Statement Of Sen. Patrick Leahy
(D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
September 26, 2008
As this
Congress winds down, we need to focus on confronting the
worst financial crisis we have experienced since the Great
Depression, one that has exposed the American taxpayers to trillions
in losses. But just as I
continued to hold hearings on nominations on September 13, 2001, in
the wake of the attacks of 9/11, I have continued deep into this
presidential election year to hold hearings and take action on both
executive and judicial nominees.
Indeed, yesterday the Judiciary Committee reported out
13 nominations, including 10
nominations for lifetime appointments to the Federal bench, and the
nomination of Greg Garre to be Solicitor General of the United States,
one of the highest and most prestigious positions at the Department
of Justice.
I went the
extra mile to hold two expedited hearings this month on judicial
nominations -- despite the Thurmond Rule that Republicans created
and followed with Democratic Presidents, despite the practices they
followed in 1996 and 2000, and despite the record of Republicans in
filibustering and raising objections to important bills with broad
bipartisan support.
I held a hearing just three days ago as an
accommodation to Senator Specter,
the Ranking Republican Member of our Committee, and a former
Chairman. I have
accommodated Senator Hatch, another former Chairman.
I also accommodated the Senator from
Kansas and included the nominee from
Kansas
at a hearing Tuesday afternoon, even though his nomination has
raised concerns. We also
have proceeded with hearings on another nominee from Virginia, a
nominee from California, and the
two nominees from Colorado.
I continue my practice of working with Senators on both sides
of the aisle.
Today I
have continued to do so, and the Senate has confirmed all 10 of
these Bush judicial nominations:
Clark Waddoups of Utah, Michael Anello of California, Mary Stenson
Scriven of Florida, Christine Arguello and Phillip A. Brimmer of
Colorado, C. Darnell
Jones II, Mitchell S. Goldberg, and Joel H. Slomsky of Pennsylvania, Anthony J. Trenga of
Virginia, and Eric Melgren of
Kansas.
I have said throughout my chairmanship that I
would treat President Bush’s nominees better than Republicans
treated President Clinton’s, and I have done so.
In the 17 months I served as Chairman of this Committee
during President Bush’s first term with a Democratic majority, the
Senate confirmed 100 of the President’s judicial nominations.
In the 38 months I have served as Judiciary Committee
Chairman, the Senate has now confirmed 10 more nominees than it did
during the more than four years Republicans led the Committee, 168
nominees compared to 158.
Even before the August recess, we had
confirmed more judicial nominations in this Congress than were
confirmed during the previous two years when a Republican Senate
majority and Republican chairman of this Committee did not have to
worry about the Thurmond Rule and an abbreviated session due to a
presidential election.
With the confirmations today we have confirmed 68 this Congress, 14
more than in the last Congress with a Republican Majority.
My approach has
been consistent throughout my chairmanships during the Bush
presidency. I submit
that 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.
Even though this is a Presidential election year, we
confirmed more of President Bush’s nominees this year—28—than the
Republican-led Senate confirmed in 2005 and virtually the same
number as in 2006, both non-Presidential election years.
Indeed, the contrast between our productivity on
judicial nominations by confirming 10 judicial nominees late in this
Congress and the flurry of activity undone by Republican
obstructionism at the end of the last Congress is significant.
Although we wasted many months during the 109th
Congress debating a handful of President Bush’s most extreme failed
nominees, the Democratic Senators on the Judiciary Committee worked
especially hard as time ran down in that Congress to be
accommodating on judicial nominations. We agreed to the
request of Senator Specter, then the Committee Chairman, to hold
four hearings in September 2006 on nominations, and numerous extra
business meetings. But
our work to be accommodating and move nominations forward was to no
avail when holds by Senator Brownback and other Republicans stopped
the Senate from confirming 14 judicial nominees.
Included in these were three nominees to fill judicial
emergency vacancies in the Western District of Michigan, a situation
not resolved until this Congress, when the Michigan Senators and the
White House worked together with us to fill those vacancies.
Despite our efforts to step away from the tit for
tat of the nomination battles of the past, and the work we have done
to dramatically lower judicial vacancies by approving the nominees
of a President from the other party, our efforts have yet to be
acknowledged.
After today, we will have cut the judicial vacancies from I
encountered in the summer of 2001 after years of pocket filibusters
of moderate and qualified nominees of President Clinton by
Republican Senate leadership, to about a third, from 110 to as low
as 34 today. In the six years
of Senate Republican majority control during the Clinton administration, the pocket filibusters
and obstruction of moderate, qualified nominees more than doubled
circuit court vacancies. By
contrast, we have cut circuit court vacancies by two-thirds, from 32
to a low of nine this summer.
We have broken through
longstanding logjams in the Fourth, Fifth and Sixth Circuits, and
lowered vacancies in virtually every circuit from when President
Bush took office. With
the recent confirmations of Helene White and Ray Kethledge to seats
on the Sixth Circuit, that circuit, which had four vacancies after
the Republican pocket filibusters, now has none.
The Fifth Circuits had a circuit-wide emergency due
to the multiple simultaneous vacancies during the Clinton years, when Republicans controlled the
Senate. The Fifth Circuit now has no vacancies. We have
succeeded in lowering vacancies in 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.
Judicial vacancies that rose steadily and
dramatically under Republican Senate control with a Democratic
President have fallen dramatically with a Republican President when
a Democratic Senate majority was in charge.
I recall that as the presidential elections in 2000 drew
closer, Republican pocket filibusters resulted in the judicial
vacancy rate rising to 10 percent.
Democrats have reversed that course.
We have now lowered that number to 34, less than a third of
where they stood after Republican pocket filibusters and
obstruction. The vacancy
rate is below four percent vacancy now.
As unemployment for ordinary Americans has now risen about
six percent nationwide and much higher in some states and
communities, we have cut the judicial vacancy rate dramatically.
I suspect
many of these facts have been lost among the Republican
election-year gambits and grumblings about judicial nominations that
always seem loudest when we are moving forward on nominations.
Partisan Republican critics
ignore the progress we have made on judicial vacancies. They also
ignore the crisis that they had created by not considering circuit
nominees in 1996, 1997 and 1998. They ignore the fact that
they refused to confirm a single circuit nominee during the entire
1996 session. They ignore the fact that they returned 17
circuit court nominees without action to the White House in 2000.
They ignore the public
criticism of their actions by Chief Justice Rehnquist during those
years. They ignore the fact that they were responsible for
more than doubling circuit court vacancies through pocket
filibusters of moderate and qualified Clinton nominees or that we have reduced those
circuit court vacancies by more than two thirds.
In the 1996 session, the
Republican majority confirmed only 17 of President Clinton’s
judicial nominees, and none were circuit court nominations.
In stark contrast, under Democratic leader in this election
year, the Senate has confirmed 28 judicial nominees, four of them to
prestigious circuit courts.
I have yet to hear
explanations for why they did not proceed with the nominations of
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, Elizabeth Gibson and so
many others.
One of those many
nominees blocked by the Republican abuses of those years was finally
confirmed today. I
was happy to accommodate Senator Salazar’s request that we add two Colorado nominees to the
first of our September hearings, after he and Senator Allard reached
an agreement. That
agreement led Senator Allard finally to return the blue slip for Ms.
Arguello. Of course, Ms.
Arguello was nominated by President Clinton to the Tenth Circuit,
but a Republican pocket filibuster in 2000 stalled her nomination.
Ms. Arguello, like Judge Helene White, who was confirmed to
the Sixth Circuit earlier this year, has now been nominated by
Presidents of both parties.
I thank the Committee for completing the work on her
nomination we should have completed a decade ago and I am pleased
that she was confirmed today.
I am also pleased that today we confirmed the
nomination of Darnell Jones, who has been a highly regarded judge on
the Philadelphia Court of Common Pleas for more than 20 years,
serving as the President Judge of that court for the last two.
Judge Jones will now become just the 88th
African-American Federal judge or justice (out of 875 seats) and the
72nd African-American district court judge.
There is still much work to be done.
In his two terms, President Bush has nominated only 25
African-American judges to the Federal bench, compared to 77
African-American judges nominated by President Clinton in his two
terms, more than three times as many.
President Bush’s failure to nominate an African-American
judge from Mississippi even though that state has the
highest percentage of African-American residents of any state is
disappointing and inexplicable.
I have urged, and will continue to urge, this President and
the next one to nominate men and women to the Federal bench who
reflect the diversity of America.
Racial diversity remains a pillar of strength for our country
and one of our greatest natural resources.
Diversity on the bench helps ensure that the words “equal
justice under law,” inscribed in Vermont marble over the entrance to the
Supreme Court, is a reality and that justice is rendered fairly and
impartially.
Another aspect of the problem created by
Republicans that we have worked hard to improve is a dramatic
reduction in the number of judicial emergency vacancies.
Nearly half of
the judicial nominees the Senate has confirmed while I have chaired
the Judiciary Committee have filled vacancies classified by the
Administrative Office of the Courts as judicial emergency vacancies.
Eighteen of the 27 circuit court nominees confirmed while I have
chaired the Committee filled judicial emergency vacancies, including
nine of the 10 circuit court nominees confirmed this Congress.
When President Bush took office, there were 28 judicial emergency
vacancies. Now that number is 13, fewer than half.
Of course, we have made this progress even while
devoting extensive time and
attention to rebuilding the Justice Department in the wake of the
scandals of the Gonzales era and the Bush-Cheney administration.
At the beginning of this Congress, the Judiciary
Committee began its oversight efforts.
Over the next nine months, our efforts revealed a Department
of Justice gone awry.
The leadership crisis came more and more into view as 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 and
subverting the rule of law.
What our efforts exposed was a crisis of leadership that took 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 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 all of
its highest-ranking officials, along with several high ranking White
House officials.
Earlier this month the Judiciary Committee held its ninth hearing to
restock and restore the leadership of the Department of Justice in
the last year alone, including confirmation hearings for the new
Attorney General, the new Deputy Attorney General, the new Associate
Attorney General, and so many others.
We have already
confirmed 35 executive nominations so far this Congress and are
poised to add to this total, having reported out of Committee this
month another six high level executive nominations, including the
nomination of Greg Garre to be Solicitor General of the United
States, one of the highest and most prestigious positions at the
Department of Justice, and of J. Patrick
Rowan to be the Assistant Attorney General in charge of the National
Security Division.
The
reduction in judicial vacancies is one of the few areas in which
conditions have actually improved over the last couple of years.
I wish we could say the same about unemployment or the price of gas
or food, or the condition of our financial markets and housing
markets. The
economy has experienced job losses every month this year and they
now total more than 650,000.
Compare the progress we have made on filling judicial
vacancies with what has happened to
cost of gasoline, food
prices, health care costs, inflation, the credit crisis, home
mortgages and the national debt. All those indicators have been
moving in the wrong direction, as is consumer confidence and the
percentage of Americans who see the country as on the wrong track.
The American
people are also best served by a Federal judiciary they can trust to
apply the law fairly regardless of who walks into the courtroom.
The judiciary is the one arm of our government that should
never be political or politicized, regardless of who sits in the
White House. I have continued to work in the waning days of this
Congress with Senators from both sides of the aisle to confirm an
extraordinary number of nominees late in the election year.
I will continue to work with the next President to ensure
that the Federal judiciary remains independent, and able to provide
justice to all Americans, without fear or favor.
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