Statement Of Sen. Patrick Leahy,
Chairman, Senate Judiciary Committee,
On The Confirmation Of Debra Ann Livingston
May 9, 2007

The Senate continues to make significant progress today with another confirmation of another lifetime appointment to the federal bench.  The judicial nomination we consider is Debra Ann Livingston of New York, who has been nominated to the United States Court of Appeals for the Second Circuit.  That is the Circuit for New York, Connecticut and, of course, Vermont.  Professor Livingston has the support of both her home state Senators. I thank Senator Schumer for chairing the confirmation hearing at which she appeared.

Professor Livingston is the Paul J. Kellner Professor of Law and Vice Dean of the Columbia Law School, where she has been a professor for 13 years, teaching criminal procedure, evidence, and national security law.  She previously taught at the University of Michigan Law School.  Prior to her academic career, Professor Livingston served as a federal prosecutor and Deputy Chief of Appeals for the U.S. Attorney’s Office for the Southern District of New York and worked in private practice for the Wall Street law firm of Paul, Weiss, Rifkind, Wharton & Garrison. I congratulate Professor Livingston and her family on what I am sure will be her confirmation today.         

Coincidentally, this is the anniversary of the date six years ago, in 2001, on which this President began his assault upon the courts by announcing his first list of nominees. With the help of Senate Republicans, this President has sought to pack the courts and tilt them decidedly in one direction.  To a great extent, he has succeeded.  After Republican Senators stalled President Clinton’s nominees to the Fourth, Fifth, Sixth, D.C., and other Circuits, the Senate proceeded to confirm this President’s nominees to the very vacancies that had previously been maintained by pocket filibuster in the Senate. 

In my time as Chairman from mid-2001 to the end of 2002, I worked hard to reach out to this President and tried hard to change the tone and get the confirmation process back on track.  We succeeded in confirming 100 nominees in 17 months, including 17 to the
Circuit Courts.  But I could not change the tone alone.  This White House chose, instead, to use judicial nominations to divide and to seek political gain in the ensuing confrontations. 

I have tried, again, this year to restore order and civility to the process.  In spite of all our progress and all our efforts, we are still confronted by shrill complaints.  More ominous are the signals and rumors that the White House is, again, gearing up to nominate more extreme nominees and more who do not have the support of their home state Senators.  That is wrong.  It may be the good politics to appeal to the Republican base, but it is wrong to use our courts in that way -- just as it is wrong to corrupt the law enforcement responsibilities of the Department of Justice.

Some will undoubtedly repeat the current Republican “talking point” that the Senate must confirm 15 Circuit judges this Congress, this year and next, because that is a “statistical average” of selected years.  Well, during the 1996 session the Republican-led Senate refused to confirm a single Circuit Court nominee, not one.  That meant that in the 104^th Congress, in 1995 and 1996 combined, only 11 Circuit nominees were confirmed.

It is true that during the last two years of this President’s father’s term, a Democratic-led Senate confirmed an extraordinary number of Circuit nominees – 20 -- in fact.  That action was not reciprocated by the Republican majority during the Clinton years.

It is true that during the last two years of the Reagan Administration, a Democratic-led Senate confirmed 17 Circuit court nominees.  That action was not reciprocated by the Republican majority during the Clinton years.

Instead, the last two years of President Clinton’s two terms witnessed a Republican-led Senate confirming only 11 Circuit nominees and then, with vacancies skyrocketing to historic highs, 15 Circuit nominees in the 106^th Congress. 

Thus, to get to the supposed “historical average” that Republicans like to talk about, they take advantage of the high confirmation numbers during Democratic-led Senates and thereby inflate and excuse their own actions from the Clinton years.

There are three more factors that the Republican talking point ignores:  The first is the number of vacancies. The second is adding additional judgeships by congressional action.  The third is the number of qualified Circuit nominees.

The last Congress of the Reagan Administration, the one in which a Democratic-led Senate confirmed 17 Circuit nominees, the Circuit Court vacancies went down from 13 to 8 during the course of the Congress.  Seven Circuit nominations were returned to the President without action.  In fact, in addition to filling vacancies that were arising in the regular course, the Democratic-led Senate was working to fill many of the 24 additional Circuit judgeships created in 1984.  By the end of the Reagan Presidency all Circuit vacancies, those from existing judgeships and those created during his Presidency, were reduced from a high of 25 down to 8. 

During the last Congress of the first Bush Administration, the one in which a Democratic-led Senate confirmed 20 Circuit judges, the Circuit vacancies again went down, from 18 to 16. Again, the Senate was filling both existing and newly created vacancies.  In 1990, during President Bush’s term, Congress authorized an additional 11 Circuit judgeships.  That was why vacancies at the beginning of the 102^nd Congress rose to 18. 

By contrast, during the last Congress of the Clinton Administration, the one in which a Republican-led Senate confirmed 15 Circuit judges, Circuit Court vacancies skyrocketed from 17 to 26.  This rise in Circuit vacancies had nothing to do with Congress creating additional Circuit judgeships, however.  Unlike during the Reagan Administration and during the Bush Administration, during the Clinton Administration the Republican-led Congress refused to act in accordance with the previous 6-year cycle for reviewing needed judgeships.  Not a single new Circuit judgeship was created during the Clinton Administration that I can recall.  Instead, the Republican-led Senate engaged in strenuous efforts to keep Circuit judgeships vacant in anticipation of a Republican president. Indeed, at the end of the 106^th Congress, the last in the Clinton Presidency, 17 Circuit court nominees were returned to President Clinton without action.  More Circuit nominees were returned without action that Congress than were acted upon by the Senate for the first time in modern history.

Likewise, during the last Congress of the first term of President Clinton, the one in which a Republican-led Senate confirmed only 11 Circuit judges, Circuit Court vacancies went up, from 16 to 19.  Again, this was without the addition of new Circuit judgeships. 

Despite the carping and the clamor, the vacancies on the Circuit Courts have gone from 26 -- where a Republican-led Senate forced the Circuit vacancies at the end of the Clinton Administration -- steadily downward during the Bush Administration.  With the confirmation of Judge Livingston, Circuit vacancies will be at half that amount today –13 -- and approaching an historic low.

Judge Livingston will be the third Circuit Court nomination confirmed this year.  It is only May, but we have already equaled the total Circuit nominees confirmed in the entire year of 1993.  We have far surpassed the total confirmed during the entire 1996 session when the Republican majority would not consider or confirm a single Circuit nomination of President Clinton’s.  

This will be the 20^th Circuit Court nomination confirmed while I presided as Judiciary Chairman.  It is a little known fact that during the more than six years of the Bush Presidency, more Circuit judges, more District judges and more total judges have been confirmed while I served as Judiciary Chairman than during either of the two Republican Chairmen working with Republican Senate majorities.

This will be the 18^th judicial confirmation this year.  It is spring and we have already confirmed more judges than were confirmed during the entire 1996 session when President Clinton’s nominees were being reviewed by a Republican Senate majority.  This is the 118^th judicial confirmation while I have served as Judiciary Chairman.  That exceeds by more than a dozen the confirmations Senator Hatch presided over during the more than two years he was Judiciary Chairman. 

The Administrative Office of the U.S. Courts lists 47 judicial vacancies, yet the President has sent us only 24 nominations for these vacancies. Twenty-three of these vacancies – almost half – have no nominee. Of the 15 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for six of them. That means more than a third of the judicial emergency vacancies are without a nominee.

This is the third factor I mentioned above, the lack of nominees.  

This President has shown that he would rather pick politic fights than good judges.  I was encouraged at the beginning of this Congress that a few of the most controversial nominees from the last Congress were not renominated.  That sensible approach seems to have ended, however, and this White House seems to be returning to its old, bad habits.

Despite the harping and the criticism, the Judiciary Committee has been working hard to make progress on those nominations the President has sent to us.  Of course, when he sends nominees that he knows are unacceptable to home-state Senators, it is not a formula for success.  Sadly, that is what appears to be happening, again.

Before the consideration of the Second Circuit nominee today, we had already proceeded with Committee and Senate consideration of the nominations of Randy Smith and Thomas Hardiman.  They were confirmed to the Ninth and Third Circuits, respectively. 

Some may recall that I had been working for more than a year to make progress on the Smith nomination.  When the President finally renominated Judge Smith for an Idaho vacancy, we were able to make quick progress with that nomination. 

Our Circuit Court confirmations so far this year are in addition to the 15 lifetime appointments to the federal district courts we have proceeded to confirm.  During the entire 1996 session only 17 judges were confirmed.  We are doing pretty well with 18 confirmations before the middle of May. 

With respect to Circuit nominees, after this confirmation there will be only 13 vacancies.  Eight of those are without a nomination.  Of the five remaining current Circuit nominees, one was only nominated a few weeks ago.  Having consulted with the home-state Senators from Mississippi, I have scheduled our next judicial confirmation hearing to be held tomorrow to include Judge Leslie Southwick of Mississippi.  

All three of the other Circuit nominations are renominations that were not considered last Congress with a Republican majority.  Two are renominations that the White House made knowing full well that they did not yet have the support of their home-state Senators.  When I previously chaired the Committee, I was able to break the blockade of Sixth Circuit nominations that was established by the Republican majority when it pocket filibustered several of President Clinton’s outstanding nominations to the Sixth Circuit.  Once we broke through with two Sixth Circuit confirmations in 2002, President Bush was left with seven appointments to the Sixth Circuit during his term in office.  Given the White House’s unwillingness to work with the home-state Senators of the two current nominees, however, it will be very difficult to make more progress.

With respect to the nomination of Peter Keisler, that renomination is controversial.  He was previously nominated in June of 2006 but was not considered by the Republican majority then in control.  The Republican majority did not seek to proceed with this controversial nomination at that time.  In fact, the President and the Republican Senate majority insisted, instead, to proceed over the last several years on other nominations to the important D.C. Circuit, which were, themselves, highly controversial.  The nominations of Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh were each apparently a higher priority for this White House and the Republican majority than the nomination of Mr. Keisler.  The others have each been confirmed to lifetime appointments on this very important court.   At the end of the last Congress, the Keisler nomination was returned to the President without action in accordance with Senate Rules. 

The Republican Senate majority pocket filibustered more than 60 of President Clinton’s qualified and moderate judicial nominees.  I have proceeded on more judicial nominees far faster than Republicans did on President Clinton’s nominees. 

With the cooperation of the President, with his working with Senators from both parties in making his nominations, with the cooperation of the Committee and the Senate, we can continue to make progress.

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