’s first term, only 12 Federal circuit and district court judges were confirmed, the lowest total in 50 years.  Senate Republicans allowed the Senate to confirm only 48 circuit and district court nominations the next year.  That set a modern record for fewest judicial nominations confirmed during a President’s first two years in office, the lowest in 35 years.  

As a result, judicial vacancies rose again over 110 and stayed around 90 for the longest period of historically high vacancies in 35 years.  This is in stark contrast to the 100 confirmations that I oversaw during the last 17 months of President Bush’s first two years in office.  That action led to a significant reduction in judicial vacancies. 

The truth is that the actions of Senate Republicans in stalling judicial nominations during President Obama’s administration has led to what the Congressional Research Service documented as the longest period of historically high judicial vacancy rates in modern times.  At the end of President Obama’s second year and again at the end of last year, Senate Republicans opted to obstruct final confirmation votes on consensus judicial nominees for no good reason.  Last year it took us until June to make up the ground we lost when Senate Republicans refused to complete action on judicial nominees at the end of 2010.  This year the Senate started with 19 judicial nominees pending on the Senate’s calendar, all but one of them reported with significant bipartisan support, and 16 of them unanimously.  To date, the Senate has only been allowed to work its way through five.  This means that it could again be summer before the Senate is allowed to work its way through the judicial nominees who could, and should, have been confirmed the year before.

The result of the Senate Republicans’ obstruction is that the ability of our Federal courts to provide justice to Americans around the country is compromised.  Millions of Americans, who are in overburdened districts and circuits, experience unnecessary delays in having their cases resolved.  One hundred and thirty 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.  It is wrong to delay votes on these qualified, consensus judicial nominees. 

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court.  It is unacceptable for hardworking Americans who turn to their courts for justice to suffer unnecessary delays.  When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait three years before a judge hears the case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute. 

In his 2010 Year-End Report on the Federal Judiciary, Chief Justice Roberts rightly called attention to the problem of overburdened courts across the country.  Unfortunately, the unprecedented obstruction of consensus judicial nominations by Senate Republicans who dramatically departed from the Senate’s longstanding tradition of regularly considering consensus, noncontroversial nominations, marked a new chapter in what Chief Justice Roberts calls the “persistent problem” of filling judicial vacancies.   

If Republican Senators were concerned about ensuring that our courts have the judges they need to administer justice for the American people, they would not have refused consent for the Senate to consider these consensus judicial nominees.  The obstruction reminds me of the Republican pocket filibusters that blocked more than 60 of President Clinton’s judicial nominations from Senate consideration. 

When I became Chairman in 2001, and made the Committee blue slip process public for the first time and worked to confirm 100 judicial nominees of a conservative Republican President in 17 months, I hoped we were past these partisan tactics.  I am disappointed that, after working for more than a decade to restore transparency and fairness to the process of considering judicial nominations, we see the Senate Republicans again using obstruction to block progress at filling judicial vacancies.

I wish that the Republican Senators who came to the Senate and the Senate Judiciary Committee in 2003 and decried what they characterized as a broken judicial confirmation process would acknowledge the 100 confirmations in 17 months that we accomplished in 2001 and 2002 when President Bush was not consulting closely with home state Senators and, instead, insisted on sending the Senate ideological nominees.  I have done my part to fix and to improve the process.

By contrast, those Republicans who deemed filibusters unconstitutional and demanded up-or-down votes for every judicial nominee just a few years ago have now filibustered 9 of President Obama’s judicial nominees.  What happened to their principle that a partisan minority should not be allowed to frustrate the will of the majority?  They used to say that judicial nominees “should not be required to serve an indefinite period of time in the stocks as targets for these special interest groups that attack them on a regular basis.”  Now these same Republican Senators obstruct votes on qualified, consensus nominees and allow reputations to be savaged without good cause.   

In 2005, the so-called “Gang of 14” adopted a standard for filibusters that require “exceptional circumstances.”  That standard was abandoned by Republicans who filibustered the nomination of Caitlin Halligan last year.  The Washington Times’ banner headline on December 7, 2011, noted what had long been apparent to me:  “GOP Ends Truce on Judicial Hopefuls.”

It is wrong to dismiss the delays resulting from the Senate Republicans’ obstruction as merely political tit for tat.  These are new and damaging tactics that Senate Republicans have devised.  The standard had been that noncontroversial judicial nominees reported by the Judiciary Committee were confirmed by the Senate before the end of the year.  That is the standard we should have followed in 2010 and 2011, but Senate Republicans did not.  Senate Republicans set a new and destructive standard to hold up qualified, consensus judicial nominees for no good reason.  A New York Times editorial from January 4, 2011, refers to Senate Republicans’ “refusal to give prompt consideration to noncontroversial nominees” a “terrible precedent.”  In a column last week, the president of the American Bar Association reiterated the call for a “sustained, concerted and bipartisan effort” to “make meaningful progress toward filling vacancies on the federal bench. 

While consensus judicial nominations are stalled without a final vote by the Senate, millions of Americans across the country are being harmed by delays.  The American people and our Federal courts cannot afford these unnecessary and damaging delays.  As the ABA president noted last week:

“Backlogs mean justice delayed in cases involving protection of individual rights, advancement of business interests, compensation of injured victims and enforcement of federal laws.

Longstanding vacancies on courts with staggering caseloads impede access to the courts.  They create strains that, if not eased, threaten to reduce the quality of our justice system.  They erode confidence in the courts’ ability to uphold constitutional rights and render fair and timely decisions.

Delay at the federal courts puts people’s lives on hold while they wait for their cases to be resolved.  Businesses face uncertainty and costly holdups, preventing them from investing and creating jobs.  In sum, judicial vacancies kill jobs.

Justice delayed, as the famous maxim goes, is justice denied.  It’s bad for business, it’s unfair to individuals, and it slows government enforcement actions, which ultimately costs taxpayers money.” 

The Senate remains far behind where we should be in considering President Obama’s judicial nominations.  The Senate had confirmed a lower percentage of President Obama’s judicial nominees than those of any President in the last 35 years.  The Senate has confirmed just over 70 percent of President Obama’s circuit and district nominees, with more than one in four not confirmed.  In stark contrast, the Senate confirmed nearly 87 percent of President George W. Bush’s nominees, nearly nine out of every 10 nominees he sent to the Senate over two terms. 

The Senate remains well behind the pace set during President Bush’s first term.  By the end of President Bush’s first term, the Senate had confirmed 205 district and circuit nominees.  To date now in the fourth year of President Obama’s first term, the Senate has confirmed only 129 district and circuit nominees.  By this date in 2004, the Senate had confirmed 170 district and circuit nominees.  Today the total is more than 40 confirmations shy of the mark. 

Another way to think about this is that during President Bush’s first term, the Senate confirmed the 130th nominee to our circuit and district courts in early June of his third year in office.  Here we are, approaching the spring of President Obama’s fourth year, nearly nine months later, and we are just reaching that milestone -- nine months later.  It has taken us far too long to reach this point.  That is why the judicial vacancy rate remains nearly double what it was at this point in the Bush administration. 

Today we can finally confirm these two highly-qualified, consensus nominees.  Mary Elizabeth Phillips has been nominated to the U.S. District Court for the Western District of Missouri.  Ms. Phillips is the first woman to serve as the U.S. Attorney for the Western District of Missouri.  Her nomination has the bipartisan support of both of her home state Senators, Democratic Senator Claire McCaskill and Republican Senator Roy Blunt.  Ms. Phillips previously worked in private practice and as a local prosecutor Jackson County, Missouri.  The ABA’s Standing Committee on the Federal Judiciary unanimously rated her well qualified to serve on the U.S District Court, its highest possible rating. 

Thomas Owen Rice has been nominated to the U.S. District Court for the Eastern District of Washington.  Currently the First Assistant U.S. Attorney in the Eastern District of Washington, Mr. Rice has spent his entire career in public service as a Federal prosecutor, including as Chief of the Criminal Division in the Eastern District of Washington.  Both of Washington’s Senators – Senators Murray and Cantwell, support Mr. Rice’s nomination.  Both of these nominations were reported by the Judiciary Committee by voice vote with no dissent nearly five months ago in October 2011.

I thank the Majority Leader for his efforts to break through the Republicans’ obstructionist tactics.  Last Tuesday, several other Democratic Senators also came before the Senate to talk about the need for more action to fill the judicial vacancies that have remained historically high for far too long.  I thank Senators Durbin, Schumer, Feinstein, Coons, Cardin, and Klobuchar for their involvement and their thoughtful statements.

Last Thursday, we had a discussion before the Judiciary Committee, as well.  I commended Senator Coburn for the statement he made at that time in which he called upon Senators to step back and return to the practice of moving forward on consensus nominees and that we “need to build bridges instead of burn them.”

It is important that we confirm these two nominees so they can serve the people of Missouri and Washington, but we need to do much more.   The Senate needs to proceed without delay to consider all 20 of the judicial nominees currently before it and to promptly consider those being sent to the Senate by the Judiciary Committee.  That is how we can fulfill our responsibilities to the American people.  That is how we can begin to restore the American’s people’s confidence in this institution.

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