Statement On The Nomination Of Irene Berger To The Southern District Of West Virginia

It has taken nearly a month to obtain Republican consent to consider the nomination of Judge Irene Berger to the Southern District of West Virginia.  Judge Berger is a consensus nominee unanimously rated well qualified by the American Bar Association’s Standing Committee on the Federal Judiciary, the highest rating possible.  Her nomination has the support of both of West Virginia’s highly respected Senators. Senator Byrd, as the senior member of the Senate, is the President pro tempore, and is the longest-serving Senator in history.  Senator Rockefeller is a senior member, and the Chairman of the Commerce Committee.  I thank the Senators from West Virginia for their statements in support of the nomination, their work on this nomination, and their recommendations of outstanding judicial nominations for West Virginia over many years.
Republican delay in the confirmation of this consensus nominee continues a pattern that has been followed all year.  Last week, the Senate was finally allowed to consider the nomination of Roberto A. Lange to the District of South Dakota.  I regret that the Republican minority allowed three weeks to lapse since the nomination was reported unanimously by the Judiciary Committee before allowing the Senate to consider it.   They also required two hours of debate on the nomination, though they used fewer than five minutes to discuss the merits of the nominee.  In that five minutes, the ranking Republican on the Judiciary Committee endorsed the nomination.  That nomination had the support of both Senator Johnson and Senator Thune, a member of the Senate Republican leadership.  Ultimately, Judge Lange’s nomination was confirmed 100-0, but only after weeks of unnecessary delay.
The pattern is being repeated today with respect to Judge Berger.  When confirmed, Judge Berger will be the first African-American in the history of West Virginia to serve as a Federal Judge.  For the last 15 years, Judge Berger has served as a circuit judge in county court.  Before that, she spent more than a decade as a state and Federal prosecutor.
So I ask, why has the Republican minority delayed consideration of this experienced and highly qualified jurist, and of this historic confirmation, for the last several weeks?   Will any Republican explain why there will remain nine other judicial nominations reported favorably by the Judiciary Committee on which Senate Republicans continue to refuse to allow the Senate to proceed?  Two were reported in June and have been stalled for more than four months.
Last week, the Senate also finally confirmed the nomination of Judge William Sessions of Vermont to chair the United States Sentencing Commission.  An anonymous, unexplained Republican hold stalled that nomination for more than five months.  The Majority Leader was forced to file a cloture petition in order to end the obstruction.  Cloture petitions were previously required to overcome Republican obstruction on the nominations of David Ogden to serve as the Deputy Attorney General and Tom Perez to serve as the Assistant Attorney General heading the Civil Rights Division.
I said last week before the Senate unanimously confirmed Judge Lange that these delays are a dark mark on the Senate.  They prevent us from doing our work.  Worse, this obstruction means that nominees must place their lives on hold for an undetermined amount of time.  The Senate should be the conscience of the Nation.  These needless and harmful delays, particularly in connection to consensus nominees, make the Senate look foolish.
Judge Berger’s nomination is one of 13 judicial nominations reported favorably by the Committee this year to fill circuit and district court vacancies on Federal courts around the country.  The President has worked hard to consult with Republicans and Democrats alike to make consensus, well qualified selections.  Unlike his predecessor, he has not sought to turn judicial nominations into a partisan matter. Ten of these judicial nominations were reported by the Judiciary Committee without a single dissenting voice. Yet, due to the pattern of Republican delay, this is just the fourth of those nominations allowed to be considered by the Senate.
It is now October 27.  By this date in George W. Bush’s first year in office, the Senate had confirmed a total of 12 lower court judges, including four circuit court judges.  We achieved those results with a controversial and confrontational Republican President after a mid-year change in the Senate to a Democratic majority; in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and working virtually around the clock on the PATRIOT Act.  By comparison, this year the Republican minority has allowed action on only three judicial nominations to the Federal circuit and district courts, with only one circuit court confirmation all year.  Judge Berger’s confirmation will raise the total judicial confirmations to only one-third of that achieved by this date in 2001.  
I made sure that President Bush’s judicial nominations were treated better than President Clinton’s had been by the Republican Senate majority. By contrast, Senate Republicans are making sure that President Obama’s nominees are treated worse—even worse than they treated President Clinton’s nominees.  By this junction in President Clinton’s first year, the Senate had confirmed twice as many judicial nominees as we have this year.
This is all despite the fact that President Obama sent nominees to the Senate two months earlier than did President Bush.  This is despite bipartisan support from Republican Senators like Senator Lugar, Senator Thune, Senator Martinez, Senator Alexander, Senator Chambliss and Senator Isakson for President Obama’s judicial nominees to judicial vacancies affecting their home states.
When I served as chairman of the Senate Judiciary Committee during President Bush’s first term, I did my best to stop the downward spiral that had affected judicial confirmations.  Throughout my chairmanship, I made sure to treat President Bush’s judicial nominees better than the Republicans had treated President Clinton’s nominees. During the 17 months I chaired the Judiciary Committee in President Bush’s first term, we confirmed 100 of his judicial nominees.  At the end of his presidency, although Republicans had chaired the Judiciary Committee for more than half his tenure, more of his judicial nominees were confirmed when I was the chairman than in the more than four years when Republicans were in charge.
Senate Republicans began this year threatening to filibuster every judicial nominee of the new President.  They have followed through by dragging out, delaying, obstructing and stalling the process.  The result is that 10 months into President's Obama's first term, the Senate after today will have confirmed only four of his nominations for circuit and district courts while judicial vacancies skyrocket around the country.  After reducing vacancies as low as 43 last year, even during the last year of President Bush’s second term and a presidential election year, vacancies have already more than doubled to 95 vacancies around the country in our Federal circuit and district courts.  There are another 26 future vacancies already announced.   These vacancies are at near record levels.  We can do better.  The American people deserve better.  Justice should not be delayed or denied to any American because of overburdened courts.
When will Senate Republicans allow the Senate to consider the nominations of Judge Hamilton to the Seventh Circuit, Judge Davis to the Fourth Circuit, Judge Martin to the Eleventh Circuit, Judge Greenaway to the Third Circuit, Judge Honeywell to the Middle District of Florida, Judge Nguyen to the Central District of California, Judge Chen to the Northern District of California, Ms. Gee to the Central District of California and Judge Seeborg to the Northern District of California?
President Obama made his first judicial nomination, that of Judge David Hamilton to the Seventh Circuit, in March, but it has been stalled on the Executive Calendar since early June, despite the support of the senior Republican in the Senate, Senator Lugar.  The nomination of Judge Andre Davis to the Fourth Circuit was reported by the Judiciary Committee on June 4 by a vote of 16 to three, but has yet to be considered by the Senate.  The nomination of Judge Beverly Baldwin Martin to the Eleventh Circuit has the support of both of Georgia’s Senators, both Republicans, and was reported unanimously from the Committee by voice vote on September 10, but has yet to be considered or scheduled for consideration by the Senate.  The nomination of Judge Joseph Greenaway to the Third Circuit has the support of both New Jersey Senators and was reported unanimously from the Committee by voice vote on October 1, but has yet to be considered or scheduled for consideration by the Senate.   All of these nominees are well-respected judges.  All will be confirmed, I believe, if only Republicans would consent to their consideration by the Senate.  Instead, the President’s good efforts are being snubbed and these nominees stalled for no good purpose.
The Senate’s failure to adhere to its tradition of regularly considering qualified, noncontroversial nominees has not been limited to filling vacancies on the Federal bench.  The Republican minority has irresponsibly stalled nominations to critical posts in the Department of Justice, depriving the President, the Attorney General, and the country of the leaders needed to head important divisions at the Justice Department.  These are important leaders of our Federal law enforcement efforts.  Presidents of both parties, especially newly elected ones, are normally accorded greater deference to put in place appointees for their administrations.
Yet, 10 months in to President Obama’s first term, five nominations to be Assistant Attorneys General remain stalled on the Senate’s Executive Calendar due to Republican opposition and obstruction.  These are the President’s nominees to run five of the 11 divisions at the Justice Department—nearly half.   By comparison, at this point in the Bush administration the Senate had confirmed nine Assistant Attorneys General and only one nomination was pending on the Senate Executive Calendar.  The difference is that the Republican minority is refusing to consider these nominations.  
The President nominated Dawn Johnsen to be the Assistant Attorney General in charge of the Office of Legal Counsel at the Justice Department on February 11.  Her nomination has been pending on the Senate Executive Calendar since March 19.  That is the longest pending nomination on the calendar by over two months.  We did not treat President Bush’s first nominee to head the Office of Legal Counsel the same way.  We confirmed Jay Bybee to that post only 49 days after he was nominated by President Bush, and only five days after his nomination was reported by the Committee.
Mary Smith’s nomination to be the Assistant Attorney General in charge of the Tax Division has been pending on the Senate’s Executive Calendar since June 11 – more than four months.  We confirmed President Bush’s first nomination to that position, Eileen O’Connor, only 57 days after her nomination was made, and one day after her nomination was reported by the Committee.  Her replacement, Nathan Hochman, was confirmed without delay, just 34 days after his nomination.
President Obama’s nomination of Ignacia Moreno to be the Assistant Attorney General in charge of the Energy and Natural Resources Division has been on the Senate Executive Calendar for over a month, even though it was reported by the Judiciary Committee by unanimous consent.  By comparison, a Democratic-majority in the Senate confirmed President Bush’s controversial nomination of Thomas Sansonetti to the position only one day after it was reported by the Judiciary Committee.
Chris Schroeder’s nomination to be the Assistant Attorney General in charge of the Office of Legal Policy has been pending on the Senate Executive Calendar since July 28.  It was reported by voice vote without a single dissenting voice.  President Bush’s first nominee to head that division, Viet Dinh, was confirmed 96 to one only one month after he was nominated, and only a week after he his nomination was reported by the Committee.  The three nominees to that office that succeeded Mr. Dinh -- Daniel Bryant, Rachel Brand, and Elisabeth Cook -- were each confirmed by voice vote in a shorter time than Professor Schroeder’s nomination has been pending.  Ms. Cook was confirmed 13 days after her nomination was reported by the Committee, even though it was the final year of the Bush presidency.  By contrast, the Majority Leader may have to file another cloture position in order to overcome Republican obstruction and obtain Senate consideration of Professor Schroeder’s nomination.
Instead of withholding consents and filibustering President Obama’s nominees, the other side of the aisle should join us in treating them fairly.  We should not have to fight for months to schedule consideration of the President’s judicial nominations and nomination for critical posts in the executive branch.
I look forward to congratulating Judge Berger and her family on her historic confirmation, and I thank the West Virginia Senators for their strong support of the nominee through another extended and unnecessary delay.

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