Senate Judicial Responsibility

This week Senate Democrats were successful in blocking a confirmation vote on three superb Circuit Court nominees – Priscilla Owen, Miguel Estrada, and William Pryor. They most likely would have been successful in blocking a fourth – Carolyn Kuhl to the Ninth Circuit – had the vote on cloture not been vitiated last night. Instead, Ms. Kuhl must wait until September to see what will happen to her career.

Unfortunately, the Americans within the jurisdictions of the various circuits to which those people were nominated are the ones who will suffer the most. Three of these four nominations that the Left is blocking have been declared “judicial emergencies.” Only Miguel Estrada’s nomination to the D.C. Circuit is not so labeled.

One would hope that Democrats, seeing the judicial emergencies that exist, might take a deep breath and end their judicial blockade, especially before leaving for a long August recess. It seems only fair that before the Senators leave for their summer break they might try to confirm a few nominations that are considered emergencies.

The truth is that when Clinton was in the White House Democrats were arguing that exact point. Today, they sing a different tune and actively work to keep the Senate from doing its constitutional duty to vote on judicial nominations.

On April 2, 1998, Sen. Patrick Leahy (D.-Vt.) introduced the “Judicial Emergency Responsibility Act” (S. 1906). The bill was created to force Senate action, prior to an extended recess, on any Circuit Court nominations that had been pending for at least two months and had been labeled “judicial emergencies.” The language of the bill, amending section 46 of title 28 of the U.S. Code, was as follows:

“(e) Action by Senate Required. – The Senate shall not recess during a session for more than 9 days without first voting on a judicial nomination in any case in which – (1) the nomination to fill the judiciary vacancy in the affected circuit court has been pending before the Senate for a period of 60 days or longer; and (2) a judicial emergency is declared pursuant to subsection (b) due to vacancies on the affected circuit court.”

The day he introduced the bill, Sen. Leahy let it be known that he considered it vital for the Senate to consider pending judicial nominations — especially those to the circuit courts — expeditiously. On the Senate Floor Leahy said, “The purpose of this bill is . . . to require the Senate to do its duty and to act on judicial nominations before it recesses for significant stretches of time when a Circuit Court is suffering from a vacancy emergency.”

Had Leahy’s “Judicial Emergency Responsibility Act” been enacted, the Senate Democrats would have spent this week prior to their month-long recess confirming some important nominees rather than preventing them from receiving an up-or-down vote.

If Sen. Leahy truly believed what he said back in 1998, if those where his true convictions, then Pricilla Owen, nominated to the 5th Circuit back on May 9, 2001, William Pryor, nominated to the 11th Circuit on April 9, 2003, and Carolyn Kuhl, nominated to the 9th Circuit on June 22, 2001 (all three have been declared “judicial emergencies) would have received honest Senate consideration and, by all accounts, would be serving the nation on the federal bench today.

Instead, they are languishing and so are the people covered by those circuits.

(This article was adapted from a paper I wrote while at the Republican Policy Committee.)



  • Sen. Leahy’s Introduction of S. 1906 (Congressional Record, pages S3122-S3123)
  • GPO Text of S. 1906, the Judicial Emergency Responsibility Act
  • Dept. of Justice: Judicial Nominations Information
  • Dept. of Justice: Full List of Judicial Nominations
  • Dept. of Justice: Carolyn Kuhl Biography
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