Leahy Schedules Nominations Hearing,
Continues Progress To Reduce Vacancies On Federal Bench

 

WASHINGTON (Tuesday, June 3, 2008) – With vacancies on the Federal judiciary at the lowest levels in decades, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Tuesday scheduled a hearing for the Committee to consider several judicial nominees for vacancies in New York.  

 

In a statement Tuesday, Leahy highlighted the Senate’s progress in considering the nominations of President Bush.  The hearing, scheduled for June 11, will be the eighth nominations hearing in 2008, and the Committee has already reported 20 nominations to the Senate this year.  Five nominations to fill district court vacancies await votes in the Senate, and three nominations are expected to receive Committee votes next week.

 

“On June 1, 2000, when a Republican Senate majority was considering the judicial nominees of a Democratic President in a presidential election year, there were 66 judicial vacancies,” said Leahy.  “Twenty were circuit court vacancies, and 46 were district court vacancies.  Those vacancies were the result of years of Republican pocket filibusters of judicial nominations.  This year, by comparison there are just 47 total vacancies with only 11 circuit vacancies.”

 

“If we can continue to make progress this month, the current vacancies could be reduced to fewer than 40, with only nine circuit court vacancies,” Leahy continued.

 

Under Leahy’s chairmanship, judicial vacancies have continued to fall to the lowest levels in over a decade.  Circuit vacancies have been reduced by 66 percent during the Bush administration, from 32 to 11.  There are fewer vacancies on 10 of the 13 Federal circuit benches, and seven circuits are without a single vacancy.   The Committee will consider two nominees to fill the final vacancies on the Sixth Circuit at a business meeting on June 12, Leahy said.

 

Judiciary Committee Member and New York Senator Chuck Schumer (D) will preside at the June 11 hearing.  Nominees listed for consideration for vacancies in New York are Kiyo Matsumoto for the Eastern District, Cathy Siebel for the Southern District, and Glenn T. Suddaby for the Northern District.

 

The text of Leahy’s statement on Tuesday follows.

 

# # # # #

 

Statement of Senator Patrick Leahy,

Chairman, Senate Judiciary Committee

On Judicial Nominations

June 3, 2008

 

Before the last recess, the Senate confirmed Judge G. Steven Agee of Virginia to the United States Court of Appeals for the Fourth Circuit.  His confirmation lowered the remaining vacancies on that circuit to less than there were at the end of the Clinton administration, when a Republican-controlled Senate had refused to consider any nominees to the Fourth Circuit during the last two years of the Clinton presidency.  The Republican Senate majority used the Clinton years to more than double circuit court vacancies around the country.  By contrast, we have already reduced circuit court vacancies by almost two-thirds, in the process reducing them to zero or only a single vacancy in nearly every circuit.  We have already reduced vacancies among the 13 Federal circuit courts throughout the country from 32 – which is what it was when I became Chairman of the Judiciary Committee in the summer of 2001 – to 11, the lowest number of vacancies in more than a decade. 

 

When Republican Senators are ready to allow us to consider and confirm the President’s nominations to fill the last two remaining vacancies on the Sixth Circuit, yet another circuit will be without any vacancies.  We will reduce the total number of circuit court vacancies to single digits for the first time in decades.  Lost in all the agitating from the other side of the aisle is the fact that we have succeeded in reducing circuit court vacancies to historically low levels.

 

In addition, this work period we have the opportunity to complete Senate consideration of five additional nominees for lifetime appointment to Federal courts, which are pending on the Senate’s Executive Calendar.  The Judiciary Committee has favorably reported the nominations of Mark Davis of Virginia to fill a vacancy in the Eastern District of Virginia, David Kays of Missouri to fill a vacancy in the Western District of Missouri, Stephen Limbaugh of Missouri to fill a vacancy in the Eastern District of Missouri, William Lawrence of Indiana to fill a vacancy in the Southern District of Indiana and Murray Snow of Arizona to fill a vacancy there.  In addition, when the Judiciary Committee considers the nominations of Judge Helene White and Ray Kethledge to the Sixth Circuit, we will also consider the nomination of Stephen Murphy to the Eastern District of Michigan.   Thus, with cooperation from across the aisle, the Senate should be in position to have confirmed four circuit court judges and 11 district court judges before the July 4 recess, for a total of 15 additional Federal judges.

 

By comparison, during the 1996 session when a Republican Senate majority was considering the judicial nominees of a Democratic President in a presidential election year, not a single judge was confirmed before the July 4 recess—not even one.  That was the same session in which they failed to confirm a single circuit court nominee. 

 

Another stark comparison is that on June 1, 2000, when a Republican Senate majority was considering the judicial nominees of a Democratic President in a presidential election year, there were 66 judicial vacancies.  Twenty were circuit court vacancies, and 46 were district court vacancies.  Those vacancies were the result of years of Republican pocket filibusters of judicial nominations.  This year, by comparison there are just 47 total vacancies with only 11 circuit vacancies and 36 district court vacancies.  If we can continue to make progress this month, the current vacancies could be reduced to fewer than 40, with only nine circuit court vacancies and 30 district court vacancies.

 

The history is clear.  When Republicans were busy pocket filibustering Clinton nominees, Federal judicial vacancies grew to more than 100, and circuit vacancies to more than 30. 

 

When I became Chairman for the first time in the summer of 2001, we quickly – and dramatically – lowered vacancies.  The 100 nominations we confirmed in only 17 months, while working with a most uncooperative White House, reduced vacancies by 45 percent. 

 

After the four intervening years of a Republican Senate majority, vacancies remained about level. 

 

It is the Democratic Senate majority that has again worked hard to lower them in this Congress.  We have gone from more than 110 vacancies to less than 50.  With respect to Federal circuit court vacancies, we have reversed course from the days during which the Republican Senate majority more than doubled circuit vacancies.  Circuit vacancies have been reduced by almost two-thirds and have not been this low since 1996, when the Republican tactics of slowing judicial confirmations began in earnest. 

 

Consider for a moment the numbers:  After another productive month, just nine of the 178 authorized circuit court judgeships will remain vacant – just nine – a vacancy rate down from 18 percent to just five percent.  With 168 active appellate judges and 104 senior status judges serving on the Federal Courts of Appeals, there are 272 circuit court judges.  I expect that is the most in our history.

 

I regret to report that when I tried to expedite consideration of President Bush’s two Sixth Circuit nominations last month, I encountered only criticism from the Republican side of the aisle, as did one of the nominees.  Senator Brownback publicly apologized for his actions at the hearing, and I commended him for doing so.   

 

We have now received the updated ABA rating for President Bush’s nomination of Judge Helene White to the Sixth Circuit.  She received a well qualified rating.  That did not come as any surprise.  She has served ably on the Michigan state appellate courts and acquired additional experience in the decade since when she was nominated by President Clinton and the Republican Senate majority refused to consider her nomination.  The White and Kethledge nominations to the Sixth Circuit break a logjam after seven long years.

 

In light of Republican criticism of my efforts to expedite consideration of President Bush’s Sixth Circuit nominations, I have said that the nominations would be scheduled for Committee consideration after we received updated ratings from the ABA.  Now we have and I plan to include them on the agenda for the Committee’s business meeting on June 12.  I trust that all Senators will be prepared to consider and vote on the nominations at that time.  That should provide the Senate with the opportunity to consider them before the July 4 recess.

 

The President has not nominated anyone to 16 current judicial vacancies.  He has refused since 2004 to work with the California Senators on a successor to Judge Trott on the Ninth Circuit. The district court vacancies without nominees span from those that arose in Mississippi and Michigan in 2006, to several from 2007 in Pennsylvania, Michigan, Indiana and the District of Columbia, to others that arose earlier this year in Kansas, Virginia, Washington, and several in Colorado and Pennsylvania.

 

Disputes over a handful of controversial judicial nominations have wasted valuable time that could be spent on the real priorities of every American.  I have sought, instead, to make progress where we can.  The result is the significant reduction in judicial vacancies.  

 

The alternative is to risk becoming embroiled in contentious debates for months. The most recent controversial Bush judicial nomination took five and one-half months of debate after a hearing before Senate action was possible.  I am sure there are some who prefer partisan fights designed to energize a political base during an election year, but I do not.  I will continue in this Congress, and with a new President in the next Congress, to work with Senators from both sides of the aisle to ensure that the Federal judiciary remains independent, and able to provide justice to all Americans, without fear or favor.
 

In fact, our work has led to a reduction in vacancies in nearly ever circuit, reducing vacancies on almost every circuit to only one or none.  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.  We have already succeeded in lowering vacancies in the Second Circuit, the Fourth 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.  Circuits with no current vacancies include the Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the Eleventh Circuit and the Federal Circuit.  When we are allowed to proceed with President Bush’s nominations of Judge White and Ray Kethledge to the Sixth Circuit, it will join that list of Federal circuits without a single vacancy.

 

My approach has been consistent throughout my chairmanships during the Bush presidency.  The results have been positive.  Last year, the Judiciary Committee favorably reported 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. 

 

Still, some partisans seem determined to provoke an election year fight over nominations.  The press accounts are filled with threats of Republican reprisals.  The May 14 issue of Roll Call boasted the following headline: “GOP Itching for Fight Over Judges; Reid’s Pledge to Move Three Before Recess Fails to Appease Minority.”  Then in a recent article in The Washington Times, we read that the Republican fixation on judges is part of an effort to bolster Senator McCain’s standing among conservatives.  There seem to be no steps we could take to satisfy Senate Republicans on nominations because they are using it as a partisan issue to rev up their partisan political base.

 

Among the reasons that Republican complaints about the Fourth Circuit ring hollow is that the emergency vacancy on the Fourth Circuit from North Carolina exists only because the Republican Senate majority refused to consider any of President Clinton’s nominees to fill that vacancy.  All four nominees from North Carolina to the Fourth Circuit were blocked from consideration by the Republican Senate majority.  That also prevented President Clinton from integrating the Fourth Circuit through appointment of Judge Beaty or Judge Wynn.

 

Of course, 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.  That was the period when Fourth Circuit vacancies rose to five.  One of those vacancies – to a seat in North Carolina – still exists because the President insisted on nominating and renominating Terrence Boyle over the course of six years to fill that vacancy.  That highly controversial nomination persisted for years despite the strong opposition of law enforcement officers from across the country, civil rights groups, and those knowledgeable and respectful of judicial ethics opposed the nomination. 

 

The Fourth Circuit now has fewer vacancies than it did when Republicans claimed no more judges were needed, and fewer vacancies than at the end of the Clinton administration.  I have already said that once the paperwork on President Bush’s nomination of Judge Glen Conrad to the Fourth Circuit is completed, if there is sufficient time, I hope to move to that nomination.

 

This is not the first time we have heard false complaints about our progress on nominations.  One of the Republicans favorite talking points is to use a mythical “statistical average” of selected years to argue that the Senate must confirm 15 circuit judges in this Congress.  They only achieve this inflated so-called “historical average” by taking advantage of the high confirmation numbers of Democratic-led Senates confirming the nominees of President Reagan and the first President Bush.  They ignore their own record of doubling vacancies during the Clinton administration, including during the 1996 session when the Republican-led Senate refused to confirm a single circuit court nominee.

 

They do not like to recall that during the 1996 session, when a Republican majority controlled the Senate during a presidential election year, they refused to confirm any circuit court judges at all—not one.  Their practice of pocket filibustering President Clinton’s judicial nominees led Chief Justice Rehnquist to criticize them publicly.  Chief Justice Rehnquist was hardly a Democratic partisan. Quite the contrary.  Even he was appalled by the actions of the Republican Senate majority.  In his 1996 Year-End Report on the Federal Judiciary, he wrote:

 

“Because the number of judges confirmed in 1996 was low in comparison to the number confirmed in preceding years, the vacancy rate is beginning to climb. When the 104th Congress adjourned in 1996, 17 new judges had been appointed and 28 nominations had not been acted upon. Fortunately, a dependable corps of senior judges contributes significantly to easing the impact of unfilled judgeships. It is hoped that the Administration and Congress will continue to recognize that filling judicial vacancies is crucial to the fair and effective administration of justice.”

 

When that shot across the bow did not lead the Republican Senate majority to reverse course, Chief Justice Rehnquist spoke up, again, in his 1997 Year-End Report on the Federal Judiciary.  It was a salvo from a Republican Chief Justice critical of the Republican Senate leadership:

 

“Currently, 82 of the 846 Article III judicial offices in the federal Judiciary – almost one out of every ten – are vacant. Twenty-six of the vacancies have been in existence for 18 months or longer and on that basis constitute what are called "judicial emergencies." In the Court of Appeals for the Ninth Circuit, the percentage of vacancies is particularly troubling, with over one-third of its seats empty.

Judicial vacancies can contribute to a backlog of cases, undue delays in civil cases, and stopgap measures to shift judicial personnel where they are most needed. Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal Judiciary. Fortunately for the Judiciary, a dependable corps of senior judges has contributed significantly to easing the impact of unfilled judgeships.”

It was only after the scorching criticism by a Republican Chief Justice that the Republican Senate majority modified its approach in order to allow some of the nominations that had been held back for years to finally proceed.  Having built up scores of vacancies, some were allowed to be filled while the Republican Senate majority carefully kept vacant circuit court positions to be filled by President Clinton’s successor. It is in that context that Republican claims of magnanimity must be seen for what it was.  It is in that context that the eight circuit confirmations in 2000 must be evaluated while the Republican Senate majority returned 17 circuit nominations to President Clinton at the end of that session without action. 

 

By contrast, the Democratic Senate majority has worked steadily and steadfastly to lower vacancies and make progress, and we have.  When Senate Republicans allow the Senate to confirm President Bush’s Sixth circuit nominees, we will have achieved the average number of circuit confirmations the Republican Senate majority achieved in presidential election years and lowered circuit vacancies to an historically low level.  

 

Further, the Republican effort to create an issue over judicial confirmations is sorely misplaced.  Americans are now facing an economic recession, massive job losses of 232,000 in the first three months of this year, increasing burdens from the soaring price of gas, and a home mortgage foreclosure and credit crisis. 

 

Last month, the Commerce Department reported the worst plunge in new homes sales in two decades.  The press reported that new home sales fell 8.5 percent to the slowest sales pace since October 1991, and the median price of a home sold in March dropped 13.3 percent compared to the previous year. That was the biggest year-over-year price decline in four decades.  You would have to go back to July 1970 to find a larger decline. Sales of existing homes also fell in March, as did employment and orders for big ticket manufactured goods, both of which fell for the third month in a row.

 

Unfortunately, this bad economic news for hard-working Americans is nothing new under the Bush administration.  During the Bush administration, unemployment is up more than 20 percent; the price of gas has more than doubled and is now at a record high national average of over $3.94; trillions of dollars in budget surplus have been turned into trillions of dollars of debt, with an annual budget deficit of hundreds of millions of dollars. According to a recent poll, 81 percent of Americans today believe that our country is headed in the wrong direction.  It costs more than $1 billion a day – $1 billion a day – just to pay down the interest on the national debt and the massive costs generated by the disastrous war in Iraq.  That’s $365 billion this year that would be better spent on priorities like health care for all Americans, better schools, fighting crime, and treating diseases at home and abroad. 

 

In contrast, one of the few numbers actually going down as the President winds down his tenure is that of judicial vacancies.  Senate Democrats have worked hard to make progress on judicial nominations, lowering circuit court vacancies by almost two-thirds from the level to which the Republican Senate majority had build them.  Any effort to turn attention from the real issues facing Americans to win political points with judicial nominations is neither prudent, nor productive.

 

# # # # #