Senate To Vote Today On Fourth Circuit Nominee

 

WASHINGTON (Tuesday, May 20, 2008) – The Senate will vote today on the nomination of Justice G. Steven Agee of Virginia to fill a seat on the Fourth Circuit Court of Appeals.  The Senate Judiciary Committee held a hearing on Justice Agee’s nomination on May 1.  The Senate is expected to vote on the nomination around 2:30 pm this afternoon.

 

This morning, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) delivered the following remarks on the Senate Floor about judicial nominations.

 

Statement of Senator Patrick Leahy,

Chairman, Senate Judiciary Committee

On Judicial Nominations

May 20, 2008

 

 

The Senate continues to make progress by confirming yet another lifetime appointment to one of our important Federal circuit courts.  The circuit court nomination we consider today is that of Justice G. Steven Agee of Virginia.  His nomination to a long-vacant circuit court seat is the result of a breakthrough with the White House, and it fills a vacancy listed as a judicial emergency on the U.S. Court of Appeals for the Fourth Circuit.  I commend the good work of Senators Warner and Webb and thank Senator Cardin for chairing the hearing on this nomination.

 

Justice Agee’s nomination affords us the opportunity to be productive, even in a presidential election year, after years of contentiousness and a string of controversial nominations from Virginia.  Until recently, President Bush had insisted on confrontation with the Senate by nominating Jim Haynes, Claude Allen, and Duncan Getchell. 

 

When Republicans come to the Senate to discuss the pace at which we are considering judicial nominations, something is always wrong.  When I schedule hearings and proceed to consider the nominees of this President – President Bush – for lifetime appointments to the Federal bench, I am criticized for moving too quickly.  If we slow the pace down, we are criticized for moving too slowly.  One thing that has been apparent from the outset of the year is that Republicans hope by ignoring their history of pocket filibustering more than 60 of President Clinton’s judicial nominations while they were in the majority of this Chamber to rewrite history.  Democrats, to their credit, have not retaliated.  At the same time, this Democratic majority will be responsible enough not to push through the confirmation process nominations that are made to advance a political agenda.

 

In fact, in contrast to the Republican Senate majority that more than doubled circuit court vacancies during the Clinton administration, we have reduced circuit vacancies by almost two-thirds, reducing them in nearly every circuit during the Bush administration.  With the confirmation of Steven Agee today, the Fourth Circuit will have fewer vacancies than at the end of the Clinton administration, during which the Republican Senate majority refused to consider five Fourth Circuit nominees and refused to consider any during the last two years of his presidency.

 

By confirming Justice Agee’s nomination today, we will reduce vacancies among the 13 Federal circuit courts throughout the country 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 we can reduce the total number of circuit court vacancies to single digits for the first time in several decades.  So, for all the agitating from the other side of the aisle, the fact remains that we have succeeded in lowering circuit court vacancies to an historically low level.

 

Take a look at these charts.  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.  We have lowered the 32 circuit court vacancies that existed when I became Chairman of the Judiciary Committee in the summer of 2001, to 12 during the Bush presidency.  With the confirmation of Justice Agee, that number will be further reduced to only 11. Circuit vacancies have not been this low since 1996, when the Republican tactics of slowing judicial confirmations began in earnest. 

 

If these charts weren’t telling enough, consider for a moment the numbers:  Of the 178 authorized circuit court judgeships, after today’s confirmation, just 11 of those seats will remain vacant – a vacancy rate down from 18 percent to 6 percent.  With 166 active appellate judges and 104 senior status judges serving on the Federal Courts of Appeals, there are 270 circuit court judges.  I expect that is the most in our history.

 

In fact, our work has led to a reduction in vacancies in nearly ever 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.  We have already succeeded in lowering 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.  With the confirmation of Justice Agee, the Fourth Circuit will join that list.  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.

 

Less than two weeks ago, President Bush nominated Judge Glen E. Conrad to the second and final Virginia vacancy on the Fourth Circuit.  With the support of Senator Warner and Senator Webb, we may still have time this year to proceed to that nomination and resolve another longstanding vacancy, further reducing vacancies on the Fourth Circuit and on Federal circuit courts in general.      

 

I remain determined to prioritize progress and focus the Judiciary Committee on those nominations on which we can make progress and, in particular, on those in which the White House has finally begun to work with the Senate.   

 

I regret to report, however, that when I tried to expedite consideration of two Sixth Circuit nominations this month, I encountered only criticism from the Republican side of the aisle.  At the hearing on May 7, Republican Senators all but attacked one of the President’s nominees.  Last week, Senator Brownback publicly apologized for his actions at the hearing, and I commend him for doing so.  Nonetheless, last Wednesday, Republican members of the Committee sent scores of time-consuming questions to the nominees.  That all but ensures that the answers, which are time-consuming to prepare, will not be received in time for those nominations to be considered by the Judiciary Committee this month.  In addition, in light of Republican criticism, I have said that these nominations will not be scheduled for Committee consideration until we receive updated ratings from the ABA.  

 

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.   By turning today to the Agee nomination, we can make additional progress.   

 

The alternative is to risk becoming embroiled in contentious debates for months and thereby foreclose the opportunity to make progress where we can. The most recent controversial Bush judicial nomination took five and one-half months of debate after a hearing before Senate action was possible.  We also saw what happened during the last several months of the last Congress, which was not even a presidential election year.  There were 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. I prefer to make progress where we can and to work together to do so. 

 

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 am determined to prioritize progress, not politics, and focus the Committee on those nominations on which we can make progress.  The Republican Senate majority during the last five years of the Clinton administration more than doubled vacancies on our nation’s circuit courts, as they rose from 12 to 26. Those circuit vacancies grew to 32 during the transition to the Bush administration. The statistics are worth repeating: we have been able to reverse that trend and reduce circuit vacancies by almost two-thirds. Today there are fewer circuit court vacancies than at any time since the 1996 session. In fact, our work has led to a reduction in vacancies in nearly every circuit. We are heading toward reducing circuit court vacancies to single digits for the first time in decades.

 

I have been speaking during the last several weeks about the progress we are making in repairing the terrible damage done to the confirmation process and about our progress in reducing judicial vacancies.

The American people do not want judicial nominations rooted in partisan politics. They want Federal judges who understand the importance of an independent judiciary.  Our independent courts are a source of America’s strength, endurance and stability. Our judicial system has been the envy of the world. The American people expect the Federal courts to be impartial forums where justice is dispensed without favor to the right or the left or to any political party or faction. The only lifetime appointments in our government, these nominations matter a great deal. The Federal judiciary is the one arm of our government that should never be political or politicized, regardless of who sits in the White House.

 

With the Agee confirmation today, the sixth so far this year and the second circuit court confirmation, the Senate is ahead of the pace the Republican Senate majority established during the 1996 session, a presidential election year, in which no judicial nominations were considered or confirmed by the Senate before July.  That is right – today we stand six confirmations, including two circuit court confirmations, ahead of the pace Republicans set in the 1996 session.  In fact, with the Agee confirmation we are already two circuit court confirmations beyond the total the Republican Senate majority allowed for that entire session, when they refused to proceed on any circuit court nominations. 

 

Today we witness a demonstration of the progress about which I have been speaking and for which I have been working.  I continue in this Congress, and I will continue 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.

Justice Agee has seven years of judicial experience on the state bench as a Justice on the Supreme Court of Virginia and a former judge on the Court of Appeals of Virginia.  For more than twenty years prior to his judicial service, Justice Agee worked in private practice in the Commonwealth of Virginia.  He was elected by the people of Virginia as a Delegate to the Virginia General Assembly where he served for over a decade.   Justice Agee graduated from Bridgewater College with a B.A. and he received his J.D. from the University of Virginia School of Law.  He received an L.L.M. degree in taxation from New York University School of Law.

 

I congratulate Justice Agee and his family on his confirmation today, and I look forward to making further progress by working together on judicial nominations.

 

The Virginia and Michigan vacancies on the Fourth and Sixth Circuits, respectively, have proven a great challenge. I want to commend Senator Warner and Senator Webb, and Senator Levin and Senator Stabenow for working to end these impasses. I have urged the President to work with the Virginia and Michigan Senators and, after several years, he finally has. During the last three months, our extensive efforts culminated in significant developments that can lead to filling two Virginia vacancies on the Fourth Circuit and two Michigan vacancies on the Sixth Circuit, three of which have been classified as judicial emergencies.

 

This accomplishment stands in sharp contrast to the actions of Senate Republicans who refused to consider any of the highly-qualified nominations to the Fourth Circuit Court of Appeals during the last three years of the Clinton administration or to consider any of the highly-qualified nominations to the Sixth Circuit Court of Appeals during the last two years of the Clinton administration.  The Republican Senate majority left open five vacancies on the Fourth Circuit and four on the Sixth Circuit at the end of the Clinton administration.

 

 The Fourth Circuit is a good example of how much time and effort we have wasted on controversial nominations by President Bush.  For example, there was the highly controversial and failed nomination of William “Jim” Haynes II to the Fourth Circuit.  As General Counsel at the Department of Defense, he was the architect of many discredited policies on detainee treatment, military tribunals, and torture.  Mr. Haynes never fulfilled the pledge he made to me under oath at his hearing to supply the materials he discussed in an extended opening statement regarding his role in developing these policies and their legal justifications.   

 

The Haynes nomination led the Richmond Times-Dispatch to write an editorial in late 2006 entitled “No Vacancies,” about the President’s counterproductive approach to nominations in the Fourth Circuit.  The editorial criticized the administration for pursuing political fights at the expense of filling vacancies.  According to the Times-Dispatch, “The president erred by renominating  . . . and may be squandering his opportunity to fill numerous other vacancies with judges of right reason.” 

 

The Times-Dispatch editorial focused on the renomination of Mr. Haynes, but could just as easily have been written about other controversial Fourth Circuit nominees.

 

The President insisted on nominating and renominating Terrence Boyle over the course of six years to a North Carolina vacancy on the Fourth Circuit.  This despite the fact that as a sitting United States District Judge and while a circuit court nominee, Judge Boyle ruled on multiple cases involving corporations in which he held investments.

 

The President should have heeded the call of North Carolina Police Benevolent Association, the North Carolina Troopers’ Association, the Police Benevolent Associations from South Carolina and Virginia, the National Association of Police Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as well as the advice of Senator John Edwards. Law enforcement officers from North Carolina and across the country opposed the nomination. Civil rights groups opposed the nomination. Those knowledgeable and respectful of judicial ethics opposed the nomination.  This President persisted for six years before withdrawing the Boyle nomination.

 

I mention these ill-advised nominations because so many Republican partisans seem to have forgotten this recent history and why there are continuing vacancies on the Fourth Circuit.  The efforts and years wasted on President Bush’s controversial nominations followed in the wake of the Republican Senate majority’s refusal to consider any of President Clinton’s Fourth Circuit nominees.  All four nominees from North Carolina to the Fourth Circuit were blocked from consideration by the Republican Senate majority.  These outstanding nominees included United States District Court Judge James Beaty, Jr., 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.  Had either Judge Beaty or Judge Wynn been considered and confirmed, he would have been the first African-American judge appointed to the Fourth Circuit. 

 

In contrast, I worked with Senator Edwards to break through the impasse and to confirm Judge Allyson Duncan of North Carolina to the Fourth Circuit when President Bush nominated her.   I worked to reduce Federal judicial vacancies in North Carolina by confirming three judges last year – Judge Schroeder, Judge Reidinger and Judge Osteen. Previously during the Bush administration, I cooperated in the confirmation of Judge Whitney, Judge Conrad, Judge Dever, Judge McKnight, and Judge Flanagan.  That totals nine Federal judges in North Carolina, including a Fourth Circuit judge, during the Bush Presidency.  By contrast, during the entire eight years of the Clinton administration, only one district court judge was allowed to be confirmed in North Carolina. 

 

We have also made progress in South Carolina.  Senator Graham follows Senator Thurmond as South Carolina’s representative on the Judiciary Committee.  Despite the controversy that accompanied the nomination of Judge 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. 

 

While I chaired the Senate Judiciary Committee from the summer of 2001 to the end of 2002, I presided over the consideration and confirmation of three Fourth Circuit judges nominated by President Bush.  All together, President Bush has already appointed five judges to the Fourth Circuit.   By contrast, President Clinton was allowed by Senate Republicans to appoint three and left office with five vacancies existing on that court. 

 

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.  If the Agee nomination is confirmed, as I expect it will be, the Fourth Circuit will have fewer vacancies than it did when Republicans claimed no more judges were needed.  

 

Judge Agee will succeed Judge Michael Luttig, who retired a few years ago to take a more lucrative position in the private sector.  Judge Luttig was known as a very conservative judge on the Fourth Circuit.  He was involved in the Padilla case a few years ago and condemned the shifting legal positions of the Bush administration in that case involving an American citizen.  He noted that the Bush administration’s maneuvering had consequences “not only for the public perception of the war on terror but also for the government’s credibility before the courts in litigation ancillary to that war.”  Judge Luttig went on to note that the administration’s behavior in “yield[ing] to expediency” left an impression that “may ultimately prove to be [at] substantial cost to the government’s credibility.”  In those independent observations, Judge Luttig performed a public service. 

 

I have likewise urged the President to work with the Michigan Senators, and, after seven years, he finally has.  Last month, our extensive efforts culminated in a significant development that, unless partisanship interferes, 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.

 

Mine has been a different approach and one that has led to significant progress.  I am glad to see that progress continue today with our confirmation of the nomination of Justice G. Steven Agee of Virginia to the United States Court of Appeals for the Fourth Circuit.

 

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