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Jackson, Moore, And Nunley Nominations

Sen. Patrick J. Leahy

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Mr. President, last month, I spoke at the Judicial Conference about the damaging effect of sequestration on our Federal courts and our system of justice. These indiscriminate cuts are already causing both Federal prosecutors and Federal public defenders to be furloughed. The Administrative Office of U.S. Courts has done its best to address these cuts, but the judicial system can only weather the effects of sequestration for so long before it is irreparably harmed. In a letter dated March 5, 2013, Judge Thomas Hogan, the director of the Administrative Office of U.S. Courts, wrote that the cuts from sequestration could not be ``sustained beyond fiscal year 2013 and will be difficult and painful to implement.'' He went on to note: ``The Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the constitutional mission of the federal courts.'' In that same letter, he wrote that sequestration will mean reduced funding for drug testing and mental health treatment, and fewer probation officers.

Along the same lines, last month Andrew Cohen wrote an article in The Atlantic entitled ``How the Sequester Threatens the U.S. Legal System.'' He suggests that sequestration will threaten defendants' constitutional rights, and law enforcement's ability to effectively fight crime, writing: ``Beyond a reasonable doubt, the sequester is having a profound and pernicious effect on the government's ability to observe its constitutional commands--and to provide justice to its citizens.''

I ask unanimous consent that copies of Judge Hogan's letter and the article from The Atlantic be printed in the Record at the conclusion of my remarks.

Justices Stephen Breyer and Anthony Kennedy testified before the House Appropriations Committee last month about the impact of sequestration and budget cuts. Justice Kennedy said that funding for programs like drug testing and mental health services is ``[A]bsolutely urgent for the safety of society.'' The Justices also noted the harm that would result from cuts to public defenders, as the government would then have to pay private defense attorneys to provide counsel. Justice Breyer highlighted the additional costs to the government from mistakes being made in trials, including wrongful convictions.

These budget cuts to our courts are also bad for our economy. Fewer court staff will mean further delays for civil and bankruptcy cases. There are already more than 30,000 civil cases that have been pending for more than 3 years. We know that justice delayed is justice denied, and hardworking Americans who look to our courts to protect their rights deserve better.

Even before sequestration went into effect, our Federal courts have spent nearly 4 years burdened by unnecessarily high numbers of judicial vacancies. Judicial vacancies have been near or above 80, and for over 2 years were at ``historically high'' levels, according to the Congressional Research Service. The Senate must do much more to fill these vacancies and make real progress.

Unfortunately, Senate Republicans have been unwilling to work with President Obama. The Judiciary Committee's ranking Republican member recently expressed concern that not all judicial emergency vacancies have nominees. Of the 35 judicial emergency vacancies, 24 are in States with Republican Senators. In fact, close to half of all judicial emergency vacancies are in just three States, each of which is represented by two Republican Senators. Those Senators should be working with the White House to fill those vacancies. Even for judicial emergency vacancies in those three states that have a nominee, Republican Senators have not supported moving forward. So I encourage Republican Senators to work with the President to find good nominees for those important vacancies and to allow qualified nominees to move forward. I take very seriously our responsibilities of both advise and consent on nominations. Senators should stop pocket filibustering the President's nominees and work with him to fill these judicial vacancies.

Regrettably, qualified, consensus nominees are being delayed, even nominees who are supported by home State Republican Senators. They are subjected to unnecessary and unprecedented delays on the Senate floor. These nominees have been vetted in a lengthy process, and often have the support of all Senators on the Judiciary Committee, so there is no reason we cannot consider them in regular order. For the last 4 years, Senate Republicans have consistently refused to consent to what used to be the routine consideration of consensus judicial nominees. That is why the Majority Leader has been forced to file cloture on 30 of President Obama's nominees, which is already over 65 percent more nominees than had cloture filed during the 8 years of the George W. Bush administration. Many of those nominees are then confirmed unanimously after months or even a year of waiting. There is no good reason the Senate cannot consider them more expeditiously. These deliberate delaying tactics hurt the Senate, our courts, and the American people.

Before the most recent recess, the Senate was finally allowed to vote on the nomination of Ketanji Brown Jackson to fill a judicial vacancy on the U.S. District Court for the District of Columbia. She currently serves as Vice Chair and Commissioner of the U.S. Sentencing Commission, to which the Senate previously confirmed her. Previously, Ketanji Jackson was a counsel at Morrison & Foerster LLP and an Assistant Federal Public Defender in the Office of the Federal Public Defender in the District of Columbia. After graduating, cum laude, from Harvard Law School, where she served as Supervising Editor of the Harvard Law Review, she served as a law clerk to Judge Patti Saris of the District of Massachusetts, Judge Bruce Selya of the First Circuit, and Justice Stephen Breyer of the U.S. Supreme Court. When confirmed, she will be the first female African-American judge appointed to the court in 32 years and the only one currently serving on the court. She had her hearing last year and her confirmation could have been expedited then. It was not and she is among those who had to be renominated by the President this year. Her nomination was then reported unanimously in February by the Judiciary Committee.

The Senate was finally allowed to consider, as well, the nomination of Troy Nunley to fill a judicial emergency vacancy in the Eastern District of California. That court has one of the heaviest caseloads per judge of any in the country. Judge Nunley could and should have been confirmed last year when the Judiciary Committee reported his nomination unanimously. Instead, he was among those Republican Senators refused to consider before adjourning. The President had to renominate him and the Senate Judiciary Committee again voted unanimously to proceed with his confirmation this year more than a month ago. He is currently a judge of the Superior Court of California and he served previously as Deputy Attorney General for the California Department of Justice and as Deputy District Attorney for both the Sacramento County District Attorney's Office and the Alameda County District Attorney's Office. He has the support of both his home State Senators, Senator Feinstein and Senator Boxer.

The Senate will also vote on the nomination of Raymond Moore to fill a judicial emergency vacancy in the District of Colorado. He currently serves as the Federal Public Defender in the Federal Public Defender's Office for the Districts of Colorado and Wyoming in Denver, CO, where he formerly served as the Acting Federal Public Defender and as an Assistant Federal Public Defender. Raymond Moore has also worked in private practice and served as a Federal prosecutor. He received the ABA Standing Committee on the Federal Judiciary's highest possible rating, unanimously ``well qualified,'' and has the support of his home State Senators, Senator Udall and Senator Bennet. He was reported unanimously last February by the Judiciary Committee.

There are still another 15 judicial nominees pending before the Senate. All of these nominees had to be renominated after being returned at the end of the last Congress. It is unusual to have such a backlog so early in a Congress, and this is the result of Senate Republicans' refusal to allow votes on 11 nominees at the end of last year, including Judge Nunley, and their refusal to consider another four, which included the D.C. district court nominee being confirmed today, who had hearings and could have been expedited. We have yet to work our way through the nominees who were available for Senate consideration and confirmation last year. The delayed consideration of those nominees, at this pace, could easily extend into June. I urge Senate Republicans to join with us so that we can clear the calendar and confirm these consensus nominees during the current work period. Let us come together in a bipartisan manner and restore the best traditions of the Senate. The Americans who depend on our courts for justice deserve no less.

There being no objection, the material was ordered to be printed in the Record, as follows:

When the chief justice of the United States and the chief judges of each of the federal circuits gavel down the semi- annual meeting of the Judicial Conference of the United States on Tuesday, they will have on their agenda an unusual item: the alarming impact of the funding ``sequester'' on the nation's federal court system. The world won't end if students are denied the chance to tour the White House. It will not end if our National Parks open days late this spring. But citizens everywhere will see vital legal rights denied or delayed by the forced budget cuts. All of the constituencies of the judiciary agree on this issue. Federal trial judges are quietly seething at the inability of the legislative and executive branches to avoid sequester. Federal public defenders, whose budgets have been cut twice in two months, are furloughing and laying off staff. The attorney general of the United States has expressed grave concern on behalf of prosecutors and federal law enforcement officials. And court administrators are expressing alarm over the effect of the cuts upon federal judicial services. At the core of the problem is the fact that the judicial branch is financially beholden to the other two branches of government. This separation of powers was designed by our nation's founders to limit the judiciary's independence, and it has, and nowhere is this dynamic more visible than when a chief justice like John Roberts has to grovel for funding or otherwise justify the judiciary's minuscule portion of the budget. If the sequester isn't unconstitutional per se, it is causing an unconstitutional effect upon the swift, fair and equal administration of justice.

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