[Congressional Record Volume 143, Number 36 (Wednesday, March 19, 1997)]
[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 
  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.
                                                    Frank Keating,

                                           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.
                                                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 
       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.
     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.
     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 
       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.
     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 
       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.
     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 
       I appreciate the opportunity to provide these comments for 
     your consideration.
     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 
                               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 
                                                  Carolyn B. Lamm,

  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

                               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 
       ``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 
       `` `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 
       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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
       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 
  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 

       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.
                                            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.
                                                     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 
  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 

       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.
                                            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 
  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 
  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 
  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. 
  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 
  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.]


     Smith, Bob
     Smith, Gordon H.



                             NOT VOTING--1

  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 
  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 
  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 
  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 
  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.