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On the Confirmations of Lorna Schofield to the United States District Court for the Southern District of New York and Judge Frank Geraci to the United States District Court for the Western District of New York

Floor Speech

By:
Date:
Location: Washington, DC

Mr. LEAHY. Madam President, today, the Senate will finally be allowed to vote on the nominations of Judge Frank Geraci to fill a judicial emergency vacancy on the U.S. District Court for the Western District of New York and Lorna Schofield to fill a vacancy on the U.S. District Court for the Southern District of New York. Both of these nominees were voted out of the Judiciary Committee virtually unanimously before the August recess and should have been confirmed months ago.

By now, no one should be surprised that it has taken so long to have a simple up-or-down vote on two consensus nominees, even though one would fill a judicial emergency vacancy and the other would fill a vacancy on one of our Nation's busiest courts.

There is an editorial in today's New York Times that explains the slow pace of confirmations, and I ask unanimous consent to have the editorial printed in the RECORD after my statement.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. LEAHY. The editorial notes:

A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to confirmations.

This is the new practice that Senate Republicans adopted when President Obama was elected. They delay and obstruct judicial nominations for no good reason. There are currently 13 circuit and district court nominees still pending on the Senate Executive Calendar who were reported before the August recess and should all have been confirmed before the recess. Most are consensus nominees. All have the support of their home State Senators, including their home State Republican Senators.

The Federal Bar Association wrote a letter earlier this week to Senate leaders that said:

[W]e write to urge you to promptly schedule floor votes on pending, noncontroversial United States circuit court nominees and district court nominees who have cleared the Judiciary Committee with strong bipartisan support and who await a final up-or-down vote. The high number of existing judicial vacancies--81, of which 35 constitute judicial emergencies--underscores the need for prompt attention by the Senate in fulfilling its Constitutional responsibilities.

They are absolutely right. I ask unanimous consent that a copy of that letter be printed in the RECORD at the conclusion of my statement.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 2.)

Mr. LEAHY. We have a constitutional responsibility to advise and consent, and we must also help our courts uphold their constitutional responsibility to provide speedy justice.

The judges whose confirmations Senate Republicans are delaying are not nominees they will oppose on the merits. They are by and large consensus nominees.

Senate Republicans' obstruction on these important nominations is especially damaging at the end of the year. Starting in 2009, Senate Republicans broke from longstanding tradition and prevented votes on eight judicial nominees as the Senate adjourned at the end of the year. It took until September 2010 for the last of those nominees to have an up-or-down vote. Senate Republicans did the same thing--their new version of a pocket filibuster--to 19 nominees in both 2010 and 2011. This forces the Senate to waste time in the new year working on nominations that should have been confirmed the year before. This year it took until May to confirm the 19 left from last year. That is why we have confirmed only 23 nominees reported by the Judiciary Committee this year, and that is why we face this current backlog of 18 nominees and an additional 4 who had a hearing earlier this week and could also be considered and confirmed before adjournment.

One of the nominations Senate Republicans are holding up is that of Judge Robert Bacharach to the Tenth Circuit, whom they filibustered earlier this year. Senator Coburn, one of his home State Senators, said: ``He has no opposition in the Senate ...... There's no reason why he shouldn't be confirmed.'' His words apply to almost all the judicial nominees being delayed.

When George W. Bush was President, Democrats cooperated in moving judicial nominees quickly through the committee and to a confirmation vote at the end of the year. I did so whether I was chairman or the ranking member. I have said that I am willing to do the same for the nominees who had their hearing yesterday and expedite committee consideration of their nominations so that they can be voted on this year. By way of example, in 2008 we confirmed five of President Bush's nominees just 3 days after their hearing. We have often been able to do this at the end of a Congress, and this year should be no exception--especially given the high level of judicial vacancies plaguing our Federal courts.

Yesterday, the Judiciary Committee had a hearing for four more of President Obama's outstanding, consensus judicial nominees. Senators from both sides of the aisle appeared to endorse nominees to vacancies in their home States. Representative Paul Ryan, the Republican candidate for Vice President, appeared to testify in favor of a nominee to fill a vacancy on the District Court for the District of Columbia. So did Representative Eleanor Holmes Norton. After Congressman Ryan's endorsement, the committee's ranking Republican member quipped that after hearing Congressman Ryan ``we could just vote you out right away.'' He is right. The Senate should confirm her and the others without delay. That is how we used to proceed as we approached the end of a Congress. We used to expedite confirmations of consensus nominees. Now Senate Republicans insist on stalling proceedings and slowing things down and carrying large numbers of them over into the next year and needlessly delaying them for months and months.

I remind Senate Republicans that the Senate confirmed an Alabama nominee to the district court within 2 days of his vote by the Judiciary Committee just a couple of years ago. There have literally been hundreds of judicial confirmations within 14 days of our Judiciary Committee hearing, including more than 600 confirmed since World War II within just 1 week of their hearings. In contrast, obstruction by Senate Republicans has caused President Obama's district court nominees to wait an average of 102 days for a Senate vote after being reported by the Judiciary Committee. This destructive practice of delaying for no good reason must end.

From 1980 until this year, when a lameduck session followed a Presidential election, every single judicial nominee reported with bipartisan Judiciary Committee support has been confirmed. According to the nonpartisan Congressional Research Service, no consensus nominee reported prior to the August recess has ever been denied a vote--before now. That is something Senate Democrats have not done in any lameduck session, whether after a Presidential or midterm election.

Senate Democrats allowed votes on 20 of President George W. Bush's judicial nominees, inc1uding 3 circuit court nominees, in the lameduck session after the elections in 2002. I remember, I was the chairman of the Judiciary Committee who moved forward with those votes, including of a very controversial circuit court nominee. The Senate proceeded to confirm judicial nominees in lameduck sessions after the elections in 2004 and 2006. In 2006 that included confirming another circuit court nominee. We proceeded to confirm 19 judicial nominees in the lameduck session after the elections in 2010, including 5 circuit court nominees. The reason that I am not listing confirmations for the lameduck session at the end of 2008 is because that year we had proceeded to confirm the last 10 judicial nominees approved by the Judiciary Committee in September and long before the lameduck session.

That is our history and recent precedent. Those across the aisle who contend that judicial confirmations votes during lameduck sessions do not take place are wrong. It is past time for votes on the 4 circuit nominees and the other 13 district court nominees still pending on the Executive Calendar. We should expedite confirmations for the four consensus nominees who had their hearing yesterday. Let's do our jobs so that all Americans can have access to justice.

Lorna Schofield is nominated to serve on the U.S. District Court for the Southern District of New York. She has served as a Federal prosecutor and since 1988 has worked at the law firm Debevoise & Plimpton LLP, where she was a partner for two decades and where she currently serves as of counsel. She serves as chair of the litigation section of the ABA, where she has actively promoted pro bono activities, including programs for children's rights and litigation assistance for military personnel. The ABA Standing Committee on the Federal Judiciary unanimously gave her its highest possible rating of ``well qualified.''

Judge Frank Geraci is nominated to fill a judicial emergency vacancy on the U.S. District Court for the Western District of New York. Since 1999 Judge Geraci has served as a Monroe County Court judge, and since 2005 he has also served as an acting supreme court justice on the New York State trial court. Judge Geraci has presided over 555 civil proceedings that have gone to judgment. He has also served as both a State and Federal prosecutor.

Both of these nominations have the support of both their home State Senators. They were voted on by the Judiciary Committee 5 months ago and stalled unnecessarily since then for no good reason.

If we are willing to follow Senate precedent and to protect Americans' access to justice, we should vote on the nominees being delayed. Many are nominees whose nominations have been pending for many months, and many of them would fill judicial emergency vacancies. I see no reason why the Senate should not confirm them before the end of the year. We should allow these nominees to get to work on behalf of the American people.

Exhibit 1

[From the New York Times]

Judges Needed for Federal Courts

There has been a severe breakdown in the process for appointing federal judges. At the start of the Reagan years, it took, on average, a month for candidates for appellate and trial courts to go from nomination to confirmation. In the first Obama term, it has taken, on average, more than seven months.

Seventy-seven judgeships, 9 percent of the federal bench (not counting the Supreme Court), are vacant; 19 more seats are expected to open up soon. The lack of judges is more acute if one considers the growing caseload. The Judicial Conference, the courts' policy-making body, has recommended expanding the bench by 88 additional judgeships.

President Obama must make fully staffing the federal courts an important part of his second-term agenda--starting with the immediate Senate confirmation of the 18 nominees approved by the Senate Judiciary Committee.

A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations.

The Democratic majority, led by Senator Harry Reid, can speed up the process by limiting use of the filibuster. He can do so by pushing for a simple majority vote at the start of the January session to alter Senate rules so that every judicial and executive-branch nominee is assured an up-or-down vote within 90 days. Without that change, many judicial nominations will founder.

Even if that rule change is made, the process of identifying, vetting and approving judicial candidates will need greater attention. Senators, who by custom recommend to the president candidates for federal trial judgeships in their states, should put in place more effective steps for making timely recommendations (like setting up merit selection committees) and making a choice within a reasonable period, like within 60 days of an opening.

The White House and the Justice Department, meanwhile, need to commit more resources to keeping up with those recommendations, to verify and nominate candidates for confirmation within, say, 60 days of receiving names. And the administration must be similarly prompt in identifying and nominating appeals-court candidates.

In a critically important court like the United States Court of Appeals for the District of Columbia Circuit, three unfilled vacancies and a fourth expected this winter, out of 11 judgeships, hobble the court's ability to make expeditious rulings in significant cases about regulation of the environment, financial markets and other social and economic matters. Many statutes channel review of such cases to the federal courts in the District of Columbia for their expertise about administrative law and for geographic convenience.

The circuit court is a stark example of the broken appointment process and the harm caused by the Senate's inability to do its job.

Mr. Obama and the Senate should also look to broaden the diversity of the judges they appoint. In his first term, Mr. Obama commendably named a higher share of women (44 percent) and a higher share of minorities (37 percent) than any president before him.

Most of the appointees were already judges, prosecutors or private lawyers, with few public defenders or public-interest lawyers from outside government. Expanding the breadth of experience would help ensure that federal courts have jurists who have some real-life understanding of the myriad issues that come before them.

The Constitution requires the president, with the Senate's advice and consent, to fill federal judgeships. That duty has been terribly neglected and needs to be an absolute priority in the coming year.

--
Exhibit 2

FEDERAL BAR ASSOCIATION

Arlington, VA, December 11, 2012.
Hon. HARRY REID,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. MITCH MCCONNELL,
Minority Leader, U.S. Senate,
Washington, DC

DEAR MAJORITY LEADER REID AND MINORITY LEADER MCCONNELL: As the lame duck session continues, we write to urge you to promptly schedule floor votes on pending, noncontroversial United States circuit court nominees and district court nominees who have cleared the Judiciary Committee with strong bipartisan support and who await a final up-or-down vote. The high number of existing judicial vacancies--81, of which 35 constitute judicial emergencies--underscores the need for prompt attention by the Senate in fulfilling its Constitutional responsibilities.

We also strongly encourage cooperation among Senators to avoid undue procedural delays that slow the judicial confirmation process and compound the vacancy crisis.

Thank you for your past efforts and for your consideration of our views on this important issue.

Sincerely,

Karen Silberman,

Executive Director.

West Allen,

Chair, Government Relations Committee.

BREAK IN TRANSCRIPT


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