[Congressional Record Volume 143, Number 97 (Thursday, July 10, 1997)]
[Senate]
[Pages S7206-S7207]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL VACANCIES

  Mr. LEAHY. Mr. President, I last spoke to the Senate about the crisis 
being created by our failure to move forward expeditiously to fill 
longstanding judicial vacancies on June 26, the day before we left on 
our most recent recess. I pointed out then that we had the opportunity 
literally to double judicial confirmations for the year from 5 to 10 by 
taking up and approving the five judicial nominees on the Senate 
Executive Calendar. In spite of the noncontroversial nature of these 
nominees and their likely confirmation, the Republican leadership 
refused to consider them.
  As the Senate returns from another extended recess we enter July 
having found time to confirm only 6 Federal judges of the 39 nominees 
the President has sent to us. That remains a confirmation rate of less 
than one judge per month. We continue to fall farther and farther 
behind the pace established by Senator Dole and Senator Hatch in the 
last Congress. By this time 2 years ago, Senator Hatch had held six 
confirmation hearings involving 26 judicial nominees and the Senate had 
proceeded to confirm 26 Federal judges by the end of June--during one 
of the busiest periods ever, during the first 100 days of the 
Republicans' ``Contract with America.''
  I have spoken often about the crisis being created by the 100 
vacancies that are being perpetuated on the Federal courts around the 
country, as has the Chief Justice of the United States. At the rate 
that we are currently going 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.
  There are four highly-qualified judicial nominees on the Senate 
calendar, another five district court nominees who were the subject of 
a confirmation hearing on June 25 but who have yet to receive attention 
from the Judiciary Committee, and another 24 nominees for whom the 
committee has yet to schedule a hearing or consideration.
  That judges were held hostage to the resolution of other nomination 
disputes was a shame. I had urged the Republican leadership not to use 
the judiciary as a political pressure point or to

[[Page S7207]]

involve the judiciary in disagreement over other matters, but they 
chose to act otherwise.
  I would hope that the Senate would move to confirm these four 
additional judges on its calendar without further delay this week. 
Three of them had their confirmation hearing back in early May and have 
been on the Senate calendar without action for more than 6 weeks. The 
other had a confirmation hearing back in March, and was reported for a 
second time almost 1 month ago.
  The Republican leadership chose to single out only one judicial 
nominee for a unanimous consent request and approval before the most 
recent recess. Over the break I took the trouble to review the record 
on that nominee to see whether it held a clue regarding why that 
particular nominee, as opposed to the other qualified nominees, had 
been singled out for special attention.
  Nominated by the President on February 12 of this year, Alan Gold is 
set to fill a vacancy that was created on the District Court for the 
Southern District of Florida on November 30, 1996, when Judge Gonzalez 
took senior status. His is the only vacancy remaining on that Court and 
it has existed for less than 7 months. He was included in a 
confirmation hearing on May 7 and reported by the Judiciary Committee 2 
weeks later.
  As I have said before, it should not take more than 4 months to 
consider a judicial nominee and the Gold nomination and its treatment 
should serve as the standard by which we measure the Senate's treatment 
of other nominees. Although it should represent the normal process, it 
is the exception this year.
  He has a commendable background but so do the other nominees for 
judicial appointment. In reviewing the file, I see that Judge Gold was 
rated well qualified by the ABA. Given Senator Hatch's speech 
condemning the influence of the ABA and its ratings in our confirmation 
process, I doubt that explains his prompt confirmation. Eric Clay was 
also rated well qualified for his Sixth Circuit nomination and he was 
held back on the calendar. William Fletcher, James Beatty, Margaret 
MeKeown, Marjorie Rendell, Richard Lazzara, Margaret Morrow and others 
have likewise received the ABA's highest rating and have not seen their 
nominations expedited.
  In reviewing his confirmation hearing and the answers to the written 
questions that followed, I see that he singled out for criticism the 
case of Griswold versus Connecticut, which affirmed a privacy right 
guaranteed by the Constitution, and listed as the book that has most 
influenced his view of the law ``The Tempting of America'' by Robert 
Bork. My fear is that this confirmation reflects a litmus test being 
imposed by the Republican majority and that is why they singled out 
this nomination for expedited treatment. I hope that is not so.
  I hope that nominees are not being forced to swear allegiance to 
Robert Bork instead of the Constitution of the United States in order 
to be confirmed. I hope that a nominee can uphold the important privacy 
rights that the Supreme Court has recognized to be constitutionally 
based and still be confirmed. I would like to believe that there is a 
neutral, alternative explanation for the treatment of this nomination 
relative to the others and that no Senator is imposing an ideological 
litmus test on judicial nominations.

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