Nomination of Kenneth John Gonzales to be United States District Judge for the District of New Mexico

Floor Speech

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Mr. LEAHY. Mr. President, on the question of nominations, I attended President Obama's announcement of the nomination to the DC Circuit a couple of weeks ago. I have heard some of my colleagues on the Republican side being very critical of the President for not sending nominations for judicial vacancies to the Senate, even though when he has, some of them have held them up for 6 months to a year before they then vote overwhelmingly for the person. They hold him up and then say: Why don't you send more people? Frankly, a lot of people say: Why should I spend 6 months or a year waiting while they hold me up? Now the President has sent nominees for the multiple vacancies that continue on the DC Circuit. So the same Senators who are complaining that he was not sending up nominees now say he is sending up too many. My friends on the other side of the aisle are saying: You are not sending up enough, but you are sending up too many. I think maybe the American people see the fallacy of that argument.

Having been unfairly criticized in connection with the nomination of Judge Srinivasan, with some Senate Republicans saying: Why didn't you get him up here earlier for a vote, even though Republicans had asked us to delay him, I have learned from that that when cooperating and delaying at their request, I am going to get criticized for delaying, so going forward I will be making every effort to schedule prompt hearings for these impressive nominees, each of whom received the highest possible rating of ``well qualified'' from the nonpartisan ABA Standing Committee on the Federal Judiciary. We have three people with the highest possible rating.

The last time we had someone for the DC Circuit, even though Republicans kept saying: Let's delay, keep delaying--and I did so at their request--and they criticized me for delaying, here we are and we are going forward with them.

Frankly, I voted for a lot of President Bush's nominees. In fact, I would say I voted for 97 or 98 percent of all Republican nominees over 38 years. I voted for more Republican judicial nominees than any Republican presently in the Senate. There is no Republican in the Senate who has voted for more Republican nominees of Republican Presidents, nominees for judgeships, than I have. So I do not need a lecture about holding things up.

I have consulted with the ranking Republican on the committee and informed him that I plan to notice the first hearing for July 10. That gives plenty of time for everybody to read all the nominee's materials. We will be on vacation for the Fourth of July week; they can read it during vacation. That will be 36 days since the nominations and on a slightly slower timeline than we followed for the more recent confirmation of the nominee to the Eighth Circuit. I am delighted to include the nomination of Patricia Millett of Virginia, who should have broad bipartisan support, in our July 10 confirmation hearing.

It is disappointing that the same Republican Senators who said during the George W. Bush administration that the DC Circuit should have 11 filled judgeships and who voted to confirm President Bush's nominees for the 9th, 10th and 11th seats, now that there is a Democratic President of the United States in the White House, they say no, no, they should not be filled. It seems this President has to be treated differently than the previous Presidents. I am not sure why the difference, but that is what they want. It is disappointing as well that Republican Senators I have helped fill circuit vacancies with nominees from their home states, over opposition from their own Republican Senate caucus, are ready to tow their party's line when it comes to the D.C. Circuit.

Following President Obama's reelection, Senate Republicans are even proposing to eliminate those D.C. Circuit judgeships legislatively. Their claims of concern about the caseloads of the Second and Eleventh Circuits but not the most overburdened Ninth Circuit are difficult to reconcile with their votes for President Bush's D.C. Circuit nominees. As one scholar at the nonpartisan Brookings Institution has said, this ``fooled no one who was paying attention.''

I cannot help but wonder where Senate Republicans' concern about the caseload of the Second Circuit was when they needlessly delayed the confirmation of Gerard Lynch for three months; when they needlessly delayed the confirmation of Raymond Lohier for seven months; when they needlessly delayed the confirmation of Susan Carney for five months; when they unfairly stalled the nomination of Judge Robert Chatigny and then needlessly delayed the confirmation of the next Connecticut nominee, Chris Droney, for four months; or when they needlessly delayed the confirmation of Denny Chin for four months and forced the Majority Leader to file cloture to get a confirmation vote.

I wonder where their concern about the caseload of the Eleventh Circuit was when they needlessly delayed the confirmation of Beverly Martin for four months, or when they needlessly delayed the confirmation of Adalberto Jordan for four months and forced a cloture vote before his confirmation. I am prepared to help alleviate concern about the caseload of the Eleventh Circuit by scheduling a hearing on the nomination of Jill Pryor, a ``well qualified'' nominee from Georgia to the Court, if her home State Senators would return their blue slips indicating that they do not object to her nomination going forward.

The American people are not fooled. Senate Republicans are now playing by a different set of rules. Politifact has looked at their argument that President Obama is trying to ``pack'' the D.C. Circuit, and rated it ``false.'' It goes on to note that the Republican bill to eliminate D.C. Circuit judgeships ``comes closer to the kind of structural meddling typical of court packing than does Obama's approach.'' In the last 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit. Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage, and thwart the will of the American people, who elected Barack Obama. Even conservative columnist Byron York has tweeted: ``It doesn't strike me as `packing' to nominate candidates to available seats.''

The Washington Post's ``Fact Checker'' blog has also looked at the arguments about the D.C. Circuit's caseload that Senate Republicans are using to justify their attempt to eliminate three seats on that court, and has judged them worthy of two ``Pinocchios,'' meaning: ``Significant omissions and/or exaggerations. Some factual error may be involved but not necessarily. A politician can create a false, misleading impression by playing with words and using legalistic language that means little to ordinary people.''

Senate Republicans should know that their argument about the D.C. Circuit's caseload is misleading. While they claim expertise in the matter because of a hearing they held in 1995, the fact is that their current claims fly in the face of the actual testimony from that hearing. They are fond of citing the testimony of Judge Laurence Silberman, a Reagan appointee, that he felt the 12th seat was not necessary. What Senate Republicans do not mention is that Judge Silberman believed

that 11 judgeships was the proper number on that Circuit, and that the notion that the D.C. Circuit should have only nine judges was ``quite farfetched.'' Judge Silberman also said that ``the unique nature of the D.C. Circuit's caseload'' means that it is not directly comparable to the other circuit courts. Even though their own witness contradicted them, 18 years later Senate Republicans continue to make their partisan argument. In addition, we eliminated that twelfth seat years ago.

In its April 5, 2013 letter, the Judicial Conference of the United States, chaired by Chief Justice John Roberts, sent us recommendations ``based on our current caseload needs.'' They did not recommend stripping judgeships from the D.C. Circuit but stated that they should continue at 11. Three are currently vacant. According to the Administrative Office of U.S. Courts, the caseload per active judge for the D.C. Circuit has actually increased by 46 percent since 2005, when the Senate confirmed President Bush's nominee to fill the eleventh seat on the D.C. Circuit. When the Senate confirmed Thomas Griffith--President Bush's nominee to the eleventh seat--in 2005, the confirmation resulted in there being approximately 121 pending cases per active D.C. Circuit judge. According to the most recent data, there are currently 177 pending cases for each active judge on the D.C. Circuit, 46 percent higher.

Further, concerns about low caseloads did not bother Senate Republicans voting this past February to confirm a Tenth Circuit nominee from Oklahoma, giving that Court the lowest number of pending appeals per active judge in the country. It did not bother Senate Republicans voting this past April to confirm an Eighth Circuit nominee from Iowa, giving that Court the lowest number of pending appeals per active judge in the country. Yes, lower than the D.C. Circuit. I do not recall seeing any bills from Senate Republicans to eliminate the Oklahoma and Iowa judgeships.

This falls into a pattern that we have seen from Senate Republicans over the past 20 years. While they had no problem adding a twelfth seat to the D.C. Circuit in 1984, and voting for President Reagan's and President George H.W. Bush's nominees for that seat, they suddenly ``realized'' in 1995, when a Democrat served as President, that the Court did not need that judge. Judge Merrick Garland was finally confirmed in 1997 after President Clinton was reelected but Senate Republicans would not act on his final two nominees to the D.C. Circuit.

In 2002, during the George W. Bush administration, the D.C. Circuit's caseload had dropped to its lowest level in the last 20 years. During that Republican administration, Senate Republicans had no problem voting to confirm President Bush's nominees to the ninth, tenth and eleventh seats. These are the same seats they wish to eliminate now that Barack Obama is President, even though the Court's current caseload is consistent with the average over the past 10 years. Even on its own terms, it is apparent that this argument has nothing to do with caseload, and everything to do with who is President. When Senate Republicans get serious about ensuring our Federal courts are adequately staffed, I am more than happy to work with them on a long-overdue judgeship bill. But this selective concern about the D.C. Circuit, and the fact that in 2008 the minority blocked a Judiciary Committee hearing on ``The Growing Need for Federal Judgeships,'' does not reflect such seriousness.

I urge those Republicans who say first that the President is not moving fast enough and then, when he does move, say he is moving too fast, to reconsider their approach, work with the President, and let's have fair hearings on these three nominees and go forward with them. If we do, I am confident we will agree that they are well-qualified judicial nominees.

RESTREPO AND GONZALES NOMINATIONS

Last week the Senate failed to complete action on one of the three nominations pending for vacancies in the Eastern District of Pennsylvania. Even though Senate Democrats had expedited three of President Bush's nominees to that court, confirming them all by voice vote just 1 day after they had been reported by the Judiciary Committee, Senate Republicans refused to do the same for President Obama's nominees. They refused even though all three had the bipartisan support of their home State Senators and the unanimous support of all Republicans on the Committee. Two were confirmed last week but one was held back. After waiting 98 days for a vote, Judge Alejandro and Judge Schmehl were confirmed unanimously last week. Today, after another unnecessary delay, the Senate will finally vote on the nomination of Judge Luis Restrepo, more than 100 days after he was voted out of the Judiciary Committee unanimously. When the Senate is finally allowed to act, we will confirm a judge to fill a 4-year vacancy.

The Eastern District of Pennsylvania is a court that needs judges. Even with today's vote, it will remain nearly 20 percent vacant. The Senate should be taking swift action to fill these kinds of vacancies, not delaying for no good reason. This obstruction does a disservice to the people of Pennsylvania, and to all Americans who depend on our Federal courts for justice.

I regret that I must correct the Record, again. The recent assertion by Senate Republicans that 99 percent of President Obama's nominees have been confirmed is not accurate. President Obama has nominated 237 individuals to be circuit or district judges, and 195 have been allowed to be confirmed by the Senate. That is 82 percent, not 99 percent. By way of comparison, at the same point in President Bush's second term, June 17 of his fifth year in office, President Bush had nominated four fewer people, but had seen 215 of them confirmed, which is 20 more confirmations. The truth is that 92 percent of President Bush's judicial nominees had been confirmed at the same point, 10 percentage points more than have been allowed President Obama. That is an apples to apples comparison, and it demonstrates the undeniable fact that the Senate has confirmed a lower number and lower percentage of President Obama's nominees than President Bush's nominees at the same time in their presidencies.

I noted at the end of last year, while Senate Republicans were insisting on delaying confirmations of 15 judicial nominees that could and should have taken place then, that we would not likely be allowed to complete work on them until May. That was precisely the Republican plan. So when Senate Republicans now seek to claim credit for their confirmations in President Obama's second term, they are inflating the confirmation statistics. The truth is that only nine confirmations have taken place this year that are not attributable to those nominations Senate Republicans held over from last year and that could and should have taken place last year. To return to the baseball analogy, if a baseball player goes 0-for-9, and then gets a hit, we do not say he is an all-star because he is batting 1.000 in his last at bat. We recognize that he is just 1-for-10, and not a very good hitter. Nor would a fair calculation of hits or home runs allow a player to credit those that occurred in one game or season to the next because it would make his stats look better.

If President Obama's nominees were receiving the same treatment as President Bush's, today's votes would bring us to 215 confirmations, not 197, and vacancies would be far lower. The nonpartisan Congressional Research Service has noted that it will require 31 more district and circuit confirmations this year to match President Bush's 5-year total. Even with the confirmations finally concluded during the first 6 months of this year, Senate Republicans have still not allowed President Obama to match the record of President Bush's first term. Even with an extra 6 months, we are still 10 confirmations behind where we were at the end of 2004.

Luis Restrepo has served as a U.S. Magistrate Judge in the Eastern District of Pennsylvania since 2006. Prior to his appointment to the Federal bench, he was a founding partner of Krasner & Restrepo, a firm that focused on civil rights and criminal defense work. He has also worked as an adjunct professor at Temple University, Beasley School of Law and the University of Pennsylvania Law School. Before co-founding his own law firm, Judge Restrepo was an Assistant Federal Defender for the Eastern District of Pennsylvania, an Assistant Defender for the Defender Association of Philadelphia, and a Law Clerk for the ACLU's National Prison Project. The nonpartisan ABA Standing Committee on the Federal Judiciary has unanimously rated Judge Restrepo ``well qualified.'' He is supported by both his home State Senators, Senator Casey and Senator Toomey.

Kenneth Gonzales has been the United States Attorney for the District of New Mexico since 2010. He served as an Assistant U.S. Attorney in that office for the previous 11 years. Prior to working with the U.S. Attorney's Office, Kenneth Gonzales spent 3 years as a Legislative Assistant to former Senator Jeff Bingaman and 2 years as law clerk to the Honorable Joseph F. Baca of the New Mexico Supreme Court. He also serves in the United States Army Reserve as a Judge Advocate General. Kenneth Gonzales has the support of his home State Senators, Senator Tom Udall and Senator Martin Heinrich, and was reported unanimously from the Judiciary Committee 2 months ago.

I want the Senate to make real progress on filling judicial vacancies so that the American people have access to justice. In President Bush's first term, half of his consensus district nominees waited 18 days or fewer for a vote, so we know the Senate is capable of swift action on nominations. There is no reason consensus nominees like Judge Restrepo and Kenneth Gonzales should have to wait 2 or 3 months for a vote. The only reason for these delays is because of Republican refusal to allow votes. These nominees deserve better, and the American people deserve better.

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