Statement Of Sen. Patrick Leahy,
Chairman, Senate Judiciary Committee,
On The Nomination Of Leslie Southwick To The Fifth Circuit
August 1, 2007

Today I have put back on the agenda the nomination of Leslie Southwick to the United States Circuit Court of Appeals for the Fifth Circuit.  As I have said previously, I took the Southwick nomination off the Committee agenda at the request of Republican Senators.   I refused to ambush Judge Southwick the way Republicans ambushed Justice Ronnie White in 1999 when they voted him down.  Instead, I alerted the White House and Senate Republicans of the opposition to the Southwick nomination and have tried to be constructive in consulting with the White House.

I have been waiting patiently to hear back from the Republican senators who sought a delay in the consideration of Mr. Southwick’s nomination, yet there has been no request from any Republican senator that the Committee move forward in its consideration. Instead, I have heard several Republican senators complain publicly about the delay that they themselves caused, and so I have returned this nomination to the Committee’s agenda this week.

If Republicans follow through on their threats to shut down the Senate over a single judicial nomination they would be continuing their pattern of obstructionism and it would the American people and our troops who suffer the most.  Like their President, Republicans priorities are misguided and dangerous.  Instead of funding vital defense initiatives, Republicans are talking about shutting down the Senate over a single judicial nominee. 

I guess those making these threats and demands have a short memory.  I do not intend to pocket filibuster more than 60 of this President’s judicial nominees, as the Republican majority did with President Clinton’s judicial nominees.

I do not intend to pocket filibuster 17 of this President’s circuit nominees, the way the Republican majority did at the end of the Clinton Administration.  For those with short memories, I will call the roll:  Barry Goode, Helene White, Alston Johnson, James Duffy, Elena Kagan, James Wynn, Kathleen McCree Lewis, Enrique Moreno, Allen Snyder, Kent Markus, Robert Cindrich, Bonnie Campbell, Stephen Orlofsky, Roger Gregory, Christine Arguello, Andre Davis, and Elizabeth Gibson.  Now a couple arrived late, some may have been held up by blue slips of home state Senators, but this is quite a list. 

This year we have already confirmed three circuit court nominees.  That is more that were confirmed by this time in 1999 with a Republican-led Senate and three more than the Republican-led Senate confirmed in the entire 1996 session.  Last week, Senator Cardin chaired a nominations hearing that included another circuit nominee, Jennifer Elrod, who has been nominated to the same circuit as Judge Southwick.

The Senate has confirmed 20 Circuit Court nominations and 125 total federal judicial nominees while I have presided as Judiciary Chairman, in less than two full years.  It is a little known fact that during the Bush Presidency, more circuit judges, more district judges and more total judges have been confirmed, in less time, while I served as Judiciary Chairman than during the longer tenures of either of the two Republican Chairmen working with Republican Senate majorities.

The Senate has confirmed 25 nominations for lifetime appointments this year, more than were confirmed in 2005 with a Republican Chairman and Republican majority.   The Judiciary Committee has reported out another five nominations and has two district court nominations on our agenda this week in addition to Judge Southwick’s.  If we are able to report these two district court nominees, we will have reported 32 lifetime appointments to the federal courts since January of this year. If we are able to report and the Senate has an opportunity to consider and confirm just the five nominees currently on the executive calendar, I will have presided over the most productive 2-year period for judicial confirmations in the last 20 years with 130 confirmations in two years. 

For all our efforts, for my efforts to treat Judge Southwick fairly, all we hear from the other side is complaining.  And we read that some are itching to pick a fight over the nomination.  Last week the press was full of stories of meetings with right-wing groups and the partisan benefits to be gained by Republicans picking such a fight.

Congressional Republicans seem to love to shut down the Government and seem intent on manufacturing excuses to do so.  In 1995 it was Newt Gingrich, who did not like his treatment on Air Force One.  When they were in the Senate majority a few years ago -- and while surreptitiously stealing our computer files-- it was Senate Republicans who insisted on a 40-hour debate on this President’s court packing schemes.  Now, despite our progress and our efforts to work to fill judicial vacancies, some in the Senate Republican leadership seem to be at it, again.

It is Republicans who held up this President’s nomination of Judge Neff since last year and stalled Senate action on a dozen judicial nominations.  Indeed, it was Republicans who were the ones who voted against confirming President Bush’s judicial nominees last month.  Already this year we have proceeded to confirm more judges than were confirmed in all of 2005 when Republicans ran the Senate, and more than were confirmed for the entire 1996 session when a Republican-led Senate confirmed 17 district court nominees and not a single circuit nominee.

As it is, we have helped cut the circuit vacancies from a high water mark of 32 in the early days of this Administration, to as few as 13.  Contrast that with the Republican-led Senate’s lack of action on President Clinton’s moderate and qualified nominees that resulted in increasing circuit vacancies during the Clinton years from 17 to 26.  During those years, the Republican-led Senate engaged in strenuous and successful efforts under the radar to keep circuit judgeships vacant in anticipation of a Republican President.  More than 60 percent of current circuit court judges were appointed by Republican Presidents, with the current President having appointed more than 30 percent of the active circuit judges already. 

Senate Republicans know the difficulties with four of the President’s current circuit nominees.  If they were candid they would concede that they are having difficulties themselves trying to work with this White House on filling judicial vacancies with acceptable nominees.

I continue to try to work with this White House and to make progress.  Next year the Thurmond rule will kick in until after a new president is inaugurated.  That is why I have urged the White House to work with Senators of both parties and to fill the 5^th Circuit vacancy from Mississippi with the nomination of the Honorable Henry Wingate.  Judge Wingate would be the first African American from Mississippi to serve on the 5^th Circuit.  He is the Chief Judge of the District Court for the Southern District of Mississippi.  He was appointed to the federal bench in Mississippi by President Ronald Reagan.  He has served with honor and distinction for more than 20 years, since we helped confirm him in 1985.  He has served as the Chief Judge of the District Court since 2003.  He was a naval officer and is a member of the Naval Reserve.  He was an assistant attorney general, an assistant district attorney, an assistant U.S. attorney, a professor and trial lawyer.  

I cannot imagine why an experienced judge appointed by Ronald Reagan would be unacceptable to this White House.  But if for some reason he is, I will work with the White House, the Senators from Mississippi, the Senate’s Majority and Republican leader and our Ranking Member, the senior Senator from Pennsylvania to identify another worthy candidate.  This is not a partisan fight that needs to be waged.  We can work together to fill this 5^th Circuit vacancy.  I hope the President will work with us.

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