12.23.09

Statement On Judicial and Executive Nominations

I have been calling on the Republican leadership to end the delays and obstruction of judicial nominations and join with us to make progress in filling some of the many vacancies on Federal circuit and district courts.  I have done so repeatedly for most of the year, and several times over this last month.  Regrettably, as we head into the winter recess and the end of the first session of the 111th Congress, Republican obstruction is setting a new low for the Senate in our consideration of judicial nominations.

The Senate has been allowed to confirm only one judicial nominee all month.  It is now December 23.   By this date in President Bush’s first year in office, the Senate with a Democratic majority confirmed 10 nominations just in December to reach a total of 28 confirmed Federal circuit and district court nominees in the first session of the 107th Congress.   That is 10 times as many nominations as the Senate has considered and confirmed this month.  During the first year of President Bush’s tumultuous administration, with the Senate majority changing in the middle of the year and Democrats then in the majority, we worked from July through December to confirm 28 judicial nominees.  That was, of course, the year of the September 11 attacks and the anthrax attacks in the Senate, but we continued our work.  The Senate proceeded to confirm six judicial nominees by voice vote in December 2001, a total of 10 judicial nominees that month, a total of 28 in the last six months of that year, and 100 in the 17 months I served as Chairman of the Senate Judiciary Committee during President Bush’s first term.

By contrast, thus far this month, with 12 judicial nominees now available to the Senate for final consideration, Senate Republicans have only allowed a vote on Judge Jacqueline Nguyen to the Central District of California.  She was confirmed unanimously after been delayed six weeks. They have even refused to consider the nomination of Beverly Martin of Georgia to the Eleventh Circuit, despite strong support from her home state Senators, both Republicans.  Instead of acting of her nomination, which has been awaiting final action since September 10, and that of Judge Greenaway of New Jersey, who has been nominated to the Third Circuit and was reported on October 1, they insist on delaying debate on that nomination for at least a month.  I hope we will be able to turn to that nomination when the Senate returns in late January.     

The refusal by the Republican minority to enter into customary time agreements to consider non-controversial nominees has led us to fall well short of the confirmations achieved in the first years of other Presidents.  On the eve of the end of the session, the Senate has confirmed little more than one-third as many of President Obama’s circuit and district court nominees as it confirmed of  President George W. Bush’s – 28 – or of President Clinton’s – 27 – in their first years.  In fact, President Obama is on pace to have the fewest judicial nominees confirmed by a President in his first year since President Eisenhower, who only made nine nominations in 1953.  Of course, all nine were confirmed.  The total this year stands to be the fewest confirmed in any President’s first year in more than 50 years, and the fewest in any year since the Republican majority confirmed only 17 in the 1996 session, a presidential election year.   

The unprecedented obstruction we have seen by Senate Republicans on issue after issue—over 100 filibusters this year alone, by some calculations, which have affected 70 percent of all Senate action—have ground Senate consideration of judicial nominations to a crawl.  Instead of time agreements and the will of the majority, the Senate is faced with filibusters, and anonymous and Republican leadership holds.  Those who just a short time ago said that a majority vote is all that should be needed to confirm a nomination, and that filibusters of nominations are unconstitutional, have hypocritically reversed themselves and now employ any delaying tactic they can.  

Judicial nominees have been and are available for consideration.  This lack of Senate action is attributable to Senate Republicans and no one else.  The President has reached across the aisle to consult and has made quality nominations.  We have held the hearings, and the Senate Judiciary Committee has favorably reported 12 judicial nominees to the Senate on which action has not been permitted.  There are now more judicial nominations stalled on the Senate Executive Calendar—12—than the number that have been confirmed all year.   One has been ready for Senate consideration for more than 13 weeks, another more than 10 weeks, and the list goes on.  Nor are these controversial nominees.  Eight of the 12 were reported from the Judiciary Committee without a single dissenting vote.  The Majority Leader and all Democratic Senators have been ready to proceed.  The Republican Senate leadership is not.  It has stalled and delayed and obstructed.    

Unlike his predecessor, President Obama has reached out and across the aisle to work with Republican Senators in making his judicial nominations.  The nomination of Judge Hamilton, which the Republican leadership filibustered, was supported by the most senior Republican in the United States Senate, my respected friend from Indiana, Senator Lugar.  Other examples are the nominees to vacancies in Alabama supported by Senators Sessions and Shelby, in South Dakota supported by Senator Thune, and in Florida, supported by Senators Martinez and LaMieux.  Still others are the President’s nomination to the Eleventh Circuit from Georgia, supported by Senators Isakson and Chambliss, which the Senate will not consider until the end of January because of Republican objection, and his nomination to the Sixth Circuit from Tennessee, supported by Senator Alexander.

Last week we held a confirmation hearing for two more well-respected and well-qualified nominees that were the result of President Obama’s effort to reach out and consult with home state Senators from both sides of the aisle, Judge James Wynn and Judge Albert Diaz.   Judge Wynn and Judge Diaz have been nominated to fill two longstanding vacancies on the United States Court of Appeals for the Fourth Circuit.  Both are from North Carolina.  Senator Burr and Senator Hagan worked with each other and with the White House on these nominations.  I thank them both for their testimony before the Committee last week in strong support of these nominees.   

These nominations are just the most recent examples of this President reaching out to home state Senators from both parties to consult before making nominations.  Just as I worked last year to end a decade-long impasse on the Sixth Circuit with the confirmations of Judge Helene White and Ray Kethledge of Michigan, I will work to see that these nominations from North Carolina are considered fairly and confirmed expeditiously.  With the support of the senior Senator from North Carolina, a Republican, and the determined efforts of Senator Hagan, a Democrat, North Carolina will finally have the representation on the Fourth Circuit that it deserves.    

Instead of praising the President for consulting with Republican Senators, the Republican leadership has doubled back on what they demanded when a Republican was in the White House.  No more do they talk about each nominee being entitled to an up-or-down vote.  That position is abandoned and forgotten.  Instead, they now seek to filibuster and delay judicial nominations.  They have also walked back from their position at the start of this Congress, when they threatened to filibuster nominees on which home state Senators were not consulted.  We saw with Judge Hamilton that they filibustered a nominee supported by Senator Lugar.

When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees.  When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees.  It is clear that the Republican leadership has returned to their practices in the 1990s, which resulted in more than doubling circuit court vacancies, and led to the pocket filibuster of more than 60 of President Clinton's nominees.  The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years.  

The Republican obstruction and delay in considering well-qualified noncontroversial nominees comes at a tremendous cost to the ability of our Federal courts to provide justice for all Americans.  We have seen a tremendous spike in judicial vacancies.  Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled.  That is wrong.  The American people deserve better.

In only five months of President Bush’s first year in office when I served as Senate Judiciary Committee Chairman and with a Democratic Senate majority, we confirmed 28 judicial nominees.  During 17 months of President Bush’s first two years in office, we confirmed 100 of his judicial nominees.  Although two Republicans chaired the Senate Judiciary Committee and Senate Republicans held the Senate majority for more than half of President Bush’s time in office, more judges nominated by President Bush were confirmed by the Senate Democratic majority and when I served as Senate Judiciary Committee Chairman.  During President Bush’s last year in office, we had reduced judicial vacancies to as low as 34, even though it was a presidential election year.  When President Bush left office, we had reduced vacancies in nine of the 13 circuits since President Clinton left office.  

As matters stand today, judicial vacancies have spiked and are being left unfilled.  We will start 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.  While it has been nearly 20 years since we enacted a Federal judgeship bill, judicial vacancies are nearing record levels, with 97 current vacancies and another 23 already announced.  If we had proceeded on the judgeship bill recommended by the Judicial Conference to address the growing burden on our Federal judiciary, as we did in 1984 and 1990, in order to provide the resources the courts need, current vacancies would stand at 160 today.  That is the true measure of how far behind we have fallen.  I know we can do better.  Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.

I, again, urge the Republican minority to allow Senate action on the 12 judicial nominees on the Senate Executive Calendar before the end of the session. We have now wasted weeks having to seek time agreements in order to consider even nominations that were reported by the Judiciary Committee unanimously and confirmed unanimously by the Senate when finally allowed to be considered.  The 12 judicial nominees are Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the District Court for the Northern District of California; Dolly Gee, nominated to the District Court for the Central District of California; Richard Seeborg, nominated to the District Court for the Northern District of California, Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Louis Butler, nominated to the District Court for the Western District of Wisconsin; Denny Chin of New York, nominated to the Second Circuit; Rosanna Malouf Peterson, nominated to the District Court for the Eastern District of Washington; and William Conley, nominated to the District Court for the Western District of Wisconsin.  

At the end of the Senate’s 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002.  At the end of the first session of Congress during President Clinton’s first term, just one judicial was nominee left on the Senate Executive Calendar.  At the end of the President George H.W. Bush’s first year in office, a Democratic Senate Majority left just two judicial nominations pending on the Senate Executive Calendar.   At the end of the first year of President Reagan’s first term—a year in which the Senate confirmed 41 of his Federal circuit and district court nominees—not a single judicial nomination was left on the Senate Executive Calendar.  

In stark contrast, there are now 12 judicial nominees on the Senate Executive Calendar, and unless there is a burst of cooperation from Republicans, they will remain on the Calendar awaiting Senate consideration beyond the end of this session and into next year.  That is a significant change from our history and tradition of confirming judicial nominations that have been reported favorably by the Senate Judiciary Committee by the end of a session.

The record of obstruction of the Senate Republicans is just as disappointing when we consider the executive nominations that have been reported by the Judiciary Committee.  There are currently an incredible 20 executive nominations that have been reported favorably by the Senate Judiciary Committee pending on the Senate Executive Calendar, including nominations for Assistant Attorneys General to run three of the 11 divisions at the Department of Justice.  Each of these nominations has been pending four months or longer.  An editorial in today’s Washington Post entitled “Nominees in Limbo” and subtitled “The Senate should do its job before taking a vacation,” describes the Republican obstruction of the nomination of Dawn Johnson to head the Office of Legal Counsel, which has been stalled on the Senate Executive Calendar since March, as “[p]erhaps the greatest nominations travesty.”  The editorial concludes: “[T]he president should be given deference in choosing executive-branch officials who share his views. Ms. Johnsen is highly qualified and should be confirmed. At the very least, senators should have the decency to give her an up-or-down vote.”  

Senate Democrats treated President Bush’s first nominations for these same posts quite differently than Senate Republicans are now treating President Obama’s nominees.  We promptly reported the President’s nominees to head the Office of Legal Counsel, the Office of Legal Policy, and the Tax Division, and they each received Senate consideration in a matter of days or weeks after they were reported by the Committee.  We still have heard no explanation for the five months of Republican obstruction of the nomination of Chris Schroeder to head the Office of Legal Policy after his nomination was reported by the Committee in July by voice vote without dissent.   The Washington Post editorial rightfully calls for Mr. Schroeder’s confirmation as well as for the confirmation of the long-pending nomination of Mary Smith to run the Tax Division.  I ask consent that the editorial be placed in the record following my remarks.   

As with the judicial nominations, the Republicans have employed new standards of demanding a supermajority and floor time and delays to consider even nominations that could be confirmed easily, grinding our progress to a halt.  I hope that the Republican Senators and leadership will relent and end the year by making progress on these important nominations to put us on a better path for the next session.   

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