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

Chairman, Senate Judiciary Committee,

On Judicial Nominations

July 17, 2008

 

Today we continue to make progress by confirming two more nominations for lifetime appointments to the Federal bench: Paul Gardephe for the Southern District of New York and Kiyo Matsumoto for the Eastern District of New York.

 

These nominees each have the support of the New York Senators, who worked with the White House to identify a slate of consensus nominees.  I thank Senators Schumer and Clinton for their consideration of these nominees.  I also thank Senator Schumer for chairing the hearing on their nominations.

 

It is ironic that again this week the Senate Republicans have made another attempt to make a partisan, election-year issue out of the confirmation of judicial nominations.  This is the one area where the numbers have actually improved during the Bush presidency while the life of hardworking Americans has only gotten more difficult. Inflation is now on the rise, jobs are being lost, gas prices have skyrocketed, food prices have soared, health care is unaffordable and what Republicans come to the floor to pick a partisan fight about today is the pace of judicial confirmations. 

 

Americans have seen the unemployment rate rise to 5.5 percent and trillions of dollars in budget surplus have turned into trillions of dollars of debt.  This week General Motors announced layoffs.  The annual budget deficit is in the hundreds of millions of dollars, the dollar has lost half its value and the costs of the Iraq war and interest on the national debt amounts to $1.5 billion a day.  And today Republicans spent their time on the Senate floor—after the Democratic leadership of the Senate had pushed through two more judicial confirmations to lifetime appointments—to complain about the pace of judicial confirmations.

 

When President Bush took office, the price of gas was $1.42 a gallon.  Today, it is at an all-time high of over $4.10 a gallon.  The Nation’s trade deficit widened eight percent in April alone due to the surging gas prices, and is now at its highest level in 13 months.  The housing crisis and mortgage crisis threatens the economy. The Chairman of the Federal Reserve gave sobering testimony this week to the Senate and the House.  The stock market lost 2,000 points in the first six months on the year and went under 11,000.  But Republicans want to talk about judicial confirmations, an issue that they hope will charge up right wing voters.

 

Struggling Americans—no not whiners, but hardworking Americans trying to do the best they can for their families-- are more concerned about critical issues they face in their lives each day.  They are concerned about affording to heat their homes this winter.  They are concerned about gas prices that have skyrocketed so high they do not know how they will afford to drive to work.  They are concerned about the steepest decline in home values in two decades. More and more Americans are affected by rising unemployment, with job losses for the first six consecutive months of this year tallying over 438,000.  Americans are worried about soaring health care costs, rising health insurance costs, the rising costs of education and rising food prices.  The partisan, election-year rhetoric over judicial nominations, at a time when judicial vacancies have been significantly reduced, is a reflection of misplaced priorities.

 

Our progress today in confirming two more nominations for lifetime appointments shows that when the President works with home state Senators to identify consensus, well-qualified nominees, we can make progress, even this late in an election year. 

 

Paul Gardephe, has been a Partner and Chair of the Litigation Department at the New York law firm of Patterson, Belknap, Webb & Tyler LLP, since 2003.  Previously, Mr. Gardephe worked in the private sector and also held several positions with the Department of Justice, including Special Counsel for the Office of the Inspector General.

 

Kiyo Ann Matsumoto is a United States Magistrate Judge in the Eastern District of New York.  Prior to her appointment to the bench in 2004, Judge Matsumoto served as an Assistant United States Attorney for the Eastern District of New York and also worked in private practice.  Judge Matsumoto is only the fourth Asian American judge appointed by this President in nearly 8 years.  Her mother and father spent time in an internment camp during World War II, one of the dark days in American history when we allowed fear and prejudice to undermine our commitment to liberty and justice.  Now Judge Matsumoto is poised to be confirmed to a lifetime appointment to the Federal bench, charged with protecting the rights of all Americans.

 

I congratulate the nominees and their families on their confirmation today.  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. 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.

 

Even while we hear a steady stream of grumbling from Republicans, responding to partisan pressure from special interest groups, the Senate continues to make progress in reducing judicial vacancies to lows not seen in decades.  We have gone quite a ways to make up for the abuses the Republicans committed during the Clinton years. Since the years in which Republicans pocket filibustered more than 60 of President Clinton’s moderate and qualified judicial nominees, and judicial vacancies topped 100, we have cut vacancies by more than half and reduced circuit court vacancies by almost three-fourths from a high point of 32, to just nine throughout the entire country and throughout all 13 Federal circuits.  

 

The contrast is stark between the Democratic majority that cut vacancies dramatically during the Bush presidency and the Republican majority that doubled them during the Clinton presidency.  The 100 nominations we confirmed in only 17 months in 2001 and 2002, while working with a most uncooperative White House, reduced the vacancies by 45 percent by the end of 2002.  Consider this snapshot:  On July 15, 2000, when a Republican Senate majority was considering the judicial nominees of a Democratic President in a presidential election year, there were 61 judicial vacancies.  Twenty were circuit court vacancies.  On July 15 of this year, before today’s two confirmations, there were 42 total vacancies throughout the country, and for the first time in decades, circuit court vacancies were in single digits, at just 9.  For the first time since Republican began their obstruction of President Clinton’s judicial nominees in 1996, circuit vacancies had been reduced to single digits.    

 

With 40 additional confirmations last year, and another 16 so far this year, the Senate under Democratic leadership has already confirmed more judges than in the entire last Congress.  In two full years with a Republican chairman and a Republican Senate majority working to confirm the judicial nominees of a Republican President, 54 nominations were confirmed. After the two confirmations today, we will have already reached 56 judicial confirmations for this Congress. Two additional nominations remain pending on the Senate’s executive calendar.  With a little cooperation from Republican Senators, who objected earlier today to the Majority Leader’s proposal to consider two judges today with a one hour time agreement, those two judicial nominations could also be confirmed.  Then we will not only have exceeded the total of the last Congress but equaled under Democratic leadership the total number of nominees confirmed in four and one-half years of Republican control of the Senate.   Truth be told, President Bush’s judicial nominees have been confirmed faster by the Democratic majority than by the previous Republican majority of the Senate.  To date, the Democratic majority has confirmed 156 of President Bush’s judicial nominations in the three years that I have  chaired the Judiciary Committee.  Judicial vacancies have fallen from 9.9 percent at the start of the Bush administration to just 4.7 percent today. 

 

The colloquies on the Senate floor today included misinformation about judicial emergency vacancies.  Many of these resulted from the Republican slowdown during the Clinton years.  In fact nearly half of the judicial nominees the Senate has confirmed while I have served as the Chairman of 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 emergencies, including nine of the 10 circuit court nominees confirmed this Congress.  This is another aspect of the problem created by Republicans that we have worked hard to improve.  When President Bush took office there were 28 judicial emergency vacancies.  Those have been reduced by more than half. 

 

Republicans playing to the far right wing of their political base ignore this progress.  They also ignore the crisis 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 Chief Justice Rehnquist to their actions during those years.  They ignore the fact that they were responsible for more than doubling circuit court vacancies during their pocket filibusters of Clinton nominees or that we have reduced those circuit court vacancies by almost three quarters.

 

In fact, as the presidential elections in 2000 drew closer, and when the judicial vacancy rate stood at 7.2 percent, then-Judiciary Committee Chairman Orrin Hatch declared that “There is and has been no judicial vacancy crisis,” and that 7.2 percent was a “rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.”  As a result of their inaction, the vacancy rate continued to rise, reaching 10 percent when the Democrats took over the Senate majority in 2001. 

 

Democrats have reversed course.  We have cut circuit court vacancies by nearly three quarters, from a high of 32 to only nine.  With the confirmation of two nominees today, the vacancy rate will be just 4.7 percent. 

 

I have yet to hear praise from a single Republican for our work in lowering vacancies.  I also have yet to hear in the Republican talking points any explanation for their actions during the 1996 congressional session, when the Republican Senate majority refused to allow the Senate to confirm even one circuit court judge.

 

Republicans’ childish antics this year include boycotting business meetings of the Judiciary Committee, cutting hearings short or objecting to them being held and cutting short business meetings of the Committee.  Today we were scheduled to consider a number of bipartisan measures.  Several are important items on which Republicans had already delayed consideration since June.  They include the bipartisan bill to reauthorize the Juvenile Justice and Delinquency Prevention Act, a bipartisan OPEN FOIA bill and the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act. 

In addition, we had before us the Fairness in Nursing Home Arbitration Act, the Fugitive Information Networked Database Act, the Methamphetamine Production Prevention Act and the National Guard and Reservists Debt Relief Act. 

 

I had hoped that today we would be able to report these measures.  A few words about one of them-- the legislation to reauthorize the William Wilberforce Trafficking Victims Protection Act.  This bill would strengthen our efforts to stop the abhorrent practice of human trafficking around the world.  Our bill enhances protections for victims of these terrible crimes.  Human trafficking is a modern-day form of slavery, involving victims who are forced, defrauded or coerced into sexual or labor exploitation.  These practices continue to victimize hundreds of thousands around the word, mostly women and children, and we must do all that we can to be more effective in confronting this continuing problem. I thank Senator Biden for his leadership. Unfortunately, Republican partisan antics have gotten in the way of progress on this front and delayed the Judiciary Committee and the Senate from acting on this measure.

 

Rather than meet and work on the human trafficking bill and the others, a number of the Republican Senators who serve on the Judiciary Committee came to the Senate floor while Republicans objected to the Committee meeting.  That is too bad. 

 

They previously boycotted business meetings for the month of February when we were trying to report judicial nominations.  That only slowed our progress.  Then, when we tried to expedite consideration of two circuit court nominations in May, they objected.  Those judicial nominations were finally confirmed late in June. 

 

As my friend, the Senior Senator from Pennsylvania may recall, while chairman of the Committee, I helped him move forward with the judicial nominations of Nora Barry Fischer, and Thomas Hardiman to the Third Circuit, and with Legrome Davis, Michael Baylson, Cynthia Rufe, Christopher Conner, John Jones III, David Cercone, Timothy Savage, Terrence McVerry, Arthur Schwab, James Gardner to the Federal district courts in Pennsylvania despite the way President Clinton’s Pennsylvania nominees were treated.   I also had 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 to Federal district court in Pennsylvania.  With the exception of two nominees from Pennsylvania currently pending before the Judiciary Committee that do not have the support of their home State Senators, 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. 

 

As my good friend from Iowa may recall, I expedited confirmation of John Jarvey and Michael Mellow to the Eighth Circuit, and James Gritzner and Linda Reade to the Federal district court in Iowa.  As we discussed at a recent Committee business meeting, thanks to all our work, there is no Federal judicial vacancy in Iowa, not one.

 

I did not hear the Senator from Arizona recall my cooperation over the years in the confirmation of a number of Federal judges in Arizona.  The Senate confirmed David Campbell, Neil Vincent Wake, Frederick Martone, Cindy Jorgenson, and David Bury. Among the last judges confirmed  in 2000 was the Senator from Arizona’s close friend James Teilborg.  I accommodated Senator Kyl as recently as last month in connection with the most recent Federal judge appointed in Arizona, Judge Murray Snow.  That filled the only vacancy on the Federal bench in Arizona.  So like Iowa, given our action, there is no Federal judicial vacancy in Arizona, not one.  

 

As for my friend from Alabama, he is another member I have gone out of my way to assist 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.  Having helped confirm 10 Federal judges in Alabama since 2001, I wondered why he did not note that Alabama is another state that, thanks to our efforts, has no judicial vacancy, not one. 

 

I look forward to a time when Senators from the other side of the aisle return to work with us on the important legislative business of the Judiciary Committee. It would be refreshing if they recognized the progress we have made on filling judicial vacancies.  We have not pocket filibustered 60 of President Bush’s judicial nominees, as they did to President Clinton.  We have not engaged in tit for tat.  But, as even Senator Specter acknowledged this morning, nothing we do will satisfy Republican Senators.    

 

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