U.S. SENATOR PATRICK LEAHY

Statement Of Senator Patrick Leahy,
Ranking Member, Senate Judiciary Committee
July 7, 2004

Setting The Record Straight On Judicial Nominations
In North Carolina And Across The Country

[WASHINGTON – U.S. Senator Patrick Leahy, (D-Vt.), the ranking Democratic member of the Senate Judiciary Committee, set the record straight Wednesday on the significant reduction in judicial vacancies around the country. Leahy took aim at comments made Wednesday by President Bush, who complained about the few judicial nominees who have not received hearings in the Republican-led Senate. The President’s complaints were leveled the day after the United States Senate completed action on a bipartisan agenda to vote on 25 judicial nominees. All of those nominees have now been confirmed. Leahy’s statement and a backgrounder on judicial nominations follow, below:]

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Today President Bush is holding a private fundraiser in North Carolina and complaining about the few judicial nominees who have not been given hearings by the Republican-led Senate, when he should be commending the Senate for confirming nearly 200 of his judicial nominees. One-hundred-ninety-eight of his judicial nominees have been confirmed. This number of confirmations is higher than the number of judicial nominees confirmed during President Reagan’s first tem, during the President’s father’s presidency, and during the final term of President Clinton.

With these confirmations, there are only 26 vacant seats in the entire federal judiciary, which is the lowest level since the Reagan Administration. Senate Republicans more than doubled circuit court vacancies and raised overall federal court vacancies to more than 100 from 1995 through early 2001. Vacancies have been greatly reduced with Democratic cooperation during the last four years. Vacancies have been cut by more than 75 percent and judicial emergency vacancies have been cut by more than 60 percent from what they were.

During the1996 session, when President Clinton was seeking a second term, Republicans allowed only 17 of his judicial nominees to be confirmed all year and blocked all of his circuit court nominees from being confirmed. This year, the Senate has confirmed 29 of President Bush’s judicial nominees, including five circuit court nominees.

Democrats have acted with bipartisanship toward the judicial nomination process and supported the confirmation of this historic number of judicial nominees of this Republican president. During the 17 months of Democratic control of the Senate, 100 of President Bush’s judicial nominees were confirmed. Republicans had blocked the confirmation of more than 60 of President Clinton’s judicial nominees, including nearly two dozen to the circuit courts.

The situation in North Carolina illustrates this history of Republican obstruction and the Bush Administration’s determination to try to pack the courts. During the Clinton Administration, four nominees from North Carolina to the Fourth Circuit were blocked by Republican Senators, and they never got a hearing or a vote. United States District Court Judge James Beaty would have become the Fourth Circuit’s first African-American jurist. According to The Charlotte Observer of March 8, 1996, “He is an excellent judge, partly because of admirable qualities that make him an ideal candidate for judging others. He rose from humble circumstances and eventually graduated from the UNC-Chapel Hill School of Law. Admirers say he is an ideal judge and citizen: even-tempered, hard-working, fair, serious, intelligent and unfailingly polite.”

Judge Beaty never got a hearing or a vote from Republicans in 1995, 1996, 1997, or 1998. United States Bankruptcy Judge J. Richard Leonard also never got a hearing or a vote in 1995 or 1996 on his nomination to the Fourth Circuit, nor did Republicans give him a vote in 1999 or 2000 in his nomination to the district court in North Carolina. North Carolina Court of Appeals Judge James Wynn never got a hearing or a vote on his nomination in 1999, 2000, or 2001. Had Judge Wynn been confirmed he would have been the first African American to sit on the Fourth Circuit. Law Professor Elizabeth Gibson also did not get a hearing or a vote.

During Republican control of the Senate, no nominee from North Carolina to the Fourth Circuit was allowed to be confirmed during the entire Clinton Administration. It is ironic that Republicans now claim that Judge Boyle must be confirmed because the seat is considered a judicial emergency by the Administrative Office of the U.S. Courts, when the North Carolina vacancies on the Fourth Circuit were considered judicial emergencies years ago when Republicans blocked Clinton nominee after Clinton nominee. During the Clinton Administration, Republicans argued that these vacancies did not need to be filled because the Fourth Circuit had the fastest docket time to disposition in the country, a distinction it still holds. After three confirmations for Bush nominees to that court, including Judge Duncan, the Fourth Circuit has fewer vacancies today – three -- than it did when Republicans claimed no more judges were needed (5 vacancies).

Republicans used every argument they could muster to stop Democratic nominees from being confirmed to the Fourth Circuit, particularly in North Carolina, and now they flip flop to claim that Republican nominees must be confirmed.

When Senator John Edwards was elected, he sought out the middle ground on judicial nominations, after years of North Carolina nominees being blocked by Republicans. For example, he should be commended for working with the President on the nomination of Judge Allyson Duncan, an African-American woman who had served as the President of the North Carolina Bar Association, for a seat on the Fourth Circuit. Senator Edwards fully supported her confirmation. She was a Republican who had testified in favor of Clarence Thomas’ confirmation, but she had a reputation of fairness. With Senator Edwards’ support, Judge Duncan was confirmed. He broke through the Republican logjam in this circuit. Senator Edwards also acted with bipartisanship in supporting the confirmation of two Bush nominees to the district court, Judge Brent McKnight and Judge Louise Flanagan.

Senator Edwards has sought out compromise with his fellow North Carolina Senators on judicial nominations, but they have, by and large, refused to help find a middle ground. He has supported the proposal of the North Carolina Bar Association that the state establish a bipartisan merit selection commission to propose nominees to the President, Republican or Democratic, to create a long-term solution to impasses that are created by any Senator’s insistence on his choice alone, with no compromise, for these lifetime seats of trust on the federal bench. Unlike President Bush, Senator Edwards understands what it means in reality to be a uniter and not a divider. He comes from a part of the country that understands deeply how important it is that leaders seek to unite people across racial, economic and political lines rather than to divide them.

Senator Edwards has stood up to efforts by this President to pack the courts with people whose records do not demonstrate that they will be fair judges to all who come before them, rich or poor, Democrats or Republicans, or any race or background. He has expressed concerns about Bush nominees Judge Boyle as well as James Dever, a 40-year-old Federalist Society Member and Republican Party activist, and Robert Conrad, who also has a troubling record. President Bush has repeatedly claimed that he is opposed to judicial activism while he has simultaneously nominated activists for judicial positions.


He would not support the confirmation or recess appointment of a judicial nominee who violated judicial ethics to reduce the sentence of a convicted cross burner, as President Bush did over the holiday celebrating the birth of Dr. Martin Luther King. Senator Edwards opposed other Bush judicial nominees whose records demonstrate insensitivity or hostility toward the civil rights and the blessings of liberty guaranteed to all Americans. Just yesterday, President Bush nominated Keith Starrett to the vacancy created by Judge Pickering’s recess appointment and by his resignation from the district court. This nomination shows again the President’s insensitivity to the wishes of so many in the South District of Mississippi by passing over qualified African-American candidates for that powerful district court seat. In fact, this President has chosen narrow ideological purity over diversity by nominating more people involved with the Federalist Society than African Americans, Hispanics and Asian Americans combined.


The biggest problem in the judicial nominations process is not with the Senate but with this White House. The judicial nominations process begins with the President, and President Bush has chosen to divide the Senate and the American people with his judicial nominations, instead of to unite us. This Administration is intent on undermining the independence of the federal judiciary and on making it a clone of the Republican Party. The President and his aides have shown the same unilateralism and arrogance to the Senate in their handling of judicial nominations that they have shown in so many other important policy areas.


I commend Senator Edwards for breaking through the Republican logjam on appointments from North Carolina to the Court of Appeals for the Fourth Circuit. He has sought out to middle ground while also standing firm in his efforts to protect the right of the people to fair judges in our federal courts. The American people deserve an independent judiciary with fair judges who will enforce their rights and uphold the law.

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President Bush Ignores the Facts for Partisan Political Purposes

The Democratic Senate Has Confirmed a Record Number of Nominees Sent By President Bush

Democrats in the Senate have cooperated with George W. Bush to confirm 198 judicial nominees so far – with 100 of those nominees confirmed during the 17 months of Democratic control of the Senate. This is more than the number of judicial nominees of President Reagan confirmed in all four years of his first term, the number of judicial nominees of President Clinton confirmed in all four years of his second term, and the number of judicial nominees of the elder President Bush during his four-year presidency.

Manufactured Judicial Emergencies

The President talked about judicial emergencies during his fund-raising visits to North Carolina and Michigan, but the truth is these are emergency vacancies custom-made by the Republicans. Since President Bush took office, the Senate -- with the cooperation of Democratic members -- has reduced judicial emergencies by 65 percent – from 40 to 14.

. . . In North Carolina

President Clinton tried to fill these vacancies with four different nominees, but they were blocked by a Republican Senate. The two African-American nominees to the Fourth Circuit from North Carolina were blocked from 1995 until 2000 by Senator Jesse Helms. The President failed to mention that judicial vacancies are at the lowest point in 16 years and that there are more active federal judges serving now than at any time in history.

. . . In Michigan

President Clinton tried to fill the two judicial emergency vacancies on the Sixth Circuit that faced him, but both nominees – Helene White and Kathleen McCree Lewis -- were denied hearings and votes, with Republicans offering no reason for their inaction on these nominations. Republicans in the Senate blocked these nominees to keep these seats open for a Republican President.

Senator John Edwards Helped Break Nominations Logjam

The President and Republican partisans have attacked Senator John Edwards, but they ignore that Senator Edwards was instrumental in breaking the years-long logjam in North Carolina by reaching consensus with the White House on Judge Allyson Duncan, a Bush nominee confirmed to the Fourth Circuit. Senator Edwards supported Judge Duncan, an African-American Republican woman with impeccable credentials and temperament. The White House could find more consensus nominees like this, but has chosen instead to preserve a partisan political issue for the right wing of the President’s political base.

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