Statement of Senator Patrick Leahy Chairman, Senate Judiciary Committee, On the Nominations of Sheri Chappell and Michael McShane

Today the Senate will finally be allowed to vote on the nominations of Judge Sheri Chappell and Judge Michael McShane.  For Judge Chappell in particular, this day is long overdue.  She was nominated almost a year ago, and was one of the 11 nominees who Senate Republicans refused to vote on before the end of the last Congress.  They delayed her confirmation even though she had the support of every single Republican on the Judiciary Committee, and the bipartisan support of her home state Senators, Senator Nelson and Senator Rubio.  They delayed her confirmation even though she is nominated to fill a judicial emergency vacancy that has been vacant for over 400 days.  When I say that President Obama’s qualified, consensus nominees have faced unprecedented levels of delay and obstruction, this is precisely what I have been talking about.

Even the Wall Street Journal has taken notice.  In an article last week, Gerald Seib wrote that the obstruction even of consensus district court nominees is an example of “the Senate’s inability to pull out of partisan ruts and get beyond an epidemic of filibusters.”  While only a few years ago Senate Republicans insisted that filibusters of judicial nominees were unconstitutional, or that they should be reserved for “extraordinary circumstances,” this article notes that they “decided in recent years that it is acceptable to mount filibusters not only in exceptional cases but to stop even the most routine business.”  I ask that this article be included in the Record at the conclusion of my statement.

Senate Republicans claim that they have blocked only two of President Obama’s nominees, but they are not being fair in that characterization.  They blocked nominees like Robert Chatigny and Louis Butler by refusing to allow the Senate to vote on them.  They blocked nominees like Victoria Nourse, Arvo Mikkanen, and Elissa Cadish by refusing to return blue slips.  They even blocked Steve Six by rescinding the blue slips after the nominee had already had a hearing.  This reminds me of the way they pocket filibustered dozens of President Clinton’s nominees.  While as Chairman I have protected the rights of home state Senators, that right does not extend to allowing them to shirk responsibility for it.  In all, President Obama has had a significantly lower percentage of his circuit and district nominees confirmed at this point in his time in office than President Bush did at the same point in his presidency.

Senate Republicans who take such pride in the number of nominees being confirmed this year ignore how many, like Judge Chappell, were needlessly delayed from confirmation last year and what they have done during the last four years.  That is why even after the 17 confirmations this year, we remain nearly 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 a dozen judicial nominees being denied confirmation.

A recent report by the nonpartisan Congressional Research Service compares the whole of President Obama’s first term to the whole of President Bush’s first term, and the contrast could not be more clear.  The median Senate floor wait time for President Obama’s district nominees was 5 times longer than for President Bush’s.  President Obama’s circuit nominees faced even longer delays, and their median wait time was 7.3 times longer than for President Bush’s circuit nominees.  The comparison is even worse if we look just at nominees who were reported and confirmed unanimously.  President Bush’s unanimously confirmed circuit nominees had a median wait time of just 14 days.  Compare that to the 130.5 days for President Obama’s unanimous nominees.  That is more than 9 times longer.  Even the nonpartisan CRS calls this a “notable change.”  There is no good reason for such unprecedented delays, but those are the facts.

The confirmations in the last few months do not change the reality of what has happened over the last four years.  If a baseball player goes 0-for-9, and then gets a hit, we do not say he is an all-star because he is batting 1.000 in his last at bat. We recognize that he is just 1-for-10, and not a very good hitter.

So while I welcome the confirmations this year, I note both that 13 of the 17 could and should have been confirmed last year and that there are another dozen nominees pending before the Senate, including two who also could have been confirmed last year.  We can and must do more for Americans who look to our courts for justice.  They deserve better than long delays and empty courtrooms. With 10 percent of our Federal bench vacant, and a backlog of nominees on the Senate Executive Calendar, it is clear that the Senate is not doing what it should on nominations.

It is also ridiculous to complain that the Senate does not have nominees when Mark Barnett, Claire Kelly, Sheri Chappell, Michael McShane, Nitza Quinones Alejandro, Luis Restrepo, Jeffrey Schmehl, Kenneth Gonzales, Gregory Phillips, Sri Srinivasan, Ray Chen, and Jennifer Dorsey are awaiting confirmation.

In addition, Senate Republicans need to take responsibility for not working with the President to fill vacancies.  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.  I was interested to hear one Senate Republican 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 either a complete reversal in position, or baiting a trap to then block any nominees the President sends to us.

Some Republican Senators have been willing to work with the President to find nominees in their states.  We recently received nominations for district court vacancies in Alabama and Tennessee, and I hope to schedule those nominees for hearings soon.  In Pennsylvania, the Republican Senator is now working with Senator Casey to find nominees that they both support.  In fact, three such nominees are pending before the Senate now, and they would fill three of the six current vacancies in the Eastern District of Pennsylvania.  The nominees have been pending before the Senate for over two months after being reported unanimously, and I hope Senate Republicans will allow us to complete action on them before the Memorial Day recess.

I remain deeply concerned about the impact of sequestration on our Federal courts and our legal system.  After four years in which Senate Republicans have forced our courts to operate shorthanded, with 10 percent or more of judgeships vacant, these harsh spending cuts are the last thing we should be doing.  I continue to hear from judges and other members of the legal community about the damage of sequestration.

The Judicial Conference, whose presiding officer is Chief Justice Roberts, wrote last week to request emergency funding for fiscal 2013 in order to “address critical needs resulting from sequestration cuts.”  These indiscriminate cuts have left our Federal judiciary “confronting an unprecedented fiscal crisis that could seriously compromise the Constitutional mission of the United States courts.”  Members of the bar have written in support of this request, stating that “budget cuts have forced diminished court staffing, court closures, compromised security, and lengthy trial delays.”  They rightly note that “it is people’s lives that are adversely changed” by these unnecessary cuts.”  I ask that both letters be printed in the Record at the conclusion of my statement.  I hope Senators read these letters and take these concerns seriously, and that we can come together to meet our responsibilities to our coequal branch and to the 310 million Americans we all serve.

Judge Sheri Polster Chappell is nominated to a judicial emergency vacancy on the U.S. District Court for the Middle District of Florida, where she has been serving since 2003 as a Federal Magistrate Judge.  Prior to her appointment to the Federal bench, she worked as a Lee County Court Judge, as an Assistant State Attorney in the Twentieth Judicial Circuit of Florida, where she was the first female county office head, and as an instructor at the Southwest Florida Criminal Justice Academy.  Judge Chappell was reported unanimously last year and again two months ago.  The Middle District of Florida has a second judicial emergency vacancy, and it is unfortunate that the Senate is not being allowed to consider the nominee to that seat, as well.  Judge Brian Davis received unanimously the ABA Standing Committee on the Federal Judiciary’s highest rating of “well qualified,” and was reported favorably almost one year ago.

Judge Michael McShane is nominated to a judicial emergency vacancy on the U.S. District Court for the District of Oregon.  Currently a Circuit Court Judge on the Multnomah County Circuit Court, Judge McShane has served as a state court judge for over 15 years.  He previously served as a Circuit Judge Pro Tem on the Multnomah County Circuit Court.  Prior to becoming a judge, Judge McShane spent his entire nine-year legal career as a trial attorney in the Metropolitan Public Defender’s Office in Portland, Oregon.  Judge McShane has the support of his home state Senators, Senator Wyden and Senator Merkley, and was reported unanimously by the Judiciary Committee over two months ago.

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, 10 more judicial nominees remain pending, and all but one were reported unanimously.  All Senate Democrats are ready to vote on each of them to allow them to get to work for the American people.  We can make real progress for our Federal courts and the American people if Senate Republicans are willing to join us.

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