[Congressional Record Volume 143, Number 70 (Friday, May 23, 1997)]
[Senate]
[Pages S5084-S5086]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIARY VACANCIES

  Mr. HATCH. Mr. President, I wish to take just a few minutes on 
judges, because I want to make two basically important points on 
judges.
  At the outset, first, the current vacancy levels are not the product 
of some alleged Republican stall on judges.
  Second, the Senate's constitutional advise-and-consent responsibility 
should not be reduced to a mere numbers game.
  At the end of the last session, we had 65 judge vacancies. Last year, 
we had 21 judges nominated. We put through 17. We would have put 
through four more except for Democratic objections to their own 
judges--not to the judges, but to putting them forward, because one 
Democrat was not getting the judges that he wanted.
  Let me just elaborate for a minute or two on those two points.
  Mr. President, this is not a numbers game. Let me make an important 
point, which is this. Federal judges should not be confirmed as part of 
a numbers game or to reduce the vacancy rate to a particular level.
  While I plan to oversee a fair and principled confirmation process, 
as I always have, I want to emphasize that the primary criteria in this 
process is not how many vacancies need to be filled, but whether 
President Clinton's, or whoever the President is, whether their 
nominees are qualified to serve on the bench and will not, upon 
receiving their judicial commission, spend a lifetime, a career, 
rendering politically motivated activist decisions.
  The Senate has an obligation to the American people to thoroughly 
review the records of all nominees it receives to ensure that they are 
capable and qualified to serve as Federal judges. These are lifetime 
appointments with lifetime full benefits after they retire. Frankly, 
the record of activism demonstrated by so many of the Clinton judges 
and nominees calls for more vigilance in reviewing these nominees.
  The current vacancies are not the result of a Republican stall. I 
think that is another point that has been widely distorted in recent 
weeks. The argument is that the Republicans are somehow stalling these 
judges. The facts show rather clearly that the current vacancies are 
not the result of Republican stall tactics.
  First of all, at the end of the last Congress there were 65 
vacancies. Today there are 100, 74 of which have not even had a 
recommended nominee. I have been here a long time, but I have never 
heard we had to confirm people who were not even nominated.
  There are 26; and we now have put through 5. We have four more that 
we put out of the committee yesterday, who I believe will go through 
quite soon. And we will have another markup of judges perhaps a week 
after we get back.
  Let me just make this point so that we can resolve some of these 
problems.
  These vacancies were caused by a record level of resignations in the 
past few months.
  During President Clinton's first 4 years, we confirmed 202 judges. 
That is a near record high and nearly one-quarter of the entire Federal 
bench.
  By the close of last Congress, there were only 65 vacancies. This is 
virtually identical to the number of vacancies under the Democratic 
chairman in the previous Congress. The Department of Justice itself 
stated that this level of vacancies represents virtual full employment 
in the Federal courts. So last Congress we were more than fair to 
President Clinton in his judicial nominees. We reduced the vacancy 
level to the level which the Justice Department itself considers 
virtual full employment.
  But since the election last fall, 35 judges have either resigned or 
taken senior status. That is a dramatic number in such a short period, 
which has led to the current level of 100 vacancies.
  Now, current vacancy rates are not an unprecedented crisis. Let me 
just point that out by saying there has only been a 5 percent increase 
in the vacancy rate. Keep in mind that 63 vacancies, a vacancy rate 
just over 7 percent, is considered virtual full employment, and 100 
vacancies is a vacancy rate just over 12 percent. How can a 5 percent 
rise in the vacancy rate convert ``full employment'' into a ``crisis.''
  The Democratic Senate left a much higher vacancy rate under President 
Bush. But compare today's 100 vacancies to that under a Democratic 
Senate during President Bush's Presidency.
  In May 1991--the same time we are at right now--there were 148 
vacancies. That is during President Bush's tenure. In May of 1992, 
again in President Bush's tenure, there were 117 vacancies. So that 148 
and 117, respectively, is more than we have right now.
  Now, I find it interesting that at that time I do not recall reading 
a single article or watching a single interview on judicial vacancies. 
So, in short, I think it is quite unfair and, frankly, inaccurate to 
report that the Republican Congress has created a vacancy crisis in the 
courts.
  Now, I might add that judicial emergencies simply mean that the seat 
has been unfilled for a certain period of time. In reality, though, 
many of them are far from emergencies. Indeed, of the 24 alleged 
judicial emergencies, the administration has not even put up a nominee 
for 11 of those seats. How do you blame the Congress for that? As for 
the others, I think you will find a number of the relevant districts do 
not, in fact, have an overburdensome caseload, and, in fact, some of 
the senior judges are suggesting that we reexamine the number of judges 
in their area and reduce them because they do not need them. It costs 
at least $1 million a year for every judge in this country, and there 
are well over 800.
  All of this being said, I feel very strongly we must do our best to 
reduce the vacancies in the Federal courts. Frankly, there are limits 
to what we can do, especially with what the administration has done so 
far. The fact of the matter is that, excluding two brand new nominees 
whose paperwork we have not yet received and cannot process because we 
have not yet received it, there are only 26 nominees for these 100 
vacancies, meaning 74 vacancies are without nominees. Of these 26, 8 
have already had hearings and are either on the Senate floor or about 
to be reported out of committee. So we are moving on nominees, and we 
will continue to move.
  The problem, however, is that many of the remaining 18 nominees who 
have not yet had committee action are in one way or another problematic 
or controversial. All but a few of them were carried over from the last 
Congress, and I can assure you that there is a reason why the Senate 
confirmed 202 other nominees but not them. If and when the 
administration sends us qualified, noncontroversial nominees, they will 
be processed fairly and promptly, and I am trying to process these 
controversial nominees to the extent that we can and certainly am 
trying to do so fairly and promptly.
  Take Mr. Alan Gold from Florida, for example. He was nominated in 
February of this year. We completed his paperwork and review in March 
and April. He had a hearing 2 weeks ago and was reported out of the 
committee yesterday, just to give an illustration.
  When the administration sends us problematic nominees, it takes much 
more time and it is much more difficult to process them, and the 
administration knows this. I think my colleagues on the other side know 
this. If all we are left with are judges whom we are not ready to move, 
I will not compromise our advise-and-consent constitutional function, I 
will not compromise it simply because the White House has not sent up 
qualified nominees. As I said at the outset, the Senate's advise-and-
consent function should not be reduced to a mere numbers game. The 
confirmation of an individual to serve for life as a Federal judge is a 
very serious matter and it should be treated as such.
  Now, we have had a lot of complaining and yelling and screaming about 
this, but to be honest with you, we are much better than a number of 
prior Congresses where Democrats had control of the Judiciary Committee 
and when they had control of the floor as

[[Page S5085]]

well. President Clinton has not been mistreated. He has not been 
treated unfairly, and his nominees have not been mistreated or treated 
unfairly. In fact, we have yet to have a nominee who has been rejected 
on the floor during the Clinton administration, although I felt that at 
least two of them should have been.
  Mr. LEAHY. Mr. President, I hope the distinguished chairman of the 
Senate Judiciary Committee can stay on the floor just for a moment 
because I intend to refer to some of the things he has said.
  To begin with, the distinguished chairman is a close personal friend 
of mine, not the least of which I find that, as a Grateful Dead fan of 
long standing, I enjoy his gospel music. So we do have some areas that 
join us.
  I must take exception to some of the remarks he has made about 
Federal judges. He mentioned that none had been rejected on the floor. 
Well, of course they have. We have had the average of one a month. At 
this rate, with 100 vacancies, it is zero population growth in the 
Federal judiciary. President Clinton will not be in office long enough 
nor will the next two Presidents, to see all these vacancies filled--
not if you do one a month.
  When he says none have been rejected on the floor, that is because 
these are extraordinarily well-qualified people and they are going to 
be voted for on this floor. In fact, even Merrick Garland they held up 
for so long. When Judge Garland came here, some people--for whatever 
reasons, ideological or whatever--voted against him, but not one person 
suggested he was not extraordinarily well qualified; in fact, one of 
the best qualified judges we have seen in years. In fact, even some who 
voted against him commended his qualifications. So it became just a 
political, partisan thing.
  I suspect that the 27 judges that are being held in limbo or in the 
prison of the Senate Judiciary Committee, if they had a fair vote on 
this floor, would all be confirmed overwhelmingly because Senators 
would not want to have to go back to their State and try to explain to 
people why, other than for purely partisan motives, they voted against 
some of these judges.
  So, how do you defeat the judges? You make sure they never come 
forward. I will give you an example--Margaret Morrow. Margaret Morrow 
came before our committee last year. She had to go through all the 
usual and appropriate confirmation hearings, and she was voted out of 
the committee unanimously, but somehow they made sure she never came to 
the floor for a vote.
  So this year Margaret Morrow was brought back again and told she was 
going to be put in her place. All the men who were candidates for the 
Federal judiciary were brought up first and she was told to sit there--
although she had been here once before and unanimously confirmed, she 
was told to sit there in the back of the room waiting for the others to 
be confirmed or to be heard.
  Now, I keep bringing this issue up at the Judiciary Committee 
meeting, and I am told there are no objections to her, but somehow she 
is never brought forward to be voted on. I keep saying, if Senators 
want to vote against her, stand up, have the guts to stand up in the 
bright sunshine and say how they would vote on her, but nobody does, 
nobody does.
  She was asked such questions as how she votes. There were over 100 
initial questions before it became too embarrassing, and then how did 
she vote on initiatives in California. I raise the question, and I hope 
that all Senators, Republicans and Democrats, would agree with me on 
this, that the Senate demeans itself if it starts asking people how 
they voted in the secrecy of the voting booth. I would never allow 
somebody to ask me how I voted unless I really wanted to tell how I 
voted in the secrecy of the voting booth. The distinguished Senator 
from West Virginia would not allow that. The distinguished Senator from 
Utah would not allow that. And I suspect the Senator who asked the 
question would not allow it of himself. She is supported by the 
Republican mayor of Los Angeles. She is supported by significant 
Republicans and Democrats in California. She was the president of the 
California Bar Association, the first woman ever elected to that 
position--the president of the Los Angeles Bar Association--but somehow 
she does not come on to the floor.
  I suspect that if she was brought for a vote, she would win 
overwhelmingly. She would win with 90 votes in the Senate, at least, 
but apparently she loses with one vote of an anonymous Senator who 
hides behind a veil of secrecy and will not tell us why he or she is 
holding her up.
  Now, is this full employment of the Federal judiciary? Not according 
to the Chief Justice of the United States, William Rehnquist. Chief 
Justice Rehnquist says the situation is bleak --not full employment, 
but bleak.
  We have emergencies existing. The ninth circuit has a quarter to a 
third of all judges missing. Will the White House have more judges 
coming up? Of course they will. But do not blame the White House; blame 
the U.S. Senate. We have had more vacations and recesses in the Senate 
than we have had judges. We ought to at least do the job we are paid to 
do.
  Of course, I agree with the distinguished Senator from Utah that we 
should scrutinize all judges. We can do that, but do it, and then get 
on with our work. We get paid plenty. We ought to do it.
  What I see happening, Mr. President, when you have a Congressman from 
Texas who says that judges should be impeached because he, the 
Congressman, happens to disagree with their decisions--Mr. President, I 
read the Constitution. I have my own copy, supplied to me by the 
distinguished senior Senator from West Virginia, and I say to my friend 
from West Virginia that I looked through that copy and I found grounds 
of impeachment--high crimes and misdemeanors. I did not find grounds of 
impeachment that you annoyed a Congressman from Texas or anywhere else.
  I do not think that was ever contemplated by the Founders, I say to 
my good friend. But this is the kind of ridiculous thing we have, all 
of which is aimed at going against the independence of the Federal 
judiciary.
  We had somebody else who proposed the Congress have the ability to 
stand up and vote to override any judicial decision. What does that do 
to the independence and what does it have to do with our workload? Here 
it is May 23, and we are finally passing the budget that the law 
requires us to pass on April 15. Can you imagine if we had to then vote 
on several thousand judicial decisions each year? This is what we are 
hearing. Again, a conservative Republican Justice, Justice Scalia, says 
this is going too far. I agree with him.
  As I said earlier to the distinguished Republican leader--I was on 
the floor--I hope that he would work to see this does not continue. 
Majority leaders of the Senate, the 22 years I have been here, Senators 
Mansfield, Byrd, Baker, Dole and Mitchell, all great leaders, all 
leaders who said there are certain things where partisanship has to 
end. The President of the United States has the authority under the 
Constitution to appoint judges. We advise and consent. We are not the 
appointers of judges. He is. We can recommend, we can advise and we can 
consent. But once he has appointed them, then if we do not like them, 
vote them down. But do not take on the pride of 100 Senators around 
here.
  I suspect, regarding the press accounts, that the distinguished 
Senator from Utah has certain restraints from within his own caucus. I 
understand that. But I urge this. We are going to go out of session now 
for 10 days or so, a week, whatever it is. I urge, as I have before, 
that the distinguished majority leader, the distinguished Democratic 
leader, the distinguished Senator from Utah and I sit down and try to 
find if there is a way to start moving these judges from the Senate, 
and from the Senate end how we can move faster. If people do not like 
them, vote against them, but do not hold them in limbo; and then I 
suggest we meet with the President of the United States.
  Mr. HATCH. Mr. President, let me say that the Senator from Vermont is 
a dear friend of mine. There is no question about that. We enjoy 
working together.
  But I think the points that I have made are very valid points. The 
administration has taken up to 618 days to name each nominee. That is 
really twice the time that historically it has taken in prior 
administrations in the

[[Page S5086]]

White House. At an average of 618 days for each vacancy President 
Clinton has taken to fill, according to my calculations--I could be 
wrong--but it would take more than 125 years to fill all 74 vacancies.
  So, you can play this numbers game. All I am saying is I dedicate 
myself to try to do the best I can to get these judges through. I 
appreciate the help my colleague gives me in that regard. I think, as 
we get more of these nominees up here, we will get more of them to the 
floor.
  But I appreciate his remarks. I just do not quite agree with them, 
that is all.
  With that, I yield the floor.
  Mr. LEAHY. Mr. President, I will continue to work with my good friend 
from Utah. In the meantime, I will send him my Grateful Dead tapes, and 
I will listen to his music and we will both be in a better mood.
  Thank you.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I ask unanimous consent to proceed for 10 
minutes as if in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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