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EXECUTIVE SESSION

a speech in Congress by Sen. Patrick Leahy (D-VT), on

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Full Text Below, adapted from the Congressional Record.

Mr. President, today the Senate finally considers the nomination of Gerard Lynch to the Second Circuit. I take particular interest in this because my own State of Vermont is part of the Second Circuit. I am a member of that bar, and I have argued cases before that court.

This is a nomination reported out of the Judiciary Committee over 3 months ago, on June 11 unanimously by voice vote. There were no dissents. When that occurred and the ranking Republican member said such glowing things about Judge Lynch, I assumed his nomination was going to be confirmed right away as we did with President Bush's nominations in similar situations. Now it is nearly 3 months later. In almost unprecedented fashion, someone who has had the strong support of both the chairman and ranking Republican of the committee is still on the Executive Calendar.

Judge Lynch has served as a highly respected Federal judge from New York for almost a decade. He has impeccable legal credentials. His nomination received the highest possible rating from the ABA's standing committee on the Federal judiciary, unanimously voted ``well qualified.''

The Senate can and must do a better job of restoring our tradition, a tradition followed with Republican Presidents and Democratic Presidents, of regularly considering qualified, noncontroversial nominees to fill vacancies on the Federal bench without needless and harmful delays. We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations. The American public wonders what is going on here.

It is imperative that we move to fill the growing number of vacancies throughout the Federal courts. These vacancies have already risen to over 90, including 21 on the circuit courts. I have been here with six Presidents. I cannot remember a time we have been this late in the year and, even though nominations have been made, nobody has been confirmed, all because of holds by the Republicans. Do they object so much to having President Obama as President that they will hold up well-qualified judges? These are supposed to be nonpartisan, outside the political area.

This alarming spike in vacancies is only further fueled by delays and inaction. In addition, 26 future vacancies have been announced. At this rate, as I said at the judicial conference this week with the Chief Justice and leaders of the Federal judiciary, the Federal judicial vacancies will soon be close to 120 unless we start acting on these nominations in a responsible and fair manner. These nominations should not be something where Republicans or Democrats might score political points. Our inaction on these nominations hurts the average American. They do not care about the politics. They want Federal courts that are going to work. They do not want cases delayed because we have vacancies in the Federal court that we could easily be filling.

I do not think most Americans, when they go into a court, say: I am here as a Republican or a Democrat. They go in and say: I am here as a plaintiff or defendant. They are there to seek justice, not to find out there is nobody in the courthouse because the minority party does not want President Obama filling vacancies.

During the last Presidency, we worked very hard to fill vacancies. When I chaired the Senate Judiciary Committee and we had a President of the other party, we were able to reduce overall vacancies by two-thirds, from over 100 down to 34. We were able to reduce circuit court vacancies to single digits. Today, because we are blocked from getting judges through, because Republican Senators will not give this Democratic President the same courtesies we gave a Republican President, those vacancies have nearly tripled. In the 17 months I served as Senate Judiciary Committee chairman during President Bush's first term, the Senate confirmed 100 of the President's judicial nominations. So far this year, 9 months into the year, we have not confirmed a single Federal district judge or circuit judge. In fact, Judge Lynch will be the first.

Despite the fact that President Obama sent his first judicial nomination to the Senate 2 months earlier than President Bush, despite the fact that judicial nominees have the support of Republican home State Senators, despite the fact that the Judiciary Committee has reported favorably five judicial nominees to the Senate for final action, and despite the fact that judicial nominees have been pending on the Senate calendar for more than 3 months, we have not been able to reach agreement before today to vote on a single judicial nominee for either a district court or a circuit court.

The first of President Obama's nominations, that of Judge David Hamilton to the Seventh Circuit, was made in March. It has been on the Executive Calendar since early June, despite the support of the most senior of Senate Republicans, Senator Lugar. The nomination of Judge Andre Davis on the Fourth Circuit was reported by the committee on June 4 by a vote of 16 to 3 but has yet to receive Senate consideration. We should not further delay Senate consideration of these well-respected, mainstream Federal judges.

During the last Congress, we reduced Federal judicial vacancies from 10 percent, under Republican control of the Senate during the Clinton administration, to less than half that level. We cut circuit vacancies from 32 to less than 10 last year. Ironically, during President Bush's two Presidential terms, more nominees were confirmed with a Democratic Senate majority than a Republican majority, and in less time. I am urging Republican Senators to work together with the President to fill vacancies on the Federal bench.

I hope that Republican Senators do not seek to return to the practices of the 1990s that more than doubled circuit court vacancies. The crisis they created led to public criticism of their actions by Chief Justice Rehnquist during those years. It is not a good sign that already this year Republican Senators threatened a filibuster of the Deputy Attorney General and pursued five filibusters, including one for Elena Kagan, the Solicitor General, one for Harold Koh to be the Legal Adviser to the State Department, and another that was finally broken just last week on Cass Sunstein, who heads the White House Office of Management and Budget's Office of Information and Regulatory Affairs. Nor is it a good sign that in March every Republican Senator signed a letter to the President threatening filibusters of his judicial nominees before they were even nominated.

We are supposed to be the conscience of the Nation in the Senate. If a Senator does not like a particular nominee, vote against him or her. But these are nominees that will probably pass unanimously.

I hope, instead, that both sides of the aisle will join together to treat the nominees of President Obama fairly. I made sure that we treated President Bush's nominees more fairly than President Clinton's nominees had been treated. We should continue that progress rather than ratcheting up the partisanship and holding down our productivity with respect to Senate consideration of judicial nominations. Our demonstrated ability to work together to fill judicial vacancies will go a long way toward elevating public trust in our justice system.

Another troubling sign is the refusal of every Republican Senator to cosponsor the comprehensive judgeship bill. Last week I reintroduced that legislation embodying your nonpartisan recommendations for 63 judgeships needed around the country. Not a single Republican Senator would cosponsor the bill. Even traditional cosponsors with whom I have worked for years would not join. Not one of the 18 Republican Senators whose states would benefit from additional judges yet supports the bill. For that matter, Republican Senators obstructed the hearing on a similar bill last summer, after they had requested the hearing. As we pass legislation that is leading to increased workloads in the Federal courts, we need to be cognizant of the increasing workloads and needs of the Federal courts.

Judge Gerard Lynch began his legal career as a Federal prosecutor in the U.S. Attorney's Office for the Southern District of New York, where he investigated and prosecuted white collar and political corruption cases, and argued complex criminal appeals. Through his exemplary hard work and considerable skill, he rose to be chief of the criminal division in the Southern District of New York, where he managed the office's criminal cases and supervised well over 130 Federal prosecutors. Judge Lynch has also served as a part-time associate counsel for the Office of Independent Counsel and as a counsel to a Wall Street New York law firm.

He also has impeccable legal credentials. Judge Lynch graduated summa cum laude and first in his class from both Columbia Law School and Columbia University. He clerked for Justice Brennan on the Supreme Court of the United States and Judge Feinberg on the Second Circuit Court of Appeals. Judge Gerard Lynch began his legal career as a Federal prosecutor in the U.S. Attorney's Office for the Southern District of New York, where he investigated and prosecuted white collar and political corruption cases, and argued complex criminal appeals. Through his exemplary hard work and considerable skill, he rose to be chief of the criminal division in the Southern District of New York, where he managed the office's criminal cases and supervised well over 130 Federal prosecutors. Judge Lynch has also served as a part-time associate counsel for the Office of Independent Counsel and as a counsel to a Wall Street New York law firm.

He also has impeccable legal credentials. Judge Lynch graduated summa cum laude and first in his class from both Columbia Law School and Columbia University. He clerked for Justice Brennan on the Supreme Court of the United States and Judge Feinberg on the Second Circuit Court of Appeals.

While maintaining a full judicial caseload, Judge Lynch has also been a distinguished legal scholar who has received praise as one of the country's outstanding law professors. For over 13 years, he taught criminal law, criminal procedure, and constitutional law as the Paul J. Kellner Professor of Law at Columbia University's School of Law. For 5 years, Judge Lynch also served as the vice dean of that fine legal institution. He is nationally known as a criminal law expert and has received numerous honors, including the distinction of being the first law professor to receive Columbia University's President's award for outstanding teaching.

Judge Lynch's nomination has received numerous letters of support, including strong endorsements from public officials and law professors across the political spectrum. Otto G. Obermaier, who served as President George H.W. Bush's U.S. attorney for the Southern District of New York, supports Judge Lynch's candidacy to the Second Circuit and called him a person of ``superior judgment and intelligence'' who is ``intellectually gifted.'' Professor Henry P. Monaghan, the Harlan Fiske Stone Professor of Law at Columbia University, writes that Judge Lynch ``is everything you want in a judge: fair, tough-minded, enormously experienced, highly intelligent, and apolitical'' and his addition to the Second Circuit would ``strengthen'' that court. He has the support of the Senators from New York.

I congratulate Judge Lynch and his family on his confirmation today.

Mr. President, I suggest the absence of a quorum.

I withdraw that request. I see the distinguished senior Senator from New York in the Chamber, a man who works so extremely hard in the Senate Judiciary Committee, who has worked night and day for Judge Lynch, who has made sure we all realize what impeccable credentials he has.

I yield to the Senator, but I ask, first, unanimous consent that if there are quorum calls, the time be divided equally.