Executive Sessionby Senator Patrick J. Leahy
Posted on 2013-02-25
LEAHY. This week, the country is facing indiscriminate across-
the-board cuts from sequestration if Congress does not come to an
agreement. The automatic cuts that will otherwise occur are in the tens
of billions of dollars at a time when our economy is finally recovering
but remains fragile. Among those who will have to endure these cuts are
the overburdened Federal courts that are already suffering from
longstanding vacancies that number almost 90. Budgetary cuts will mean
more difficulty for the American people to get speedy justice from our
Federal justice system.
According to the sequestration report released by the Office of Management and Budget, the sequestration would lead to a $555 million reduction for our Federal courts. Despite their higher caseloads and the needs of the American people, the courts' funding will be capped at a level last utilized 6 years ago. This could result in elimination of nearly one third of the courts' staff, as many as 6,300 employees, or month-long furloughs system wide. The sequester will result in cuts that will force courts to hear fewer cases and hear them more slowly. Court proceedings will be delayed. Some 30,000 civil cases have already been pending for more than 3 years and this will only exacerbate the problems of delay. Sequestration cuts could even result in the suspension of civil jury trials in some courts. And consider that if probation and pretrial services offices are affected, that can mean that defendants in pretrial release and those convicted but not in prison may not be properly supervised.
Sequestration is bad for the courts, bad for the economy and bad for the American people.
Today, after an unprecedented filibuster, Senate Republicans will finally allow a vote on the nomination of Robert Bacharach to the U.S. Court of Appeals for the Tenth Circuit. Judge Bacharach should be a consensus nominee. He received the ABA Standing Committee on the Federal Judiciary's highest possible rating of well qualified. He was reported by the Judiciary Committee by voice vote last year and, again, this year. Despite his experience, qualifications and bipartisan support, he was filibustered by Senate Republicans since July last year.
The filibuster of his nomination, which was supported by the Oklahoma Senators who had previously supported the nomination and who will likely reverse themselves again and support confirmation today, was the ne plus ultra of an unprecedented campaign of obstruction Senate Republicans have waged against President Obama's judicial nominees. That obstruction has spread to executive nominees, as well, including the nomination of Chuck Hagel, a recent Republican Senator from Nebraska whose nomination to serve as Secretary of Defense was filibustered earlier this month.
Judge Bacharach is the kind of nominee who every Senator should support. Over his 13-year career as a U.S. Magistrate Judge in the Western District of Oklahoma, he has handled nearly 3,000 civil and criminal matters, presided over 400 judicial settlement conferences, and issued more than 1,600 reports and recommendations. As an attorney in private practice, he tried 10 cases to verdict, argued two cases before the Tenth Circuit Court of Appeals, and briefed scores of other cases to the Tenth Circuit and the Oklahoma Supreme Court.
Judge Bacharach's judicial colleagues in the Western District of Oklahoma stand strongly behind his nomination. Vicki Miles-LaGrange, Chief Judge of the U.S. District Court for the Western District of Oklahoma, has said of Judge Bacharach: He is an outstanding jurist and my colleagues and I enthusiastically and wholeheartedly recommend him for the Tenth Circuit position. . . . We knew that we were lucky to have Bob as a Magistrate Judge, and he's been remarkable in this position for over 12 years. He is an absolutely great Magistrate Judge. His research and writing are excellent, his temperament is superb, his preparation is top-notch, and he is a wonderful colleague to all of the judges and in general to the entire court family. . . . All of the other judges and I--Republicans and Democrats alike--enthusiastically and wholeheartedly recommend Judge Bob Bacharach for the Tenth Circuit position. All of us believe very strongly that Judge Bacharach would be a superb choice for the position.
Throughout the careful and deliberate process in which Judge Bacharach has been thoroughly vetted, considered, and voted on by the Judiciary Committee, I have not heard a single negative word about him. There is no Senator who opposed his nomination on the merits. He was praised extensively by his home State Senators. Senator Inhofe has said of him: I believe Judge Bacharach would continue the strong service Oklahomans have provided the Tenth Circuit. Throughout his career and education, he's distinguished himself. In 2007, the Oklahoma City Journal Record profiled Judge Bacharach as an example of leadership in law, where he simply stated that as a future goal he intends to improve. Always working to improve has defined Judge Bacharach. . . . [H]is colleagues have characterized his service as remarkable, demonstrating superb judicial temperament, and a real asset to the Western District court family and legal community.
Senator Coburn said: Judge Bacharach is well qualified for this position and has received widespread praise and hearty recommendations from Oklahomans, including members of academia and fellow members of the bar. . . . I believe that Judge Bacharach will uphold the highest standards and reflect the best in our American judicial tradition by coming to the bench as a well-regarded member of the community. At a time when our country seems as divided as ever, it is important that citizens respect members of the judiciary and are confident they will faithfully and impartially apply the law. . . . I believe Judge Bacharach would be an excellent addition to the Tenth Circuit.
Unfortunately, along with 42 other Senate Republicans, Senator Inhofe and Senator Coburn filibustered Judge Bacharach since last July. The people of Oklahoma, Colorado, Kansas, New Mexico, Utah and Wyoming have been needlessly denied his service as a Tenth Circuit judge for 7 months. Republican Senators in Oklahoma, Kansas, Utah and Wyoming could have prevented the filibuster but went along with the obstruction that served no good purpose and established another damaging precedent: Judge Bacharach is the first circuit court nominee to be filibustered who had received bipartisan support before the Judiciary Committee. Senator Coburn was quoted last year admitting: ``There's no reason why he shouldn't be confirmed.'' There was none other than the obstruction of Senate Republicans.
Their partisan obstruction was wrong, and it is damaging to our Nation's courts and the American people. The nonpartisan Congressional Research Service has reported that the median time circuit nominees have had to wait before a Senate vote has skyrocketed from 18 days for President Bush's nominees to 132 days for President Obama's. This is the result of Republicans' partisan obstruction.
This obstruction has contributed to the damagingly high level of judicial vacancies that has persisted for over 4 years. Persistent vacancies force fewer judges to take on growing caseloads, and make it harder for Americans to have access to speedy justice. While Senate Republicans delayed and obstructed, the number of judicial vacancies remained historically high and it has become more difficult for our courts to provide speedy, quality justice for the American people. There are today 89 judicial vacancies across the country. By way of contrast, that is more than double the number of vacancies that existed at this point in the Bush administration. The circuit and district judges that we have been able to confirm over the last four years fall more than 30 short of the total for President Bush's first term.
Over the last 4 years, Senate Republicans have chosen to depart dramatically from Senate traditions in their [[Page S804]] efforts to delay and obstruct President Obama's judicial nominations. Until 2009, Senators who filibustered circuit court nominees generally had reasons to do so, and were willing to explain those reasons. When Senate Democrats filibustered President Bush's most extreme circuit court nominees, it was over substantive concerns about the nominees' records and Republicans' disregard for the rights of Democratic Senators as they unfairly short-circuited the process of consideration over and over again. On the other hand, Senate Republicans have filibustered and delayed nearly all of President Obama's circuit court nominees even when those nominees have the support of their Republican home state Senators and their rights have been fully protected in a fair consideration process.
Until 2009, when a judicial nominee had been reported by the Judiciary Committee with bipartisan support, they were generally confirmed quickly. Until 2009, we observed regular order, usually confirmed nominees promptly, and we cleared the Senate Executive Calendar before long recesses. Until 2009, if a nominee was filibustered, it was almost always because of a substantive issue with the nominee's record. We know what has happened since 2009. The average district court nominee is stalled 4.3 times longer and the average circuit court nominee is stalled 7.3 times as long as it took to confirm them during the Bush administration. No other President's judicial nominees had to wait an average of over 100 days for a Senate vote after being reported by the Judiciary Committee.
Senate Republicans have also forced the Majority Leader to file cloture on 30 nominees, which is already in 4 years 50 percent more nominees than had cloture filed during President Bush's eight years in office. Almost all of these 30 nominations were noncontroversial and were ultimately confirmed overwhelmingly. Fewer than 80 percent of President Obama's judicial nominees have been confirmed compared to almost 90 percent of President George W. Bush's nominees at this point in their Presidencies.
The record is clear: Senate Republicans have engaged in an unprecedented effort to obstruct President Obama's judicial nominations. Chief Justice Roberts, in his year-end Report on the Federal Judiciary in 2010 pointed to the ``[P]ersistent problem [that] has developed in the process of filling judicial vacancies . . . This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads . . . There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem.'' Despite bipartisan calls to address longstanding judicial vacancies, Senate Republicans have continued their unwarranted obstruction of judicial confirmations. In the case of Judge Bacharach, there was not even a pretense of any substantive concern--Senate Republicans just decided to shut down the confirmation process and contorted the ``Thurmond rule.'' At a time when judicial vacancies have again risen to almost 90, we must do more for our overburdened courts. It is past time for the partisan obstruction to end. We have a long way to go. After 4 years of delay and obstruction, we remain far behind the pace of confirmations we set during President Bush's administration, and there remain far too many judicial vacancies that make it harder for Americans to have their day in court. During President Bush's entire second term, the 4 years from 2004 through 2008, vacancies never exceeded 60. Since President Obama's first full month in office, and as far into the future as we can see, there have never been fewer than 60 vacancies, and for much of that time many, many more. The Senate must do much more to fill these vacancies and make real progress.
The Senate today will finally vote on the nomination of Robert Bacharach. He has served as a U.S. Magistrate Judge on the United States District Court for the Western District of Oklahoma since 1999. Previously, from 1987 to 1999, he was in private practice at the Oklahoma City law firm of Crowe & Dunlevy, P.C. From 1985 to 1987, he served as a law clerk to Judge William J. Holloway, Jr. of the U.S. Court of Appeals for the Tenth Circuit, the same court to which he has been nominated. Judge Bacharach was twice reported by the Judiciary Committee by voice vote--last June and again this month.
The Judiciary Committee has been working to vet, consider, and report nominees, and just before the recess we reported another dozen circuit and district nominees, all of whom had to be renominated from last year. The longest pending of these nominations is that of Caitlin Halligan, who the President first nominated to the D.C. Circuit back in 2010. At that time, there were already two vacancies on that court, a number which has now doubled to four. The purported justification for the partisan Republican filibuster of the Halligan nomination was that the circuit did not need another judge. The circuit is now more than one-third vacant and needs several, including Caitlin Halligan. I urge that the Senate act quickly on long-pending nominations. Further delay does not serve the interests of the American people. Hardworking Americans deserve better.