WASHINGTON – The U.S. Senate yesterday unanimously confirmed Judge Denny Chin to the U.S. Court of Appeals for the Second Circuit, as Democrats continued to inch through a backlog of judicial nominees.
The confirmation removes some of the pressure from the busy Second Circuit, which faced the prospect of as many as five vacancies among its 13 active judgeships.
Judge Chin will be elevated from the U.S. District Court for the Southern District of New York, where he drew national attention for sentencing financier Bernard Madoff to 150 years in prison for orchestrating a massive Ponzi scheme. Born in Hong Kong, Judge Chin will be the only active Asian-American judge on a federal appellate court.
The 98-0 vote came six months after Judge Chin’s nomination by President Barack Obama despite anonymous objections to scheduling a confirmation vote for Mr. Obama’s picks. The Senate Judiciary Committee endorsed Judge Chin’s nomination Dec. 10.
Before the vote, Senate Judiciary Commitee Chairman Patrick Leahy, D-Vermont, said the nomination, which he characterized as noncontroversial, had been stalled by anonymous objections.
“This long delay is unfortunately part of a pattern of Republican obstructionism that we have seen since President Obama took office,” he said.
Mr. Obama has nominated four candidates to the Second Circuit bench. Judge Gerard Lynch was nominated on April 2, 2009, and confirmed on Sept. 17. Still pending are the nominations of Southern District Assistant U.S. Attorney Raymond Lohier Jr. and Connecticut District Judge Robert N. Chatigny. Mr. Lohier’s confirmation hearing was scheduled for yesterday afternoon.
Following the decision of four judges last year to take senior status, plus the elevation of Sonia Sotomayor to the U.S. Supreme Court, the Second Circuit faced five vacancies, the most since a stretch in the 1990s, when five vacancies dragged on, prompting then-Chief Judge Ralph K. Winter to certify a judicial emergency, which allowed the staffing of panels with only one circuit judge and two outside judges sitting by designation.
With the confirmations of Judges Lynch and Chin, Senate approval of Mr. Lohier and Judge Chatigny would fill two the three remaining vacancies on the court.
All of the vacancies in the Second Circuit have been designated as “judicial emergencies,” Mr. Leahy noted. The Judicial Conference has counted 920 “adjusted filings per panel,” compared with a threshold for emergencies of 700.
However, despite that designation, the situation is not as bad as it was in the 1990s.
Second Circuit Chief Judge Dennis Jacobs said yesterday he has refrained from certifying an emergency.
“We’ve been in a bad way with these vacancies but the White House has acted with dispatch in coming forward with nominations,” Judge Jacobs said. “And I anticipate that I will have in the coming term a near full complement of judges and a goodly number of vigorous and busy senior judges and that ought to be enough to get our work done the way we want it done.”
The circuit is also getting a bit of breather on its caseload following an aggressive push to clear a huge backlog of immigration appeals and declining filings.
In the 12-month period ending Sept. 30, appeals filed with the Second Circuit dropped to 5,747 from 6,904, a decline of just over 12 percent.
No Republicans commented about Judge Chin’s nomination although, in written questions they sent him last year, two of the Senate’s most conservative senators expressed some concerns.
Senator Jeff Sessions of Alabama, the Judiciary Committee’s top Republican, and Senator Tom Coburn, R-Okla., asked Judge Chin about his rulings that struck down registration for sex offenders. The Second Circuit reversed the judge, they noted. Judge Chin’s rulings came in Doe v. Pataki, 919 F. Supp. 691 (1996); Doe v. Pataki, 940 F. Supp. 603 (1996); Doe v. Pataki, 439 F. Supp. 2d 324 (2006).
“I am concerned,” Mr. Coburn wrote in one question, “that you may have an extreme view of the law that places greater weight in favor of the perpetrators of sexual assault rather than their victims and the communities in which they may live.”
Judge Chin replied that he accepted the reversals.
“These were difficult issues, and although it reversed me, the Second Circuit commented that I had written a ‘thoughtful decision,’” he wrote. (Read Judge Chin’s written response.)
Mr. Sessions also asked Judge Chin about his comments at his confirmation hearing praising diversity in the judiciary. And he asked Judge Chin about a 2003 speech in which the judge said he was a “judicial activist” in the sense of trying “to get out there, to be seen and heard.” Judge Chin replied that race and ethnicity have no role in decision-making and that he believes in judicial restraint.
Judge Chin has been a federal district judge since 1994. He was previously a partner at New York’s Vladeck, Waldman, Elias & Engelhard and a name partner at Campbell, Patrick & Chin. From 1982 to 1986, he was an assistant U.S. attorney in the Southern District. He started his career as an associate at Davis Polk & Wardwell after graduating from Fordham University School of Law.
Three other judges were confirmed this week. Yesterday the Senate voted 77-20 to confirm Judge Thomas Vanaskie to the Third Circuit, and it confirmed Marisa Demeo and Stuart Nash to the D.C. Superior Court.