A Dose of Reality for the White House on Judicial Nominations

Mr. President,

Today, the Senate is expected to confirm three additional judicial nominees.  With the confirmation of Judge Nguyen to the 9th Circuit, Ms. Baker to the Eastern District of Arkansas, and Mr. Lee to the Northern District of Illinois, we will have confirmed 83 judicial nominees during this Congress.

It is somewhat ironic that today, according to press accounts, the White House is holding  a forum and strategy session with administration officials  and 150 supporters from across the country concerned about the judicial vacancy rate.

I wonder if at this strategy session, the White House took a look in the mirror, when addressing the vacancy rate.  Only the President can make nominations to the Senate.  While we have a responsibility to advise and consent, Senators cannot nominate individuals to fill vacancies.  I would note the President has failed to do this in 47 of the 76 remaining vacancies, including 21 of 35 seats designated as judicial emergencies.  That is more than 60 percent of current vacancies with no nominee.

The White House and the Democrats in the Senate are fond of their claim that “millions of Americans” are living in districts with vacancies.  Of course, what the other side fails to tell you is that 88 million Americans live in judicial districts where vacancies exist because the President has failed to nominate judges.  Most of those seats have been vacant for more than a year.  Once again, if the White House is serious about judicial vacancies, it holds the key to nominations for those vacancies.  It has failed in too many instances, to use that key.

Furthermore, according to the press accounts, in its invitation, the White House accused Republicans of subjecting consensus nominees to “unprecedented delays and filibusters.”  This is a statement without factual basis and ignores the record of judicial confirmations.

I would note that after today’s confirmations, there are 12 nominees on the executive calendar that might fall into the category of “consensus nominees.”  Seven nominees on the calendar had significant opposition in committee, and clearly are not consensus nominees.  The substantial majority of those 12 nominees were reported out of committee fewer than 10 legislative days ago.  Not only is there no filibuster against any of the consensus nominees, but I am not sure how there can be any accusation of delay.

Let me remind my colleagues on the other side of the aisle of the obstructionism, delay and filibusters, which they perfected.  The history of President Bush’s nominees to the Ninth Circuit provides some examples.

President Bush nominated nine individuals to the Ninth Circuit.  Three of those nominations were filibustered.  Two of those filibusters were successful.  The nominations of Carolyn Kuhl and William Gerry Myers languished for years before being returned to the President.  A fourth nominee, Randy Smith waited over 14 months before finally being confirmed after his nomination was blocked and returned to the President.  After being renominated, he was finally confirmed by a unanimous vote.

President Obama, on the other hand, has nominated six individuals to the Ninth Circuit. Only one of those nominees was subject to a cloture vote.  After that vote failed, the nominee withdrew.  Today, we confirm the third nomination by President Obama to the Ninth Circuit.   Those three confirmations took an average of about 8 months from the date of nomination.  For all of President Obama’s Circuit nominees, the average time from nomination to confirmation is about 242 days.  For President Bush’s Circuit nominees, the average wait for confirmation was 350 days.  One might ask why President Bush was treated differently than this President.

Another example of past Democratic obstruction and delay is in Arkansas.  Today, we confirm President Obama’s nominee to the Eastern District of Arkansas within about six months of her nomination.  I would note that President Bush’s nominee, J. Leon Holmes, sat on the executive calendar for more than 14 months awaiting confirmation.  From nomination, his confirmation took over 17 months.  Again, why was President Bush’s nominee treated worse than this President’s nominee?

I can only conclude that the White House has selective memory, or a different definition, when it accuses Republicans of unprecedented delay and obstruction.  I am disappointed that the President continues to blame Republicans for vacancies which have no nominee and chooses to follow a political strategy of blaming, rather than working with the Senate to nominate consensus nominees.

I will put the remainder of my statement in the record which discusses the qualifications of today’s nominees.

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Jacqueline Nguyen, presently serving as a United States District Judge, is nominated to be United States Circuit Judge for the Ninth Circuit.  Judge Nguyen received her A.B. from Occidental College in 1987 and her J.D. from the University of California, Los Angeles School of Law in 1991. She began her legal career as an associate in the Litigation Department at the Los Angeles law firm of Musick, Peeler & Garrett where she handled litigation matters involving commercial disputes, intellectual property, and construction defects.  From 1995 until 2002, Judge Nguyen was an Assistant U.S. Attorney in the U.S. Attorney’s Office for the Central District of California.  There, she handled the investigation and prosecution of human trafficking, immigration fraud, mail and tax fraud, and money laundering cases.  In 2000, Judge Nguyen became Deputy Chief of the General Crimes Section.  In that position, she handled the training and supervision of all new Assistant U.S. Attorneys and various types of criminal cases involving violent crimes, drug trafficking, firearms violations, and fraud.

In 2002, Governor Gray Davis appointed Judge Nguyen to the Superior Court for the County of Los Angeles.  In 2009, she was nominated by President Obama to be United States District Judge for the Central District of California.  The Senate approved her nomination on December 1, 2009 by a vote of 97 –0.  In her capacity as a judge, she has presided over thousands of cases.

The ABA Standing Committee on the Federal Judiciary unanimously rated her as Qualified for this position.

Kristine Gerhard Baker is nominated to be United States District Judge for the Eastern District of Arkansas.  Ms. Baker received her B.A. from St. Louis University in 1993 and her J.D. from University of Arkansas School of Law in 1996.  She served as a Law Clerk for the Honorable Susan Webber Wright, then the Chief Judge of the United States District Court for the Eastern District of Arkansas.  In 1998, she became an associate in the law firm Williams & Anderson, LLP where she handled commercial litigation cases involving breach of contract and fraud. In 2000, Ms. Baker joined the law firm Quattlebaum, Grooms, Tull & Burrow PLLC.  Her focus at the firm has been devoted to complex commercial litigation cases, including cases involving employment discrimination, securities violations, unfair competition, products liability, Fair Housing Act claims and Freedom of Information Act claims.  She has handled in administrative proceedings and in federal and state court claims for discrimination, harassment and wrongful termination as well as claims arising under the Family and Medical Leave Act, the Americans with Disabilities Act and the Employee Retirement Income Security Act.  The ABA Standing Committee on the Federal Judiciary gave her a substantial majority rating of Well Qualified and a minority Qualified.

John Z. Lee is nominated to be United States District Judge for the Northern District of Illinois.  Mr. Lee received his A.B. from Harvard College in 1989 and his J.D. from Harvard Law School in 1992. He began his legal career as a trial attorney for the United States Department of Justice (DOJ), Environment & Natural Resources Division.  There he represented the United States in federal courts on issues primarily involving environmental statutes.  He also served as Special Assistant to the Counsel to former Attorney General Janet Reno.

In 1994, he left the public sector to take a job as an associate at Mayer Brown.  In 1996, he joined a new firm, Grippo & Elden, as an associate.  In 1999, he moved to his current firm, Freeborn & Peters.  There he made Income Partner in 2001 and Equity Partner in 2004.  In private practice, Mr. Lee has focused almost entirely on litigation, expanding his expertise to complex commercial disputes, including cases involving antitrust, intellectual property, employment and business tort issues.  Most of these cases were in federal courts, particularly the Seventh and Ninth Circuits.  He also represented clients in criminal investigations of antitrust and financial regulations violations.  In private practice, he represents public and private companies, individual businesspersons and low-income clients pro bono. He has an ABA rating of Substantial Majority Qualified, Minority Not Qualified.