The Honorable Patrick Leahy

United States Senator
Vermont
May 15, 2008

STATEMENT OF SENATOR PATRICK LEAHY
CHAIRMAN, SENATE JUDICIARY COMMITTEE
OPENING STATEMENT
EXECUTIVE BUSINESS MEETING
MAY 15, 2008

The Ranking Member and I have urged Senators to get here on time. The Peace Officers Memorial Service is this morning, and I will need to adjourn this session at 11. As I said last week, we were planning to hold this meeting in the afternoon. With the Appropriations Committee now scheduled to markup the emergency supplemental at 2 p.m. today, and with a number of our members also needing to attend that meeting, I scheduled this business meeting this morning so that the Judiciary Committee can make progress on pending legislation, and on a circuit court nomination of President Bush.

Last week we were unable to make progress on anything other than the Police Memorial Day Resolution, the Military Personnel Citizenship Processing Act and the bill to grant a Federal charter to the Military Officers Association of America.

This week we return to the items held over from our last meeting. We meet during National Police Week, and on Peace Officers Memorial Day. Today we honor and remember the 181 officers who died in the line of duty during the last year and their families. This week, we also held a hearing on the Bulletproof Vest Partnership Grant Act, and heard from an officer from Baltimore whose life was saved by his body armor when he was shot at point blank. We also heard from an officer from my home state of Vermont about the importance of this program. On our agenda today is the bill Senator Shelby and I introduced to provide discretionary authority with respect to matching requirements. Earlier this week I joined with Senator Specter, Senator Hatch and others to introduce a three-year extension of the program. I will offer that as an amendment to the Leahy-Shelby bill, and urge all Senators to support our efforts to protect those who risk their lives protecting all Americans.

Last week Senator Hatch and I circulated a substitute to our copyright bill, the Shawn Bentley Orphan Works Act, S.2913. I hope that we can consider and report that today.

We have legislation to establish a Congressional badge of bravery. I thank Senator Biden for working with us to meet the concern that state and local peace officers are eligible for this award.

We have the Federal Judgeships Act that will allow additional judgeships in states, including those represented by Senators on this Committee, where the Federal courts are hard-pressed to meet their increased work loads. As I have been saying for some time, I think the time to pass this legislation is now, before anyone knows who the next President will be. The Senate has not considered a comprehensive judgeship bill since 1990. Prior to President Clinton's election, we had reviewed and sought to meet the needs of the Federal judiciary every six years. It has now been 18 years, and action is overdue. This matter has been listed for several weeks and it is time we moved forward with it.

We also have a number of bills that Senator Biden has been working on, the National Advocacy Center authorization that Senators Cardin and Graham have put forward and the Runaway and Homeless Youth Act reauthorization following our hearing on those issues last month. I would like to make progress where we can, and also debate and vote on the judicial nomination on our agenda today.

With that brief opening, I turn to the Ranking Member for his brief opening remarks and then will turn to the agenda.

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Statement of Chairman Patrick Leahy
Senate Judiciary Committee
On Nomination of Steven Agee to the Fourth Circuit
May 15, 2008

Today we have again on our agenda the nomination of Justice Steven Agee of Virginia to fill a vacancy listed as a judicial emergency on the United States Court of Appeals for the Fourth Circuit, a nomination that was held over at last week's meeting. I thank Senator Cardin for chairing the hearing on this nomination.

I have commended President Bush for his nomination of Justice Steven Agee of Virginia to the Fourth Circuit. Justice Agee's nomination to a long vacant Fourth Circuit seat from Virginia is the result of a breakthrough with the White House that affords us the opportunity to be productive, even in an election year, after years of contentiousness. This nomination is a result of the good work of Senators Warner and Webb.

In contrast to the Republican Senate majority that more than doubled circuit court vacancies under President Clinton, we have reduced circuit vacancies by almost two-thirds, reduced them in nearly every circuit, and five circuits are now without any vacancies. When Justice Agee is confirmed as a Federal circuit judge, the Fourth Circuit will have fewer vacancies than at the end of the Clinton administration.

By turning today to the Agee nomination, we make progress. The alternative approach being urged upon us by some would lead, instead, to more contentiousness. President Bush had until very recently insisted on confrontation by nominating Jim Haynes, Claude Allen and Duncan Getchell from Virginia. Each was controversial. The most recent nominee, Mr. Getchell, was nominated over the objections of both home state Senators, a Republican and a Democrat. Those Senators had sought to work with the White House and provided the administration with a number of recommended candidates. When the President nonetheless insisted on nominating Mr. Getchell, that nomination did not have their support. It was ultimately withdrawn. That misadventure resulted in the vacancy continuing for many months, if not another year.

That delay came on top of the years we wasted on the highly controversial and failed nomination of William "Jim" Haynes II to the Fourth Circuit. As General Counsel at the Department of Defense, he was the architect of many discredited policies on detainee treatment, military tribunals, and torture. Mr. Haynes never fulfilled the pledge he made to me under oath at his hearing to supply the materials he discussed in an extended opening statement regarding his role in developing these policies and their legal justifications.

The Haynes nomination led the Richmond Times-Dispatch to write an editorial in late 2006 entitled, "No Vacancies," about the President's counterproductive approach to nominations in the Fourth Circuit. The editorial criticized the administration for pursuing political fights at the expense of filling vacancies. According to the Times-Dispatch, "The president erred by renominating . . . and may be squandering his opportunity to fill numerous other vacancies with judges of right reason."

The Times-Dispatch editorial focused on the renomination of Mr. Haynes, but could just as easily have been written about other controversial Fourth Circuit nominees. The President insisted on nominating and renominating Terrence Boyle over the course of six years to a North Carolina vacancy on the Fourth Circuit. This despite the fact that as a sitting United States District Judge and while a circuit court nominee, Judge Boyle ruled on multiple cases involving corporations in which he held investments. The President should have heeded the call of North Carolina Police Benevolent Association, the North Carolina Troopers' Association, the Police Benevolent Associations from South Carolina and Virginia, the National Association of Police Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as well as the advice of Senator John Edwards. Law enforcement officers from North Carolina and across the country opposed the nomination. Civil rights groups opposed the nomination. Those knowledgeable and respectful of judicial ethics opposed the nomination. This President persisted for six years before withdrawing the Boyle nomination.

I mention these ill-advised nominations because so many Republican partisans seem to have forgotten this recent history and why there are continuing vacancies on the Fourth Circuit. The efforts and years wasted on President Bush's controversial nominations followed in the wake of the Republican Senate majority's refusal to consider any of President Clinton's Fourth Circuit nominees. All four nominees from North Carolina to the Fourth Circuit were blocked from consideration by the Republican Senate majority. These outstanding nominees included United States District Court Judge James Beaty, Jr., United States Bankruptcy Judge J. Richard Leonard, North Carolina Court of Appeals Judge James Wynn and Professor Elizabeth Gibson. The failure to proceed on these nominations has yet to be explained. Had either Judge Beaty or Judge Wynn been considered and confirmed, he would have been the first African-American judge appointed to the Fourth Circuit.

In contrast, I worked with Senator Edwards to break through the impasse and to confirm Judge Allyson Duncan of North Carolina to the Fourth Circuit when President Bush nominated her. I worked to reduce Federal judicial vacancies in North Carolina by confirming three judges last year -- Judge Schroeder, Judge Reidinger and Judge Osteen. Previously during the Bush administration, I cooperated in the confirmation of Judge Whitney, Judge Conrad, Judge Dever, Judge McKnight and Judge Flanagan. That totals nine Federal judges in North Carolina including a Fourth Circuit judge during the Bush Presidency. By contrast, during the entire eight years of the Clinton administration, one district court judge was allowed to be confirmed in North Carolina.

We have also made progress in South Carolina. Senator Graham follows Senator Thurmond as South Carolina's representative on the Judiciary Committee. Despite the controversy that accompanied the nomination of Judge Dennis Shedd, and my own opposition to it, I presided as chairman when we considered that nomination and when the Senate granted its consent. I also presided over consideration of the nomination of Terry Wooten. More recently, we acted favorably on the nominations of Harvey Floyd and Robert Bryan Harwell.

While I chaired the Senate Judiciary Committee from the summer of 2001 to the end of 2002, I presided over the consideration and confirmation of three Fourth Circuit judges nominated by President Bush. All together, President Bush has already appointed five judges to the Fourth Circuit. By contrast, President Clinton was allowed by Senate Republicans to appoint three and left office with five vacancies existing on that court.

Of course, during the Clinton administration, Republican Senators argued that the Fourth Circuit vacancies did not need to be filled because the Fourth Circuit had the fastest docket time to disposition in the country. If the Agee nomination is confirmed, as I expect it will be, the Fourth Circuit will have fewer vacancies than it did when Republicans claimed no more judges were needed.

I am sure there are some who prefer partisan fights designed to energize a political base during an election year, but I do not. Under the Republican Senate majority during the Clinton administration, circuit court vacancies more than doubled, rising from 12 to 26 during the last five years of the Clinton administration. Those circuit vacancies grew to 32 during the transition to the Bush administration. We have been able to reverse that and reduce circuit vacancies by almost two-thirds. Today, there are just 12 circuit court vacancies across the nation, instead of 32, and there are fewer circuit court vacancies than at any time since the 1996 session.

We stand poised to reduce circuit court vacancies even lower and possibly reducing it to single digits for the first time in decades. Last week, we held a hearing for two nominations to fill judicial emergency vacancies on the Sixth Circuit, Judge Helene White and Ray Kethledge. As with the Agee nomination, these nominations provide an opportunity not only to further reduce vacancies, but also to end a longstanding impasse.

I have urged the President to work with the Michigan Senators, and, after seven years, he finally has. Last month our extensive efforts culminated in a significant development that, unless partisanship interferes, can lead to filling the last two vacancies on the Sixth Circuit before this year ends. This accomplishment stands in sharp contrast to the actions of Senate Republicans who refused to consider any nomination to the Sixth Circuit Court of Appeals during the last three years of the Clinton administration. Ultimately, the Republican-led Senate left open four vacancies on that circuit.

In fact, our work has led to a reduction in vacancies in nearly ever circuit. We have lowered vacancies in the Second Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, the D.C. Circuit and the Federal Circuit. Both the Second and Fifth Circuits had circuit-wide emergencies due to the multiple simultaneous vacancies during the Clinton years with Republicans in control of the Senate. Both the Second Circuit and the Fifth Circuit now are without a single vacancy. Circuits with no vacancies also include the Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the Eleventh Circuit and the Federal Circuit. That is five circuits without a single vacancy due to our efforts. The Sixth Circuit is poised to join them after our recent breakthrough if we focus on finishing the job.

Indeed, only one circuit has more vacancies than it did at the end of the Clinton administration and that is a circuit that has but a single vacancy. The other three circuits, the Third, the Fourth and the Seventh have the same number of vacancies today as there were at the end of the Clinton administration. When we confirm the Agee nomination, even the Fourth Circuit will be in an improved posture.

We have wasted too much valuable time that could be spent on the real priorities of ordinary Americans in disputes over a handful of controversial nominees. I am determined to prioritize progress and focus the Committee on those nominations on which we can make progress and, in particular, on those in which the White House has finally begun to work with the Senate.

The alternative is to risk becoming embroiled in contentious debates for months and thereby foreclose the opportunity to make progress where we can. The most recent controversial Bush judicial nomination took five and one-half months of debate after a hearing before Senate action was possible. We also saw what happened during the last several months of the last Congress, which was not even a presidential election year. There were many hearings on many controversial nominations. That resulted in a great deal of effort and conflict but not in as many confirmations as might have been achieved. I prefer to make progress where we can and to work together to do so.

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Statement of Chairman Patrick Leahy
Committee on the Judiciary
On S. 2913, the Shawn Bentley Orphan Works Act of 2008
Executive Business Meeting
May 15, 2008

The Shawn Bentley Orphan Works Act of 2008, S. 2913, is the culmination of the work that began when an intellectual property staff member for Senator Hatch, and one of my own staff members, began talking about the problems with "orphan works" -- potentially copyrighted works whose copyright owners cannot be found. Because potential users of the works fear paying huge statutory damages awards if the copyright owner emerges, these works have generally remained unused, and so the public is deprived of the benefit of seeing them, and any existing copyright owners are deprived of licensing fees.

In 2005, Senator Hatch and I asked the Copyright Office to conduct a study and propose legislative solutions. After conducting a series of roundtables, and receiving over 800 comments on the problem of orphan works, the Copyright Office issued a thoughtful, detailed report in January 2006.

Since then, Senator Hatch and I have worked diligently to craft legislation that balances the interests of copyright owners and potential users. Our bill strikes the right balance: if users conduct diligent searches in good faith for copyright owners, and cannot locate the owners, they may use the orphan works. If a copyright owner later appears, the user must pay the owner reasonable compensation and stop using the work. Importantly, if a user fails to conduct a good faith, diligent search, or fails to negotiate reasonable compensation in good faith, then all the statutory remedies still apply.

We have recently heard some suggestions to improve the bill while staying true to its objectives. We incorporated many of these thoughts into a managers' amendment, which strengthens and streamlines the requirements for a qualifying search and clarifies the eligibility provisions. At Senator Specter's request, and having heard from other members of the Committee, the managers' amendment also creates an exemption for works on useful articles.

And, at Senator Feinstein's request, we have amended the effective date provision and tightened the database certification language.

I am particularly pleased that the Register of Copyrights has expressed her strong support for this legislation and the balance it providers. I have also received letters of support for S. 2913 from the Motion Picture Association of America, the Software and Information Industry Association, the Association of American Publishers, the Recording Industry Association of America, Public Knowledge, and the College Art Association, among others. I ask that all of these letters be made part of the record.

I understand that Senator Brownback may offer an amendment related to public performances on Internet radio. I have a strong interest in this issue, as does Senator Feinstein and others. It is an important issue, and one on which we can have a full discussion in the larger context of public performance issues.

While I do not believe that the Committee's debate on this legislation is the appropriate venue for debate on Internet radio, I respect the Senator's interest in this issue.

I thank Senator Hatch for all his help in developing orphan works legislation, and I am proud to continue our partnership on intellectual property issues with such an important bill. I hope the Committee will approve this bill today, and we can bring the matter to the full Senate.

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Statement of Senator Patrick Leahy
Chairman, Senate Committee on the Judiciary
On S. 2511, to Grant Matching Fund Waivers for the
Bulletproof Vest Partnership Grant Program
Executive Business Meeting
May 15, 2008

Today is Peace Officers Memorial Day, and I am glad the Committee is considering legislation that helps support and honor our Nation's law enforcement officers. We do not thank our Nation's law enforcement officers enough for the sacrifices they make in order to protect all of us. They help make our democracy possible. The legislation we are moving forward today helps protect and honor our here-at-home, day-in-and-day-out, real-life heroes.

I am proud to sponsor one of the bills we are considering today along with Senators Shelby, Mikulski, Clinton, Landrieu, Cardin, and Durbin. S. 2511 provides authority to the Director of the Bureau of Justice Assistance to waive the grant matching requirement in the Bulletproof Vest Partnership Grant Program for jurisdictions that are experiencing fiscal hardship. The legislation is intended to address those jurisdictions that have suffered a natural disaster or severe budget shortfalls, and give them a way to keep their officers protected, regardless of whether it can meet the law's matching requirement. If a jurisdiction cannot meet this requirement, it is unlikely it can afford to purchase vests on its own.

I do not wish to return to the days when law enforcement officers were required to purchase their own vests or go without. I think that with tighter budgets and a troubled economy, it makes sense to give the Bureau of Justice Assistance the authority and the flexibility to ensure that no jurisdiction is excluded from such critical assistance simply because it cannot afford to meet the matching requirements.

I am also proud to offer an amendment to the bulletproof vest waiver bill to include the reauthorization of the Bulletproof Vest Partnership Grant Act for three years. We learned in a Committee hearing this week just how crucial this program is for our law enforcement officers. I would like to again thank Vermont State Police Lieutenant Michael Macarilla and Detective David Azur, formerly of the Baltimore Police Department, for sharing their experience with the program. Detective Azur was shot during the course of an arrest, and survived because he was wearing a bulletproof vest. Detective Azur's story is precisely why I and others have so strongly supported this grant program over the years, and why I intend to work hard to keep it going.

Today we are also considering legislation that creates a Congressional Badge of Bravery for Federal, State and local law enforcement officers. I thank Senator Biden and Congressman Ellsworth for their hard work on this legislation.

We do not thank our Nation's law enforcement officers enough for the sacrifices they make in order to protect all of us. I hope the Senate moves swiftly to pass these important bills.

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