Statement of Senator Patrick Leahy Chairman, Senate Judiciary Committee On the Nomination of William Orrick, III To the United States District Court for the Northern District of California

I noted last week that Senate Republicans who have taken such pride in the number of judicial nominees being confirmed this year ignore how many were needlessly delayed from confirmation last year.  There were 11 nominees left pending on the Senate floor, and another four nominees who had had hearings and could have been expedited, as we had done for many of President Bush’s nominees, and all could and should have been confirmed before the end of last year.  Instead, all had to be renominated, and we are still working through the resulting backlog.  We are halfway through May, and the Senate has still not completed action on four of the 15 nominees who could and should have been confirmed last year.

William Orrick, who the Senate will finally consider today, is one of those nominees.  He has now been reported twice with bipartisan support, and he has spent over 225 days waiting for his final, Senate confirmation vote.  He was first reported last August.  There was no reason he could not have been confirmed last year, especially considering that he is nominated to fill a judicial emergency vacancy. 

William Orrick is currently Special Counsel at the law firm Coblentz, Patch, Duffy & Bass, LLP, where he previously served as a partner for over two decades.  From 2009 to 2012, he served in the Department of Justice’s Civil Division, first as Counselor, and subsequently, as Deputy Assistant Attorney General.  The ABA Standing Committee on the Federal Judiciary unanimously rated William Orrick “well qualified,” its highest rating.  He has the strong support of his home state Senators, Senator Feinstein and Senator Boxer. 

Regretably, Senate Republicans have broken from our traditions and have taken to opposing judicial nominees based on those nominees’ efforts on behalf of clients.  They did this when opposing nominees like Jeffrey Helmick, Paul Watford, and, most recently, Caitlin Halligan, and they are doing it, again, with William Orrick.  They are opposing William Orrick because he worked on behalf of his client – the United States Government – on cases dealing with Federal preemption in immigration. 

The criticisms of his supervision and advocacy on these immigration cases on behalf of the United States are unwarranted and, again, reflect a fundamental misunderstanding of our legal system.  I have repeatedly noted that from John Adams to Chief Justice Roberts, that has never before been the standard by which we consider judicial nominees.  Senate Republicans have adopted another double standard when it comes to President Obama’s nominees.

Further, having reviewed his responses, I believe that the nominee has more than adequately responded to the questions presented to him.  It is time to vote on his nomination and allow him to work on behalf of the American people in a judicial emergency district where the judges have been overwhelmed with cases.

Because Senate Republicans have delayed the confirmations of well-qualified nominees like William Orrick, we remain more than 20 confirmations behind the pace we set for President Bush’s circuit and district nominees, and vacancies remain nearly twice as high as they were at this point during President Bush’s second term.  For all their self-congratulatory statements, they cannot refute the following: We are not even keeping up with attrition.  Vacancies have increased, not decreased, since the start of this year. 

President Obama’s judicial nominees have faced unprecedented delays and obstruction by Senate Republicans.  We have yet to finish the work that could and should have been completed last year.  There are still 10 judicial nominees with bipartisan support being denied confirmation. 

It is true that some vacancies do not have nominees.  I wish Republican home state Senators would work with President Obama to fill these vacancies.  As I stated last week when this issue arose in the Judiciary Committee, I am more than willing to work with Republican Senators and the administration to consider nominees for these vacancies.  But it is disingenuous of Republican Senators not to work with President Obama to pick nominees and then blame the President for the lack of nominees.  If Senators want new judgeships in their states, they should be working especially hard to ensure that all existing ones are filled.  I take very seriously my responsibility to make recommendations when we have vacancies in Vermont, whether the President is a Democrat or a Republican, and I would hope that other Senators would do the same.  After all, if there are not enough judges in our home states, it is our own constituents who suffer.

It is not enough for Senators to say that they are working on getting recommendations or they have appointed a commission to give them recommendations.  Senators have to lead this effort in their home states, set firm deadlines, and get the President recommendations to fill these vacancies.  In some places Federal judgeships have been vacant for 500 days or 1000 days or more without a recommendation.

I was interested to hear Senate Republicans argue that if Senators do not get recommendations in “expeditiously enough,” the President “has the prerogative to nominate someone and then we have the responsibility to act on it.”  Before President Obama had made a single judicial nomination, all Senate Republicans sent him a letter threatening to filibuster his nominees if he did not consult Republican home state Senators.  So the recent statement was a either complete reversal in position, or baiting a trap to then filibuster any nominees the President sends to us.

Moreover, the failure of some Republican Senators to help fill vacancies in their own states does not excuse their unwillingness to complete action on the consensus judicial nominees who are ready to be confirmed but whose confirmations are being needlessly delayed.  Mark Barnett, Claire Kelly, William Orrick, Sheri Chappell, Michael McShane, Nitza Quinones Alejandro, Luis Restrepo, Jeffrey Schmehl, Kenneth Gonzales, and Gregory Phillips are awaiting confirmation and Sri Srinivasan, Ray Chen, and Jennifer Dorsey could have been reported to the Senate last week.  So long as there is a backlog of nominees before the Senate, the fault for failing to confirm these nominees lies with Senate Republicans.

The Judicial Conference recently released their judgeship recommendations.  Based upon the caseloads of our Federal courts, the Conference recommended the creation of 91 new judgeships.  That is in addition to the 85 judgeships that are currently vacant.  This means that the effective vacancy rate on the Federal bench is over 18 percent.  A vacancy rate this high is harmful to the individuals and businesses that depend on our courts for speedy justice.  The damage is even more acute in the busiest district courts, such as those in border states that have heavy immigration-related caseloads.  Unfortunately, several of those district courts also have significant numbers of judicial vacancies, and I hope that Senators are working to find good nominees to fill those vacancies.

Senate Republicans have a long way to go to match the record of cooperation on consensus nominees that Senate Democrats established during the Bush administration.  After today’s votes, nine more judicial nominees remain pending, and all were reported unanimously.  All Senate Democrats are ready to vote to allow them all to get to work for the American people without further delay.  We can make real progress if Senate Republicans would join us.

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