Federal Courts and Nominations

April 16 Statement of Sen. Patrick Leahy, Chairman, Senate Judiciary Committee


Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Nomination of Stephanie Dawn Thacker to the Fourth Circuit
April 16, 2012

Today, the Senate will finally consider the nomination of Stephanie Dawn Thacker of West Virginia to fill a judicial vacancy on the Fourth Circuit Court of Appeals.  The Senate Judiciary Committee voted unanimously in favor of this nomination more than five months ago, after thorough consideration.  She should have been confirmed last year.  With nearly one in 10 judgeships across the Nation vacant and the judicial vacancy rate remaining nearly twice what it was at this point in the first term of President George W. Bush, the Senate needs to do more to reduce judicial vacancies so that all Americans can have the quality of justice that they deserve. 

The Federal Judiciary has been forced to operate with the heavy burden of 80 or more judicial vacancies for more than three years now.  There is nothing to justify this extended period with years of vacancies numbering more than 80 around the country.  Congress has not created scores of new judgeships, as we did in a bipartisan fashion during the Republican administration of Ronald Reagan and George Herbert Walker Bush.  Indeed, when the Senate was confirming 205 circuit and district court nominees during the first term of President George W. Bush, we lowered vacancy rates more than twice as quickly.  I ask unanimous consent to include in the Record at the conclusion of my remarks a copy of the Internet article entitled, “1000 days,” by Doug Kendall and Ryan Woo of the Constitutional Accountability Center, on this point.  I also remind the Senate of the study by the Congressional Research Service on the historically high vacancies for record amounts of time about which I spoke earlier this year.  This level of vacancies has been perpetuated for the entire presidency of President Obama because Senate Republicans have adopted “new standards” and refused to enter into prompt agreements to schedule votes on qualified, consensus nominees.  

Today’s vote is pursuant to the agreement reached by the Majority Leader and the Republican leader last month.  This is the first Court of Appeals nominee to receive a vote pursuant to that agreement.  This is only the second Court of Appeals nominee to receive a Senate vote all year.  Both were qualified, consensus nominees who should have been confirmed last year and would have been but for Republican filibusters.

It should not have taken four months and two days after being reported by the Senate Judiciary Committee for the nomination of Judge Adalberto Jordan to be considered by the Senate.  Judge Jordan of Florida was finally allowed to fill a judicial emergency vacancy on the Eleventh Circuit.  Finally, after a four-month Republican filibuster that was broken by an 89 to five vote, and after Republicans insisted on two additional days of delay, the Senate voted to confirm him 94 to five.  A superbly-qualified nominee, he is the first Cuban-American to serve on the Eleventh Circuit.  His record of achievement is beyond reproach.  Judge Jordan is by any measure the kind of consensus nominee who should have been confirmed without such delay.  Despite the strong support of his home state Senators, Senator Nelson, a Democrat, and Senator Rubio, a Republican, Senate Republicans filibustered and delayed his confirmation in October, in November, in December, and in January.  It should not have taken another two days after the Senate voted overwhelmingly to bring the debate to a close to have the confirmation vote.  

The nomination of Stephanie Thacker is similar, and Senate Republicans have acted in a similar, all too familiar pattern.  When confirmed, Stephanie Thacker will be the first woman from West Virginia to serve on the United States Court of Appeals for the Fourth Circuit.  She, too, is strongly supported by both her home state Senators.  She, too, is a qualified, consensus nominee.  She has been forced to wait five and one-half months for Senate consideration, with no good purpose.  Hers is not a nomination that should have been delayed and filibustered by Senate Republicans after it was reported unanimously by the Senate Judiciary Committee last November 3rd.

Ms. Thacker is the kind of qualified, consensus nominee who in past years would have been considered and confirmed by the Senate within days of being reported unanimously by the Judiciary Committee.  She is an experienced litigator, who, in her 21-year career as a Federal prosecutor and private defense attorney, has tried nearly two dozen cases to verdict or judgment and argued appeals before the Fourth Circuit and the West Virginia Supreme Court.  Much of her career has been dedicated to public service.  She served as an Assistant U.S. Attorney for the Southern District of West Virginia for five years and participated in the first prosecution in this country under the Violence Against Women Act – an important piece of legislation that I am working with Senator Crapo to reauthorize.

She continued her career as a Federal prosecutor for another seven years in the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice.  There, she focused on prosecuting cases dealing with child pornography, child sexual exploitation, sex trafficking, sex tourism, obscenity, and criminal nonsupport offenses.  She rose to Deputy Chief of Litigation and then to Principal Deputy Chief.  While at the Justice Department, Ms. Thacker was awarded the Attorney General’s Distinguished Service Award.

Why would any Senator stall confirmation of this consensus nominee?  What purpose did it serve?  Must all nominees of President Obama be delayed and obstructed and stalled?  

I thank the Majority Leader for scheduling this vote.  He has secured an agreement to vote on the long-delayed nomination of Judge Jacqueline Nguyen of California to fill one of the judicial emergency vacancies plaguing the Ninth Circuit, the busiest circuit in the country.  She, too, is a consensus nominee who could and should have been confirmed last year.  Her consideration has been delayed more than five months and will not occur until May 7.  But there are two more Ninth Circuit nominees to fill judicial emergency vacancies who are before the Senate awaiting final consideration.  Paul Watford of California was reported favorably by the Senate Judiciary Committee in early February.  His nomination should be scheduled for a confirmation vote without further delay.  Justice Andrew Hurwitz of Arizona was reported favorably by the Senate Judiciary Committee in early March.  His nomination should also be scheduled for a confirmation vote.  There is no good reason for delay.  The 61 million people served by the Ninth Circuit are not served by this delay. The Circuit is being forced to handle double the caseload of any other without its full complement of judges.  The Senate should be expediting consideration of the nominations of Judge Jacqueline Nguyen, Paul Watford, and Justice Andrew Hurwitz, not delaying them. 

The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan appointee, along with the members of the Judicial Council of the Ninth Circuit, have written to the Senate emphasizing the Ninth Circuit’s “desperate need for judges,” urging the Senate to “act on judicial nominees without delay,” and concluding “we fear that the public will suffer unless our vacancies are filled very promptly.”  The judicial emergency vacancies on the Ninth Circuit are harming litigants by creating unnecessary and costly delays.  The Administrative Office of U.S. Courts reports that it takes nearly five months longer for the Ninth Circuit to issue an opinion after an appeal is filed, compared to all other circuits.  The Ninth Circuit’s backlog of pending cases far exceeds other Federal courts.  As of September 2011, the Ninth Circuit had 14,041 cases pending before it, more than three times that of the next busiest circuit.  

If caseloads were really a concern of Republican Senators, as they contended last year when they filibustered the nomination of Caitlin Halligan to the D.C. Circuit, they would not be delaying the nominations to fill judicial emergency vacancies in the Ninth Circuit.  If caseloads were really a concern, Senate Republicans would consent to move forward with all three of these Ninth Circuit nominees to allow for a final up or down vote by the Senate without these months of unnecessary delays.

None of these nominees should be controversial.  They are all mainstream nominees with bipartisan support.  Judge Nguyen, whose family fled to the United States in 1975 after the fall of South Vietnam, was confirmed unanimously to the district court in 2009 and the Senate Judiciary Committee unanimously supported her nomination to the Ninth Circuit last year.  When confirmed, she will be the first Asian Pacific American woman to serve on a U.S. Court of Appeals in our history.  

Paul Watford was rated unanimously well qualified by the ABA’s Standing Committee on the Federal Judiciary, the highest rating possible.  He clerked at the United States Supreme Court for Justice Ruth Bader Ginsburg and on the Ninth Circuit for now Chief Judge Alex Kozinski.  He was a Federal prosecutor in Los Angeles.  He has the support of his home state Senators and bipartisan support from noted conservatives such as Daniel Collins, who served as Associate Deputy Attorney General in the Bush administration; Professors Eugene Volokh and Orin Kerr; and Jeremy Rosen, the former president of the Los Angeles Chapter of the Federalist Society.

Justice Hurwitz is a respected and experience jurist on the Arizona Supreme Court.  He also received the ABA Standing Committee on the Federal Judiciary’s highest rating possible, unanimously well qualified.  This nomination has the strong support of both his Republican home state Senators – John McCain and Jon Kyl.

Chief Justice Roberts and the Attorney General have both spoken about the serious problems created by persistent judicial vacancies.  More than 160 million Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans would just agree to vote on the nominations now pending on the Senate calendar.  The Senate should act to bring an end to the harm caused by delays in overburdened courts and we should start with the Ninth Circuit.  Senate Republicans should consent to votes on the Ninth Circuit nominees without more delay and obstruction. 

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