Leahy Statement on GOP ‘Obstruction’
By Main Justice staff | December 15, 2009 8:54 pm

Below is the full text of Sen. Patrick Leahy’s floor statement today demanding Senate action on Justice Department and judicial nominees.

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Pending Nominations
December 15, 2009
Two weeks ago, I challenged Senate Republicans to do as well as Senate Democrats did in December 2001 when we proceeded to confirm 10 of President Bush’s nominees as Federal judges.  Regrettably my plea has been ignored.  Senate Republicans are failing the challenge.
The Senate has been allowed to confirm only one judicial nominee all month.  On December 1, after almost six weeks of unexplained delays, the Senate was allowed to consider the nomination of Judge Jacqueline Nguyen to fill a vacancy on the Federal Court for the Central District of California.  When finally considered, she was confirmed unanimously by a vote of 97 to zero. Since then not a single judicial nominee has been considered.  It is now two weeks later, December 15.
Judicial nominees have been and are available for consideration.  This lack of action is no fault of the President.  He has made quality nominations.  They have had hearings and have been considered by the Senate Judiciary Committee and favorably reported to the Senate.  Indeed, the logjam has only grown over the last two weeks.  Five additional judicial nominations have been added to the Senate calendar since December 1, bringing the total number of judicial nominations ready for Senate action, yet delayed by Republican obstruction, to 12. One has been ready for Senate consideration for more than 13 weeks, another more than 10 weeks, and the list goes on.  The Majority Leader and Democratic Senators have been ready to proceed.  The Republican Senate leadership has not.
There are now more judicial nominees awaiting confirmation on the Senate’s Executive Calendar than have been confirmed since the beginning of the Obama administration.  Due to delays and obstruction by the Republican minority, we have only been able to consider 10 judicial nominations to the Federal circuit and district courts all year, and for one of them, althought supported by the longest-serving Republican in the Senate, we had to overcome a full-fledged filibuster led by the Republican leadership.  As a result, we will not only fall well short of the total of 28 judicial confirmations the Democratic Senate majority worked to confirm in President Bush’s first year in office, but we threaten to achieve the lowest number of judicial confirmations in the first year of a new presidency in modern history.
It is clear that the Republican leadership has returned to their practices in the 1990s, which resulted in more than doubling circuit court vacancies, and led to the pocket filibuster of more than 60 of President Clinton’s nominees.  The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years.   Their delays this year may leave us well short even of their low point during President Clinton’s first term, when the Republican Senate majority would only allow 17 judicial confirmations during the entire 1996 session.  That was a presidential election year, and the end of President Clinton’s first term.  By contrast, this is just the first year of the Obama administration.
We need to act on the judicial nominees on the Senate Executive Calendar without further delay. This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations. We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously.  We have seen nominees strongly supported by their home state Senators, both Republican and Democratic, delayed for months and unsuccessfully filibustered.
The 12 judicial nominations that have been given hearings and favorable consideration by the Senate Judiciary Committee and that remain stalled before the Senate are: Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the District Court for the Northern District of California; Dolly Gee, nominated to the District Court for the Central District of California; Richard Seeborg, nominated to the District Court for the Northern District of California, Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Louis Butler, nominated to the District Court for the Western District of Wisconsin; Denny Chin of New York, nominated to the Second Circuit; Rosanna Malouf Peterson, nominated to the District Court for the Eastern District of Washington; and William Conley, nominated to the District Court for the Western District of Wisconsin.
Acting on these nominations, we can confirm 13 nominees this month.  In December 2001, a Democratic Senate majority proceeded to confirm 10 of President Bush’s nominees and ended that year having confirmed 28 new judges nominated by a President of the other party.  We achieved those results with a controversial and confrontational Republican President after a mid-year change to a Democratic majority in the Senate.  We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for six weeks.
At the end of the Senate’s 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002.  At the end of the first session of Congress during President Clinton’s first term, just one judicial was nominee left on the Senate Executive Calendar.  At the end of the President George H.W. Bush’s first year in office, a Democratic Senate Majority left just two judicial nominations pending on the Senate Executive Calendar.   At the end of the first year of President Reagan’s first term—a year in which the Senate confirmed 41 of his Federal circuit and district court nominees—not a single judicial nomination was left on the Senate Executive Calendar.
In stark contrast, there are now 12 judicial nominees on the Senate Executive Calendar, and no agreement from Senate Republicans to consider a single one.  That is a significant change from our history and tradition of confirming judicial nominations that have been reported favorably by the Senate Judiciary Committee by the end of a session.
The record of obstruction of the Senate Republicans is just as disappointing when we consider the executive nominations that have been reported by the Judiciary Committee.  There are currently 15 executive nominations that have been reported favorably by the Senate Judiciary Committee pending on the Senate Executive Calendar, including nominations for Assistant Attorneys General to run three of the 11 divisions at the Department of Justice.  Each of these nominations has been pending four months or longer.
The President nominated Dawn Johnsen to lead the Office of Legal Counsel on February 11.  Her nomination has been pending on the Senate Executive Calendar since March 19.  That is the longest pending nomination on the calendar by over two months.  We did not treat President Bush’s first nominee to head the Office of Legal Counsel the same way.  We confirmed Jay Bybee to that post only 49 days after he was nominated by President Bush, and only five days after his nomination was reported by the Senate Judiciary Committee.
Mary Smith’s nomination to be the Assistant Attorney General in charge of the Tax Division has been pending on the Senate’s Executive Calendar since June 11 – more than six months.  We confirmed President Bush’s first nomination to that position, Eileen O’Connor, only 57 days after her nomination was made, and one day after her nomination was reported by the Senate Judiciary Committee.  Her replacement, Nathan Hochman, was confirmed without delay, just 34 days after his nomination.
Among the nominations still waiting for consideration is that of Christopher Schroeder, nominated on June 4 to be Assistant Attorney General for the Office of Legal Policy (OLP).  Mr. Schroeder’s nomination has been pending before the Senate since July of this year when he was reported by the Senate Judiciary Committee by voice vote and without dissent.  There was no objection from the Republican members of the Committee on his nomination, so it puzzles me why we cannot move to a vote.
President Bush appointed four Assistant Attorneys General for the Office of Legal Policy.  Each was confirmed expeditiously by the Senate.  In fact, his first nominee to that post, Viet Dinh, was confirmed by a vote of 96 to one just one month after he was nominated, and only a week after his nomination was reported by the Senate Judiciary Committee.  Professor Schroeder’s nomination has been pending for over four months.  President Bush’s three subsequent nominees to head OLP — Daniel Bryant, Rachel Brand, and Elisebeth Cook — were each confirmed by voice vote in a shorter time than Professor Schroeder’s nomination has been pending.
Senate Republicans should not further delay consideration of these important nominations.
Returning to judicial nominations, I hope that instead of withholding consent and threatening filibusters of President Obama’s nominees, Senate Republicans will treat President Obama’s nominees fairly. I made sure that we treated President Bush’s nominees more fairly than President Clinton’s nominees had been treated.  I want to continue that progress, but we need Republican cooperation to do so.  I urge them to turn away from their partisanship and begin to work with the President and the Senate Majority Leader.
President Obama has reached out and consulted with home state Senators from both sides of the aisle regarding his judicial nominees.  Instead of praising the President for consulting with Republican Senators, the Senate Republican leadership has doubled back on what they demanded when a Republican was in the White House.  No more do they talk about each nominee being entitled to an up-or-down vote.  That position is abandoned and forgotten.  Instead, they now seek to filibuster and delay judicial nominations.  When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees.  When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees.
Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled.  That is wrong.  The American people deserve better.  As I have noted, there are 12 more qualified judicial nominations awaiting Senate action on the Senate Executive Calendar.  Another nomination should be considered by the Judiciary Committee this week.  I hope that with the session drawing to a close Judge Rogeriee Thompson of Rhode Island will not be needlessly delayed.  The Senate should do better and could if Senate Republicans would remove their holds and stop the delaying tactics.
During President Bush’s last year in office, we had reduced judicial vacancies to as low as 34, even though it was a presidential election year.   As matters stand today, judicial vacancies have spiked, and we will start 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.  While it has been nearly 20 years since we enacted a federal judgeship bill, judicial vacancies are nearing record levels, with 97 current vacancies and another 23 already announced.  If we had proceeded on the judgeship bill recommended by the U.S. Courts to address the growing burden on our Federal judiciary and provide access to justice for all Americans, vacancies would stand at 160, by far the highest on record.  I know we can do better.  Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.
There is still time to act on these nominations before the Senate recesses this year.  I hope Senate Republicans will lift their objections, and allow us to proceed on the 27 nominations reported by the Judiciary Committee.  Absent cooperation to confirm nominations, this Congress will be recorded in history as one of the least productive in the confirmation of judicial nominations.  I hope the New Year will bring a renewed spirit of cooperation.
# # # # #

Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Pending Nominations

December 15, 2009

Two weeks ago, I challenged Senate Republicans to do as well as Senate Democrats did in December 2001 when we proceeded to confirm 10 of President Bush’s nominees as Federal judges.  Regrettably my plea has been ignored.  Senate Republicans are failing the challenge.

The Senate has been allowed to confirm only one judicial nominee all month.  On December 1, after almost six weeks of unexplained delays, the Senate was allowed to consider the nomination of Judge Jacqueline Nguyen to fill a vacancy on the Federal Court for the Central District of California.  When finally considered, she was confirmed unanimously by a vote of 97 to zero. Since then not a single judicial nominee has been considered.  It is now two weeks later, December 15.

Judicial nominees have been and are available for consideration.  This lack of action is no fault of the President.  He has made quality nominations.  They have had hearings and have been considered by the Senate Judiciary Committee and favorably reported to the Senate.  Indeed, the logjam has only grown over the last two weeks.  Five additional judicial nominations have been added to the Senate calendar since December 1, bringing the total number of judicial nominations ready for Senate action, yet delayed by Republican obstruction, to 12. One has been ready for Senate consideration for more than 13 weeks, another more than 10 weeks, and the list goes on.  The Majority Leader and Democratic Senators have been ready to proceed.  The Republican Senate leadership has not.

There are now more judicial nominees awaiting confirmation on the Senate’s Executive Calendar than have been confirmed since the beginning of the Obama administration.  Due to delays and obstruction by the Republican minority, we have only been able to consider 10 judicial nominations to the Federal circuit and district courts all year, and for one of them, althought supported by the longest-serving Republican in the Senate, we had to overcome a full-fledged filibuster led by the Republican leadership.  As a result, we will not only fall well short of the total of 28 judicial confirmations the Democratic Senate majority worked to confirm in President Bush’s first year in office, but we threaten to achieve the lowest number of judicial confirmations in the first year of a new presidency in modern history.

It is clear that the Republican leadership has returned to their practices in the 1990s, which resulted in more than doubling circuit court vacancies, and led to the pocket filibuster of more than 60 of President Clinton’s nominees.  The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years.   Their delays this year may leave us well short even of their low point during President Clinton’s first term, when the Republican Senate majority would only allow 17 judicial confirmations during the entire 1996 session.  That was a presidential election year, and the end of President Clinton’s first term.  By contrast, this is just the first year of the Obama administration.

We need to act on the judicial nominees on the Senate Executive Calendar without further delay. This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations. We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously.  We have seen nominees strongly supported by their home state Senators, both Republican and Democratic, delayed for months and unsuccessfully filibustered.

The 12 judicial nominations that have been given hearings and favorable consideration by the Senate Judiciary Committee and that remain stalled before the Senate are: Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the District Court for the Northern District of California; Dolly Gee, nominated to the District Court for the Central District of California; Richard Seeborg, nominated to the District Court for the Northern District of California, Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Louis Butler, nominated to the District Court for the Western District of Wisconsin; Denny Chin of New York, nominated to the Second Circuit; Rosanna Malouf Peterson, nominated to the District Court for the Eastern District of Washington; and William Conley, nominated to the District Court for the Western District of Wisconsin.

Acting on these nominations, we can confirm 13 nominees this month.  In December 2001, a Democratic Senate majority proceeded to confirm 10 of President Bush’s nominees and ended that year having confirmed 28 new judges nominated by a President of the other party.  We achieved those results with a controversial and confrontational Republican President after a mid-year change to a Democratic majority in the Senate.  We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for six weeks.

At the end of the Senate’s 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002.  At the end of the first session of Congress during President Clinton’s first term, just one judicial was nominee left on the Senate Executive Calendar.  At the end of the President George H.W. Bush’s first year in office, a Democratic Senate Majority left just two judicial nominations pending on the Senate Executive Calendar.   At the end of the first year of President Reagan’s first term—a year in which the Senate confirmed 41 of his Federal circuit and district court nominees—not a single judicial nomination was left on the Senate Executive Calendar.

In stark contrast, there are now 12 judicial nominees on the Senate Executive Calendar, and no agreement from Senate Republicans to consider a single one.  That is a significant change from our history and tradition of confirming judicial nominations that have been reported favorably by the Senate Judiciary Committee by the end of a session.

The record of obstruction of the Senate Republicans is just as disappointing when we consider the executive nominations that have been reported by the Judiciary Committee.  There are currently 15 executive nominations that have been reported favorably by the Senate Judiciary Committee pending on the Senate Executive Calendar, including nominations for Assistant Attorneys General to run three of the 11 divisions at the Department of Justice.  Each of these nominations has been pending four months or longer.

The President nominated Dawn Johnsen to lead the Office of Legal Counsel on February 11.  Her nomination has been pending on the Senate Executive Calendar since March 19.  That is the longest pending nomination on the calendar by over two months.  We did not treat President Bush’s first nominee to head the Office of Legal Counsel the same way.  We confirmed Jay Bybee to that post only 49 days after he was nominated by President Bush, and only five days after his nomination was reported by the Senate Judiciary Committee.

Mary Smith’s nomination to be the Assistant Attorney General in charge of the Tax Division has been pending on the Senate’s Executive Calendar since June 11 – more than six months.  We confirmed President Bush’s first nomination to that position, Eileen O’Connor, only 57 days after her nomination was made, and one day after her nomination was reported by the Senate Judiciary Committee.  Her replacement, Nathan Hochman, was confirmed without delay, just 34 days after his nomination.

Among the nominations still waiting for consideration is that of Christopher Schroeder, nominated on June 4 to be Assistant Attorney General for the Office of Legal Policy (OLP).  Mr. Schroeder’s nomination has been pending before the Senate since July of this year when he was reported by the Senate Judiciary Committee by voice vote and without dissent.  There was no objection from the Republican members of the Committee on his nomination, so it puzzles me why we cannot move to a vote.

President Bush appointed four Assistant Attorneys General for the Office of Legal Policy.  Each was confirmed expeditiously by the Senate.  In fact, his first nominee to that post, Viet Dinh, was confirmed by a vote of 96 to one just one month after he was nominated, and only a week after his nomination was reported by the Senate Judiciary Committee.  Professor Schroeder’s nomination has been pending for over four months.  President Bush’s three subsequent nominees to head OLP — Daniel Bryant, Rachel Brand, and Elisebeth Cook — were each confirmed by voice vote in a shorter time than Professor Schroeder’s nomination has been pending.

Senate Republicans should not further delay consideration of these important nominations.

Returning to judicial nominations, I hope that instead of withholding consent and threatening filibusters of President Obama’s nominees, Senate Republicans will treat President Obama’s nominees fairly. I made sure that we treated President Bush’s nominees more fairly than President Clinton’s nominees had been treated.  I want to continue that progress, but we need Republican cooperation to do so.  I urge them to turn away from their partisanship and begin to work with the President and the Senate Majority Leader.

President Obama has reached out and consulted with home state Senators from both sides of the aisle regarding his judicial nominees.  Instead of praising the President for consulting with Republican Senators, the Senate Republican leadership has doubled back on what they demanded when a Republican was in the White House.  No more do they talk about each nominee being entitled to an up-or-down vote.  That position is abandoned and forgotten.  Instead, they now seek to filibuster and delay judicial nominations.  When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees.  When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees.

Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled.  That is wrong.  The American people deserve better.  As I have noted, there are 12 more qualified judicial nominations awaiting Senate action on the Senate Executive Calendar.  Another nomination should be considered by the Judiciary Committee this week.  I hope that with the session drawing to a close Judge Rogeriee Thompson of Rhode Island will not be needlessly delayed.  The Senate should do better and could if Senate Republicans would remove their holds and stop the delaying tactics.

During President Bush’s last year in office, we had reduced judicial vacancies to as low as 34, even though it was a presidential election year.   As matters stand today, judicial vacancies have spiked, and we will start 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.  While it has been nearly 20 years since we enacted a federal judgeship bill, judicial vacancies are nearing record levels, with 97 current vacancies and another 23 already announced.  If we had proceeded on the judgeship bill recommended by the U.S. Courts to address the growing burden on our Federal judiciary and provide access to justice for all Americans, vacancies would stand at 160, by far the highest on record.  I know we can do better.  Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.

There is still time to act on these nominations before the Senate recesses this year.  I hope Senate Republicans will lift their objections, and allow us to proceed on the 27 nominations reported by the Judiciary Committee.  Absent cooperation to confirm nominations, this Congress will be recorded in history as one of the least productive in the confirmation of judicial nominations.  I hope the New Year will bring a renewed spirit of cooperation.

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