[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.
____________________