Leahy: Circuit Vacancies Lowest In
Over A Decade
Chairman Moves
Forward With Nominations
While Republicans
Continue With Baseless Complaints
WASHINGTON (Wednesday, April 23, 2008) – Senate Judiciary Committee
Chairman Patrick Leahy (D-Vt.) responded Wednesday to partisan
attacks from Senate Republicans over the consideration of judicial
nominations, citing the lowest vacancy rate on the Federal bench in
more than a decade.
In a
response to an
April 10 letter from Republican members of the Senate Judiciary
Committee, and after weeks of orchestrated attacks by Republicans on
the Senate floor, Leahy outlined his approach to continue the
significant progress the Senate has made in considering President
Bush’s judicial nominations. During the Bush administration,
vacancies on 12 of the 13 Circuit Courts of Appeals have already
been reduced or are the same as they were during the Clinton
administration. By contrast, under the Republican-led Senate during
the Clinton administration, circuit court vacancies
grew from 12 to
26, and swelled to 32 during the transition to the Bush
administration in 2001. There are currently just 12 circuit court
vacancies throughout the nation.
The Committee this year has held five nominations hearings for 15
nominees, including 11 judicial nominations. On Wednesday, Leahy
noticed a
sixth confirmation hearing for May 1 on the nomination of Steven
Agee to fill a long-vacant Virginia seat on the Fourth Circuit Court
of Appeals. The Committee will also hear from two district court
nominees on May 1. Despite the considerable movement on
nominations, Republicans are insistent that Leahy forego making
further progress and, instead, focus on a small handful of
controversial Bush nominees.
“You can pick fights over a few of the more controversial
nominations or we can continue to make significant progress,” Leahy
wrote to Republican members of the Judiciary Committee. “I am sure
there are some who prefer partisan fights designed to energize a
political base, but I do not. I hope you will agree with me.”
Despite Republican claims that consideration of judicial nominees
has been blocked this year, the final year of the Bush
administration and a presidential election year, Senate Democrats
have pressed forward in considering nominations.
Last week, the Committee Chairman announced a breakthrough in a
long-standing impasse on the
Sixth Circuit Court of Appeals, where the Republican-led Senate
refused to consider President Clinton’s nominees to the circuit in
the final three years of his administration, leaving vacant four
seats on the appeals bench in that circuit. If Republicans do not
stall progress by forcing a fight over controversial nominations,
Leahy said, the Senate could fill the final two vacancies on the
Sixth Circuit this year.
The Agee nomination, sent to the Senate in March, also signals a
breakthrough on the Fourth Circuit Court of Appeals, where President
Bush’s previous nomination had failed to garner the support of the
Virginia senators. After Senator John Warner (R-Va.) and Jim Webb
(D-Va.) publicly decried the nomination of Duncan Getchell, made
over their objections, the President relented and
withdrew the nomination. The President ultimately nominated
Agee to a long-vacant Virginia seat on the panel.
The Senate two weeks ago
confirmed the nomination of Catharina Haynes to fill the final
vacancy on the Fifth Circuit Court of Appeals. With that
confirmation, the Senate has surpassed the total number of circuit
court nominees confirmed by the Senate in the 1996 session, a
presidential election year during which the Republican-led Senate
refused to confirm a single circuit court nominee of President
Clinton. With five nominations hearings already concluded this
year, and the sixth scheduled for May 1, the Committee is well ahead
of the pace Republicans set in the 1999 session of Congress, when
the Judiciary Committee failed to hold a hearing on a single
judicial nomination before June. With the Senate having confirmed
five judges in early April, the Senate is also well ahead of the
pace Republicans set in the 1996 session when no judicial nominee
was confirmed before July.
In this Congress, the Committee has reported
45 judicial
nominations, and 31 nominations for high-ranking positions in the
Department of Justice, including the Department’s top three
positions – Attorney General, the Deputy Attorney General and the
Associate Attorney General.
The text of Leahy’s letter follows. A PDF is available
here.
# # # # #
April 23, 2008
Letter from Judiciary Committee Chairman Patrick Leahy to
Committee Republicans
April 23, 2008
Letter from Chairman Patrick Leahy to North Carolina and South
Carolina Senators
April 23, 2008
Letter from Judiciary Committee Republicans to Chairman Patrick
Leahy
April 15, 2008
Letter from North Carolina and South Carolina Senators to
Chairman Patrick Leahy
April 10, 2008
Letter from Judiciary Committee Republicans to Chairman Patrick
Leahy
# # # # #
April 23, 2008
United States
Senate Committee on the Judiciary
Minority Members
152 Dirksen Senate Office Building
Washington,
D.C. 20510
Dear Republican Senators:
I acknowledge your recent joint
letter. I note that in our personal conversations several of you
have worked with me and expressed a greater understanding of what we
have accomplished.
First, I would urge each of you to
read my statements about judicial nominations from throughout this
year, most recently my remarks on April 16, and before that on April
10, April 1, March 7, March 3, and on February 7. I would also urge
each of you to review my statements from our numerous confirmation
hearings and business meetings. Of course, I would be happy to
discuss them with you. They help establish the context in which we
are proceeding, and the progress we have made and continue to make.
Frankly, your request lacks that
context. It also fails to account for the conflicting and shifting
demands that have been placed on me and this Committee. Earlier
this year, Senator Kyl was very forceful in observing the importance
of filling vacancies at the Department of Justice. Yet in
subsequent choreographed Republican floor statements, the Republican
leadership and all of you ignore the extensive work we have done in
the wake of the resignations of nearly the entire leadership at the
Justice Department. In the last several months, we have confirmed a
new Attorney General, a new Deputy Attorney General, a new Associate
Attorney General and held seven hearings for high-ranking Justice
Department nominations. Of course, we could have made progress even
sooner, had the Republican Members of the Judiciary Committee not
effectively boycotted our business meetings in February and
obstructed our ability to report the O’Connor nomination and had it
not been the subject of a Republican hold on the Senate Executive
Calendar.
A little more than a year ago, the Judiciary Committee began its
oversight efforts for the 110th Congress. Over the next nine
months, our efforts revealed a Department of Justice gone awry. The
leadership crisis came more and more into view as Senator Specter
and I led a bipartisan group of concerned Senators to consider the
United States Attorney firing scandal, a confrontation over the
legality of the administration’s warrantless wiretapping program,
the untoward political influence of the White House at the
Department of Justice, and the secret legal memos excusing all
manner of excess.
This crisis of leadership has taken
a heavy toll on the tradition of independence that has long guided
the Justice Department and provided it with safe harbor from
political interference. It shook the confidence of the American
people. Through bipartisan efforts among those from both sides of
the aisle who care about Federal law enforcement and the integrity
of the Department of Justice, we joined together to press for
accountability. That resulted in a change in leadership at the
Department, with the resignations of the Attorney General and
virtually the entire leadership and leadership staff. I regret that
you seem to have abandoned our bipartisan efforts in favor of
election year partisanship.
It is ironic that your letter is
dated the day the Senate had previously been scheduled to vote on
the nomination of Catharina Haynes to fill the last remaining
vacancy on the Fifth Circuit Court of Appeals. I worked closely
with Senator Cornyn to expedite consideration of that nomination
this year and personally chaired her confirmation hearing during a
February recess period.
When you refused to cooperate in
establishing a quorum at our business meetings in February, you
succeeded in assuring that no judicial nominations were able to be
reported until March. In addition to the executive nominees on
which we have held numerous hearings, the Committee has already held
hearings this year on 11 judicial nominations, the Committee has
favorably reported five, and the Senate has proceeded to confirm all
five. I have placed another three judicial nominees on the agenda
for our meeting today and I trust that you will work with me to make
additional progress in this regard.
I might note in contrast that in
1999, toward the end of President Clinton’s administration, a
Republican chairman did not hold a hearing on any judicial nominees
until June. We are well ahead of that mark. I also recall that
during a recent presidential election year with a Democrat in the
White House and a Republican Senate majority, the first judicial
nominee was not confirmed until July. That was the 1996 session
during which not a single circuit court nominee was confirmed. We
did not wait until July this year and have already beaten that
session’s circuit total with the confirmation of Judge Haynes
earlier this month.
Of course, the five lifetime
judicial appointments confirmed on April 10 were not the first
judicial nominations I have helped move. Senator Specter will
recall my help as chairman in connection with the nominations of
Nora Barry Fischer, Thomas Hardiman to the Third Circuit, Legrome
Davis, Michael Baylson, Cynthia Rufe, Christopher Conner, John Jones
III, David Cercone, Timothy Savage, Terrence McVerry, Arthur Schwab,
James Gardner. I also helped the Committee proceed to the Third
Circuit nomination of D. Brooks Smith, a nomination which I did not
support. As ranking member, I worked with Chairman Hatch and
Chairman Specter in connection with the confirmations of Michael
Fisher and Franklin van Antwerpen to the Third Circuit, as well as
the nominations of Thomas Hardiman, Gene Pratter, Lawrence Stengel,
Paul Diamond, Juan Sanchez, and Thomas Golden. With the exception
of two nominees from Pennsylvania currently pending before the
Judiciary Committee, every judicial nominee for a Pennsylvania
vacancy nominated by President Bush has been confirmed by the
Senate. That is 23 nominations in all, including four to the Third
Circuit.
Contrast this with the treatment of
nominees from Pennsylvania during the last Democratic
administration, when the Republican Senate majority stalled 10
nominations, one for the circuit and nine district court
nominations.
Earlier this year, I thought that
Senator Specter had a personal interest in the current nomination of
Judge Pratter to the Third Circuit, and I was making plans to
expedite consideration of that nomination in deference to him. As
our process requires, that nomination needed the support of both
Pennsylvania Senators. I was assured for some time that that was
imminent. Unfortunately, that apparently was not the case. Nor has
the President sent nominations for four district court vacancies in
Pennsylvania. It is strange that the President has proceeded to
nominate Carolyn Short for a vacancy that has yet to occurred,
rather than one of the four that has already have. That is
something the White House will need to explain.
At one point, it appeared that
Senator Specter was urging me to ignore the lack of home state
Senator support for the Pratter nomination, just as
The Washington Post has
recently urged consideration of nominations in Maryland and the
District of Columbia that do not have such support. At various
times and in your various statements and demands, and in those of
the Republican leadership, I have heard a variety of suggestions and
instructions for me, as well as demands for how the Committee should
proceed. I have been trying to accommodate Republican Senators who
have come to me individually and worked with me. That is how we
prioritized consideration of the Haynes nomination at Senator
Cornyn’s request, the Hall nomination at Senator Chambliss’s request
and the Anderson nomination at Senator Alexander’s request. I have
also met and spoken to Senator Dole a number of times and have
received a recent letter from her and others regarding the Conrad
nomination. I intend to respond to that letter, as well.
As the former chairman who presided
over the Republican Senate majority’s pocket filibustering of more
than 60 of President Clinton’s judicial nominees, Senator Hatch is
in position to answer a number of the unanswered questions that
still haunt us. I recall a few of them in my April 16 statement to
the Senate. One step toward reconciliation would be acknowledgement
of this unfair behavior and acceptance of responsibility by Senate
Republicans. Despite that recent history, while I have chaired the
Committee, I proceeded on the nominations of Michael McConnell to
the Tenth Circuit and Paul Cassell to the District Court in Utah and
a number of Senator Hatch’s former staffers. It is the subsequent
resignation of Judge Cassell that is responsible for the only
current vacancy on the Federal bench in Utah, a vacancy for which
the President has not sent the Senate a nominee.
I know that Senator Grassley recalls
my acting quickly at his request on the confirmation of Judge John
Jarvey, Judge Michael Mellow to the Eighth Circuit, Judge James
Gritzner and Judge Linda Reade. Only Steven Colloton’s nomination
to the Eighth Circuit was considered while I was the ranking
Democratic member of this Committee. As we discussed at a recent
Committee business meeting, thanks to all our work, there are no
Federal judicial vacancies in Iowa.
Senator Kyl should recall that I
cooperated with him over the years to confirm a number of judges in
Arizona. Most recently, we have confirmed David Campbell, Neil
Vincent Wake, Frederick Martone, Cindy Jorgenson, and David Bury.
Among the last judges confirmed in 2000 was his good friend James
Teilborg. Senator Kyl recently asked me to schedule a hearing on
the nomination of Murray Snow. In response, I have included him in
the upcoming hearing on May 1. If that nomination proceeds to
confirmation, it will fill the only vacancy on the Federal bench in
Arizona.
Of course, at times this year
Senator Kyl has demanded we turn not to the Conrad nomination, but
to that of Peter Keisler for the 11th seat on the D.C.
Circuit. That circuit’s membership already includes several
controversial appointments of this President, including that of
Brett Kavanaugh. Chairman Specter chose to proceed on the Kavanaugh
nomination over the Keisler nomination. That confirmation added
Judge Kavanaugh to a circuit that also now includes Janice Rogers
Brown and Tom Griffith. I recall that during the last three years
of the Clinton administration, the Republican Senate majority
refused to consider either of President Clinton’s qualified
nominees, Allen Snyder and Elena Kagan, and that circuit court was
left with three vacancies. Currently there is only one vacancy on
the D.C. Circuit.
Senator Sessions is another member I
have assisted over the years. In particular, I remember the
confirmation of Kristi Dubose. There were also the confirmations of
Karon Boudre, Callie Granade and Mark Fuller while I chaired the
Committee. The Senate has also confirmed William Steele, L. Scott
Coogler, R. David Proctor, Virginia Hopkins and W. Keith Watkins,
all of whom I supported. There was also the confirmation of William
Pryor, which I did not support. Having obtained 10 confirmations
since 2001, Alabama is another state that, thanks to our efforts,
has no judicial vacancies.
Senator Graham follows Senator
Thurmond as South Carolina’s representative on the Judiciary
Committee. Despite the controversy that accompanied the nomination
of Dennis Shedd, and my own opposition to it, I presided as chairman
when we considered that nomination and when the Senate granted its
consent. I also presided over consideration of the nomination of
Terry Wooten. More recently we acted favorably on the nominations
of Harvey Floyd and Robert Bryan Harwell. I have been discussing
the Matthews nomination with Senator Graham, not the Conrad
nomination, and thought that was his priority. Apparently that may
not be the case, given his signature on the April 10 letter. I
intend to follow up with him individually.
I have already alluded to the most
recent confirmation from Texas to the Fifth Circuit, but there have
been many others, so many in fact that the Federal bench in Texas
has no current vacancies. There was Jennifer Elrod to the Fifth
Circuit and Reed O’Connor to the Northern District just last year.
Before that there were confirmations
of
James E. Kinkeade, Alia M. Ludlum, Andrew S. Hanen, David C. Godbey,
Leonard E. Davis, Ronald H. Clark, Philip R. Martinez, and Randy
Crane. During my time as ranking member, the Senate confirmed Edward
Prado to the Fifth Circuit, Robert Junell, Kathleen Cardone, Earl
Yeakel III, Frank Montalvo, Xavier Rodriguez, Marcia Crone, Jane
Boyle, Michael Schneider, Micaela Alvarez and Gray Miller. In
addition, the Senate confirmed Priscilla Owen to the Fifth Circuit,
although 43 Senators voted in opposition.
I was quite disappointed to see
Senator Cornyn taking part in partisan attacks on the very day that
we were completing the confirmation of Catharina Haynes to fill the
final vacancy in Texas. With that confirmation, the Senate has
proceeded over the last seven years to confirm 23 judges in Texas,
including five to the Fifth Circuit.
I have also tried while serving as
Judiciary Chairman to accommodate Senator Brownback. I have worked
to extend a temporary judgeship that was expiring in Kansas at his
request, and I introduced and helped pass through the Senate a bill
to make it permanent. I presided over the consideration of the
nomination of Julie Robinson that ultimately led to her
confirmation. At present, given our efforts, there is only one
district court vacancy in Kansas. The President has not sent the
Senate a nomination to fill that vacancy.
Senator Coburn only recently joined
the Committee. As he knows, there are no judicial vacancies in
Oklahoma. Last year I worked with Senator Inhofe to ensure that
both Gregory Kent Frizzell and Timothy DeGiusti were confirmed.
I take the trouble to mention this
background because I think it relevant. When Senators, Republican
or Democratic, have come to me in good faith, I have done my best to
work with them all. Your joint letter fails to recognize any of
those efforts.
As you will see from my April 16
statement to the Senate, I intend to proceed next to the nomination
of Steven Agee to the Fourth Circuit. I have already noticed his
hearing for
May 1, and I thank Senator Cardin
for his willingness to chair that hearing. At that time, we will
also consider the nomination of Murray Snow of Arizona, at Senator
Kyl’s request, and that of William Lawrence of Indiana, at Senator
Lugar’s request. The nomination of Steven Agee is to one of
Virginia’s long vacant Fourth Circuit seats. It is my hope that
this will help us to make progress in filling vacancies and reducing
those on the Fourth Circuit. The Agee nomination is a breakthrough
that affords us the opportunity to be productive. It follows years
of contentiousness, as President Bush insisted on nominations like
those of Jim Haynes, Claude Allen and most recently Duncan
Getchell. You will recall that Mr. Getchell did not have the
necessary support of either Senator Warner or Senator Webb. I have
been working with the Virginia Senators. Their successful efforts
working with the White House are to be commended. I intend to
encourage this President to finish out his term by finally acting in
cooperation with the Senate by prioritizing action on this
nomination.
I also have announced that I intend
promptly to proceed to consideration of the nominations of Ray
Kethledge and Judge Helene White to the Sixth Circuit. I have long
urged the President to work with the Michigan Senators, and, after
seven years, he finally has. Last week our extensive efforts
culminated in a significant development that can lead to filling the
last two vacancies on the Sixth Circuit before this year ends. This
accomplishment stands in sharp contrast to the actions of Senate
Republicans who refused to consider any nomination to the Sixth
Circuit Court of Appeals during the last three years of the Clinton
administration. Ultimately, the Republican-led Senate left open
four vacancies on that circuit.
With the cooperation of the
Committee I believe we should be able to consider and favorably
report all three of these circuit court nominees. That is
consistent with the approach I have taken throughout my
chairmanship. I believe that the results have been positive. We
were able to achieve 100 confirmations during the 17 months I
chaired the Committee during the 107th Congress. Last
year, we sent 40 judicial nominations to the Senate and all 40 were
confirmed. That was more than had been confirmed in any of the
three preceding years when a Republican chairman and Republican
Senate majority managed the process.
If we were, instead, to turn the
Committee’s attention to other, more controversial nominations, we
run the risk of becoming embroiled in debate for months, and will be
foregoing the opportunity to make progress where I believe we can.
We will also, in effect, be rejecting the White House’s recent
efforts to work with us. I prefer to make progress where we can in
this presidential election year, and to work together to do so. I
hope you will join me in these efforts.
I am sure there are some who prefer
partisan fights designed to energize a political base, but I do
not. I hope you will agree with me. When the Republican majority
stalled consideration of President Clinton’s judicial nominees, they
more than doubled the circuit court vacancies from 12 to 26 during
the last five years of the Clinton administration. Those circuit
vacancies grew to 32 during the transition to the Bush
administration. We have been able to reverse that. Today, circuit
court vacancies have been reduced to only 12 across the nation,
instead of 32, less than at any time since the 1996 session. With
the confirmations of the Virginia and Michigan nominees I have
identified, we could lower circuit vacancies to single digits for
the first time in decades.
In fact, our work has led to a
reduction in vacancies in nearly ever circuit. We have lowered
vacancies in the Second Circuit, the Fifth Circuit, the Sixth
Circuit, the Eighth Circuit, the Ninth Circuit, the Tenth Circuit,
the Eleventh Circuit, the D.C. Circuit and the Federal Circuit.
Both the Second and Fifth Circuits had circuit-wide emergencies due
to the multiple simultaneous vacancies during the Clinton years with
Republicans in control of the Senate. Both the Second Circuit and
the Fifth Circuit now are without a single vacancy. Circuits with
no vacancies also include the Seventh Circuit, the Eighth Circuit,
the Tenth Circuit, the Eleventh Circuit and the Federal Circuit.
That is five circuits without a single vacancy due to our efforts.
The Sixth Circuit is poised to join them after our recent
breakthrough if we focus on finishing the job and do not break down
into partisanship.
Indeed, the only circuit that has
more vacancies than it did at the end of the Clinton administration
is the First Circuit, which has gone from no vacancies to a single
one. The other three circuits, the Third, the Fourth and the
Seventh have the same number of vacancies today that they had at the
end of the Clinton administration. When we take action on the Agee
nomination from the Fourth Circuit, even that circuit will be in an
improved posture.
I am well aware of the recent
history of judicial nominations to the Fourth Circuit. The reason
there are so many vacancies on the Fourth Circuit from North
Carolina and that they are labeled as judicial emergencies is
because the Republican majority refused to consider any of President
Clinton’s nominees.
All four nominees from North
Carolina to the Fourth Circuit were blocked from consideration by
the Republican Senate majority. They included United States
District Court Judge James Beaty, United States Bankruptcy Judge J.
Richard Leonard, North Carolina Court of Appeals Judge James Wynn
and Professor Elizabeth Gibson. The failure to proceed on these
nominations has yet to be explained. In contrast, I presided over
the confirmations of two of President Bush’s nominees to the Fourth
Circuit in the 107th Congress and as ranking member,
worked to help confirm Judge Allyson Duncan of North Carolina to the
Fourth Circuit when President Bush nominated her during the 108th
Congress.
During the Clinton administration,
Republican Senators argued that the Fourth Circuit vacancies did not
need to be filled because the Fourth Circuit had the fastest docket
time to disposition in the country. After the confirmation of
Steven Agee of Virginia, the Fourth Circuit will have fewer
vacancies than it did when Republicans claimed no more judges were
needed.
I urge you to reconsider the course you appear to be taking. The
last contentious judicial nomination was that of Leslie Southwick.
The process of Senate consideration from the time of the hearing to
his confirmation was five and one-half months. I urge you to
consider what was not achieved in the last several months of the
last Congress. The Republican chairman chose a different course, as
was his right. He had the Committee hold many hearings on many
controversial nominations. That resulted in a great deal of effort
and conflict but not in as many confirmations as might have been
achieved. You can pick fights over a few of the more controversial
nominations or we can continue to make significant progress.
Democrats have not acted as
Republicans did during the Clinton administration when Republicans
pocket filibustered more than 60 judicial nominations and voted lock
step against the confirmation of Ronnie White. I still await
Republican acknowledgement of responsibility and acceptance of
accountability for those actions during those years. The Democratic
Senate majority has not engaged in a tit-for-tat. Rather, by
cutting the vacancies as we have, we have taken a giant step toward
resolving problems. We are now, finally, on course to resolve the
longstanding impasse in the Fourth Circuit and in the Sixth
Circuit. I continue my efforts to achieve what we can by working
together this year. I will consult with you, as I will with the
Senate Democratic leadership and all members of the Judiciary
Committee.
During the remainder of this year,
if you will work with me rather than pick fights, I am confident we
can not only make progress but we will be in position to complete
the restoration of the confirmation process during the next
President’s administration and finally overcome years of partisan
rancor.
Sincerely,
PATRICK LEAHY
Chairman
The Honorable Arlen Specter
The Honorable Orrin G. Hatch
The Honorable Charles E. Grassley
The Honorable Jon Kyl
The Honorable Jeff Sessions
The Honorable Lindsey Graham
The Honorable John Cornyn
The Honorable Sam Brownback
The Honorable Tom Coburn
