October 31, 2013
Ranking Member, Senate Committee on the Judiciary
Executive Business Meeting
Robert Leon Wilkins, to be United States Circuit Judge for the District of Columbia Circuit
Brian J. Davis, to be United States District Judge for the Middle District of Florida
Timothy L. Brooks, to be United States District Judge for the Western District of Arkansas
James Donato, to be United States District Judge for the Northern District of California
Beth Labson Freeman, to be United States District Judge for the Northern District of California
Pedro A. Delgado Hernandez, to be United States District Judge for the District of Puerto Rico
Carolyn B. McHugh, to be United States Circuit Judge for the Tenth Circuit
Pamela L. Reeves, to be United States District Judge for the Eastern District of Tennessee
Vince Girdhari Chhabria, to be United States District Judge for the Northern District of California
James Maxwell Moody, Jr., to be United States District Judge for the Eastern District of Arkansas
S.42, Criminal Antitrust Anti-Retaliation Act of 2013 (Leahy, Grassley)
S.822, Justice for All Reauthorization Act (Leahy, Cornyn, Coons, Klobuchar, Franken, Feinstein)
Thursday, October 31, 2013
Today on the agenda we have the nominations of ten judicial nominees. Four are on the agenda for the first time, and we request they be held over. They are McHugh, Reeves, Chhabria, and Moody
Of the other six that are ripe for consideration, I believe that we can voice vote four of these nominees (Brooks, Donato, Freeman and Hernandez). There are also two bills on the agenda. I’ll turn to the legislation in a few minutes, but first I am going to speak about the other two nominees – Judge Wilkins for the D.C. Circuit, and Judge Davis, to serve on the Middle District of Florida.
First, I’d like to discuss Judge Wilkins’ nomination to the D.C. Circuit. I will not repeat all of things that I’ve said regarding the workload of the D.C. Circuit. But I would like to mention a couple points.
As I’ve said on a number of occasions, I believe an objective review of the data demonstrates that the caseload for the D.C. Circuit has continually declined for the past 20 years.
Let me just mention a couple statistics. In 2006, the other side argued -- based on the 2005 numbers – that the caseload didn’t merit confirming any additional judges.
Since 2005, the numbers have continued to decline. For instance, in 2005 there were 1,379 total appeals filed. Last year, there were 1,193. That’s a decrease of over 13 percent.
When you consider the total appeals filed per authorized judgeship, the number has fallen as well – even though there are fewer authorized judgeships now than there were in 2005.
Let me emphasize that point. The total number of cases filed has fallen so much since 2005, that there are fewer cases filed per authorized judgeship in 2012, even though there are fewer authorized judgeships today than there were then.
Another way to look at the numbers is to compare the statistics per active judge. In 2005, there were 10 active judges. Today there are 8. Since 2005, the numbers have declined so much that the number of cases filed per active judge is nearly the same today that it was then, even though we have two fewer active judges.
Let me add one additional point on this topic. All of these statistics that I’ve been discussing don’t even take into account the work that the senior judges on the court are contributing.
Right now, there are six senior judges. According to Chief Judge Garland, those judges are contributing the equivalent of 3.25 full time judges. When you add this to the 8 active judges, the court is currently running at the equivalent of 11.25 full time judges. That is more than the 11 judgeships that are currently authorized.
For all of these reasons, it should come as no surprise that even current members of the court confirm that if these vacancies were filled, “there wouldn’t be enough work to go around.”
There are additional considerations that I will not take the time to outline today, but I will oppose Judge Wilkins’ nomination and urge my colleagues to do the same.
Second, I’d like to make a few comments on Judge Davis’ nomination to the Middle District of Florida.
As my colleagues are aware, Judge Davis’ nomination is not without some controversy, related primarily to some remarks he made a few years ago.
During his hearing last Congress, Judge Davis was asked to provide some clarification regarding those comments. After carefully reviewing his answers from the hearing, many of us concluded that they didn’t provide the clarity that we had hoped for. For that reason, I asked Judge Davis some follow-up Questions for the Record, hoping to get the clarity, in writing, that I didn’t hear him provide during his hearing.
Unfortunately, after reviewing his written answers, I concluded that Judge Davis didn’t fully appreciate why many found his comments so troubling. Therefore, I reluctantly opposed his nomination.
Judge Davis, of course, was re-nominated this Congress. On September 12th, he submitted a letter to the Florida senators.
In that letter, Judge Davis apologized for his comments – without qualification.
He wrote, “I believe that several of the statements I made in the past were inappropriate and improper.” He went on to write, “I apologize for any inappropriate statements and deeply recognize the harm that they could cause if they gave the misimpression that I am anything other than impartial or that I maintain any bias or prejudice.”
As I wrote to Judge Davis in a follow-up letter on September 25th, his apology for those comments without qualification, in my view, demonstrated both courage and humility.
In my letter to Judge Davis, I asked him simply to confirm that he was apologizing for his comments regarding Dr. Henry Foster, Dr. Joycelyn Elders and Justice Thomas.
In a letter he wrote to me on September 26, he confirmed those were the “inappropriate comments” he referenced in his letter to the Florida senators.
I ask consent that both my letter to Judge Davis, and his response, be made part of the record.
I have given this nomination a great deal of consideration.
I believe Judge Davis has taken steps this Congress that, in my view, he didn’t appear willing to take last Congress. And as I said, that requires both courage and humility – which are traits a district judge should possess.
Taking this into consideration, together with the fact that he enjoys the support of his home state Senators, I’m willing to give Judge Davis the benefit of the doubt and not oppose his nomination moving forward.
At the conclusion of debate on these nominations, we request any vote on these two nominations be by roll call.
With that, let me turn to the legislation on the agenda.
Too often whistleblowers who risk their careers to expose waste, fraud and abuse are treated like second-class citizens.
The Criminal Antitrust Anti-Retaliation Act, which Chairman Leahy and I’ve introduced, will protect criminal antitrust whistleblowers.
In 2004 Congress passed the Antitrust Criminal Penalty Enhancement and Reform Act.
That bill encouraged self-reporting of criminal antitrust activity.
Yet it didn’t provide any protections for innocent third-parties who blow the whistle on such activity.
Thus, when this law was reauthorized in 2010, we asked the Government Accountability Office to examine whether whistleblower protection would be appropriate.
The Government Accountability Office suggested that Congress consider adding a civil remedy for antitrust whistleblowers that are retaliated against.
That’s what this bill does.
Over the past few weeks we’ve worked to address some concerns raised by other offices.
The managers’ amendment reflects those changes. This is a narrowly focused bill that will strengthen the enforcement of our criminal antitrust laws.
I appreciate the Chairman’s work on this, and that from others who have been involved, and urge my colleagues to support this bill.
I ask unanimous consent that my full statement on S. 42 be placed into the record.
I’m pleased that we are considering S. 822 today, the Justice for All Act Reauthorization. This bill reauthorizes a number of victim’s rights programs and grant programs that provide important funding for state and local governments to conduct DNA testing.
The bill reauthorizes funding for crime victims’ rights programs and enhances protection for victims in several ways.
For example, it ensures that money appropriated to assist victims will go directly to victims, not for other programs that DOJ operates. This is especially necessary given that President’s budgets have raided the Crime Victims Fund to pay for non-victim related services in the past.
At the same time, the bill is fiscally responsible.
It reduces authorizations by more than 20 percent compared to the 2004 reauthorization. This helps to better align authorizations with actual amounts funded by the Appropriations Committee.
However, it does so without reducing the funding authorized for crime victims or for programs authorized under the Debbie Smith program.
Finally, the act includes crucial oversight and accountability provisions that I’ve consistently sought for DOJ grant programs.