April 8, 2013 - Issue: Vol. 159, No. 45 — Daily Edition113th Congress (2013 - 2014) - 1st Session
JACKSON, MOORE, AND NUNLEY NOMINATIONS; Congressional Record Vol. 159, No. 45
(Senate - April 08, 2013)
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[Pages S2449-S2452] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] JACKSON, MOORE, AND NUNLEY NOMINATIONS Mr. LEAHY. 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 [[Page S2450]] 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: [From the Atlantic] How the Sequester Threatens the U.S. Legal System (By Andrew Cohen) 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. For Federal Court Administrators In a letter forwarded last week to members of the House and Senate Appropriations and Judiciary committees, U.S. District Judge Thomas F. Hogan, the Reagan appointee who now serves as director of the Administrative Office of the U.S. Courts, succinctly described the scope of the problem: Public safety will be impacted because there will be fewer probation officers to supervise criminal offenders released in our [[Page S2451]] communities. Funding for drug testing and mental health treatment will be cut 20 percent. Delays in the processing of civil and bankruptcy cases could threaten economic recovery. There will be a 30 percent cut in funding for court security systems and equipment and court security officers will be required to work reduced hours, thus creating security vulnerabilities throughout the federal court system. In our defender services program, federal defender attorney staffing levels will decline, which could compromise the integrity of the defender function . . . Dennis Courtland Hayes, president of the American Judicature Society, the non-partisan national organization dedicated to the preservation and improvement of the American legal system, was even blunter in late February with the statistics he offered: Nationally, up to 2,000 more court staff could be laid off or furloughed under sequestration. This would come on top of the more than 1,800 positions eliminated by the courts over the past 18 months, representing a potential 18% reduction in court staff since July 2011 . . . Of particular concern to the American Judicature Society, which has worked for decades to improve access to the courts for self-represented litigants, those people seeking justice without a lawyer would have fewer services to help them navigate the judicial system. ``Sequestration's almost $350 million cut will not be fully felt in one day, one month or even one year,'' Judge Hogan wrote last week. ``Reductions of this magnitude strike at the heart of our entire system of justice and spread throughout the country. The longer the sequestration stays in place, the more severe will be its impact on the courts and those who use them.'' The federal judiciary is being held hostage, in other words, because of the failure or the refusal of Congress and the White House to make a responsible budget deal. For Federal Public Defenders If federal court administrators offer the big picture impact of the sequestration, federal public defenders all over the country are sharing the details on an office-by- office basis. These stories are bad in two dimensions. First, there is the grim business of laying off desperately needed federal workers. Second, there is the impact those layoffs will have on ordinary people who for one reason or another are involved in the federal court system. It's really quite simple: The people being laid off try each day to help the rest of us secure our constitutional rights. Let's start with Jon Sands, the longtime Federal Public Defender for the District of Arizona. Last month, Sands was forced to lay off 10 employees from the defenders' office. There were more cuts to federal public defenders' offices earlier this month (the Defender Program budget was slashed 5.17 percent in February and another 5.52 percent last week). ``Even with the layoffs, I still must furlough,'' Sands told me this weekend via email. He wrote: We have clients who need mental health experts to examine them, but whom must wait until the next budget allotment comes. We have investigators who can no longer go to the scenes of crimes, but call instead. We watch pennies so we can order transcripts. The impact of sequestration in criminal justice further makes the playing field uneven, with DOJ able to shift resources, while we can't. We are seeing offices shuttered, and staff sent home for 30, 40 even possibly 90 days. In Utah, when news of furloughs hit the federal PDs office, Kathy Nester told me over the weekend that ``several [Assistant Federal Public Defenders] stepped up to take extra days because we have staff that are single moms and this financial blow would be devastating to them and their kids.'' Another federal public defender, who asked to remain unidentified because of the nature of the situation, is facing a thirty-day furlough and had to lay off four employees. His story: I laid off a young off a young [Assistant Federal Public Defender] Thursday, and he said he still wanted to work for us full-time while looking for other work. Makes me want to cry. Laid off a clerical type in another office. She is going for disability, but meanwhile, may come back 3 days a week with no pay, and staff there are covering her bus fare and coffee and lunch each day out of their own pockets. Definitely makes me want to cry. Other federal public defenders have been more formal with their expressions of concern. In the Eastern District of Virginia, Michael Nachmanoff, the Federal Public Defender, informed the 4th U.S. Circuit Court of Appeals via letter last week that ``at least seven public defender offices (and one community defender office) . . . will be required to turn down major case assignments--such as death penalty cases, large white collar cases and representation of defendants facing civil commitment''--as a result of the sequester. Nachmanoff's counterpart in the Western District of New York, Marianne Mariano, offers more examples of the impact of the sequester upon federal judicial employees. In a letter last week to Dennis Jacobs, the Chief Judge of the 2nd U. S. Circuit Court of Appeals, Mariano wrote: ``I anticipate all attorneys and staff will be furloughed 22 days. I have one employee who volunteered to take 28 days of leave without pay.'' In the Northern District of Texas, federal public defenders just warned judges that they ``anticipate a likely need to withdraw from cases that require expert witnesses because our budget for expert witnesses has been decimated.'' For the American People One federal public defender, who also asked to remain anonymous because of the sensitivity of the current situation, offered this overview of what sequestration will mean to those who often need legal help and guidance the most. He wrote: Sequestration has hit the truly indigent clients of the Federal Defender particularly hard. For example, Spanish- speaking families often write moving letters of support for relatives facing federal sentencing. Defenders have routinely paid to translate these letters translated into English, and these mitigation documents have played a central role in federal sentencing. With budget cuts, however, Defenders can no longer afford to pay outside interpreters the translation fees. As a result, Spanish-speaking families have effectively been silenced at sentencing, depriving indigent clients of critical evidence in mitigation. The cuts have been particularly brutal for mentally-ill defendants. Many federal defendants suffer from a host of mental illnesses, and retained psychiatric evaluations are critical in determining competency, challenging allegations, and ensuring proper psychotropic medication is administered. Sequestration has devastated funds for these psychiatric experts. As a result, Defenders are forced to rely on their own lay knowledge, ``talk'' their client through appearances and pleas, and struggle with the risk of first submitting to an evaluation by government psychiatrists. Even if you are not mentally ill, the sequester will impact you. If you are a creditor or a debtor and you want to resolve a bankruptcy in a timely fashion. If you are on federal probation and you can't get in to see your officer. If you are a state or local prosecutor and you no longer have federal funds to help you prosecute drug cases. If you are waiting for a federal drug test. If you are responsible for courthouse security or care about the safety of judges and court staff. If you want to go to trial in a civil case or are charged with a federal crime. For Federal Law Enforcement It's not easy on the other side of the fence, either. On the one hand, Congress and the Obama Administration want aggressive enforcement of criminal laws. On the other hand, they have been willing through the sequester to financially neuter the organizations directly responsible for such enforcement. National Public Radio's Carrie Johnson, in a smart report last week, revealed that Justice Department employees already are receiving their furlough notices. The FBI's abilities will be harmed, she reports. And then there is this: At that meeting in Washington this week, state attorneys general worried about their share of the pie under a huge federal grant program. Janet Mills, the attorney general in Maine, was waving her hand with a question for Holder. ``Could you please comment on the prospects for continued funding through the Byrne grants for drug enforcement and drug prosecutions and other criminal justice measures?'' Mills asked. Holder said the states are right to worry about federal participation in drug task forces and other money the department sends to the states to help fight crime. Crime--and specifically border patrol work. Word in Arizona is that Operation Streamline, the longtime federal program of aggressive arrest and prosecution of unlawful immigrants, reportedly has been eased in the Ajo sector of the state as a result of the sequester--evidently there isn't enough money to pay for the overtime for law enforcement officials. For his part, Attorney General Eric Holder told Senate Judiciary Committee members during his appearance last week: As we speak, these cuts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted. Our capacity--to respond to crimes, investigate wrongdoing, and hold criminals accountable--has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts--on our entire justice system, and on the American people--may be profound. 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. That's why the members of the Judicial Conference have a difficult and delicate task this week. The judges and administrators must adequately express the scope of their concern, and effectively explain the impact the sequester will have on the judiciary, without offending the very politicians who control the federal judiciary's budget. It's not right. It's not fair. It's a terrible testament to judicial independence. But sadly it's the way the politics of law works in America today. [[Page S2452]] ____ Administrative Office of the United States Courts, Washington, DC, March 5, 2013. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Mr. Chairman: The Administrative Office of the United States Courts (AO) recently received several requests for information about how the Judiciary is preparing to handle the impact of funding sequestration. The Judiciary's efforts to address this budgetary emergency have been extensive, involving countless hours spent by judges, and court and AO staff working to determine how best to withstand the severe cuts while still continuing to perform core constitutional duties. As background, following months of information gathering and planning, the Executive Committee met on December 19, 2012, to consider proposed actions to deal with the impact of sequestration on the federal courts. With enactment of the American Taxpayer Relief Act of 2012 and the subsequent delay in the effective date of sequestration, from January 2 to March 1, 2013, the Executive Committee met again on February 7, 2013, to finalize actions based on updated sequestration calculations for the Judiciary. We consider the emergency measures approved by the Executive Committee (discussed below) to be one-time only. They cannot be sustained beyond fiscal year 2013 and will be difficult and painful to implement. The Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the constitutional mission of the federal courts. This is especially true if those funding levels continue into fiscal year 2014 and beyond. We are hopeful that Congress and the Administration will ultimately reach agreement on alternative deficit reduction measures that render the current sequestration cuts unnecessary. The Executive Committee approved a number of emergency measures that applied primarily to the non-salary parts of the Judiciary budget. Because of our decentralized budget and management system for the courts, the planning is primarily done on the local level. The goal of the emergency measures was to minimize the impact of sequestration on court staff by providing maximum flexibility to court managers. This was only partially successful. The sequestration cuts that went into effect March 1, 2013, total nearly $350 million for the Federal Judiciary. Fiscal year 2013 court allotments on a national level would have declined by 14.6 percent below fiscal year 2012 allotments. Instead, after applying the emergency measures, court allotments have declined by 10.4 percent below fiscal year 2012 allotments. While this is a marked improvement, the allotments, after sequestration and implementation of the emergency measures, could still result in up to 2,000 on-board employees being laid off or thousands of employees facing furloughs for one day each pay period (a 10 percent pay cut). These sequestration staffing losses would come on top of the almost 9 percent decline in staff (over 1,800 probation officers and clerks' office staff) that has already been experienced in the courts since July 2011. These budget reductions to the Judiciary will have serious implications for the administration of justice and the rule of law. Public safety will be impacted because there will be fewer probation officers to supervise criminal offenders released in our communities. Funding for drug testing and mental health treatment will be cut 20 percent. Delays in the processing of civil and bankruptcy cases could threaten economic recovery. There will be a 30 percent cut in funding for court security systems and equipment and court security officers will be required to work reduced hours, thus creating security vulnerabilities throughout the federal court system. In our defender services program, federal defender attorney staffing levels will decline, which could compromise our defender function, and delay payments to private attorneys appointed under the Criminal Justice Act could for nearly three weeks in September. Sequestration will also require deep cuts in our information technology programs on which we depend for our daily case processing and on which we have successfully relied in past years to achieve efficiencies and limit growth in our budget. I have enclosed for your information a description of guidance regarding sequestration given to federal courts nationwide in late February. While some of it is technical in nature, our guidance provides important information for the courts on funding levels under sequestration as well as practices for managing payroll and personnel activities under sequestration. As the enclosed description indicates, decisions about court closures, furloughing staff or other adverse personnel actions, managing court operations at lower funding levels, and salary policies under sequestration, reside with each court unit. Allowing individual court units to set their own funding priorities under sequestration is consistent with the decentralized structure of the federal court system and long established Judiciary budget execution policies. I have, however, urged courts to delay implementation of any involuntary personnel actions, such as furloughs or terminations, until April when we hope to have a clearer picture of full-year funding for fiscal year 2013. I hope this letter has provided you with insight into the actions we are taking to address sequestration as well as the devastating impact the cuts will have on the administration of justice in this country. This letter is being provided in similar form to the chairman and ranking minority member of the House and Senate Judiciary Committees and to the chairman and ranking minority member of the House and Senate Appropriations Committees and their relevant subcommittees. If you require any additional information, please contact our Office of Legislative Affairs. Sincerely, Thomas F. Hogan, Director. Enclosure. ____________________