[Congressional Record Volume 143, Number 36 (Wednesday, March 19, 1997)]
[Senate]
[Pages S2515-S2538]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Privilege of the Floor
Madam President, if I might just for a moment, I ask unanimous
consent that Tom Perez of Senator Kennedy's staff be granted floor
privileges.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I ask unanimous consent that a number of
letters I referred to be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State of Oklahoma,
Office of the Governor,
Oklahoma City, OK, February 19, 1996.
Senator Bob Dole,
U.S. Senate, Washington, DC.
Senator Dole: I endorse Merrick Garland for confirmation to
the United States Court of Appeals for the D.C. Circuit.
Merrick will be a solid addition to this esteemed court.
A Harvard Law School graduate in 1977, a former Assistant
United States Attorney and a former partner in Washington's
Arnold and Porter Law Firm, Merrick will bring an array of
skills and experience to this judgeship. Merrick is further
developing his talents and enhancing his reputation as the
Principle Associate Deputy Attorney General.
Last April, in Oklahoma City, Merrick was at the helm of
the Justice Department's investigation following the bombing
of the Oklahoma City Federal Building, the bloodiest and most
tragic act of terrorism on American soil. During the
investigation, Merrick distinguished himself in a situation
where he had to lead a highly complicated investigation and
make quick decisions during critical times.
Merrick Garland is an intelligent, experienced and
evenhanded individual. I hope you give him full consideration
for confirmation to the United States Court of Appeals for
the D.C. Circuit.
Sincerely,
Frank Keating,
Governor.
____
Office of the Governor,
Des Moines, IA, October 10, 1995.
Senator Charles E. Grassley,
Hart Senate Office Building, Washington, DC.
Dear Chuck: I am writing to ask your support and assistance
in the confirmation process for a second cousin, Merrick
Garland, who has been nominated to be a judge on the U.S.
Court of Appeals for the District of Columbia.
Merrick Garland has had a distinguished legal career. He
was a partner for many years in the Washington law firm of
Arnold and Porter. During the Bush Administration, Merrick
was asked by Jay Stephens, the U.S. Attorney for the District
of Columbia, to take on a three year stint as an Assistant
U.S. Attorney. As I'm sure you know, Jay Stephens is the son
of Lyle Stephens, the Representative from Plymouth County
that we served with in the Iowa Legislature.
Recently, he has been overseeing the federal investigation
and prosecution efforts in the Oklahoma City bombing, having
been sent there the second day after the blast occurred. He
was serving in the position as principal Associate Deputy
Attorney General.
I am enclosing a number of news clippings about Merrick
Garland. I would especially encourage you to review the Legal
Times and article entitled: Garland, A Centrist Choice.
As always, I appreciate all of your efforts. Hope all is
going well for you.
Sincerely,
Terry E. Branstad,
Governor of Iowa.
____
O'Melveny & Myers,
Washington, DC, October 11, 1995.
Hon. Orrin G. Hatch,
Chairman, Senate Committee on the Judiciary, U.S. Senate,
Russell Senate Office Building, Washington, DC.
Dear Orrin: As you know, President Clinton has nominated
Merrick B. Garland, Esquire, to fill the judicial vacancy on
the United States Court of Appeals for the District of
Columbia Circuit caused by the retirement of Chief Judge
Mikva.
I write this letter to indicate my full support and
admiration of Mr. Garland and urge that you soon have a
hearing of the Senate Committee on the Judiciary and
thereafter support him to fill the vacancy.
Mr. Garland has a first-rate legal mind, took magna cum
laude and summa cum laude advantages of education at Harvard
College and Harvard Law School. In private practice, he
became and has the reputation of being an outstanding
courtroom lawyer. In addition, on several occasions, he
satisfied his urge to be a public servant by two law
clerkships, one for Mr. Justice William J. Brennan and the
other for the late Judge Henry J. Friendly. He has also
served in the Justice Department on several occasions. I have
known Merrick Garland as a lawyer and as a friend and greatly
admire his personal integrity, learning in the law and his
desire to be a great public servant. His legal, social and
political views are those most Americans admire and are well
within the fine hopes and principles of this country, which
you have often expressed in conversations with me as to the
type of person you would like to see on the federal
judiciary, particularly on the appellate courts.
I first got to know Mr. Garland when he was Special
Assistant to Deputy and then Attorney General Civiletti, as
my daughter, Lovida, Jr., was the other Special Assistant. I
still see him and his wife from time to time and they are the
type of Americans whom I greatly admire.
As is stated at the outset of this letter, I hope you will
see to it that Mr. Garland soon has his hearing and that you,
at and after the hearing, will actively support him for
confirmation. If you have any questions, please give me a
call and I will walk over to see you.
Take care.
Sincerely,
William T. Coleman, Jr.
____
Venable, Baetjer and Howard, llp,
Baltimore, MD, September 7, 1995.
Re Merrick B. Garland.
Hon. Barbara A. Mikulski,
U.S. Senate, Hart Senate Office Bldg., Washington, DC.
Dear Senator Mikulski: I just wanted to call your attention
to the fact that Merrick B. Garland has been nominated by
President Clinton for appointment to the United States Court
of Appeals for the DC Circuit.
Merrick is an outstanding lawyer with a very distinguished
career both in private practice at Arnold & Porter and in
government service, first as a special assistant to me when I
was Attorney General and then later as an Assistant United
States Attorney for the District and, most recently, as Chief
Associate Deputy Attorney General to Jamie Gorelick.
Additionally, his academic background was outstanding,
culminating in his clerkship to Supreme Court Justice
Brennan. In every way, he is a superb candidate for that
bench, and I just wanted you to know of my personal
admiration for him.
Kindest regards.
Sincerely,
Benjamin R. Civiletti.
____
McGuire Woods, Battle & Boothe, III,
Washington, DC, October 16, 1995.
Re Nomination of Merrick B. Garland to the U.S. Court of
Appeals for the District of Columbia Circuit.
Hon. Orin G. Hatch,
Chairman, United States Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Hatch: I have been asked to express my views
to you on Merrick Garland's nomination to sit on the Federal
Court of appeals in the District of Columbia. First, I
believe Mr. Garland is an accomplished and learned lawyer and
is most certainly qualified for a seat on this important
bench. Second, my experience with Mr. Garland leads me to the
conclusion that he would decide cases on the law based on an
objective and fair analysis of the positions of the parties
in any dispute. Third, I perceive Mr. Garland as a man who
believes and follows certain principles, but not one whose
philosophical beliefs would overpower his objective analysis
of legal issues.
I know of no reason to suggest that the President's choice
for his vacancy on the Court of Appeals should not be
confirmed. As you, of course, have demonstrated during your
tenure as Chairman, the President's nominees are his choices
and are entitled to be confirmed where it is clear that th4e
nominee would be a capable and fair jurist. I believe Mr.
Garland meets that criteria and support favorable
consideration of his nomination.
Sincerely yours,
George J. Terwilliger, III.
____
Jones, Day, Reavis & Pogue,
Washington, DC, October 10, 1995.
Re Merrick B. Garland.
Senator Orrin G. Hatch,
U.S. Senate, Senate Russell Office Building, Washington, DC.
Dear Senator Hatch: I first met Merrick Garland in the mid-
1970's, when we overlapped as students at the Harvard Law
School. While I have not known him well, I have been well
aware that his academic background is impeccable, and that he
is reputed to be a very bright, highly effective and
understated lawyer.
During January of 1994, while he was serving in the
Department of Justice, I had occasion to deal with him
directly on a matter of some public moment and sensitivity. I
was struck by the thoroughness of his preparation, the depth
of his understanding of the matters in issue, both factural
and legal, and his ability to express himself simply and
convincingly. I was still more impressed with his comments,
from obvious personal conviction, on the essential role of
honesty, integrity, and forthrightness in government.
Our discussions at that time were followed by further
conversations on several later occasions. I have also had an
opportunity to
[[Page S2520]]
observe from a distance his performance in the Department and
to discuss that performance with people closer to the scene.
I am left with a distinct impression of him as a person of
great skill, diligence, and sound judgment, who is driven
more by a sense of public service than of personal
aggrandizement.
My own service in the Justice Department during the last
two Republican Administrations convinced me that government
suffers greatly from a shortage of people combining such
exceptional abilities with a primary drive to serve interests
beyond their own. Merrick Garland's nomination affords the
Senate chance to place one such person in a position where
such impulses can be harnessed to the maximum public good. I
hope that the Senate will seize that opportunity.
Very Truly Yours,
Donald B. Ayer.
____
Shaw, Pittman, Potts & Trowbridge,
Washington DC, November 9, 1995.
Hon. Orrin Hatch,
Chairman, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Senator Hatch: I write to express my support for
President Clinton's nomination of Merrick Garland to the
position of circuit Judge of the United States Court of
Appeals for the District of Columbia. I've known Merrick
since 1978, when we served as law clerks to Supreme Court
Justices--he for Justice Brennan and I for Justice (now Chief
Justice) Rehnquist. Like our respective bosses, Merrick and I
disagreed on many legal issues. Still, I believe that Merrick
possesses the qualities of a fine judge.
You are no doubt well aware of the details of Merrick's
background as a practicing lawyer, a federal prosecutor, a
law teacher, and now a high-ranking official of the
Department of Justice. This varied background has given
Merrick a breadth and depth of legal experience that few
lawyers his age can rival, and he has distinguished himself
in all of his professional pursuits. He is a man of great
learning, not just in the law, but also in other disciplines.
Not only is Merrick enormously gifted intellectually, but he
is thoughtful as well, for he respects other points of view
and fairly and honestly assesses the merits of all sides of
an issue. And he has a stable, even-tempered, and courteous
manner. He would comport himself on the bench with dignity
and fairness. In short, I believe that Merrick Garland will
be among President Clinton's very best judicial appointments.
Sincerely,
Charles J. Cooper.
____
Washington, DC, November 25, 1995.
Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee, Senate Dirksen
Building, Washington, DC.
Dear Mr. Chairman: I write with regard to the nomination of
Merrick Garland to the Court of Appeals for the District of
Columbia.
I have known Mr. Garland since 1990 when he was an
Assistant United States Attorney and I was the Assistant
Attorney General for the Criminal Division in the Department
of Justice. Over the Years I have had occasion to see his
work in several cases.
Based both on my own observations and on his reputation in
the legal community, I believe him to be exceptionally
qualified for a Circuit Court appointment. Throughout my
association with him I have always been impressed by his
judgment. Most importantly, Mr. Garland exemplifies the
qualifies of fairness, integrity and scholarship which are so
important for those who sit on the bench.
If I can be of any further assistance, please do not
hesitate to call me.
Sincerely,
Robert S. Mueller, III.
____
Pillsbury Madison & Sutro,
Washington, DC, November 28, 1995.
Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Hon. Charles E. Grassley,
Chairman, Senate Judiciary Subcommittee on Administrative
Oversight and the Courts, Hart Senate Office Building,
Washington, DC.
Dear Senator Hatch and Grassley: I am writing with respect
to the nomination of Merrick Garland to serve as a judge on
the United States Court of Appeals for the District of
Columbia Circuit. I understand you have significant
reservations about filling the existing vacancy on the
District of Columbia Circuit at this time. In the event you
consider filling the vacancy at this time, I commend Merrick
Garland for your consideration.
I have known Mr. Garland for nearly ten years. We met
initially during my service as Deputy Counsel to the
President while Mr. Garland was assisting in an Independent
Counsel investigation. During the course of that contact, I
was impressed with Mr. Garland's professionalism and
judgment. After I was appointed United State Attorney for the
District of Columbia, Mr. Garland expressed to me an interest
in gaining additional prosecutorial experience, and applied
for a position as an Assistant United States Attorney. I
hired Mr. Garland for my staff, and initially assigned him to
a narcotics unit where he had an opportunity to assist in
investigating a number of significant cases and to gain
valuable trial experience. Mr. Garland quickly established
himself as a dedicated prosecutor who was willing to handle
the tough cases. He conducted thorough investigations, and
became a skilled trial attorney.
Subsequently, after gaining significant trial experience,
Mr. Garland was assigned to the Public Corruption section of
the U.S. Attorney's Office. There he had an opportunity to
investigate and try a number of complex, sensitive cases. In
the Public Corruption section, Mr. Garland demonstrated an
excellent capacity to investigate complex transactions, and
approached these important cases with maturity and balanced
judgment. He was thorough and thoughtful in exercising his
responsibility, and he always acted in accord with the
highest ethical and professional standards.
During his service as an Assistant United State Attorney,
Mr. Garland distinguished himself as one of the most capable
prosecutors in the Office. He brought to bear a number of
outstanding talents. He was bright. He had the intellectual
capacity to parse complex transactions. He built sound
working relationships with agents and staff based on mutual
respect. He was willing to work hard to get the job done. He
was dedicated to his job. He exercised sound judgment, and
approached his work with professionalism and thoughtfulness.
He exhibited excellent interpersonal skills, and was
delightful to work with. In sum, his service as an Assistant
United States Attorney was market by dedication, sound
judgment, excellent legal ability, a balanced temperament,
and the highest ethical and professional standards. These are
qualities which I believe he would bring to the bench as
well.
I appreciate the opportunity to provide these comments for
your consideration.
Sincerely,
Jay B. Stephens.
____
Winston & Strawn,
Chicago, IL, October 10, 1995.
Hon. Orrin G. Hatch,
Chairman of the Judiciary Committee, Russell Senate Office
Building, Washington, DC.
Dear Senator Hatch: It is my understanding that Merrick
Garland's name has been submitted to the Senate Judiciary
Committee to fill a vacancy on the D.C. Circuit Court of
Appeals. Merrick is a very talented lawyer, who has had an
outstanding career in both the private and public sectors.
In particular, he has exhibited exceptional legal abilities
during his recent term of office in the U.S. Department of
Justice. Throughout the United States, Merrick has been
recognized as a person within the Clinton Department of
Justice who is fair, thoughtful and reasonable. He clearly
possesses the ability to address legal issues and resolve
them in a fair and equitable manner.
Accordingly, in my opinion, Merrick will be an outstanding
addition to the D.C. Circuit Court of Appeals, and I strongly
recommend his confirmation by your committee. If you have any
further questions, please do not hesitate to contact me.
Very truly yours,
Dan K. Webb.
____
American Bar Association, Standing Committee on Federal
Judiciary,
Washington, DC, September 21, 1995.
Re Merrick Brian Garland, United States Court of Appeals for
the District of Columbia Circuit.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Hatch: Thank you for affording this Committee
an opportunity to express an opinion pertaining to the
nomination of Merrick Brian Garland for appointment as Judge
of the United States Court of Appeals for the District of
Columbia Circuit.
Our Committee is of the unanimous opinion that Mr. Garland
is Well Qualified for this appointment.
A copy of this letter has been sent to Mr. Garland for his
information.
Sincerely,
Carolyn B. Lamm,
Chair.
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Thank you very much.
I am here today to speak on a subject that is most important to all
of us in America, the Federal judiciary.
I had the honor for 12 years to serve as a U.S. attorney, and during
that time I practiced in Federal court before Federal judges. All of
our cases that were appealed were appealed to Federal circuit courts of
appeals. And that is where those final judgments of appeal were ruled
on. I think an efficient and effective and capable Federal judiciary is
a bulwark for freedom in America. It is a cornerstone of the rule of
law, and it is something that we must protect at all costs. We need to
be professional and expeditious in dealing with those problems.
I must say, however, I do not agree that there has been a stall in
the handling of judges. As Senator Hatch has so ably pointed out, there
were 22 nominations last year, and 17 of those were confirmed. We are
moving rapidly
[[Page S2521]]
on the nominations that are now before the Judiciary Committee.
There is one today I want to talk about, Merrick Garland, because
really I do not believe that that judgeship should be filled based on
the caseload in that circuit, and for no other reason.
But I think it is important to say that there is not a stall, that I
or other Senators could have delayed the vote on Merrick Garland for
longer periods of time had we chosen to do so. We want to have a vote
on it. We want to have a debate on it. We want this Senate to consider
whether or not this vacancy should be filled. And I think it should
not.
Senator Hatch brilliantly led, recently, an effort to pass a balanced
budget amendment on the floor of this Senate. For days and hours he
stood here and battled for what would really be a global settlement of
our financial crisis in this United States. We failed by one vote to
accomplish that goal. But it was a noble goal.
That having slipped beyond us, I think it is incumbent upon those of
us who have been sent here by the taxpayers of America to marshal our
courage and to look at every single expenditure this Nation expends and
to decide whether or not it is justified. And if it is not justified,
to say so. And if it is not justified, to not spend it.
In this country today a circuit court of appeals judge costs the
taxpayers of America $1 million a year. That includes their library,
their office space, law clerks, secretaries, and all the other expenses
that go with operating a major judicial office in America. That is a
significant and important expenditure that we are asking the citizens
of the United States to bear. And I think we ought to ask ourselves, is
it needed?
I want to point out a number of things at this time that make it
clear to me that this judgeship, more than any other judgeship in
America, is not needed. Let me show this chart behind me which I think
fundamentally tells the story. We have 11 circuit courts of appeal in
America. Every trial that is tried in a Federal court that is appealed
goes to one of these circuit courts of appeal. From there, the only
other appeal is to the U.S. Supreme Court. Most cases are not decided
by the Supreme Court. The vast majority of appeals are decided in one
of these 11 circuit courts of appeal.
Senator Grassley, who chairs the Subcommittee on Court
Administration, earlier this year had hearings on the caseloads of the
circuit courts of appeals. He had at that hearing the just recently
former chief judge of the Eleventh Circuit Court of Appeals, which has
the highest caseload per judge in America. Total appeals filed per
judge for the year ending September 30, 1996, was 575 cases per judge.
He also had testifying before that committee Chief Judge Harvey
Wilkinson from the Fourth Circuit Court of Appeals. They are the third
most busy circuit in America. They have 378 cases filed per judge in a
year's time. Both of those judges talked to us and talked to our
committee about their concerns for the Federal judiciary and gave some
observations they had learned.
First of all, Judge Tjoflat, former chief judge of the eleventh
circuit, testified how when the courts of appeals get larger and those
numbers of judges go up from 8, 10, 12, to 15, the collegiality breaks
down. It is harder to have a unified court. It takes more time to get a
ruling on a case. It has more panels of judges meeting, and they are
more often in conflict with one another. It is difficult to have the
kind of cohesiveness that he felt was desirable in a court. Judge
Wilkinson agreed with that.
I think what is most important with regard to our decision today,
however, is what they said about their need for more judges. Judge
Tjoflat, of the eleventh circuit, said even though they have 575
filings per judge in the Eleventh Circuit Court of Appeals, they do not
need another judge. Even Judge Harvey Wilkinson said even though they
have 378 filings per judge in the fourth circuit, they do not need
another judge. He also noted, and the records will bear it out, that
the Fourth Circuit Court of Appeals has the fastest disposition rate,
the shortest time between filing and decision, of any circuit in
America, and they are the third busiest circuit in America. That is
good judging. That is good administration. That is fidelity to the
taxpayers' money, and they ought to be commended for that.
When you look at that and compare it to the situation we are talking
about today with 11 judges in the D.C. circuit, they now have only 124
cases per judge, less than one-fourth the number of cases per judge as
the eleventh circuit has. What that says to me, Madam President, is
that we are spending money on positions that are not necessary.
The former chief judge of the D.C. circuit, with just 123 cases per
judge, back in 1995 said he did believe the 11th judgeship should be
filled but he did not believe the 12th should be filled. As recently as
March of this year, just a few weeks ago, he wrote another letter
discussing that situation. This is what he said in a letter addressed
to Senator Hatch:
You asked me yesterday for my view as to whether the court
needs 11 active judges and whether I would be willing to
communicate that view to other Senators of your committee. As
I told you, my opinion on this matter has not changed since I
testified before Senator Grassley's committee in 1995. I said
then and still believe that we should have 11 active judges.
On the other hand, I then testified and still believe that we
do not need and should not have 12 judges. Indeed, given the
continued decline in our caseload since I last testified, I
believe the case for the 12th judge at any time in the
foreseeable future is almost frivolous, and, as you know,
since I testified, Judge Buckley has taken senior status and
sits part time, and I will be eligible to take senior status
in 3 years. That is why I continue to advocate the
elimination of the 12th judgeship.
So that is the former chief judge of the D.C. circuit saying that to
fill the 12th judgeship would be frivolous, and he noted that there is
a continuing decline in the caseload in the circuit.
Madam President, let me point out something that I think is
significant. Judge Buckley, who is a distinguished member of that court
has taken senior status. But that does not mean that he will not be
working. At a minimum, he would be required as a senior-status judge to
carry one-third of his normal caseload. Many senior judges take much
more than one-third of their caseload. They are relieved of
administrative obligations, and they can handle almost a full judicial
caseload. It does not indicate, because Judge Buckley announced he
would be taking senior status, that he would not be doing any work. He
would still be handling a significant portion of his former caseload. I
think that is another argument we ought to think about.
Finally, the numbers are very interesting with regard to the eleventh
circuit in terms of the declining caseload mentioned by Judge Silberman
in his letter to Senator Hatch. We have examined the numbers of this
circuit and discovered that there has been a 15 percent decline in
filings in the D.C. circuit last year. That is the largest decline of
any circuit in America. It apparently will continue to decline. At
least there is no indication that it will not. If that is so, that is
an additional reason that this judgeship should not be filled.
I think Senator Leahy, the most able advocate for Mr. Garland,
indicated in committee that it would be unwise to use these kinds of
numbers not to fill a judgeship, but it seems to me we have to
recognize that, if you fill a judgeship, that is an appointment for
life. If that judgeship position needs to be abolished, the first thing
we ought to do is not fill it. That is just good public policy. That is
common sense. That is the way it has always been done in this country,
I think. We ought to look at that.
So what we have is the lowest caseload per judge in America,
declining by as much as 15 percent last year, and it may continue to
decline this year. The numbers are clear. The taxpayer should not be
burdened with the responsibility of paying for a Federal judge sitting
in a D.C. circuit without a full caseload of cases to manage.
Let me say this about Mr. Garland. I have had occasion to talk with
him on the phone. I told him I was not here to delay his appointment,
his hearing on his case. I think it is time for this Senate to consider
it. I think it is time for us to vote on it. Based on what I see, that
judgeship should not be filled. He has a high position with the
Department of Justice and, by all accounts, does a good job there.
There will be a number of judgeship vacancies in the D.C. trial judges.
He has been a trial
[[Page S2522]]
lawyer. He would be a good person to fill one of those. I would feel
comfortable supporting him for another judgeship.
Based on my commitment to frugal management of the money of this
Nation, I feel this position should not be filled at this time. I
oppose it, and I urge my colleagues to do so.
The PRESIDING OFFICER. The Senator from Arizona is recognized.
Mr. KYL. Thank you, Madam President. First, let me associate myself
with the remarks of my distinguished colleague from Alabama who has
just spoken. My position is quite the same as his with respect to this
nominee. Certainly, I must begin by saying that I believe Mr. Garland
is well qualified for the court of appeals. He earned degrees from
Harvard College and Harvard Law School and clerked for Judge Friendly
on the U.S. Court of Appeals for the Second Circuit and for Justice
Brennan on the Supreme Court and, since 1993, he has worked for the
Department of Justice. So there is no question, he is qualified to
serve on the court.
Like my colleague from Alabama, my colleague from Iowa, and others, I
believe that the 12th seat on this circuit does not need to be filled
and am quite skeptical that the 11th seat, the seat to which Mr.
Garland has been nominated, needs to be filled either. The case against
filling the 12th seat is very compelling, and it also makes me question
the need to fill the 11th seat.
In the fall of 1995, the Courts Subcommittee of the Judiciary
Committee held a hearing on the caseloads of the D.C. circuit. Judge
Silberman, who has served on the D.C. circuit for the past 11 years,
testified that most members of the D.C. circuit have come to think of
the D.C. circuit as a de facto court of 11. In other words, even though
there are 12 seats, theoretically, it is really being thought of as an
11-member court by its members. In fact, in response to written
questions, Judge Silberman pointed out that the courtroom, normally
used for en banc hearings, seats only 11 judges. In other words, that
is what they can accommodate.
When Congress created the 12th judgeship in 1984, Congress may have
thought that the D.C. circuit's caseload would continue to rise, as it
had for the previous decade. But, in fact, as my colleague from Alabama
has pointed out, exactly the opposite has occurred; the caseload has
dropped. It is the only circuit in the Nation with fewer new cases
filed now than in 1985. During the entire period, the D.C. circuit has
had a full complement of 12 judges for only 1 year.
In a letter to Senator Grassley, Judge Silberman wrote that the D.C.
circuit can easily schedule its upcoming arguments with 11 judges and
remain quite current. Further, Judge Silberman noted that while the
D.C. circuit, unlike most others, has not had any senior judges
available to sit with it, the court has invited visiting judges only on
those occasions when it was down to 10 active judges.
Additionally, according to the Administrative Office of the U.S.
Courts, it costs more than $800,000 a year to pay for a circuit judge
and the elements associated with that judge's work. In light of recent
efforts to curtail Federal spending, again, I agree with my colleague
from Alabama that it is imprudent to spend such a sum of money unless
the need is very clear.
Senators Grassley and Sessions have made sound arguments that the
D.C. circuit does not need to fill the 11th seat. Their arguments are
reasonable and not based upon partisan considerations. Similarly, my
concerns with the Garland nomination are based strictly on the caseload
requirements of the circuit, not on partisanship or the qualifications
of the nominee.
I would not want the opposition to the nomination, therefore, to be
considered partisan in any way. Thus, although I do not believe that
the administration has met its burden of showing that the 11th seat
needs to be filled, in the spirit of cooperation, and to get the
nominee to the floor of the Senate, I voted to favorably report the
nomination of Merrick Garland from the Judiciary Committee when we
voted on that a couple of weeks ago. But, at the time, I reserved the
right to oppose filling that 11th vacancy when the full Senate
considered the nomination. That time has now come, and being fully
persuaded by the arguments made by Senator Sessions and Senator
Grassley, I reluctantly will vote against the confirmation of this
nominee.
Based on the hearing of the Courts Subcommittee, caseload statistics,
and other information, as I said, I have concluded that the D.C.
circuit does not need 12 judges and does not, at this point, need 11
judges. Therefore, I will vote against the nomination of Merrick
Garland.
If Mr. Garland is confirmed and another vacancy occurs, thereby
opening up the 11th seat again, I plan to vote against filling the
seat--and, of course, the 12th seat--unless there is a significant
increase in the caseload or some other extraordinary circumstance.
Madam President, I want to thank Senator Grassley for his leadership
in this area, as chairman of the subcommittee, and for allowing me to
speak prior to his comments, which I gather will be delivered next.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. Madam President, I rise today to express my views of
the pending nomination. As chairman of the Subcommittee on
Administrative Oversight and the Courts, I have closely studied the
D.C. circuit for over a year now. And I can confidently conclude that
the D.C. circuit does not need 12 judges or even 11 judges. Filling
either of these two seats would just be a waste of taxpayer money--to
the tune of about $1 million per year for each seat. The total price
tag for funding an article III judge over the life of that judges is an
average of $18 million.
Madam President, $18 million is a whole lot of money that we would be
wasting if we fill the vacancies on the D.C. circuit.
In 1995, I chaired a hearing before the Judiciary Subcommittee on
Administrative Oversight and the Courts on the D.C. circuit. At the
hearing, Judge Lawrence Silberman--who sits on that court--testified
that 12 judges were just too many. According to Judge Silberman, when
the D.C. circuit has too many judges there just isn't enough work to go
around.
In fact, as for the 12th seat, the main courtroom in the D.C.
courthouse does not even fit 12 judges. When there are 12 judges,
special arrangements have to be made when the court sits in an en banc
capacity.
I would ask my colleagues to consider the steady decrease in new
cases filed in the D.C. circuit. Since 1985, the number of new case
filings in the D.C. circuit has declined precipitously. And it
continues to decline, even those who support filling the vacancies have
to admit this. At most, the D.C. circuit is only entitled to a maximum
of 10 judges under the judicial conference's formula for determining
how many judges should be allotted to each court.
Judge Silberman recently wrote to the entire Judiciary Committee to
say that filling the 12th seat would be--in his words--``frivolous.''
According to the latest statistics, complex cases in the D.C. circuit
declined by another 23 percent, continuing the steady decline in cases
in the D.C. circuit. With fewer and fewer cases per year, it doesn't
make sense to put more and more judges on the D.C. circuit. That would
be throwing taxpayer dollars down a rat hole.
So the case against filling the current vacancies is compelling. I
believe that Congress has a unique opportunity here. I believe that we
should abolish the 12th seat and at least the 11th seat should not be
filled at this time. I believe that a majority of the Juidicary
Committee agrees the case has been made against filling the 12th seat
and Chairman Hatch has agreed not to fill it. So, no matter what
happens today, at least we know that the totally unnecessary 12th seat
will not be filled. At least the taxpayers can rest a little easier on
that score.
Abolishing judicial seats is completely nonpartisan. If a judicial
seat is abolished, no President-- Democrat or Republican--could fill
it. As long as any judgeship exists, the temptation to nominate someone
to fill the seat will be overwhelming--even with the outrageous cost to
the American taxpayer.
Again, according to the Federal judges themselves, the total cost to
the American taxpayer for a single article III judge is about $18
million. That's not chump change. That's something to look at. That's
real money we can save.
[[Page S2523]]
Here in Congress, we have downsized committees and eliminated
important support agencies like the Office of Technology Assessment.
The same is true of the executive branch. Congress has considered the
elimination of whole Cabinet posts. It is against this backdrop that we
need to consider abolishing judgeships where appropriate--like in the
D.C. circuit or elsewhere.
While some may incorrectly question Congress' authority to look into
these matters, we are in fact on firm constitutional ground. Article
III of the Constitution gives Congress broad authority over the lower
Federal courts. Also, the Constitution gives Congress the ``power of
the purse.'' Throughout my career, I have taken this responsibility
very seriously. I, too, am a taxpayer, and I want to make sure that
taxpayer funds aren't wasted.
Some may say that Congress should simply let judges decide how many
judgeships should exist and how they should be allocated. I agree that
we should defer to the judicial conference to some degree. However,
there have been numerous occasions in the past where Congress has added
judgeships without the approval of the Judicial Conference in 1990, the
last time we created judgeships, the Congress created judgeships in
Delaware, the District of Columbia and Washington State without the
approval of the Judicial Conference. In 1984, when the 12th judgeship
at issue in this hearing was created--Congress created 10 judgeships
without the prior approval of the Judicial Conference. It is clear that
if Congress can create judgeships without judicial approval, then
Congress can leave existing judgeships vacant or abolish judgeships
without judicial approval. It would be illogical for the Constitution
to give Congress broad authority over the lower Federal courts and yet
constrain Congress from acting unless the lower Federal courts first
gave prior approval.
Madam President, I ask my colleagues to vote ``no'' on the current
nomination and strike a blow for fiscal responsibility. Spending $18
million on an unnecessary judge is wrong. I have nothing against the
nominee. Mr. Garland seems to be well qualified and would probably make
a good judge--in some other court. Now, I've been around here long
enough to know where the votes are. I assume Mr. Garland will be
confirmed. But, I hope that by having this vote--and we've only had
four judicial votes in the last 4 years--a clear message will be sent
that these nominations will no longer be taken for granted.
Let's be honest--filling the current vacancies in the D.C. circuit is
about political patronage and not about improving the quality of
judicial decision making. And who gets stuck with the tab for this? The
American taxpayer. I think it's time that we stand up for hardworking
Americans and say no to this nomination.
I would like to make a few comments about the Judicial nomination
process in general. Just about every day or so we hear the political
hue and cry about how slow the process has been. This is even though we
confirmed a record number of 202 judges in President Clinton's first
term--more than we did in either President Reagan's or President Bush's
first term.
I have heard the other side try to make the argument that not filling
vacancies is the same as delaying justice. Well, when you have Clinton
nominees or judges who are lenient on murderers because their female
victim did not suffer enough, or you have a judge that tries to exclude
bags of drug evidence against drug dealers, or a judge that says a bomb
is not really a bomb because it did not go off and kill somebody--then
I think that's when justice is denied.
The American people have caught on to this. And, I think the American
people would just as soon leave some of these seats unfilled rather
than filling them with judges who are soft on criminals or who want to
create their own laws.
We have heard repeatedly from the other side that a number of
judicial emergency vacancies exist. We are told that not filling these
vacancies is causing terrible strife across the country. Now, to hear
the term ``judicial emergency'' sounds like we are in dire straits.
But, in fact, a judicial emergency not only means that the seat has
been open for 18 months. It does not mean anything more than that,
despite the rhetoric we hear.
In fact, it is more than interesting to note that out of the 24 so-
called judicial emergencies, the administration has not even bothered
to make a nomination to half them. That is right, Mr. President. After
all we have heard about Republicans not filling these so-called
judicial emergencies which are not really emergencies, we find that the
administration has not even sent up nominees for half of them after
having over a year and a half to do so.
But, we continue to hear about this so-called caseload crisis. My
office even got a timely fax from the judicial conference yesterday
bemoaning the increase in caseload. Well, Mr. President, I sent out the
first time ever national survey to article III judges last year. I
learned many things from the responses. Among them, I learned that
while caseloads are rising in many jurisdictions, the majority of
judges believed the caseloads were manageable with the current number
of judges. A number of judges would even like to see a reduction in
their ranks.
We know that much of the increased caseload is due to prisoner
petitions, which are dealt with very quickly and easily, despite the
hue and cry we hear. As a matter of fact the judicial conference even
admits some of the increase is due to prisoners filing in order to beat
the deadline for the new filing fees we imposed. So, there may be
isolated problems, but there is no national crisis--period.
On February 5, I had the opportunity to chair a judiciary
subcommittee hearing on judicial resources, concentrating on the fourth
circuit. My efforts in regard to judgeship allocations are based upon
need and whether the taxpayers should be paying for judgeships that
just are not needed. We heard from the chief judge that filling the
current two vacancies would actually make the court's work
more difficult for a number of reasons. He argued that justice can
actually be delayed with more judges because of the added uncertainty
in the law with the increased number of differing panel decisions. I am
sorry that only three Senators were there to hear this very
enlightening testimony.
We in the majority have been criticized for not moving fast enough on
nominations. However, we know there was a higher vacancy rate in the
judiciary at the end of the 103d Democrat Congress than there was at
the end of the 104th Republican Congress. Even though there were 65
vacancies at the end of last year, there were only 28 nominees that
were not confirmed. All of them had some kind of problem or concern
attached to them. The big story here is how the administration sat on
its rights and responsibilities and did not make nominations for more
than half of the vacancies. And some of the 28 nominations that were
not confirmed were only sent to us near the end of the Congress. Yet,
the administration has the gall to blame others for their failings.
I think it is also important to remember the great deal of deference
we on this side gave to the President in his first term. As I said, we
have confirmed over 200 nominees. All but four, including two Supreme
Court nominees, were approved by voice vote. That is a great deal of
cooperation. Some would say too much cooperation.
But now, after 4 years of a checkered track record, it is clear to me
that we need to start paying a lot more attention to whom we're
confirming. Because like it or not, we are being held responsible for
them.
I cannot help but remember last year when some of us criticized a
ridiculous decision by a Federal judge in New York who tried to exclude
overwhelming evidence in a drug case. What was one of the first things
we heard from the administration? After they also attacked the
decision, they turned around and attacked the Republican Members who
criticized the decision. They said, you Republicans voted for the
nominee, so you share any of the blame.
Well, the vote on Judge Baer was a voice vote. But, I think many of
us woke up to the fact that the American people are going to hold us
accountable for some of these judges and their bad decisions. So, there
is no question the scrutiny is going to increase, thanks to this
administration, and more time and
[[Page S2524]]
effort is going to be put into these nominees. And, yes, we will
continue to criticize bad decisions. If a judge that has life tenure
cannot withstand criticism, then maybe he or she should not be on the
bench.
Now, having said all of this, we have before us a nominee who we're
ready to vote on. I had been one of those holding up the nominee for
the D.C. circuit, the nomination before us. I believe I have made the
case that the 12th seat should not be filled because there is not
enough work for 12 judges, or even 11 judges for that matter. My
argument has always been with filling the seat--not the nominee. Now
that we have two open seats--even though the caseload continues to
decline--I'm willing to make a good faith effort in allowing the
Garland nomination to move forward.
But, given the continued caseload decline, and the judicial
conference's own formula giving the circuit only 9.5 judges, I cannot
support filling even the 11th seat. So, I will vote ``no.'' I assume I
will be in the minority here and the nominee will be confirmed, but I
think the point has to be made. I very much appreciate Chairman Hatch's
efforts in regard to my concerns, and his decision to not fill the
unnecessary 12th seat.
So, there have been a lot of personal attacks lately. Motives are
questioned and misrepresented. This is really beneath the Senate. And I
hope it will not continue.
Despite the attacks that have been launched against those of us who
want to be responsible, all we are saying is send us qualified nominees
who will interpret the law and not try to create it. Send us nominees
who will not favor defendants over victims, and who will be tough on
crime. Send us nominees who will uphold the Constitution and not try to
change it. As long as the judgeships are actually needed, if the
administration sends us these kinds of nominees, they will be
confirmed.
I thank the Chair.
The PRESIDING OFFICER (Mr. Faircloth). The Chair recognizes the
Senator from South Carolina.
Mr. THURMOND. Mr. President, I rise today in opposition to the
nomination of Merrick B. Garland to be a judge on the U.S. Court of
Appeals for the District of Columbia Circuit. I commend Senators
Sessions, Kyl, and Grassley for taking this course.
Let me state from the outset that my opposition has nothing to do
with the nominee himself. I have no reservations about Mr. Garland's
qualifications or character to serve in this capacity. He had an
excellent academic record at both Harvard College and Harvard Law
School before serving as a law clerk on the U.S. Court of Appeals for
the Second Circuit and the U.S. Supreme Court. Also, he has served in
distinguished positions in private law practice and with the Department
of Justice. Moreover, I have no doubt that Mr. Garland is a man of
character and integrity.
However, qualifications and character are not the only factors we
must consider in deciding whether to confirm someone for a Federal
judgeship. A more fundamental question is whether we should fill the
position itself. Mr. Garland was nominated for the 11th seat on the
D.C. circuit. I do not feel that this vacancy needs to be filled. Thus,
I cannot vote in favor of this nomination.
The caseload of the D.C. circuit is considerably lower than any other
circuit court in the Nation. In 1996, the eleventh circuit had almost
five times the number of cases per judge as the D.C. circuit. The
fourth circuit had over three times as many cases filed. Specifically,
about 378 appeals were filed per judge in the fourth circuit in 1996,
compared to only about 123 in the D.C. circuit.
Moreover, the caseload of the D.C. circuit is falling, not rising.
Statistics from the Administrative Office show a decline in filings in
the D.C. circuit over the past year.
I am well aware of the argument that the cases in the D.C. circuit
are more complex and take more time to handle, and therefore we should
not expect the D.C. circuit to have the same caseload per judge as
other circuits. However, this fact cannot justify the great disparity
in the caseload that exists today between the D.C. circuit and any
other circuit. This is especially true since the D.C. circuit caseload
is declining. In short, it is my view that the existing membership of
the D.C. circuit is capable of handling that court's caseload.
Mr. President, one of the core duties of a Member of this great Body
is to determine how to spend, and whether to spend, the hard-earned
money of the taxpayers of this Nation. We must exercise our duty
prudently and conservatively because it is not our money or the
Government's money we are spending; it is the taxpayers' money. Today,
the Republican Congress is working diligently to find spending cuts
that will permit us to finally achieve a balanced budget. In making
these hard choices, no area should be overlooked, including the
judicial branch. Under the Constitution, the Congress has the power of
the purse, and it has broad authority over the lower Federal courts.
This body has the power to eliminate or decide not to fund vacant lower
Federal judgeships, just as it had the power to create them in the
first place.
The cost of funding a Federal judgeship has been estimated at about
$1 million per year. This is a substantial sum of money, and a vastly
greater sum if we consider the lifetime service of a judge. We must
take a close look at vacant judgeships to determine whether they are
needed.
In this regard, Senator Grassley, the chairman of the Judiciary
Subcommittee on the Courts and Administrative Oversight, has been
holding hearings regarding the proper allocation of Federal judgeships.
I would like to take this opportunity to commend Senator Grassley for
the fine leadership he is providing in this important area. Through
Senator Grassley's hard work, we have learned and continue to learn
much about the needs of the Federal courts.
During one such subcommittee hearing this year, the Chief Judge of
the Court of Appeals for the Fourth Circuit, J. Harvie Wilkinson III,
explained that having more judges on the circuit court does not always
mean fewer cases and a faster disposition of existing ones. He
indicated it may mean just the opposite. More judges can mean less
collegial decisionmaking and more intracircuit conflicts. As a result
of such differences, more en banc hearings are necessary to resolve the
disputes. More fundamentally, a large Federal judiciary is an
invitation for the Congress to expand Federal jurisdiction and further
interfere in areas that have been traditionally reserved for the
States.
In summary, I oppose this nomination only because I do not believe
that the caseload of the D.C. circuit warrants an additional judge. Mr.
Garland is a fine man, but I believe that my first obligation must be
to the taxpayers of this Nation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The distinguished Senator from Vermont.
Mr. LEAHY. Mr. President, how much time is remaining to the
distinguished senior Senator from Utah and myself?
The PRESIDING OFFICER. The Senators have 54 minutes.
Mr. LEAHY. I thank the Chair.
Mr. President, I am concerned when I hear attempts to tie Mr.
Garland's nomination to the number of judges in the D.C. circuit. Let
us remember that Mr. Garland is there to fill the 11th seat on the D.C.
circuit, not the 12th seat. Even Judge Silberman, who has argued for
abolishing the 12th seat for this court, has testified that ``it would
be a mistake, a serious mistake, for Congress to reduce down below 11
judges.'' That is a verbatim quote from Judge Silberman.
But we should also remember that when we just put numbers here,
numbers do not tell the whole story. The D.C. circuit's docket is by
far the most complex and difficult in the Nation. You can have a dozen
routine matters in another circuit and one highly complex issue
involving the U.S. Government in the D.C. circuit, brought because it
is the D.C. circuit, that one would go on and equal the dozen or more
anywhere else.
We can debate later on the size of the D.C. circuit, whether it
should be 11 or 12. But we are talking about the 11th seat. And what
Senators ought to be talking about is the fact that Merrick Garland is
a superb nominee. He has been seen as a superb nominee by Republicans
and Democrats alike, by all writers in this field. At a time when some
seem to want people who are not
[[Page S2525]]
qualified, here is a person with qualifications that are among the best
I have ever seen.
So, let us not get too carried away with the debate on what size the
court should be. We can have legislation on that. The fact is, we have
a judge who is needed, a judge who was nominated, and whose nomination
was accepted and voted on by the Senate Judiciary Committee in 1995. It
is now 1997. Let us stop the dillydallying. I suppose, as we are not
doing anything else--we do not have any votes on budgets or chemical
weapons treaties or any of these other things we can do--I suppose we
can spend time on this. We ought to just vote this through, because at
the rate we are currently going we are falling further and further
behind, and more and more vacancies are continuing to mount over longer
and longer times, to the detriment of greater numbers of Americans and
the national cause of prompt justice.
Frankly, I fear these delays are going to persist. In fact, the
debate on what should be in the courts took an especially ugly turn
over the last 2 weeks. Some Republicans have started calling for the
impeachment of Federal judges who decide a case in a way they do not
like. A Member of the House Republican leadership called for the
impeachment of a Federal judge in Texas because he disagreed with his
decision in the voting rights case, a decision that, whichever way he
went, was going to be appealed by the other side. If he ruled for the
plaintiffs, the defendants were going to appeal; if he ruled for the
defendants, the plaintiffs would have appealed. But this Member of the
other body decided, forget the appeals, he disagrees, so impeach the
judge. He is quoted in the Associated Press as saying, ``I am
instituting the checks and balances. For too long we have let the
judiciary branch act on its own, unimpeded and unchallenged, and
Congress' duty is to challenge the judicial branch.''
The suggestion of using impeachment as a way to challenge the
independence of the Federal judiciary, an independence of the judiciary
that is admired throughout the world, the independence of a judiciary
that has been the hallmark of our Constitution and our democracy, the
independence of a Federal judiciary that has made it possible for this
country to become the wealthiest, most powerful democracy known in
history and still remain a democracy--to talk of using impeachment to
challenge that independence demeans our Constitution, and it certainly
demeans the Congress when Members of Congress speak that way. It is
also the height of arrogance. It ignores the basic principle of a free
and independent judicial branch of Government. We would not have the
democracy we have today without that independence.
I wonder if some have taken time to reread the Constitution. Maybe I
give them too much benefit of the doubt. I will ask them to read the
Constitution. Article II, section 4, of the Constitution states:
The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.
The Founders of this country did not consider disagreement with a
Member of the House of Representatives as an impeachable offense. In
fact, the Founders of this country would have laughed that one right
out. Can you imagine? I suggested some read the Constitution and, I
must admit, in a moment of exasperation, I suggested perhaps some who
were making these claims had never read a book at all. But, of course,
they have. There is one by Lewis Carroll. It is called Alice in
Wonderland. The queen had a couple different points she made. One, of
course, if all else failed was, ``Off with their heads.'' The other is,
``The law is what I say the law is.''
We all lift our hands at the beginning of our term in office and
swear allegiance to that Constitution, but all of a sudden there is
something found in there that none of us knew about. Impeach a judge
because you disagree with a judge's decision? I tried an awful lot of
cases before I came here. I was fortunate in that, a chance to try
cases at the trial level and the appellate level. Sometimes I won,
sometimes I lost, but there was always an appeal. In fact, I found in
the cases I won as a prosecutor, the person on the way to jail would
invariably file an appeal. I just knew the appeal would be made. That
is the way the courts go.
You do not suddenly say because I won the case, the judge was to be
impeached.
I think back to about 40 years ago and those who wanted to impeach
the U.S. Supreme Court. Why? Because they refused to uphold
segregation--let's impeach the Court. In fact, I made my first trip
here to the U.S. Capitol in Washington, DC, when I was in my late
teens. At that time, for the first time, I saw the billboards and
demonstrations against the Chief Justice after the landmark Brown
versus Board of Education decision. I wondered what was going on.
In the 1950's, it was not uncommon to see billboards and bumper
stickers saying, ``Impeach Earl Warren.'' These signs were so
prevalent, Mr. President, that a young man from Georgia at that time
once remarked that his most vivid childhood memory of the Supreme Court
was the ``Impeach Earl Warren'' signs that lined Highway 17 near
Savannah. He said: ``I didn't understand who this Earl Warren fellow
was, but I knew he was in some kind of trouble.''
That young man from Georgia is now a Supreme Court Justice himself,
Justice Clarence Thomas.
In hindsight, it seems laughable, as in hindsight the current calls
of impeachment of current judges will also be laughable. At that time,
the call to impeach was popular within a narrow and intolerant group
which did not understand how our democracy works or what was its
strength. Apparently, it is fashionable in some quarters to sloganeer
about impeaching Federal judges again.
It was wrong in the 1950's to have somebody who wanted to protect the
sin and stain of segregation to call for the impeachment of Earl
Warren. It is wrong for some today to call for the impeachment of a
Federal judge because of a disagreement with a single decision.
So I hope all of us--all of us--stop acting as though we can go to
something way beyond our Constitution because a judge comes out with a
decision that we may disagree with. That is not a high crime or
misdemeanor; it is not an impeachable offense. Maybe it is an
appealable question, but not an impeachable offense.
We in the Congress cannot act as some super court of appeals. Good
Lord, we even had a suggestion over the weekend that maybe even the
Congress should have the power to vote to override any decision. In
fact, it would be a super court of appeals. Good Lord, Mr. President,
look at the pace of this Congress. We have almost 100 vacancies on the
Federal court and certainly by the end of business yesterday, we had
not filled a single one of them. We have not had a minute of debate on
the budget. We have done nothing about bringing up campaign finance
reform.
Cooler heads are prevailing. I commend the distinguished majority
leader, Senator Lott, for his remarks on these impeachment threats. He
is quoted as saying that impeachment should be based on improper
conduct of a judge, not on his or her decisions or appeals. I think
that is the way it should be. I think perhaps we should step back
before we go down this dark road.
I understand, Mr. President, that the distinguished senior Senator
from Maryland wishes 5 minutes; is that correct?
Mr. SARBANES. If the Senator can yield me 5 minutes, I would
appreciate it.
Mr. LEAHY. Mr. President, I yield 5 minutes to the distinguished
senior Senator from Maryland.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from Maryland.
Mr. SARBANES. I thank the Chair.
I would like to ask the distinguished Senator from Vermont a couple
of questions, if I can, about the charts he was referring to earlier. I
want to make sure I understand them fully.
This one, as I understand, shows the number of judges that have been
confirmed in the last three Congresses--we are now in the 105th
Congress. There are currently 94 vacancies in the Federal court system?
Mr. LEAHY. There are. There will very soon be 100.
Mr. SARBANES. As yet, no judges have been confirmed in this Congress?
[[Page S2526]]
Mr. LEAHY. That's right.
Mr. SARBANES. This is the first judge that has come before us?
Mr. LEAHY. That is right.
Mr. SARBANES. Although I gather there are some 25 judges pending in
the Judiciary Committee.
Mr. LEAHY. Between 23 and 25, enough to fill a quarter of the
vacancies that are pending. Of course, on Mr. Garland, he came before
the committee in 1995 and was approved by the committee the first time
in 1995. We are now in 1997. It is not moving with alacrity.
Mr. SARBANES. It is not even moving with the speed of a glacier, one
might observe.
Mr. LEAHY. I was going to say, there is a certain glacier connotation
to the speed of confirming judges.
Mr. SARBANES. In the previous Congress, the 104th Congress, 75 judges
were confirmed?
Mr. LEAHY. That's right.
Mr. SARBANES. The previous Congress, the 103d, 129, and the one
before that, the 102d, 124; is that correct?
Mr. LEAHY. The Senator is correct.
Mr. SARBANES. There is a significant falloff in the number of judges
being confirmed.
Mr. LEAHY. In the 104th Congress, I tell my friend from Maryland,
there was an unprecedented slowdown in the confirmation of judges to
the extent that I think the only year that we could find, certainly in
recent memory, where no court of appeals judges were confirmed at all
was in the second session of the 104th Congress. The slowdown was so
dramatic in the second session of the 104th Congress that it dropped
the number down to certainly an unprecedented low, considering the
vacancies.
Mr. SARBANES. I am quite concerned with these developments. The
Congress has become much more political and partisan by any judgment. I
think that is regrettable, but it has happened, and we have to try to
contend with it here as best we can. But I think it is a dire mistake
if this attitude carries over into our decisions regarding the
judiciary, the third, independent branch of our Government and the one
that, in order to maintain public confidence in our justice system,
ought to have politics removed from it as much as is humanly possible.
Would the Senator from Vermont agree with that observation?
Mr. LEAHY. I absolutely agree. It has been my experience in the past
that Republicans and Democrats have worked closely together with both
Republican and Democratic Presidents to keep the judiciary out of
politics, knowing that all Americans would go to court not asking
whether a judge is Republican or Democrat, but asking whether this is a
place they will get justice. If we politicize it, they may not be able
to answer that question the way they have in the past.
Mr. SARBANES. Therefore, I am very interested in this chart you have
prepared: The number of judges confirmed during the second Senate
session in the Presidential election years.
Now, what has happened? What happened in 1996 is dramatic. No appeals
court judges were confirmed and only 17 district court judges.
Mr. LEAHY. If my friend from Maryland will yield on that, I will
point out the contrast. In 1992 we had a Republican President and a
Democratic Senate; we confirmed 11 appellate court judges and 55
district court judges. Four years later you have a Democratic President
and a Republican Senate and look at the vast difference: zero appellate
court judges and only 17 district court judges, notwithstanding an
enormous vacancy rate.
I think what it shows is that, if you want something to demonstrate
partisanship, when the Democrats controlled the Senate with a
Republican President, they still cooperated to give that Republican
President a significant number of judges in the second session, in a
Presidential election year, the time it normally slows down, as
contrasted to the absolute opposite, the unprecedented opposite, of
what happened when you have a Democratic President and a Republican
Senate.
Mr. SARBANES. Let me take the Senator's----
Mr. CHAFEE. Could I ask a question in here at the proper time? I do
not want to interrupt the flow. I had a question of the manager?
Mr. LEAHY. The Senator from Maryland has the floor.
Mr. SARBANES. I yield for the inquiry.
Mr. CHAFEE. My question is this. As I understand it, there are 3
hours on this bill, so presumably that would take us up to around 6
o'clock, as I understand.
Mr. LEAHY. Unless time is yielded back.
Mr. CHAFEE. I wonder if there appeared to be much of a chance that
some time might be yielded back? It would be very helpful to me, but I
do not want to stop any pearls of wisdom.
Mr. LEAHY. I have a member of the Leahy family to whom I have had the
privilege of being married nearly 35 years who hopes time will be
yielded back. As her husband, I hope time will be yielded back. I am
about to just give the floor back to the Senator from Maryland. I do
not know how much more time is going to be taken in opposition to Mr.
Garland. I know of very little time that is going to be taken further
here.
So the long way around, to answer my good friend from Rhode Island, I
hope time will be yielded back fairly soon.
Mr. CHAFEE. Put me down as a firm supporter of Mrs. Leahy.
Mr. LEAHY. I am sure she would be delighted to know that.
Mr. SARBANES. If the Senator would yield for one further question,
just to take your analysis a step further, in 1992 and 1988, in each of
those years, you had a Republican President and a Democratic Senate, is
that not correct?
Mr. LEAHY. Right.
Mr. SARBANES. It is in both these years, not just the contrast of the
last year of the Bush Presidency. But in the last year of the second
Reagan administration, we confirmed 7 appeals judges, then 11 for the
last year of the Bush administration, and last year the number was
zero. For district court judges in those years it was 35, 55 and 17.
That is a dramatic difference. An element has intruded itself in this
confirmation process that was not heretofore present.
Mr. LEAHY. If the Senator would yield a moment.
In 1984, there was a Republican Senate and Republican President, and
you see 10 and 33. In 1992, there is a Republican President and
Democratic Senate, and the Democratic Senate actually did better for
the Republican President than the Republican Senate for the Republican
President.
Mr. SARBANES. Exactly.
Let me say I am very deeply concerned about this development. I want
to commend the Senator from Vermont because he has been speaking out on
this very important matter for some time now.
Moving to the pending nomination, I want to speak first to Merrick
Garland's merits, although let me say that I do not understand any of
my colleagues to be questioning his capabilities and qualifications to
serve on the bench. In fact, Members on both sides have spoken very
highly of Merrick Garland and noted his outstanding character.
I was privileged, since he is a resident of my State, to have the
honor to introduce him at his confirmation hearing before the Senate
Judiciary Committee. That was on November 30, 1995, almost 18 months
ago. I believed then and continue to believe now that he will make an
outstanding addition to the D.C. circuit.
His career exemplifies his strong commitment to the law and to public
service.
He is a magna cum laude graduate from Harvard Law School. He clerked
for Judge Henry Friendly on the second circuit and for Justice William
Brennan at the Supreme Court.
He has had a long association with the Justice Department, first as a
special assistant to then Att. Gen. Benjamin Civiletti. He then became
a partner at Arnold & Porter when he left the Justice Department to go
into private practice.
Upon returning to public service, he has served as an assistant U.S.
attorney for the District of Columbia, dealing with public corruption
and Government fraud cases. He has also served as Deputy Assistant
Attorney General in the Justice Department's Criminal Division and as
Principal Associate Deputy Attorney General, both very high ranking
positions within the Department.
[[Page S2527]]
In all of these positions he has served our country with great
distinction.
He has published extensively in several areas of the law and has
remained active in bar association activities.
In every respect, in his intellect, his character, and his
experience, he would make an outstanding addition to the bench.
Let me now just briefly talk about this new line of attack, so to
speak, that has arisen about whether vacancies on the D.C. circuit
should be filled.
First of all, I think any analysis of the courts' need to fill
vacancies cannot be based simply on caseload statistics--this is a
benchmark that one needs to analyze carefully in order to determine
what lies behind the cases. In fact, the D.C. circuit's situation in
particular makes clear that mere case filing numbers do not tell the
whole story with respect to the burdens that the court faces. The D.C.
circuit receives, in complexity and importance, cases that do not come
as a general rule before the other circuits across the country. It has
had major, major cases that it has had to deal with as a routine
matter, cases of great weight and importance to the nation.
The D.C. circuit also handles numerous appeals from administrative
agency decisions that are characterized by voluminous records and
complex fact patterns. In fact, almost half of the D.C. circuit's cases
are these kinds of administrative appeals--46 percent. The next highest
circuit in this respect is the ninth circuit with 9.6 percent of their
cases being of this kind.
The D.C. circuit also handles fewer of the least complex and time-
consuming cases, criminal and diversity cases, than any of its sister
circuits. Only 11 percent of its cases are diversity cases. No other
circuit has less than 24 percent.
In testimony before the Judiciary Committee's Courts Subcommittee,
D.C. Circuit Judge Harry Edwards--the Chief Judge of the circuit--gave
one example of the kind of complex administrative cases that are a
routine part of the D.C. circuit's caseload. He talked about a case to
review a FERC order, an order of the Federal Energy Regulatory
Commission. This order produced, at the time of appeal, 287 separate
petitions for review by 163 separate parties, and a briefing schedule
that provided for the filing of 27 briefs, totaling over 900 pages.
I am simply making the point that they get very complex matters to
deal with in the D.C. circuit, and that the case filing numbers relied
on by other side do not tell the whole story.
Recall also that the vacancy we are talking about filling here is the
11th out of 12 slots on the D.C. circuit. Originally, Merrick Garland
was being opposed on the basis that the 12th spot on the circuit court
ought not to be filled. Now, with the taking of senior status by one of
the D.C. circuit's judges, we are talking about filling the 11th spot,
not the 12th spot, on that court and yet Members have come forward
opposing the Garland nomination, a fact which I very much regret.
Now I want to address just very briefly the fact that the fourth
circuit was raised earlier by one of my colleagues in this debate. He
cited the view of Fourth Circuit Chief Judge Wilkinson, presented at a
February 1997 Judiciary Subcommittee hearing, that the President and
Senate do not need to fill the two vacancies that exist on that court.
It is interesting that at that same hearing, testimony that I do not
think has been cited, by Judge Sam Ervin, the very able and
distinguished circuit judge of the Court of Appeals for the Fourth
Circuit, and the son of our former distinguished colleague, was
presented before the panel in support of filling the vacancies.
Mr. President, I ask unanimous consent that the very thoughtful
statement by Judge Ervin be printed in the Record at the conclusion of
my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. SARBANES. It is very important to note that with respect to the
fourth circuit, there is a nominee pending before the Judiciary
Committee, whose nomination was submitted in the last Congress--two
nominations, as a matter of fact, were submitted to the Committee last
year--and one has been resubmitted by the administration right at the
beginning of this session.
The PRESIDING OFFICER. The Senator from Maryland has spoken for
considerably more than 5 minutes.
Mr. SARBANES. Would the Senator give me 2 minutes to close up?
Mr. LEAHY. I yield 2 additional minutes.
Mr. SARBANES. There is no way with a nominee having been sent to the
Senate by the President, that an argument for not approving the nominee
based on not needing the judgeship can be made without it carrying with
it an ad hominem argument against the nominee.
If people are really serious about reducing vacancies on the courts,
they need to scrub down the number of places before the nominees are
submitted, by legislation. Once the nominees come here, you cannot
divorce the attack on the individual from the attack on the need for
the seat on the bench. We have the chief judge of the fourth circuit
coming in against filling spots when nominees are pending.
Now, how can that position be taken and considered separate from
opposition to the nominee? They say, ``Well, I am not against this
nominee, but I just do not think this spot ought to be filled.'' Of
course, that is small comfort to the nominee whose nomination is
pending and has been put forward in order to fill the vacancy.
Now, Judge Ervin, in his testimony, sets forth, I think, a very
persuasive case why the fourth circuit needs to have those vacancies
filled. I commend that statement to my colleagues. I will not go
through it in detail here, given the fact that this debate is coming to
a close.
I do encourage my colleagues to consider carefully the political
cloud with which we are now surrounding the judgeships.
I say to my colleagues on the other side, we did not behave this way
at a time when the Senate Democrats were in control of the Senate and
we were dealing with the nominations of Republican Presidents. I will
be very frank. I think the judiciary deserves better than that from us.
I hope that game will come to an end and we will be able to move ahead
with the confirmation of judges in an orderly fashion.
In closing, let me again state that I am very supportive of the
judicial nominee who is before the Senate today. I think he is a person
of outstanding merit who will make an outstanding judge, and I urge his
confirmation.
Exhibit 1
Statement of the Honorable Sam J. Ervin III
Mr. Chairman and members of the Subcommittee, my name is
Sam J. Ervin, III, of Morganton, North Carolina. I am an
active United States Circuit Judge for the Fourth Circuit,
having been appointed in May, 1980. I had the honor of
serving as the Chief Judge of that Circuit from February,
1989 until February, 1996. I appreciate the Subcommittee's
willingness to hear my views.
I support the actions of the Judicial Conference of the
United States in its efforts to address the important issue
of judgeship needs. I commend Chief Judge Julia Gibbons and
the other members of the Judicial Resources Committee for
establishing a principled method for evaluating these needs.
I am in agreement with my good friend and colleague, Chief
Judge J. Harvie Wilkinson, III, that the federal judiciary
should remain of limited size and jurisdiction. Should anyone
present doubt my commitment to those principles, I quote from
a resolution that I introduced on June 24, 1993: (which was
unanimously adopted by the Article III Judges of the Fourth
Circuit)
``Chief Judge Ervin. If I may, I would like to submit for
consideration a resolution reading as follows:
`` `Resolved that the future role of the federal courts
should remain complementary to the role of the state courts
in our society. They should not usurp the role of state
courts.
`` `To achieve that goal, it is the consensus of the
Conference that the Congress might consider such issues as
the federal courts remaining an institution of limited size
and jurisdiction. The ability of the federal courts to
fulfill their historical limited and specialized role is
dependent on the willingness of Congress to maintain
jurisdictional balance and curtail the federalization of
traditional state crimes and causes of action.' ''
My appearance here today, however, is necessitated by Chief
Judge Wilkinson's proposal that we do not need to fill the
two judicial vacancies that presently exist in our circuit.
It is my conviction that our failure to do so would be a
serious mistake.
First, a brief history leading up to the subject of whether
these two existing vacancies should or should not be filled;
On October 9, 1985, when the late Harrison Winter was our
Chief Judge, the circuit judges, with a single dissent, voted
to ask for
[[Page S2528]]
four additional active judges for the Fourth Circuit.
On October 4, 1989, we again indicated by another formal
action that while we did not desire a court of more than 15
active judges, we unanimously reaffirmed our earlier request
for four additional judges.
Legislation was passed in 1990 authorizing a number of
additional judgeships, including four new circuit court
judges for the Fourth Circuit. Thereafter, three of these so-
called Omnibus Bill judges were nominated and subsequently
confirmed: Judge Hamilton (S.C.) in July, 1991; Judge Luttig
(V.A.) in August, 1991; and Judge Motz (M.D.) in June, 1994.
The fourth (and final) Omnibus Bill judgeship has remained
unfilled since it was created in December, 1990. As of this
date, there is no pending nomination for this vacancy, and I
believe that this is the only 1990 circuit judgeship that
remains unfilled.
The second Fourth Circuit vacancy was created when Judge J.
Dickson Phillips, Jr., of North Carolina, took senior status,
effective July 31, 1994. More than two and one-half years
later, the Honorable James M. Beaty, Jr., a District Court
Judge in the Middle District of North Carolina, was nominated
to succeed Judge Phillips, but no action has been taken on
that nomination by the Senate Judiciary Committee.
To my knowledge, the judges of the Fourth Circuit have
never taken any formal action to indicate an unwillingness to
stand by our requests that these two vacancies be filled.
In order to evaluate the Circuit's needs for these two
judgeships, I suggest that we must realistically assess our
present situation:
Present Active Judges: At this time, the Fourth Circuit has
13 active judges. Five of these judges are 70 years of age or
older. Their present ages are: 90, 78, 76, 73, and 70. Is it
realistic to expect that all of these judges will be able to
continue to serve indefinitely?
Present Senior Judges: The last printed report from the
Administrative Office is outdated in reflecting that we have
4 senior judges. One of the four retired on July 31, 1995,
and is no longer eligible to sit.
Another has indicated that he does not plan to sit any
more. The remaining two, whose current ages are 79 and 74,
have each been sitting 2 days per court week, thereby
constituting 4/5 of one judge.
Necessary Panels: For the past several years, we have been
averaging 5 panels of judges each court week. With our
present complement of active and senior judges, we lack a
sufficient number of judges to fill 5 panels without bringing
in district judges from our own circuit or senior judges from
other circuits.
Current Statistics: Rather than burden you with more
numbers, I will simply refer to the latest figures published
by the Administrative Office. I am confident that those
statistics fully justify the filling of the two existing
vacancies. In fact, as I understand it, if the numerical
portion of the existing formula were applied (the 500 filings
per panel with pro se appeals weighted as one-third of the
cases) the Fourth Circuit would be eligible to receive 20
judgeships. We have never requested more than 15.
North Carolina: I note that Judge Gibbon's Judicial
Resource Committee has listed as a factor to be considered in
allocating judgeships, geographical considerations within a
circuit. At the risk of being thought provincial, I emphasize
the special impact that a failure to fill the two presently
unfilled seats on the Fourth Circuit will have on North
Carolina. The expectation has been that these seats would be
assigned to that state. I, of course, recognize that there is
no law which requires that this allocation be made--actually
this is a matter for the executive and legislative branches
to determine--but it seems to be the fair thing to do for the
following reasons:
a. North Carolina is the most populous state in the
circuit.
b. North Carolina has one of the highest numbers of filings
in the district courts in the circuit.
c. North Carolina, like West Virginia, has had only two
seats, while both Virginia and Maryland have three each, and
South Carolina has four. Filling the two existing vacancies
from North Carolina would do no more than to restore that
state to parity with our sister states. I point out that
should I decide to take senior status--as I am eligible to
do--North Carolina would have no active judge. That situation
would create some insurmountable problems for both the bar
and litigants of that state.
d. While it has been suggested to me that this imbalance
could be remedied by assigning seats now held by judges from
other states to North Carolina as they are opened by death or
retirement, that seems an unpredictable solution--especially
in the present political climate.
Above all else, I seek to be as sure as it is humanly
possible to be that our circuit has a sufficient number of
judges to enable us to render swift and certain justice in
all of the cases that come before us. Some recent legislation
and our adoption of new internal operating procedures may
well reduce our caseload to some degree but countervailing
circumstances, including the continuation of the
federalization of numerous state crimes, the creation of new
private rights of action, the rapid population growth of the
region, and the increased complexity of both the criminal and
civil cases now coming to the federal courts (to mention only
a few of the relevant factors) will, I fear, more than offset
any decreases in our workloads. I do believe that we would
have sufficient personnel to enable us to do the work that is
assigned to us in a fashion acceptable to all if these two
vacancies are filled--at least for the foreseeable future.
Mr. Chairman, in the Questionnaire which you sent to the
members of the judiciary some time ago, you raised the
legitimate question of whether we as judges were being
required by our respective workloads to delegate more of our
judicial functions than was ideal--or even healthy--to elbow
law clerks, staff law clerks or other non-judicial employees.
I was not privy to the answers my colleagues returned to
those questions, but I strongly suspect that many of us would
admit that the degree of delegation required in the courts of
appeals is greater than is ideal. Speaking only for myself, I
would like to be able to devote greater personal attention to
every matter that comes before me than I am now able to do.
I sincerely believe that our present ability to carry out
our duties in a manner pleasing to this Subcommittee, to the
public, and to ourselves would be enhanced by the filling of
these two long vacant positions.
Mr. BIDEN. Mr. President, 2 of the 12 seats on the District of
Columbia Court of Appeals are currently vacant. Some have argued that
the vacancy to which Merrick Garland has been nominated should not be
filled because the D.C. circuit is overstaffed. But the reasons
Congress gave for approving 12 seats for the D.C. circuit remain
compelling today and justify filling this vacancy.
Further, to propose eliminating a circuit court judgeship within the
context of a particular nomination, rather than through the
deliberative process we normally follow in addressing judgeship needs,
jeopardizes the impartiality and independence of the judiciary.
Merrick Garland's nomination was first delivered to the Senate on
September 6, 1995--more than 18 months ago. The Judiciary Committee
held a confirmation hearing on the nomination on November 30, 1995, and
forwarded the nomination for consideration by the full Senate 2 weeks
later. The full Senate failed to act on Garland's nomination for 9\1/2\
more months, however, returning it to the President at the close of the
104th Congress.
In fact, the Senate refused to confirm a single circuit court judge
during the entire second session of the last Congress. This was the
first time in more than 20 years that an entire session of Congress had
passed without a single circuit court confirmation. Nonetheless, some
argued that shutting down the confirmation process is par for the
course in an election year. They are wrong. And let me set the record
straight.
George Bush made nearly one-third of his 253 judicial nominations in
1992, a Presidential election year. As chairman of the Judiciary
Committee, I held 15 nomination hearings that year, including 3 in
July, 2 in August, and 1 in September. In 1992--the last Presidential
election year--the Senate continued to confirm judges through the
waning days of the 102d Congress. We even confirmed 7 judges on October
8--the last day of the second session. As a result, the Senate
confirmed all 66 nominees the Judiciary Committee reported out that
year--55 for the district courts and 11 for the circuit courts. Let me
repeat: last session, only 17 district judges were confirmed and no
circuit judges were confirmed.
Now that the election is over and Merrick Garland has been
renominated, Republicans argue that we should not vote to confirm him
because the District of Columbia circuit needs only 10 judges. They are
wrong. And let me set the record straight.
Congress has previously recognized the need for 12 judges. Twelve
years ago, based on the recommendation of the Judicial Conference of
the United States, Congress concluded that the D.C. circuit's caseload
warranted 12 judgeships. The Senate report to the 1984 legislation
creating an additional judgeship states:
Located at the seat of the Federal government, the Court of
Appeals for the District of Columbia inevitably receives a
significant amount of its caseload from federal
administrative agencies headquartered in that area.
Administrative appeals filed in this court numbered 504 in
1982 and represented 34.8 percent of the incoming caseload.
Due to the nature of the caseload which includes many unique
cases involving complex legal, economic and social issues of
national importance and a large backlog of pending appeals,
this court requires one additional judgeship.
The D.C. circuit needs 12 judges to handle its complex caseload. A
large portion of the D.C. Circuit caseload consists of complex
administrative appeals which generally consume a larger
[[Page S2529]]
amount of judicial resources than other appellate cases. Therefore,
comparison of raw caseload data between the D.C. circuit, with its high
percentage of complex administrative cases, and the other circuits is
misleading. According to the statistics provided by the Administrative
Office of U.S. Courts for the period from September 30, 1995 to
September 30, 1996, 1,347 cases were filed in the D.C. circuit, 474 of
which--or 35.2 percent--were administrative appeals. In contrast, in
the remaining 11 circuits, of the 51,991 cases filed, only 2,827--or
5.4 percent--were administrative appeals.
The D.C. circuit has a long time interval between filing a notice of
appeal and final disposition. Because the D.C. circuit has this
incredibly high percentage of administrative appeals relative to the
other circuits and because these types of cases require tremendous
amounts of judicial resources, litigants in the D.C. circuit must wait
an average of 12 months between the filing of the notice of appeal and
final disposition. Only 3 of the 12 circuits have a longer average for
this time frame.
The fact that the D.C. circuit has a long time interval between
filing and disposition is indicative of the complex cases that the
circuit handles. Other circuits have more criminal appeals and garden-
variety diversity cases that often are amenable to summary disposition
without oral argument.
The D.C. circuit has fewer pro se appeals than other circuits. In
addition to having fewer criminal appeals and diversity cases, the D.C.
circuit has a lower percentage of pro se mandamus cases than all other
circuits. Chief Judge Edwards has noted that pro se appeals are often
frivolous, easily identified as lacking merit, or otherwise amenable to
disposition without significant expenditure of judicial resources.
The D.C. circuit has more cases of national importance than other
circuits. Not only are complex administrative appeals commonly heard in
the D.C. circuit, but as a result of its location at the seat of the
Federal Government, the D.C. circuit also hears a disproportionate
number of the high-profile cases of national importance that reach the
U.S. Courts of Appeals. The D.C. circuit decided in 1996 alone National
Treasury Employees Union versus United States of America, a challenge
to the constitutionality of the Line-Item Veto Act, as well as Perot
versus Federal Election Commission, an appeal from a district court's
rejection of Ross Perot's attempt to participate in last year's
Presidential debates.
The same reasons that supported the creation of a 12 judgeship for
the D.C. circuit in 1984 justify its existence now. If reasoned
deliberation and study of this circuit leads to the conclusion that a
future vacancy should not be filled, then we should address that issue,
but not within the context of this nomination. If ad hoc analysis
becomes our mode of operation, we will give the appearance of a
politicized judiciary.
I congratulate Merrick Garland for his distinguished career and
commend President Clinton for making this nomination. I hope that the
Senate will act to confirm him as expeditiously as possible.
Mr. BURNS. Mr. President, I rise today to express my opposition to
the confirmation of Merrick Garland to the D.C. circuit.
Even though the nominee has the character and is highly qualified for
the position, there is a larger question that must be examined. Does
this seat really need to be filled? Especially since it has remained
empty for 1\1/2\ years?
The answer is that the D.C. circuit does not need another seat,
especially when there are many other problems in the other district
circuits that have not been focused on yet. I base my opinion on the
fact that the D.C. circuit had 4,359 cases as of October 1996. The
ninth circuit, the circuit in which Montana is housed, had 71,462
cases. That is almost 20 times the number of cases. The D.C. circuit
ranked last in the total number of cases as compared to each of the
other district circuits in the Nation. If we examine these numbers, it
does not seem as if the D.C. judges are handling any cases at all.
This is also a very expensive seat. It will cost the American
taxpayers an extra $1 million to fill this seat. This will not be money
well spent.
There are adequate numbers of judges on the circuit, why are we
confirming this seat? I urge my colleagues to examine the numbers and
vote against the filling of this unneeded seat.
Ms. MIKULSKI. Mr. President, I rise today in support of the
nomination of Merrick Garland to the U.S. Court of Appeals for the D.C.
circuit. Mr. Garland is a resident of my State of Maryland.
I am pleased that his nomination is finally on the Senate floor for a
vote. It is critical that vacancies on the Federal bench are filled,
especially at the appellate level.
Mr. Garland has a distinguished legal record in the public and
private sectors. He has specialized in criminal, civil, and appellate
litigation, as well as administrative and antitrust law. I believe his
experience will serve him well on the Federal bench once he is
confirmed.
Mr. Garland is a magna cum laude graduate of Harvard Law School and a
summa cum laude graduate of Harvard College. While at Harvard Law
School, he was the articles editor of the Harvard Law Review and a
member of the prestigious Phi Beta Kappa, while he attended Harvard
College.
When I decide whether to support a judicial nominee, I look at
whether the nominee is competent; whether the nominee possesses the
appropriate judicial temperament; whether the nominee possesses the
highest personal and professional integrity, and whether the nominee
will protect our core constitutional values.
I believe that Mr. Garland possesses all of these qualifications. His
legal and academic record are exemplary. I am impressed that he has
devoted part of his career to public service. He served as the
Principal Associate Deputy Attorney General in the Department of
Justice. And he clerked after law school for one of the most
distinguished Supreme Court Justices, Justice William J. Brennan, Jr.
He's also done extensive pro-bono legal work on behalf of
disadvantaged individuals. He has represented an African-American
employee in a claim of racial discrimination, a mother in a custody
dispute, and court-requested representation of a prisoner.
I urge my colleagues to support Mr. Garland's nomination to the U.S.
Court of Appeals D.C. Circuit. I hope that once Mr. Garland is
confirmed, we can move forward to a vote on the other pending Federal
judicial nominees.
Mr. FAIRCLOTH. Mr. President, I rise today to vote ``no'' on the
nomination of Merrick Garland to the U.S. Court of Appeals for the
District of Columbia Circuit.
In so voting, I take no position on the personal qualifications of
Mr. Garland to be a Federal appeals court judge. What I do take a
position on is that the vacant 12th seat on the U.S. Court of Appeals
for the District of Columbia Circuit does not need to be filled.
Senator Chuck Grassley, Chairman of the Senate Judiciary Committee's
Subcommittee on Administrative Oversight and the Courts, has examined
this issue thoroughly, and has determined that the court's workload
does not justify the existence of the 12th seat. Last Congress, Senator
Grassley introduced legislation to abolish this unneeded seat. By
proceeding to renominate Mr. Garland, President Clinton has flatly
ignored this uncontradicted factual record.
I commend Senator Grassley for his important work on this matter, as
well as Senator Jeff Sessions, who has also emphasized the importance
of this matter. With the Federal deficit at an all time high, we should
always be vigilant in looking for all opportunities to cut wasteful
Government spending; this is one such opportunity. After all, each
unnecessary circuit judge and his or her staff cost the taxpayer at
least $1 million a year.
Lastly, our vote today is an important precedent, since it marks the
beginning of the Senate's new commitment to hold rollcall votes on all
judicial nominees. This is a policy change which I had urged on my
Republican colleagues by letter of January 8, 1997, to the Republican
Conference. Voting on Federal judges, who serve for life and who exert
dramatic--mostly unchecked--influence over society, should be one of
the most important aspects of serving as a U.S. Senator.
[[Page S2530]]
Rollcall votes will, I believe, impress upon the individual judge, the
individual Senator, and the public the importance of just what we are
voting on. I hope that my colleagues will regard this vote, and every
vote they take on a Federal judge, as being among the most important
votes they will ever take.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from Utah.
Mr. HATCH. Mr. President, we should inform the Senate that our intent
is to yield back the time if we can by 5:15 so people can vote at that
time. It could be just a wee bit longer than that. That is our
intention. Those who want to come over and use the time need to come
now.
I yield 10 minutes to the distinguished Senator from Pennsylvania,
who is a distinguished member of the Judiciary Committee.
Mr. LEAHY. Will the Senator yield for a moment?
Mr. HATCH. I yield.
privilege of the floor
Mr. LEAHY. Mr. President, I ask unanimous consent that Victoria
Bassetti of Senator Durbin's staff be allowed the privilege of the
floor during this debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I thank my colleague, the distinguished
chairman of the Judiciary Committee, for yielding me time.
I have sought recognition to voice my very strong support for the
nomination of Merrick Garland for the Court of Appeals for the District
of Columbia. Mr. President, a great deal has been said today on this
floor which is of great importance but not really tremendously related
to Merrick Garland's nomination. I hope we have a chance to analyze the
entire process of confirmation of judges and the respective roles of
the President and the Senate, because the President has the nominating
authority and the Senate has the constitutional authority for
confirmation. There are a great many things that ought to be done on
both sides to expedite the nomination and confirmation of judges.
In my own State, Pennsylvania has quite a number of vacancies now,
and I have been in discussions with the President's representatives at
the White House about trying to get these nominations filled. There is
something to be said on many sides of this issue. The matter
confronting the Senate now is, what are we going to do with Merrick
Garland? His record is extraordinary. I have been on the Judiciary
Committee going into my 17th year and I do not believe I have seen a
nominee with the qualifications that this man has.
He graduated from Harvard College, summa cum laude, was Phi Beta
Kappa, and graduated from Harvard Law School, magna cum laude. He was
on the Harvard Law Review and was the Articles Editor there. He has an
extraordinary record of publications, on the issue of Antitrust, in the
Yale Law Journal. And I might say, Mr. President, that this nominee
exhibited perhaps his best judgment in associating himself with Yale
Law School on the article, then going on into FTC investigations, the
controversial veto issue, professional responsibility and commercial
speech. It is really an extraordinary, extraordinary record. This man,
at the age of 45, coming into the court of appeals, may well be a
distinguished prospect for the Supreme Court of the United States.
Beyond his record in school and his writings, he was law clerk to a
very distinguished circuit judge, Judge Harry Jay Friendly, and he
served as law clerk to Supreme Court Justice William Brennan, Jr., and
was a partner of distinguished law firms, and worked as a prosecuting
attorney. He now serves as Deputy Assistant Attorney General of the
United States in the U.S. Department of Justice, in the Criminal Law
Division, where I have had occasion to work with him on a professional
basis. He just is an extraordinary prospect for the court of appeals.
He has not been treated very gently in the confirmation process,
having been nominated in September 1995. He passed through the
Judiciary Committee in the 104th Congress and was kept off the agenda
by a single hold. That is when a Senator voices an objection without
stating a reason, or perhaps multiple holds, but I know a single hold
stood in his way.
I compliment the majority leader, Senator Lott, for bringing his
nomination to the floor at this time so that he may be acted upon, yes
or no. He really is extraordinary, and I think he has a remarkable
career ahead. I am delighted to offer my voice of strong support for
his confirmation.
I thank the Chair. I thank my colleague from Utah. I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. I also want to thank the distinguished senior Senator from
Pennsylvania because he was also the decisive Senator who came in and
made the quorum at the time we voted Mr. Garland out of committee.
Sometimes we forget those little procedural things we have to do just
to get here on the floor.
Mr. SPECTER. I thank my colleague from Vermont for making that
comment. I had presided over Merrick Garland's confirmation proceedings
in the 104th Congress. It was hard to find a Senator when I came in
that afternoon. I found out Merrick Garland was there and five other
people. It was an interesting afternoon. We had a great many
responsibilities.
I went to law school not too long ago and I know what it is like to
be on the law review. They call it the Law Journal at Yale. It is
remarkable to have the kind of record that Merrick Garland has. Those
writings are just extraordinary. It takes long hours and extraordinary
study to turn one of those articles out, and there is a wide array of
issues that he has written on. He could be making a lot of money. He is
currently in public service and he is prepared to go to the court of
appeals at the age of 45. We need judges in America with real
intellectual abilities. We need judges like Holmes and Brandeis and
Cardozo on the courts of the United States. We need them on the Supreme
Court of the United States. This is a real prospect. We ought to get
him up and out.
I yield the floor.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from Massachusetts.
Mr. KENNEDY. Will the Senator yield me 5 minutes?
Mr. LEAHY. Yes.
Mr. KENNEDY. Mr. President, I support the nomination of Merrick
Garland for the vacancy on the D.C. circuit, and I am concerned that it
has taken more than 18 months for the nomination to reach the Senate
floor.
No one can question Mr. Garland's qualifications and fitness to serve
on the D.C. circuit. He is a respected lawyer, a former Supreme Court
law clerk, a partner at a prestigious law firm, and since 1989, has
served with distinction in the Department of Justice under both
Republican and Democratic administrations.
Support for him is bipartisan. We have received letters of support
from numerous Reagan and Bush Justice Department officials, including
former Deputy Attorneys General George Terwilliger and Donald Ayers,
former Office of Legal Counsel Chief Charles Cooper and former U.S.
Attorneys Jay Stephens, Joe Whitley, and Dan Webb. Jay Stephens, who
was U.S. attorney when Garland served at that office in the District of
Columbia, called Garland a person of ``dedication, sound judgment,
excellent legal ability, a balanced temperament, and the highest
ethical and professional standards.'' The National District Attorney's
Office supports his nomination, calling Garland an excellent lawyer,
brilliant scholar, and a man of high integrity.'' There can be no
serious doubt about his ability to serve as a fair and impartial judge
on the D.C. circuit.
Why then, has it taken 18 months to bring this nomination before the
U.S. Senate? And why is it that no other judicial nominees have been
brought before the Senate?
In fact, only 17 judges--all for district court appointments--were
confirmed during all of 1996. Obviously, that was a Presidential
election year. But the slow-down in acting on judicial nominations was
unprecedented. In 1992, when President Bush was seeking reelection, the
Senate, under control of the Democratic Party, still confirmed 66
district court and appellate court judges.
[[Page S2531]]
Justice delayed is justice denied. Thousands of Americans with
legitimate grievances cannot get their day in court, because judicial
vacancies are not being filled and current Federal judges don't have
the time to hear their cases. It's hard to crack down on crime when
there are not enough judges to enforce the laws that Congress passes.
Many of us are concerned about the harsh partisanship that is being
applied to the judicial nomination process. Republicans in the Senate
have organized an ad hoc Republican task force to develop procedures
for screening judges. They have rejected a formal role for the American
Bar Association in assessing candidates. Republicans are seeking to
force the President to conduct the real debate with them behind closed
doors--nominee by nominee--to make sure each person the President names
meets an ideological litmus test. In fact, some have suggested a quota
system, in which half of all judicial nominations come from Republicans
in Congress and half from President Clinton.
If the Federal courts were a business, they would be in bankruptcy.
There are over 90 vacancies in judgeships today. In his 1996 annual
report, Chief Justice Rehnquist criticized Congress failure last year
to create additional Federal judgeships and called it a shortcoming.
The Administrative Office of the U.S. Courts has requested an
additional 20 temporary positions on the courts of appeals and 21
permanent and 12 temporary positions in the district courts to address
the heavy backlogs that are piling up.
In the case of Merrick Garland, some Republicans argue that we do not
need to fill either of the two current vacancies in the D.C. circuit,
because the caseload is too light. Many nonpartisan observers regard
the D.C. circuit as the second most important court in the United
States, after the Supreme Court. There currently is only one senior
judge to assist the other 10 members of the Court.
In terms of both quantity and quality of its caseload, the D.C.
circuit ranks among the Nation's busiest. It handles a
disproportionately high proportion of cases of national significance
involving intricate legal issues. Complex administrative appeals were
38 percent of the caseload of the D.C. circuit during fiscal year 1995,
as compared with only 5.5 percent in other circuits.
By contrast, pro se appeals, which are generally the easiest to
resolve, constituted only 11.8 percent of the D.C. circuit's caseload
in 1995, by far the lowest percentage of any circuit in the country.
Diversity cases, which less often raise complex and time-consuming
issues, constituted only 13.6 percent of the D.C. circuit's caseload in
1995, compared with 30 percent in the other circuits. So the charts and
graphs that some of our Republican colleagues are using do not tell the
whole story.
The court's backlog is also growing. In 1984, when the 12th seat was
added, the court had a backlog of 1,200 cases. Today, that backlog
exceeds 2,000 cases, despite a bench that is highly respected for its
intellect and dedication. As former Republican Senator Charles Mathias
stated on behalf of the nonpartisan Council for Court Excellence, ``It
is in the public interest for the D.C. Circuit to have its full
complement of twelve active judges.''
It is time to end the excessive partisanship over judicial
nominations. I hope very much that our action on Merrick Garland is a
sign that the unacceptable log jam is breaking and that the Senate is
now returning to its proper role of advise and consent, not partisan
obstruction, in the consideration of judicial nominations.
So, again, Mr. President, I join with those that are urging the
Senate's favorable consideration of this extraordinary nominee. This is
an individual who has been willing to be put forward now for over some
18 months. He has appeared before the committee and, as has been
pointed out, his record is one of special recognition, a brilliant
academic record, a strong commitment to public service. He has served
under both Democrats and Republicans. He has been an extraordinary
success in the private sector, as well.
I don't think I have seen, in recent times, the range of different
support that this nominee has for this position. It is breathtaking in
its scope. And the background of this individual has urged us to move
forward with this nomination. We are extremely fortunate in the
district circuit court to be able to have someone of this quality. As
has been pointed out, it is a special court, really second in special
recognition to the Supreme Court of the United States, in terms of the
complexity of the cases that we require this court to resolve.
So, Mr. President, I join with all of those and urge a positive vote
in favor of this extraordinary nominee. Merrick Garland will be an
outstanding jurist, as everything in his life has reflected. He has
been an outstanding individual. I remember very clearly the quote of
Senator Mathias, who was a very prominent, significant member of the
Judiciary Committee, who took great interest in the quality of justice
in this country and the quality of individuals. He has joined in urging
that we move forward with this nominee and put him on the court, where
he will serve this country with great distinction. I join my other
colleagues in hoping that the vote for him will be overwhelming. It
deserves to be. I think we will all be well served with his continued
dedication of public service on the court.
I yield the floor.
Mr. LEAHY. Mr. President, I yield 10 minutes to the distinguished
Senator from Illinois.
Mr. DURBIN. Mr. President, I rise today to support the nomination of
Merrick Garland to be judge on the D.C. Circuit Court of Appeals. It is
interesting today in this debate that many people have spoken and no
one has questioned his integrity nor his ability. He was born in
Chicago, graduated from Harvard College magna cum laude, Harvard Law
School and, as has been said by other speakers, had a distinguished
career both as a lecturer at Harvard Law School and partner in a
prestigious firm, and then prosecuting cases in the District of
Columbia during the past few years, served as well in the Department of
Justice.
Despite Mr. Garland's obvious and many qualifications for this job,
we must vote on whether he will serve on the D.C. Circuit Court of
Appeals. Frankly, we should leap at the opportunity to have him on that
court. But we are not here today to consider the significant
contribution Mr. Garland's appointment could have to the D.C. circuit.
Rather, we are focusing on whether the D.C. circuit needs 11 judges
rather than 10 judges.
I submit that this debate is not just about numbers. It is about the
administration of justice; the fair, prompt, equitable, and thorough
administration of justice is at stake. In all fairness, I must confess
that I would rather err on the side of too many judges than too few. I
would rather have too many judges doing too thorough and too thoughtful
a job than too few judges rushed and careless in frantic efforts to
handle their caseload. No one but the most shortsighted argues that the
D.C. circuit does not need this 11th judge. Indeed, last year when the
debate turned on whether a 12th judge was needed, the Reagan-appointed
Judge Silberman was often cited in support of the effort to cut that
12th seat. However, he recently wrote to the Judiciary Committee and
said, ``I still believe we should have 11 active judges.'' So why are
we arguing about this 11th seat today?
Some argue that D.C. circuit judges handle fewer cases per judge than
any other circuit. I won't make an analogy to the Supreme Court in the
number of cases that they handle. We know they are cases of great
moment, and they should have the time to deliberate them in an
appropriate manner. But the smaller number of cases per judge is an
inaccurate way of measuring the work of the D.C. circuit judges. Let me
say, at the outset, that we cannot overlook the fact that this circuit,
more than most--probably more than any--has many administrative appeals
to consider. As the Federal appeals court sitting in the Capital, the
D.C. circuit handles the lion's share of administrative appeals.
This chart that was prepared gives an idea of the administrative
agency appeals filed per judge in all the Federal circuits across the
United States. If you will note, D.C. circuit has 56 appeals filed per
judge. Most other circuits are in the teens--the eighth circuit, only
8; the ninth circuit is 37. But it is a significantly different
caseload that faces the judges in these circuits.
[[Page S2532]]
For those who are not familiar with these administrative cases, I
suggest that you not dismiss them because of the word
``administrative.'' Let me show you what I mean. This is a file for one
administrative law case that a judge must pore through to come to a
good conclusion.
Let me show you another thing. This is a pro se petition from a
prisoner in jail. There are many of these that are filed across the
country. But consider the gravity and the challenge of this
administrative appeal, as opposed to this rather smaller appeal in
terms of volume. So these judges who serve in this circuit really bear
an unusually large responsibility in extremely technical cases. Over
the last 3 years, for which data is available, 45.3 percent of the
cases filed in the D.C. circuit were administrative appeals of the size
and complexity that I have just noted, compared with an average of 5.9
percent outside the D.C. circuit.
Let me also add here that I could go into detail, but I will not
because I know it is the intent of the Chair to move this matter to a
vote very quickly. I also want to comment for a moment on the period of
time that this very able nominee has waited for confirmation. It is
unfortunate. In fact, it is sad, and it borders on tragic, that men and
women who are prepared to give their lives to public service, who have
gone through a withering process of investigation, by the FBI, by the
Judiciary Committee, by the White House, by the American Bar
Association, and so many others, still must wait over a year, in many
cases, for their nominations to be considered by the Judiciary
Committee and by this Chamber.
I will tell you, a few days ago it was my good fortune to speak to a
group of judges at the Supreme Court Building. As I walked through that
building and saw the busts of great jurists who have served this
country, I wondered how many of them could pass the test that we now
impose on nominees today, how many of them would be willing to endure
that test and to say that their family, friends, colleagues, and others
that their lives will be on hold waiting for some decision from Capitol
Hill. It does a great disservice to this country and to the judiciary
for us to create a process that is so demanding that ordinary people
would be discouraged from trying.
We have, in this case, an extraordinary individual, Merrick Garland,
who has waited patiently now for over a year to be considered by this
Judiciary Committee and by this U.S. Senate.
I hope those on the other side will make an effort to overcome the
problems that we have seen over the past year. We really have to
address the fact that there are so many vacancies on Federal benches
across this country--not just in the District of Columbia but almost
100 nationwide--vacancies that need to be filled so that people will be
treated fairly. If those vacancies are not filled with honest and
competent individuals in a timely manner, it is a great disservice to
this country.
I think we should move and move quickly to approve this nomination of
Merrick Garland. I hope that his patience will be rewarded today, as it
should be. I am certain, based on his background and all that I have
come to know of him and my personal meeting with him, that he will make
an extraordinary contribution.
We need the 11th judge in the D.C. circuit to handle this mountain of
administrative appeals. How many people will come to us and complain,
``Oh, the case is in court, and it is going to take forever. What is
going on, Senator? What is going on, Congressman? Why aren't the courts
more responsive?'' Part of the problem is that the bench is vacant, the
judges aren't appointed, and the caseload that has been imposed on
these judges is overwhelming.
We can take care of one circuit today by the appointment of this fine
man to fill this seat.
Thank you, Mr. President.
Mr. LEAHY addressed the Chair.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I ask unanimous consent that an article
from the Legal Times of August 1995 regarding Mr. Garland be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Legal Times, Aug. 7, 1995]
Garland: A Centrist Choice
(By Eva M. Rodriquez)
He was schooled at Harvard in administrative law by
moderate professor-turned-Justice Stephen Breyer, and took
his antitrust training from conservative Philip Areeda.
He earned his prosecutorial stripes under Jay Stephens, the
hard-charging Republican U.S. attorney in the District and
former deputy counsel to President Ronald Reagan. And he cut
his teeth in the private sector as a partner at Arnold &
Porter, one of the city's wealthiest and most influential
firms.
At first blush, Merrick Garland may seem like a solid-
judicial pick for a Republican president. But according to
two administration sources, the 42-year-old top aide to
Deputy Attorney General Jamie Gorelick is almost certain to
be President Bill Clinton's third nominee to be the
prestigious U.S. Court of Appeals for the D.C. Circuit.
Although Garland has his share of liberal credentials--
including a coveted clerkship with retired Supreme Court
Justice William Brennan Jr.--he is almost sure to be a much
more middle-of-the-road jurist than the man he would replace,
former Chief Judge Abner Mikva, who retired from the D.C.
Circuit last fall to take the job of White House counsel.
News of Garland's near-lock on the nomination has left a
smattering of liberals privately grumbling that he is too
conservative. But his nonideological approach and his easy
rapport with both liberals and conservatives has earned
Garland high praise from people on both sides of the aisle.
``I think he is a very talented lawyer,'' says Garland's
former boss Stephens, now a partner at the D.C. office of San
Francisco's Pillsbury, Madison & Sutro. ``He's bright,
energetic, and he has a very balanced demeanor.''
Garland's current boss also lauds him. ``He has enormous
personal and intellectual integrity, impeccable legal
credentials, a breadth of experience in both public and
private sectors, and the personality and demeanor that you'd
expect in a judge,'' says Gorelick, who acknowledges that she
is a strong backer of Garland's but declines to discuss
whether he is definitely the administration's nominee. ``He
is very thoughtful, is good at listening to all points of
view, and makes decisions on the merits.'' Attorney General
Janet Reno also thinks highly of Garland, Gorelick says.
The widespread praise Garland garnered for his thorough and
evenhanded leadership during the critical initial
investigation into the Oklahoma City bombing also hasn't hurt
his chances for a nomination to the federal bench.
A Republican staffer on the Senate Judiciary Committee
declines to discuss Garland's chances for confirmation, other
than to say that the committee has received no opposition in
anticipation of a Garland nomination.
Garland, a 1977 magna cum laude graduate of Harvard Law
School who clerked for famed 2nd Circuit Judge Henry Friendly
in addition to Brennan, declines comment. Mikva was out of
town and could not be reached for comment.
Garland's reputation as a nonideological thinker may have
helped him win the nomination over Peter Edelman, who last
fall was reportedly the White House's top pick for the D.C.
Circuit vacancy. Edelman, who is currently counselor to
Health and Human Services Secretary Donna Shalala, was a
favorite of the more liberal ranks in the Democratic Party,
but he immediately drew opposition from conservatives--
including Sen. Orrin Hatch (R-Utah), chairman of the Senate
Judiciary Committee, who believed Edelman to be too radical
and too activist in his approach to the law. Opposition to
Edelman only intensified after the GOP's sweeping victory in
last fall's midterm election.
Edelman, according to two lawyers involved in the judicial-
selections process, is likely to be nominated for one of the
two vacancies on the U.S. District Court here. But D.C. Del.
Eleanor Holmes Norton, whose judicial nominating commission
has forwarded names to Clinton for previous D.C. federal
court vacancies, may have candidates of her own. The
commission will accept applications for the two vacancies
until August 11.
The two sources say Clinton is likely to nominate Garland
before Congress breaks for the August recess. The two sources
also say that the president may decide to submit a package of
D.C. nominees, including one for the appeals court vacancy
and another for one of the two open seats on the District
Court. One trial court vacancy was created in June when Judge
Joyce Hens Green took senior status; the other came open when
Judge Harold Greene followed suit earlier this month.
Others mentioned as possible contenders for a District
Court seat include Brooksley Born, a partner at D.C.'s Arnold
& Porter who is said to have very strong support among
women's groups, and U.S. Attorney Eric Holder, Jr., who is a
former D.C. Superior Court judge and at one time was
mentioned as a possible appeals court nominee.
Mr. LEAHY. Mr. President, I thank the distinguished Senator from
Illinois. His dramatic showing of the difference between the pro se
appeals that many courts handle and the complexity of the
administrative issues that the District of Columbia Circuit Court of
Appeals handles is very instructive for us. Everybody talks about
caseloads. Some
[[Page S2533]]
cases are handled in a matter of minutes. Others take months. They each
count for one case. He has demonstrated that in the District of
Columbia circuit, because of its unique nature, many of them count for
a month.
Mr. President, I withhold the remainder of my time.
Mr. GRASSLEY addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, my good friend from Illinois, the
distinguished Senator, has just spoken. I would just observe that more
government isn't necessarily better government, and, also, in the sense
of justice more judges do not automatically guarantee better justice.
I can remember from my service, being appointed by the Chief Justice
in 1989, I believe it was, to a 2-year study, the only study we have
ever had, of the Federal judiciary that we were looking and projecting
what number of cases were going to have to be filed over the next
couple of decades. The only conclusion you could come to, if those
figures were accurate--and, so far, they have been proven to be
accurate--is that you could never appoint enough judges to take care of
the problems that we are having with the explosion of cases; that you
have to look at a lot of other ways. How do you dispense justice in the
less-adversarial environment of a courtroom and in the less-costly
environment of the courtroom? For instance, what can you do for
alternate dispute resolutions? There are a lot of other ways that I as
a nonlawyer am not qualified to speak to. But I can tell you that more
judges is never going to solve the problem of more cases.
Another area we have to do something about is tort reform, as an
example of something that we have to do about the number of cases
piling up.
So I just ask my good friend from Illinois to think about those
things as well.
I want to respond to some of the comments raised by those who feel
that the caseload statistics indicate that filling the 11th seat is
necessary. In my view, this is not a fair reading of the caseload
numbers.
I point my colleagues' attention to a Washington Times editorial
which appeared on October 30, 1995. That editorial considered the
question of whether or not the administrative type of cases in the D.C.
circuit are really as complicated and so complicated that caseload
statistics can be misleading. I would like to quote from that
editorial.
Per panel the District of Columbia circuit averages at best
half the dispositions of other circuits. To make a perfectly
reasonable comparison that takes account of the greater
complexity of the cases in the D.C. circuit, then we should
be asking, Is each case in the D.C. circuit on average twice
as complicated as the average case in the other circuits?
That seems unlikely in the extreme.
It seems to me that this point is exactly correct. Granted, the
caseload of the circuit is a little different. I grant that.
I agree with the point made in a hearing I held on the District of
Columbia circuit in my subcommittee. The point is that other circuits--
the second circuit in particular--have a large percentage of
complicated cases. In the second circuit, those cases are complex,
commercial litigations coming out of New York City. But you do not hear
people complaining that the total staffing level of the second circuit
should not be determined according to those statistics.
So I believe that complexity of cases in the D.C. circuit is
overstated. It really is a nonargument when the number of agency cases
has declined by 23 percent in the last year. Moreover, now the District
of Columbia circuit has a senior judge. That happens to be a former
member of this body, Judge Buckley. Since senior judges must carry at
least a one-third caseload, and they typically carry a one-half
caseload, it is fair to consider the District of Columbia circuit as
having 10\1/2\ judges right now when the ratio says 9\1/2\ judges.
So let's see if what we have works because what we have right now
won't cost the taxpayers any more money.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Thank you, Mr. President.
I am pleased to be able to comment on this judicial vacancy. I
certainly respect Senator Grassley and his comments. I agree with him
very, very much.
I think it is an important point to note that people say that
administrative cases are difficult to administer, and that they may
have a file that is fairly thick. Well, judges have law clerks. They go
through the files. Even if the file is thick, the issue coming up on an
administrative appeal may be very simple and may involve nothing more
than a simple interpretation of law. Many of those can be disposed of
very easily.
Based on my 12 years of experience as a U.S. attorney practicing in
Federal court in cases involving all kinds of Federal litigation, I
don't at all concede the point that every administrative law case is
substantially more difficult than others. As a matter of fact, Judge
Silberman testified in 1995 that it is true that the administrative law
cases are generally more complicated, and other judges in other
circuits, like the second circuit, will tell you that some of their
commercial litigation coming out of the Federal district court is
terribly complicated, too. I am not in a position to compare the two.
Let me just say this from personal experience. I talked earlier today
about the testimony of Chief Judge Tjoflat from the Eleventh Circuit
Court of Appeals. He said that they have 575 cases per judge, and that
they cannot handle any more cases. I was involved in a 7-week trial of
a criminal case that I personally prosecuted. In the course of that
trial 18,000 pages of transcript were generated, and when the case was
heard on appeal, there were 20 or more issues involving 5 or more
defendants. Many of these criminal cases are extremely difficult.
I will also point out that the eleventh circuit includes the southern
district of Florida which probably has, outside of New York and
California, the largest number of complex criminal cases, in particular
international drug smuggling cases, of any circuit in America. Those
cases are sent to the eleventh circuit and yet they can manage their
caseload in this fashion. I think it is a remarkable accomplishment.
The fourth circuit, with 378 cases per judge, has the fastest
turnaround of any circuit in America.
We talk about the need to move cases rapidly, and it is argued that
we need more judges to move cases rapidly. How is it that the fourth
circuit, with 378 cases per judge, has the fastest disposition rate of
any circuit in America? It is because they are managing their caseload
well and because they do not have more judges than are necessary. As
Judge Tjoflat testified before our committee, too many judges actually
slows down the process and makes good judging more difficult. I think
that is a matter that we should address.
I would like to note that we have not delayed this matter. We are
prepared to have this matter come to a vote. More delays would have
been possible if we had wanted simply to delay this process. I feel it
is time to vote on this issue. I respect the legal ability of Mr.
Garland. He was on the Harvard Law Review. It does not bother me if he
was editor in chief of the Harvard Law Review. It would not bother me
if he had been editor in chief of the law review at the University of
Alabama School of Law. The fact remains that the taxpayers should not
be required to pay for a judge we do not need. The taxpayers should not
have to pay $1 million per year for a judge that is not needed.
Mischief sometimes gets started. I recall the old saying my mother
used to use: an idle mind is the devil's workshop. We need judges with
full caseloads, with plenty of work to do, important work to do.
This circuit is showing a serious decline in caseload. In fact,
caseload in this circuit declined 15 percent last year. That decline
continues. I think it would be very unwise for us to fill a vacancy if
there is any possibility that the caseload will continue to decline. We
do not need to fill it now, and we certainly do not need to fill it in
the face of this declining caseload, because once it is filled, the
judge holds that position for life and the taxpayers are
[[Page S2534]]
obligated to pay that judge's salary for life. That is an unjust burden
on the taxpayers of America.
Fundamentally, this is a question of efficiency and productivity.
There are courts in this Nation that are overworked, particularly many
of the trial courts. We may not have enough money to fill those
vacancies. Let us take the money from this Washington, DC circuit court
and use it to fund judges and prosecutors and public defenders in
circuits and district courts all over America that are overcrowded and
are overworked.
Those are my comments. We have studied the numbers carefully. We are
not here to delay. We are not here in any way to impugn the integrity
of Mr. Garland. By all accounts, he is a fine person and an able
lawyer. He does have a very good job with the U.S. Department of
Justice. We probably need some trial judges here in Washington, DC, and
if the President nominated him to be one of those trial judges, I would
be pleased to support him for that.
That will conclude my remarks at this time.
I ask unanimous consent to have printed in the Record a letter from
Judge Silberman dated March 4, 1997, in which he said that the filling
of the 12th seat would be frivolous and in which he noted the
continuing decline in caseload.
I also ask unanimous consent to have printed in the Record a letter
from the Director of Governmental Affairs for the Christian Coalition
written in opposition to the filling of this vacancy, noting that it is
not warranted.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Court of Appeals,
District of Columbia Circuit,
Washington, DC, March 4, 1997.
Hon. Orrin G. Hatch,
Dirksen Senate Office Building,
Washington, DC
Dear Chairman Hatch: Your asked me yesterday for my view as
to whether this court needs 11 active judges and whether I
would be willing to communicate that view to other senators
of your committee. As I told you, my opinion on this matter
has not changed since I testified before Senator Grassley's
subcommittee in 1995. I said then, and I still believe, that
we should have 11 active judges.
On the other hand, I then testified and still believe we do
not need and should not have 12 judges. Indeed, given the
continued decline in our caseload since I testified, I
believe that the case for a 12th judge at any time in the
foreseeable future is almost frivolous. As you know, since I
testified, Judge Buckley has taken senior status and sits
part-time, and I will be eligible to take senior status in
only three years. That is why I continue to advocate the
elimination of the 12th judgeship.
Sincerely,
Laurence H. Silberman,
U.S. Circuit Judge.
____
Christian Coalition,
Washington, DC, March 19, 1997.
Dear Senator: I am writing to urge you to vote against
confirming judicial candidate Merrick Garland. The workload
for the D.C. Circuit does not warrant filling either the 11th
or 12th seats on the D.C. Circuit. When one considers that
approximately 1 million dollars worth of taxpayer dollars is
involved for each judgeship, it is important for the Senate
to eliminate unnecessary seats whenever possible. Please vote
against confirming Merrick Garland. Thank you for your
consideration of our views.
Sincerely,
Brian Lopina,
Director, Governmental Affairs Office.
The PRESIDING OFFICER. Who yields time?
Mr. LEAHY addressed the Chair.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I am glad to hear that nobody wants to
delay Merrick Garland. I would only point out that his nomination first
came before us in 1995, and he was voted out of committee, I believe
unanimously, by Republicans and Democrats alike, in 1995. We are going
to vote, I hope, very soon to confirm him. But if that is not delay, I
would hate like heck to see what delay would be around here. He was
nominated in 1995, got through the committee in 1995 and will finally
get confirmed in 1997.
I understand other members say they would be perfectly willing to
help out on the district court; we need help. We have Judge Colleen
Killar-Kotelly who is still waiting, nominated very early in 1996, has
yet to come through, even though in 1996 alone the criminal case
backlog increased by 37 percent. We talk about getting tough on
criminals. We certainly will not send the judges that might do it.
I withhold the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. LOTT addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. LOTT. Mr. President, I would like to make a brief statement to
explain my vote that I will cast later on today. I know we are having
interesting discussion, and this is one that has been a long time
coming, getting this judgeship to the floor of the Senate for a vote.
Obviously, there has been support for this nominee by Senator Hatch
and by Senator Specter and others. Senator Leahy has been pushing to
get these judges voted on. This is the first one of the year. I presume
this is a celebratory event.
Mr. LEAHY. It is showing, if my friend from Mississippi will yield,
remarkable speed. As I said, he was nominated in 1995, first got
through the committee unanimously, Republicans and Democrats, in 1995.
We are now just before our second vacation of the year in 1997. I am
glad, whenever it is, to get him through.
Mr. LOTT. But now maybe I can comment just briefly on why it has
taken so long. There were a lot of factors involved. I will vote not to
confirm Merrick Garland to be a D.C. Circuit Court of Appeals judge. I
have no opposition to Mr. Garland himself. I think he is qualified. I
think he has experience that would be helpful. And I think his
disposition is acceptable, too.
In fact, based on all the reports that I have heard about him, I
think he more than likely would be a much more acceptable nominee to
this court as compared to many of the other nominees we have considered
or may be considering in the future.
It is my belief that this court of appeals is more than adequately
staffed based on the number of cases pending on the court's docket, the
filings per judge at this court as it is currently staffed for the year
ending September, 1996, with the trend of such filings over the last
several years, and in comparison to other workloads of circuit courts
of appeal around the country. It is very small. I think as compared to
others certainly they have more judges than they need.
I am looking at this chart over here. The District of Columbia Court
of Appeals is at the bottom end of the caseload, and yet you have other
circuit courts across the country--my own circuit, the fifth, is about
in the middle. The eleventh circuit obviously has a high caseload as
compared to this particular court.
So I really do not think this confirmation is needed. Even if it does
get through, I want to say right now that regardless of the next
nominee, unless this caseload is dramatically turned around, I hope it
would never even be considered regardless of how qualified the nominee
may be, he or she, in a Democratic administration.
I recognize that some circuits do have tremendous caseloads, but this
is certainly not the case in this circuit, and therefore I will vote
against the nomination based on that. In fact, I just do not think an
additional judge is needed in this district court of appeals.
I ask unanimous consent to print in the Record a list of the filings
per judge in 1996 and the total appeals docket in 1995 per judge that
shows as compared to other circuits this judge is not needed.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Appeals filed per judge in 1996:
D.C. Cir., 123
10th Cir., 216
1st Cir., 227
3rd Cir., 280
7th Cir., 295
8th Cir., 307
6th Cir., 341
9th Cir., 360
2nd Cir., 372
4th Cir., 378
5th Cir., 443
11th Cir., 575
Total appeals on docket for year ending 1995/per judge:
1st Cir., 1339 (4 judges=335)
2nd Cir., 3987 (12 judges=332)
3rd Cir., 3485 (13 judges=268)
4th Cir., 3542 (12 judges=295)
5th Cir., 5696 (15 judges=380)
6th Cir., 3343 (13 judges=257)
7th Cir., 2200 (8 judges=275)
8th Cir., 3176 (10 judges=318)
9th Cir., ?
10th Cir., 2104 (8 judges=263)
11th Cir., 6057 (10 judges=606)
D.C. Cir., 2065 (10 judges=206)
[[Page S2535]]
Mr. LOTT. I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Missouri.
Mr. ASHCROFT. I yield myself such time from the opposition time as is
necessary for me to make a statement.
Mr. President, I rise today to speak, not in opposition to Merrick
Garland for filling the seat on the U.S. court of appeals, but in
opposition to filling the seat at all. The U.S. Court of Appeals for
the District of Columbia Circuit is a judicial circuit which has the
lowest caseload of any of the judicial circuits in the country, and I
think this is a time when we ought to ask ourselves some serious
questions about whether or not we intend to staff circuits in spite of
the fact that there are adequate judges in the circuits to handle the
caseload which is currently required of the circuit.
First, the amount of judicial work in the circuit raises questions
about the necessity of confirming another appellate judge for the D.C.
circuit. It appears that filling this vacancy would be an inefficient
use of judicial resources. Before filling any vacancy for an appellate
judgeship, the U.S. Senate should look at the filings per judgeship
compared with other jurisdictions. Of the 12 courts of appeals, the
D.C. circuit has the lowest filings per judge of any of the 12 courts
of appeals. While the D.C. circuit has had only 123 cases filed per
judge, the eighth circuit, the circuit in which I live, handled nearly
three times the D.C. circuit's total of appeal filings, with 307
appeals filed per judge. The eleventh circuit court of appeals, in
comparison, had 575 appeals filed per judge.
The D.C. Circuit Court of Appeals now has two open seats. But Judge
James Buckley, who took senior status last year, which means he is
still obligated to handle a caseload equivalent to that of an average
judge in active service who would handle a 3-month caseload, is still
there. So you have a senior status judge who is handling the equivalent
of a quarter of the load that a normal judge in the circuit would
handle. So you do not have the loss completely of the second judge in
those two vacancies; you have the loss of one judge, and then you have
one-quarter judge in the senior status making up for any slack.
Still, the D.C. circuit is the least populated with work. And it is
the circuit that does not merit additional judges to conduct the work
which simply is not there. If we were to use the formula expressed by
the Judicial Conference, between 1986 and 1994 the D.C. circuit court
would rate just in the order of nine judges to handle its current
caseload. So, in terms of the Judicial Conference's own assessment of
how many judges would be needed, the caseload of the D.C. circuit would
rate nine judges. It has 10 judges now, and if you start to add the
additional caseload that can be handled by senior judges, it seems to
me that adds an additional capacity of that court to handle work for
which it is already overstaffed.
While appeals filings for all of the Nation's U.S. courts of appeals
increased to an all-time high of 4 percent, the number of filings filed
in the D.C. circuit actually dropped last year; it dropped 15 percent.
So you have an increase of appeals in the system generally of 4
percent, you have a decline in the D.C. circuit of 15 percent, of the
12 additional circuits, the District of Colombia had the largest
decline in appeals last year.
Mr. President, ending the era of big Government includes all three
branches of government. But if we cannot end big government where we
have had declining demand for services, and where we are already
overstaffed, where can we end big government? To believe that the
judicial branch should be excluded from the exercise of responsibility
or should be overstaffed or should ignore the trends in terms of case
filings and should be overpopulated with individuals because there are
slots available, in spite of the fact that the work or the caseload is
not there to justify those slots, would be for us to deny a responsible
position in this matter.
Let me just indicate that there are two vacancies and virtually
everyone will confess that at least one of them should not be filled.
This is not a matter of saying some people think all the vacancies
ought to be filled; others think that neither of the two should be
filled. There is a general consensus that filling the second of the two
would certainly be a waste and surplus. I think if you look carefully
and you measure the caseload by what the Judicial Conference had
previously stated was an appropriate caseload, and you look at the
potential for work by the senior active judges who have taken senior
status, you can come but to one conclusion, that it is not an
appropriate deployment of the tax dollars of the citizens of this great
Nation to add a judge to a court where the workload does not justify
it.
Good government is not to fill a vacancy simply because it exists. To
fill this vacancy without taking into account the lack of caseload is
fiscally irresponsible.
Before I yield the floor, I would like to address the argument that
the D.C. court of appeals might be considered to be a different court,
unique, one of a kind, because it has a lot of cases that are
administrative in nature and they have a certain level of complexity. I
think in this regard it is important to cite Judge Silberman, who sits
on the D.C. court of appeals. On this point, in 1995, he testified as
follows:
It is true that the administrative law cases are generally
more complicated. But other judges in other circuits, like
the second circuit, will tell you that some of their
commercial litigation coming out of the Federal District
Court is terribly complicated, too. The truth of the matter
is, some of the administrative law cases in the D.C. circuit
are complicated. But if you look at the second circuit, the
caseload of which is more than twice as much as the D.C.
circuit, in the second circuit their caseload is complicated
as well.
The fact of the matter is, it is time for the U.S. Senate, which
called the circuit courts into creation, which called district courts
into creation, to begin to exercise a responsible approach toward
staffing those courts and not to staff them when the workload does not
justify it. Even if the nature of the cases coming before the D.C.
circuit is unique, those cases are not so difficult, or different from
the other cases which have their own uniqueness and have their own
difficulty, whether they be commercial instead of administrative, so as
to mean that we should populate the court with staffing which is not
required by the caseload.
Mr. President, I plan to vote against Mr. Garland, not for any reason
to impair his standing or his credentials. I do not think this is a
question about the qualifications of the judge. But it is a question
about the deployment of the public's resource and about the staffing
level for courts which do not have caseload to justify it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Vermont.
Mr. LEAHY. Mr. President, there has been a lot of discussion, just
now again, quoting Judge Silberman. What is needed--I would note, he
wrote to the distinguished chairman, Senator Hatch, and said that we
should have 11 active judges. We talk about this as though the nominee
was going to be the 12th judge. In fact, the nominee is the 11th judge.
I ask unanimous consent that a letter dated March 4, 1997, by Judge
Silberman, in which he said, ``. . . I still believe that we should
have 11 active judges,'' be printed in the Record at this point.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Court of Appeals,
District of Columbia Circuit,
Washington, DC, March 4, 1997.
Hon. Orrin G. Hatch,
Dirksen Senate Office Building,
Washington DC.
Dear Chairman Hatch: You asked me yesterday for my view as
to whether this court needs 11 active judges and whether I
would be willing to communicate that view to other senators
of your committee. As I told you, my opinion on this matter
has not changed since I testified before Senator Grassley's
subcommittee in 1995. I said then, and I still believe, that
we should have 11 active judges.
On the other hand, I then testified and still believe we do
not need and should not have 12 judges. Indeed, given the
continued decline in our caseload since I testified, I
believe that the case for a 12th judge at any time in the
foreseeable future is almost frivolous. As you know, since I
testified, Judge Buckley has taken senior status and sits
part-time, and I will be eligible to take senior status in
only three years. That is why I
[[Page S2536]]
continue to advocate the elimination of the 12th judgeship.
Sincerely,
Laurence H. Silberman,
U.S. Circuit Judge.
Mr. HATCH. Mr. President, I have been sitting here listening to this.
In all honesty, I would like to see one person come to this floor and
say one reason why Merrick Garland does not deserve this position. It
has been almost a year. In the last Congress, I must have gone on this
issue, trying to get him up, for most of that time.
First, there was the 12th seat, he was going to get that. Then, when
Buckley retired, everybody that I know of, who knows anything about it,
other than some of our outside groups who do not seem to want any
judges, said that we need the 11th seat.
As I suspected, nobody in this body is willing to challenge the merit
of Merrick Garland's nomination. I have not heard one challenge to him
yet. In fact, they openly concede that Mr. Garland is highly qualified
to be an appellate judge. Rather, they use arguments that the D.C.
circuit does not need 12 judges in order to oppose the confirmation of
Mr. Garland for the 11th seat on this court.
There is not a harder-nosed conservative or more decent conservative
that I know than Larry Silberman. I talked to him personally. If he
said to me they did not need the 10th seat, I could understand this
argument, and I could understand this minirebellion that is occurring.
But he said they needed the 11th seat. If he had said, ``All we need
are 10 seats, we don't need the 11th or 12th,'' I would have been on
his side, and it would not be because of partisan politics, it would be
because I trust him and I believe in his integrity. But I called him
personally and he said, ``Yes, we do need the 11th seat.''
My colleague from Alabama circulated a letter saying confirming
Merrick Garland would be a ``ripoff'' of the taxpayers. Having just led
the fight for the balanced budget amendment, I do not think that is
quite fair. I am never going to rip off the taxpayers. But I will tell
you one thing, playing politics with judges is unfair, and I am sick of
it, and, frankly, we are going to see what happens around here. A
``ripoff?'' Let's be serious about this, folks. This is a serious
matter.
My colleague referred to the testimony of Chief Judge Wilkinson of
the fourth circuit. That is a different matter. I have challenged the
distinguished chairman of the Subcommittee on Courts to look into that,
and I am going to be heavily guided by what Senator Grassley comes up
with.
The statements of Judge Tjoflat from the eleventh circuit has also
been mentioned. But what do the judges on the D.C. circuit court say?
It is one thing for Wilkinson to get up and make a comment, it is
another thing for Tjoflat, who has problems in that circuit, but what
do the judges on the D.C. circuit say? Both Chief Judge Edwards and
Judge Silberman, a respected conservative, agree that, in Judge
Silberman's words ``it would be a mistake, a serious mistake for
Congress to reduce the D.C. circuit down below 11 judges.''
If I did not believe that, I would not have brought this judgeship
nomination to the floor. I have to tell you, if anybody doubts my
integrity, I want to see them afterwards.
As for the statistics that have been cited, with all due respect,
they are not a fair or accurate characterization of the D.C. circuit's
caseload relative to the other circuits' caseloads. I made that case
earlier.
I am prepared to yield back the time if the other side is prepared to
yield back their time. Is there anybody going to want to speak on the
other side?
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. I am prepared to yield back time.
The PRESIDING OFFICER. The Senator from Utah has no time to yield
back at this point. The Senator from Iowa has approximately 17 minutes
remaining on the opposition side.
Mr. SESSIONS. I would like to be recognized.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, there is nobody in this body who has
fought harder for a balanced budget amendment and for controlling
Federal spending than the distinguished Senator from Utah, Senator
Hatch. His leadership has been terrific on that. I respect that. I
guess we just have a disagreement.
I think it is really unusual that a judge would cite a 12th seat as
frivolous and note in his own letter that it was frivolous because of a
declining caseload. Even though Judge Silberman himself said he felt
they ought to go ahead and fill the 11th seat, we, after full study of
it and in the course of careful deliberations, had the opportunity to
hear from two other chief judges from two other circuits that
indicated, even though they have much higher caseloads, 575 to 378
cases per judge, that they did not need a new circuit judgeship.
So, therefore, I concluded that a circuit with 124 cases per
judgeship did not need to be filled, and that the $1 million per year,
if it is not justified, would be a ripoff of the taxpayers. I feel that
we can spend that money more efficiently on trial judges in circuits
and districts that are already overwhelmed with heavy caseloads and not
on the D.C. circuit that is overstaffed already. I yield the floor, Mr.
President.
Mr. GRASSLEY. We yield back the time on our side, and I ask for the
yeas and nays.
The PRESIDING OFFICER. The yeas and nays have been requested. Is
there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Merrick B. Garland, of Maryland, to be
U.S. circuit judge for the District of Columbia circuit? On this
question, the yeas and nays have been ordered. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Ohio [Mr. Glenn] is
necessarily absent.
The PRESIDING OFFICER (Ms. Collins). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 76, nays 23, as follows:
[Rollcall Vote No. 34 Ex.]
YEAS--76
Abraham
Akaka
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Bryan
Bumpers
Byrd
Campbell
Chafee
Cleland
Coats
Cochran
Collins
Conrad
D'Amato
Daschle
DeWine
Dodd
Domenici
Dorgan
Durbin
Feingold
Feinstein
Ford
Gorton
Graham
Harkin
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Mack
McCain
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Smith, Bob
Smith, Gordon H.
Snowe
Specter
Stevens
Thomas
Thompson
Torricelli
Warner
Wellstone
Wyden
NAYS--23
Allard
Ashcroft
Brownback
Burns
Coverdell
Craig
Enzi
Faircloth
Frist
Gramm
Grams
Grassley
Gregg
Hagel
Helms
Hutchinson
Kyl
Lott
McConnell
Nickles
Sessions
Shelby
Thurmond
NOT VOTING--1
Glenn
The nomination was confirmed.
Mr. LEAHY. Madam President, I move to reconsider the vote.
Mr. HATCH. I move to lay it on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, this is the first judge confirmed in this
Congress. I hope it will be the first of many, many.
I remind my colleagues we have close to 100 vacancies in the Federal
court. We have begun with one of the most outstanding nominations any
President has sent.
That is the nomination of Merrick Garland--now Judge Garland. I
compliment him on that. He was nominated in 1995; it first passed
through the Judiciary Committee unanimously in 1995, and it is now
1997. We need to move----
Mrs. BOXER. Madam President, the Senate is not in order.
[[Page S2537]]
The PRESIDING OFFICER. The Senate will be in order. The Senator is
entitled to be heard.
The Senator from Vermont.
Mr. LEAHY. Madam President, I thank the Chair. I wish also to
compliment my friend, the distinguished senior Senator from Utah for
his help in doing this. I also wish to compliment Senators who paid
attention to his very, very strong statement at the end of this debate
on behalf of Judge Garland. I think that the Senator from Utah and I
are committed to trying to move, in a bipartisan fashion, to get these
judges here. I hope all Senators will join us in doing that. The
Federal judiciary should not be held hostage to partisan, petty, or
ideological constraints that really reflect only a minority of views.
The Federal judiciary is really a blessing in our democracy in the
fact that it is so independent. Our Federal judiciary is the envy of
all the rest of the world. The distinguished Senator from Utah and I
are committed to keeping it that way. We will work together to keep it
that way. I thank him for his help on this nomination.
Mr. DASCHLE. Mr. President, I would like to reiterate what Pat Leahy
has said about how glad we are that Merrick Garland has finally been
considered by the Senate for appointment to the U.S. Court of Appeals
for the District of Columbia Circuit. We wholeheartedly believe that
Mr. Garland is highly qualified for this position and deserves the
strong vote we just gave him.
Mr. Garland has been awaiting this day since being nominated by the
President on September 5, 1995--1\1/2\ years ago. His qualifications
are clear. The ABA's standing committee on the Federal judiciary found
him well qualified to serve on the Federal bench, and he has received
the support of a bipartisan and ideologically diverse group of
individuals.
His credentials cannot be challenged. He has worked at the Department
of Justice as the Principal Associate Deputy Attorney General, in
private practice and served as a law clerk to Justice Brennan on the
Supreme Court and a law clerk to Judge Friendly on the U.S. Court of
Appeals for the Second Circuit.
I am happy that today, after his long wait, Merrick Garland finally
knows that he will serve as a Federal judge.
It is unfortunate, however, that we have not yet voted on any other
judges during this session of Congress--at a time when we have almost
100 vacancies on the Federal bench. That is a vacancy rate of over 10
percent.
I hope that voting on Merrick Garland's confirmation today signals
that we are going to address this serious problem and begin to fill
those long empty seats on the Federal bench.
Mr. President, I am extremely pleased that the Senate has confirmed
the nomination of Merrick Garland to the U.S. Court of Appeals for the
District of Columbia Circuit. Let us ensure that our Federal bench has
a full complement of such qualified judges so that the business of
justice can go forward.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Madam President, I want to thank my colleagues who voted
for Judge Merrick Garland. I believe they did what was right.
With regard to Federal judgeships, we ought to do what is right. I
take this job as seriously as anything I have ever done in the Senate.
I want to thank my colleagues who voted with us for supporting the
nominee.
Having said that, there have been a serious number of nominees whom
we have confirmed in the past who have proven to be activist judges
once they got on the bench and who told us when they were before the
committee they would not be activist and they would not undermine the
role of the judiciary by legislating from the bench. Then they get to
the bench and they start legislating from the bench.
I want them to know, and I want to send a warning to the judiciary
right now, if they are going to continue to disregard the law, if they
are going to continue, in many respects, to bypass the democratic
processes of this country, if they are going to start substituting
their own policy preferences for what the law really says, then it is
going to be a tough time around here. This vote proves it.
I don't feel good about all those who voted against this nomination,
but the fact of the matter is that there is some reason for their doing
so. Republicans are fed up with these judges who disregard the role of
judging once they get to the courts, after having told us and promised
that they will abide by the role of judging. Now, I am upset--there is
no question about that--because I think the finest nominee that I have
seen from this administration is Merrick Garland, and I think he
deserved better. But I also understand my colleagues.
I am sending a warning out right now that these judges who are
sitting on the bench better start thinking about the role of judging
and quit trying to do our jobs. We have to stand for reelection. That
is why the buck should stop here--not with some Federal judge who is
doing what he or she thinks is better for humanity and mankind.
We have judges on the Ninth Circuit Court of Appeals who could care
less about what the Congress says, or what the President says, or what
the legislative and executive branches say. That is why they are
reversed so routinely by the Supreme Court. It is pathetic. I don't
mean to single them out, but it is the most glaring example of activist
judges in this country.
Let me just say this. I am sending a message right now that I intend
to move forward with judges, and, if this administration will send
decent people up here who will abide by the rule of judging and the
rule of law and quit substituting their own policy preferences and
finding excuses for every criminal that comes before them, they are
going to have support from me. I hope they will have more support from
the Judiciary Committee in the future. But if they are going to send up
more activists, there is going to be war.
I don't think the judiciary has ever had a better friend than Orrin
Hatch; I know they haven't. I will fight for them. I think they ought
to be getting more pay. I think we ought to support them in every way
we possibly can. They are tough jobs, they are cloistered jobs. They
are difficult jobs. They take great intellectual acumen and ability.
Madam President, I am telling you, we have far too many judges on
both the left and the right who disregard what the rule of judging is
and who legislate from the bench as superlegislators in black robes who
disregard the democratic processes in this country and who do whatever
they feel like doing. They are undermining the judiciary, and they are
putting the judiciary in this country in jeopardy. I am darn sick of
it. My colleagues on our side are sick of it. I don't care whether it
is activism from the right or from the left; it is wrong. We ought to
stop it, and the judiciary is the only place where it can be stopped.
I once had one of the most eminent legal thinkers in the country say
that he has never seen anybody on the Supreme Court move to the right;
they have always moved to the left as they have grown. I would like to
not worry about whether they are moving right or left, but whether they
are doing the job that judges should do.
I am serving notice to the Senate, too. I am chairman of the Senate
Judiciary Committee, and I take this responsibility seriously. I want
everybody in this body to know I take it seriously. It means a lot to
me. I have tried a lot of cases in Federal courts. I have tried a lot
of cases in State courts. I have a lot of respect for the judiciary. So
I take this seriously, and I don't want politics ever to be played with
it. I get a little tired of the other side bleating about politics,
after the years and years of their mistreatment of Reagan and Bush
judges and the glaring, inexcusable examples where they treated
Republican nominees in a shamefully unfair way. Nobody could ever
forget the Rehnquist nomination, the Bork nomination, and even the
Souter nomination, where he wasn't treated quite as well as he should
have been--and above all, the Clarence Thomas nomination; it was
abysmal. Those were low points in Senate history. So I don't think
either side has a right to start bleating about who is righteous on
judges.
I intend to do the best I can here. I want my colleagues to know
that. I certainly want to place my colleagues on my side, and I
certainly want to do
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the right thing for all concerned. This is an important nomination. I
believe Merrick Garland will go on to distinction. Nobody will be more
disappointed than I if he turns out to be an activist judge in the end.
If he does, I think he will be one of the principal underminers in the
Federal judiciary in the history of this country. But he told me he
will not do that, and I trust that he will not. That doesn't mean we
have to agree on every case that comes before any of these courts; we
are going to have disagreements. And just because you disagree with one
judge doesn't mean that judge should be impeached either. To throw
around the issue of impeachment because you disagree with a judge here
and there is wrong.
There are some lame-brained decisions out there, we all know that.
Some of them are occurring primarily in California. Frankly, we have to
get rid of the politics with regard to judges and start doing what's
right. With every fiber of my body, I am going to try to do right with
respect to judges because I respect that branch so much. To me, our
freedoms would not have been preserved without that branch. But the way
some of these judges are acting, our freedoms are being eroded by some
in that branch. It is time for them to wake up and realize that that
has to end.
I yield the floor.
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