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Patrick L.
Democrat VT

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  • Executive Session

    by Senator Patrick J. Leahy

    Posted on 2015-12-07

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    LEAHY. Mr. President, today we will vote on the nomination of Travis McDonough to be a Federal district judge in the Eastern District of Tennessee. He was nominated over a year ago, and his nomination was voted out of the Judiciary Committee by unanimous voice vote nearly 5 months ago. Despite having the support of his home State Republican Senators, Mr. McDonough's nomination has nevertheless been held up by Republican leadership for no good reason.

    [[Page S8442]] I will further note that, while Mr. McDonough's vote is long overdue, Republican leadership has skipped over Judge Luis Felipe Restrepo--who is ahead of Mr. McDonough on the Executive Calendar. I recall Republican leadership promising regular order when they took over the majority, so they should explain how skipping over a consensus and eminently qualified nominee with bipartisan support is following regular order.

    Judge Restrepo was nominated to a judicial emergency vacancy in the third circuit over a year ago. If confirmed, he would be the first ever Hispanic judge from Pennsylvania on the third circuit. Judge Restrepo has the strong support of the Hispanic National Bar Association and has bipartisan support from his home State Senators, Senator Toomey and Senator Casey. Senator Toomey has said not only that he strongly supports Judge Restrepo's confirmation, but that he also recommended him to the President. I cannot explain why Senate Republicans are not allowing Judge Restrepo to be confirmed today.

    As we approach the end of the year, the Senate Republican majority is coming closer and closer to matching the record for confirming the fewest number of judicial nominees in more than half a century. While most Senators I have served with over the last 40 years would shudder at this fact, the current Republican leadership seems content to accomplish as little as possible when it comes to confirming nominees to our third branch of government.

    In the 11 months that Republicans have controlled the Senate, only 11 judges will have received a confirmation vote, including today. When Senate Democrats were in the majority during the seventh year of the Bush Presidency, we had already confirmed 36 judges by this point. We should take action right now and hold confirmation votes on the 19 other judicial nominees pending on the floor. Confirming the remaining 19 nominees would fulfill a basic duty of the Senate and would result in a total of 30 judicial nominees confirmed this year. That number is still short of the 36 nominees that Senate Democrats confirmed at the same point of the George W. Bush administration, but it would mark a significant effort by this Senate to reduce vacancies. There is no reason not to do this. All 19 of the nominees were voted out of the Judiciary Committee by voice vote, but Republicans still refuse to bring them up for a vote.

    This obstruction has resulted in needless delays for hard-working Americans who seek justice in our Federal courts. Currently pending on the Senate floor are nominees who would fill judicial emergency vacancies in Pennsylvania, Tennessee, Minnesota, New Jersey, Iowa, New York, and California. Senate Republicans have not responded to the urgent needs of those States to the detriment of their own constituents.

    Throughout his tenure, President Obama has worked with Senators to have the Federal judiciary better reflect the people they serve. Today there are more women and minorities than ever before on the Federal bench. This is an accomplishment that helps ensure the public's confidence in their court system. Unfortunately, that meaningful progress has slowed down under the Senate's Republican control. Today, several nominees of color with outstanding qualifications are being held up for no good reason, including Judge Luis Felipe Restrepo.

    Senate Republicans are also holding up four exceptional African- American district court nominees and an exceptional Hispanic district court nominee. Two of the African-American nominees--Waverly Crenshaw and Edward Stanton--have been nominated to district court positions in Tennessee. Both have the support of their home State Republican Senators and were unanimously approved by the Judiciary Committee by voice vote; yet they continue to wait for the majority leader to schedule their votes. The three other nominees of color being held up-- Wilhelmina Wright to the District of Minnesota, and John Vazquez and Julien Neals to the District of New Jersey--are all nominated to judicial emergency vacancies. They also all have the support of their home State Senators and were voted out of the Judiciary Committee by voice vote.

    In addition to the article III nominees, five nominees to the U.S. Court of Federal Claims, who were all nominated more than a year ago, continue to be held up by a single Republican Senator--the junior Senator of Arkansas. The Court of Federal Claims has been referred to as ``the People's Court'' because it allows citizens to seek prompt justice against our government. Of the five nominees, one is a Cuban American who has devoted his entire career to public service at the U.S. Department of Justice; another is an African-American woman who spent over two decades serving as a judge advocate general and as a military judge. All five were voted out of the Judiciary Committee by unanimous voice vote, but Senator Cotton continues to object to any of them receiving an up-or-down vote. He claims to have concerns with the caseload, but a recent letter from the chief judge of the Court of Federal Claims to the Judiciary Committee has indicated that only one of the nine senior judges is willing to be recalled for full-time duty, and the other three would only agree to be recalled on a limited basis. Moreover, the court's overall caseload has increased 9 percent over the last year. There are no good reasons for Senator Cotton to continue blocking these nominees. They deserve to have their confirmation votes scheduled. Senators can vote for or against them, but they should not be denied a simple up-or-down vote.

    In a letter dated December 2, 2015, from the American Bar Association to Majority Leader McConnell, the president of the ABA states that ``our courts are unfortunately worse off today than they were at the start of this Congress.'' The letter urges the majority leader to schedule votes on the confirmation of all the article III judicial nominees currently pending on the Executive Calendar. I ask unanimous consent that a copy of this letter be printed in the Record at the conclusion of my remarks.

    The process of confirming judges is about ensuring that the American people have a fully functioning judiciary. Because of Republican obstruction, judicial vacancies have increased by more than 50 percent since they took over the majority, and caseloads are piling up in courts throughout the country. Judicial emergencies have more than doubled since the beginning of this year.

    I am concerned that the Republican leadership's refusal to confirm judicial nominations this year is undermining the judicial branch and harming the American people who seek justice. I urge Senate Republicans to conclude this year by showing leadership and by scheduling confirmation votes on the remaining judicial nominees pending on the Executive Calendar.

    There being no objection, the material was ordered to be printed in the Record, as follows: American Bar Association, Chicago, IL, December 2, 2015.

    Hon. Mitch McConnell, Senate Majority Leader, Capitol Building, Washington, DC.

    Hon. Harry Reid, Senate Democratic Leader, Capitol Building, Washington, DC.

    Dear Majority Leader McConnell and Democratic Leader Reid: On behalf of the American Bar Association, I write to urge you to schedule votes on the confirmation of 15 nominees pending on the Senate floor before the Senate recesses for the year. Seven of the pending nominees have the backing of their Republican home-state senators and all 15 have been reported out of the Senate Judiciary Committee by unanimous voice votes. Most importantly, if confirmed, nine of the pending nominees would fill vacancies that have been declared judicial emergencies by the Administrative Office of the U.S. Courts. Courts with emergency vacancies have too few judges to handle their workload effectively and deliver timely justice.

    Regardless of how one views confirmation data comparisons among recent presidents or the fact that the vacancy rate has not reached crisis proportion, our courts are unfortunately worse off today than they were at the start of this Congress. There are 22 more vacancies (with three more in the pipeline this month) and more than twice the number of judicial emergencies today than there were this past January. In some of our courts with judicial emergencies, litigants have to put their businesses or private lives on hold indefinitely while waiting for their day in court. This is unnecessary and unfair.

    Action on the 15 pending nominees has proceeded slowly to date. Most of them received their nominations over 200 days ago and had to wait over 4 months to be voted out of committee without objection.

    Even though we appreciate the Senate's full agenda and the short amount of time remaining in the session, we urge you to give [[Page S8443]] every pending nominee a floor vote before you leave for your recess. Absent legitimate concerns over a nominee's qualifications, we believe that this can best be accomplished over the next few weeks by voting on multiple nominees at a time.

    We know from the daily experience of our more than 400,000 members that vacancies must be filled promptly so that courts have the resources to deliver timely, impartial justice. By putting politics aside, an opportunity is provided for the Senate to use its time in the next two weeks to afford considerable relief to the federal courts.

    Thank you for the opportunity to present the views of the American Bar Association.

    Sincerely, Paulette Brown, President.

    The PRESIDING OFFICER. The Senator from Oregon.

    Embracing All Religions Mr. MERKLEY. Mr. President, earlier today Donald Trump called for the United States to ban all Muslims from entering our Nation. This is the single worst idea I have heard from any Presidential candidate, ever. It is inconsistent with our American values. It is inconsistent with our national history.

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