[Congressional Record Volume 143, Number 132 (Monday, September 29, 1997)]
[Senate]
[Pages S10181-S10183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL NOMINEES

  Mr. HATCH. Mr. President, I rise this evening to say a few words in 
response to President Clinton's radio address over the weekend about 
the pace of the Senate's consideration of judicial nominees. In that 
address, the President chided Members of this body for what he 
described as ``a vacancy crisis'' in our Federal courts ostensibly 
resulting from politically motivated scrutiny of his nominees.
  I will respond for a moment to the myths and distortions that the 
Clinton administration has engaged in; specifically the myth that there 
is a vacancy crisis in the Federal judiciary and the myth that there is 
a Republican slowdown of judicial confirmations.
  There is no vacancy crisis. So far this year, the Senate has 
confirmed 18 of President Clinton's judges. This brings the total 
number of Clinton nominees on the Federal bench to 222--that is nearly 
30 percent of the active Federal judiciary. There are more sitting 
Federal judges today than there were through virtually all of the 
Reagan and Bush administrations. As of September 26, 1997, just 3 days 
ago, there were 750 active Federal judges. Now, this figure excludes 
the approximately 79 senior status judges who continue to preside over 
and hear cases.
  Yet at this point in the 101st Congress when George Bush was 
President and in the 102d Congress when George Bush was President, by 
contrast, when President Bush's nominees were being processed by a 
Democrat-controlled Senate, there were only 711 and 716 active judges, 
respectively. We have 750 as we stand here today.

  Keep in mind that the Clinton administration is on record as stating 
that 63 vacancies--a vacancy rate just over 7 percent--is considered 
virtual full employment of the Federal judiciary, and they were right. 
Ninety-four vacancies, the current vacancy rate, is a vacancy rate of 
about 11 percent. So ask yourselves this question, how can a 4-percent 
rise in the vacancy rate from 7 percent to 11 percent convert full 
employment into a crisis?
  Moreover, let's compare today's vacancy level, 94, with those that 
existed during the early 1990's when George Bush was President and the 
Democrats controlled the Senate. In May 1997 there were 148 Federal 
judicial vacancies, and in May 1992 there were 117 Federal judicial 
vacancies. I remember those years. I don't recall one comment about it 
in the media. I don't recall one television show mentioning it. I don't 
recall one writer writing about it. Nobody seemed to care. But all of a 
sudden it has become a crisis today with less vacancies at this time 
than the Democrat-controlled Senate and Judiciary Committee at that 
time had.
  I should also note that at the end of the Bush administration, there 
were 115 vacancies compared to the 65 at the end of the last 
Presidential election; 115 vacancies, for which 55 nominees were 
pending before the Judiciary Committee. None of these 55 nominees even 
received the courtesy of a hearing.
  I have heard all the yelling and screaming here on the floor and in 
the public media today and by the President on Saturday. In short, I 
think it is unfair and frankly inaccurate to report that the Republican 
Congress has created a vacancy crisis in our courts.
  Now, it is also incorrect when we suggest there is a deliberate 
Republican slowdown of the nominations process. The President pointed 
out on Saturday, correctly I might add, that he has sent up to the 
Senate nearly 70 nominees to fill vacant seats on the Federal bench, 68 
to be exact. By way of comparison, he notes that the Senate has 
confirmed fewer than 20 of his nominees, suggesting undue Senate delay 
in the face of an abundance of qualified nominees.
  But the picture the President paints is less than complete. Of the 68 
judicial nominees submitted to the Judiciary Committee this year, 
nearly half of them, 30 in all, have been nominated just since July 1 
of this year. So, factoring in the Senate's August recess, when we were 
gone for better than 30 days, the Judiciary Committee has had scarcely 
2 months to consider virtually one-half of the President's nominees 
this year.
  Perhaps, then, it is fair to say the delay has been a factor in the 
face of

[[Page S10182]]

Senate confirmation. Unfortunately, the delay has to date been largely 
at the other end of Pennsylvania Avenue--at the White House, if you 
will.
  Even the Administrative Office of the Courts has concluded that most 
of the blame for the current vacancies falls predominantly with this 
administration. It calculates that until his most recent rush of 
nominations, it has taken President Clinton an average of 618 days to 
name a nominee for a vacancy--nearly twice the time it has historically 
taken prior White Houses.

  By contrast, it has taken the Senate an average of 91 days to confirm 
a judge once the President finally nominates him or her. In other 
words, the Senate is carrying out its constitutional responsibilities 
with respect to the confirmation of judicial nominees more than six 
times faster than the President. And in recent months, the Judiciary 
Committee has been moving noncontroversial nominees at a remarkably 
fast pace.
  Since returning from the August recess, we have already scheduled two 
nomination hearings. At the first, earlier this month, we considered 
four of the President's nominees. Tomorrow we will hold a hearing for 
seven judicial nominees, and in addition a hearing for the President's 
nominee for Associate Attorney General. Those were scheduled before the 
President, I think, ever dreamed of giving a speech last Saturday. I 
should note that the Clinton administration was made aware of this fact 
prior to the President's address, but he failed to mention that. In 
addition, we are planning to have another hearing in the next few 
weeks, so, clearly noncontroversial nominees are being considered at a 
responsible pace.
  I will concede that some nominations have taken longer than is 
customary. But in many instances, this has been due to the unfortunate 
fact that some nominees have not been entirely forthcoming with the 
Judiciary Committee. In the interest of fairness, I have given these 
nominees repeated opportunities to fully respond to the committee's 
inquiries, and when they have done so, we have moved the nomination. 
Ms. Margaret Morrow is a good example of a nominee who was slowed by 
her reluctance to promptly answer questions posed by members of the 
committee. After I spoke with her and urged her to be more forthcoming, 
her nomination was reported to the floor--with my support, I might 
add--and I expect her nomination will be scheduled for a floor vote 
soon. I expect it to be scheduled. It should be scheduled. If people 
have differences with her, let them express those differences with 
their votes. But she has been reported by the Judiciary Committee, and 
with good reason as far as I'm concerned.
  Nevertheless, other nominees have been similarly less than 
cooperative. While I appreciate and concur in the President's 
expression of concern for the integrity of our courts, we will all be 
better served by this administration's renewed commitment to sending up 
restrained, qualified nominees who respect the essential role that the 
Senate must play in the confirmation process. We cannot serve that 
function well when nominees are less than forthright with members of 
the committee.
  The President was quite correct when he said over the weekend, ``This 
age demands we work together in a bipartisan fashion and the American 
people deserve no less.'' Indeed, they do deserve no less. But 
bipartisan cooperation depends not only on swift confirmations, but 
qualified and cooperative nominees as well.

  Now, I also want to take a moment to address some of the personal 
criticisms directed at our majority leader. To suggest that the 
majority leader has acted irresponsibly with respect to the nominations 
is just plain wrong. Of 21 judicial nominees reported to the floor by 
the Judiciary Committee, only 3 remain on the calendar. One was 
reported within the last 2 weeks. So to suggest that this majority 
leader is playing games with nominations is not only unfair, it is 
grossly untrue.
  Now, I have been pleased to have worked, over the past number of 
months, with White House counsel Chuck Ruff to ensure that the 
nomination and confirmation process is a collaborative one between the 
White House and Members of the Senate. I think it is fair to say that 
after a few months in which the process suffered due to inadequate 
consultation between the White House and some Senators, the process is 
now working rather smoothly. I think the process is due to the White 
House's renewed commitment to good faith consultation with Senators of 
both parties.
  Now, I think it is important to note that I believe the Senate is 
doing its best to move nominees and to move them quickly. If we have 
noncontroversial nominees submitted, we can move them quickly. If and 
when the administration sends us qualified, noncontroversial qualified 
nominees, they will be processed fairly and promptly. In the last 6 
weeks or so, the administration has finally began sending us nominees 
which I have, for the most part, found to be quite acceptable. Take Ms. 
Hull, who was nominated for a very important seat on the Eleventh 
Circuit. That is a circuit court of appeals judge. She was nominated on 
June 18, she had her hearing June 22, and was confirmed on September 4. 
That is a remarkably fast turnaround for both parties, the White House 
and the Senate. Or Mr. Alan Gould from Florida, who was nominated in 
February. We completed his paperwork and our review in March and April. 
He had a hearing shortly thereafter in May, and was reported out in 
committee and confirmed before the Fourth of July recess. Another good 
example is Janet Hall, from Connecticut, who was nominated to the U.S. 
District Court on June 5, 1997. The Committee had a hearing on July 22, 
and she was confirmed September 11. Clearly, when it comes to new 
noncontroversial nominees, we are in fact proceeding with extraordinary 
speed and diligence.
  Now, more controversial nominees take a little more time. Of the 69 
individuals nominated in this Congress, only 43 have been new. The 
other 23 are renominees that were nominated but never confirmed in the 
last Congress. Some have had committee consideration, but most of the 
nominees with completed paperwork who have not yet had consideration 
are ones who were renominated from the last Congress. When the 
administration simply sends back nominees who had problems last 
Congress, it takes much more time and it is much more difficult to 
process them, and they know it.
  I am trying to work out the differences between the Senators of the 
respective States--I might add, Democrats and Republicans--and the 
White House so that we can move more of these. It was worth pointing 
out that there was, in nearly every instance, a reason why the Senate 
confirmed 202 other Clinton nominees, but not these 23. If all we are 
left with are judges that we are not ready to move, I will not 
compromise our advise and consent function simply because the White 
House does not send 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 serious matter and should be treated as such. In 
fact, we have sent a letter down to the White House and Justice 
Department and explained the problem with each nominee, and they 
understand perfectly well why some of these nominees have not moved. 
When you talk about confirmation numbers, let me compare them to the 
previous Congresses. As of today, we have processed 24 nominees this 
year--18 confirmed, 3 on the floor, and 3 are pending in committee. 
Now, not all of these judges have been confirmed, but we expect that 
most all of them will be confirmed fairly promptly.

  Assuming most of these nominees are confirmed, I think any reasonable 
person could see that our efforts compare quite favorably to prior 
Congresses in terms of the number of judges confirmed at this point in 
the first session of a Congress, especially if you look at recent 
Democrat controlled Congresses. In 1993, there were zero judges 
confirmed by the Democrat Congress by the end of July of that year. In 
1991, 23 judges were confirmed, at a time when there were 148 
vacancies--in a Congress controlled by Democrats. In 1989, only 4 
judges were confirmed--a Democrat Congress. In 1987, only 17 judges 
confirmed--a Democrat Congress. I can go on and on. So the plain fact 
is, we are on track, if not ahead of previous Democrat Congresses.
  Well, I can say so much more, but let me just say this. Some have 
argued

[[Page S10183]]

that the Republican leadership is holding up qualified nominees. Let me 
just point out for the record that there were a number of qualified 
nominees of President Bush who weren't even given the courtesy of a 
hearing. For instance, John G. Roberts, Jr., nominated on January 27, 
1992, for the vacancy left by the now Supreme Court Justice Clarence 
Thomas. Among his long list of accomplishments, I note, was that he was 
a former law clerk to the Chief Justice of the Supreme Court. He had 
worked at various high level positions at the Justice Department, 
including serving as Deputy Solicitor General of the United States. He 
was an outstanding lawyer and he wasn't even given the courtesy of a 
hearing.
  Another fine nominee was Maureen Mahoney. Keep in mind, we have had 
some Senators take to the floor here and try to imply that because it 
has been difficult to get a certain woman nominee through from time to 
time, that there must be something wrong with the Judiciary Committee 
for not doing that. Well, take the fine nominee, Maureen Mahoney, 
nominated for the U.S. District Court in the Eastern District of 
Virginia on April 2, 1992. Like Mr. Roberts, she, too, was a well-
respected litigator. She clerked for Chief Justice Rehnquist and also 
served as a deputy solicitor general of the United States. Neither of 
these exceptionally qualified nominees were able to get a hearing on 
their nomination.
  I could go on and on. Keep in mind that we have 750 judges on the 
bench today, compared to in 1991-92 when we had considerably less 
judges at that particular time--711 and 716, compared to 750 today. 
Plus, in addition to the 750, we have a number of senior status 
judges--79 as I recall--who are hearing cases and continuing their work 
even though they have taken senior status. So there is no crisis.
  Now, having said all of this, I would like to move these nominees who 
are qualified as fast as we can. I would like them to come up on the 
floor as fast as they can be brought up. Thus far, the majority leader 
has virtually brought up everybody we have brought out of the 
committee, except a couple, and they will be brought up in the near 
future. Margaret Morrow will have her vote in the Senate. I will 
announce right here and now that I will vote for her, even though I did 
have some qualms as a result of her first confirmation hearing and as a 
result of some of the things that she had said while President of the 
California Bar Association, and on other occasions during the earlier 
years. But I have found her to be qualified and I will support her. 
Undoubtedly, there will be some who will not, but she deserves to have 
her vote on the floor. I have been assured by the majority leader that 
she will have her vote on the floor. I intend to argue for and on her 
behalf.
  I believe that with continued cooperation from the White House, in 
consultation with Senators up here--keep in mind that this isn't a one-
way street. Senators have a right to be concerned about lifetime-
appointed judges serving within their areas, their States. Therefore, 
that is why the Senate has a noble and very important role in this 
confirmation process. I want to commend the current White House 
counsel, Charles Ruff for the work he is doing in meeting personally 
with Senators up here and trying to resolve their difficulties. I think 
he has made a lot of strides, and I think that is going to be helpful 
over the long run.
  Mr. President, these are important matters. I do not believe they 
should be politicized. I think activist judges, whether they come from 
the right or left, are judges who ignore the law and just do whatever 
their little old visceral tendencies tell them to do. These are judges 
who act like superlegislatures from the bench who usurp the powers of 
the other two branches--coequal branches--of Government, the executive 
and legislative branches. These are judges who ignore the written law. 
These are judges who take their own political purposes to what the law 
should be. These are judges, a number of whom sit on the Ninth Circuit 
Court of Appeals, who have given me nothing but angst because of their 
activism. During this last year 28 of 29 cases on the Ninth Circuit 
Court of Appeals were reversed by the Supreme Court because of judicial 
activism.
  Everybody knows that judicial activism is hard to define. But it is 
not hard to define when you look at some of those cases. Judges do have 
to try cases at first impression. And when they do, they do have to 
make decisions, and they have to split the baby, so to speak. But we 
are talking not about those cases. We are talking about judges who 
ignore the basic intents of the law, the basic languages of the law, 
who substitute their own policy preferences for what the law really is.
  When we see judges like that, I tell them they are undermining the 
Federal judiciary, they are making my job as chairman of the Judiciary 
Committee much more difficult, and the job of the ranking member much 
more difficult, and they are doing wrong things.
  It is important that this be brought to the attention of the American 
people because these judges are nominated by the President. They are 
confirmed for life. When they retire, they get full judgeship pay the 
rest of their lives. We need an independent judiciary in this country. 
There is no stronger voice for an independent judiciary than I. And we 
do need the lifetime tenure. But when judges ignore the basic laws and 
substitute their own policy preferences for what the law really is, 
they are undermining the Federal judiciary, and they are disgraces to 
the Federal judiciary.
  Frankly, it is time that they wake up and realize that. It is 
embarrassing to the good judges throughout this country--manifestly 
embarrassing to them to have some of these judges who just think they 
are above the law; who think they are above the Constitution; who think 
they are above the other two coequal branches of Government.
  Thank goodness there are not too many of them in the Federal 
judiciary. Thank good goodness we have people and a Senator willing to 
stand up and say, We have had enough. I happen to be one of them.
  Mr. President, these are important issues. The Federal judiciary can 
determine what happens in this country for years to come. It is 
important that we have people of the utmost integrity and respect for 
the law and respect for the rule of law and respect for the role of 
judging on our Federal benches.
  As long as I am on the Judiciary Committee, I am going to work as 
hard as I can to see that those are the kinds of people that we get 
there. I am not so sure it is that important whether they are liberal 
or conservative, if they will respect the role of judges and respect 
the rule of law. I have seen great liberal judges, and I have seen 
great conservative judges. And I have seen lousy ones in both 
categories as well.
  I just suggest that they respect the role of judging. Judging 
generally has been pretty good.

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