[Congressional Record Volume 143, Number 143 (Wednesday, October 22, 1997)]
[Senate]
[Pages S10924-S10927]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    REPUBLICAN ATTACKS ON THE INDEPENDENCE OF THE FEDERAL JUDICIARY

  Mr. LEAHY. Madam President, last month, the President of the United 
States devoted a national radio address to the threats being posed to 
our federal judiciary by the campaign of intimidation, including the 
stall in confirming judicial nominees for the almost 100 vacancies that 
persist nationwide. It is a sad day when the President must remind the 
Senate of its constitutional responsibilities to consider and confirm 
qualified nominees to the Federal bench. I regret that we have reached 
this point.
  The President's address was an important one. I hope that his call 
for an end to the intimidation, the delay, the shrill voices of 
partisanship will be headed. I will continue to do all that I can to 
defend the integrity and independence of our federal judiciary and to 
urge the Republican leadership of the Senate to move forward promptly 
on judicial nominations. I ask unanimous consent that a copy of the 
text of the President's address be printed in the Record at the end of 
my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. I have previously included in the Record on July 31 a 
letter dated July 14 to Senator Lott from the presidents of seven 
national legal associations similarly urging the Senate to act to 
preserve the integrity of our justice system by fulfilling its 
constitutional responsibility to expedite the confirmation process for 
federal judges so that longstanding vacancies could be filled. These 
bar association presidents noted the ``looming crisis in the Nation 
brought on by the extraordinary number of vacant federal judicial 
positions.''
  Last month also saw the publication of a report by People for the 
American Way entitled ``Justice Delayed, Justice Denied: The Right Wing 
Attack on the Independent Judiciary.'' This report concludes that the 
campaign attacking the legitimacy of the judiciary and pressuring the 
Senate not to process the judicial nominees of the President is 
resulting in the judiciary not having the judges it needs to fulfil its 
responsibilities:

       Dockets are backing up, cases are going unheard for years 
     at a time, justice is being delayed. In the end, the right 
     wing's campaign has increased the risk that the law will not 
     be enforced because there are two few judges to enforce it.

  During the week of September 22 through September 26, National Public 
Radio broadcast a series of five reports on the federal judge shortage 
by correspondent Nina Totenberg.
  When a U.S. attorney can refer to the lack of courtrooms and Federal 
judges as a bottleneck in the criminal justice process and the chief 
judge of a Federal district court can acknowledge that the court is so 
overwhelmed with criminal cases that it is operating like an assembly 
line, that cases are not given the attention that they deserve and that 
you know that you're making a lot of mistakes with--because of the 
speed, we have reached a crisis. That is not American justice, that is 
not the Federal justice system on which all of us rely to protect our 
rights while enforcing the law.
  I have addressed the Senate on this problem on a number of occasions 
already this year, including March 19, March 20, April 10, May 1, May 
14, May 23, June 16, July 31, September 4, September 5, September 11, 
September 25, September 26, October 9, and October 21. I have spoken of 
it at meetings of the Judiciary Committee on March 6, April 17, May 22, 
June 12, July 10, July 31, September 18 and October 9 and in Judicial 
Committee hearings on March 18, May 7, June 25, July 22, September 5, 
and September 30.
  The current vacancy crisis is having a devastating impact on the 
administration of justice in courts around the country. Let me note a 
few examples:
  In the Northern District of Texas, a family filed their lawsuit 7 
years ago and is still waiting for their day in court.
  Chief Judge J. Phil Gilbert, head of trial court in the Southern 
District of Illinois, where two of the four judgeships are vacant, 
reported that his docket has been so burdened with criminal cases that 
he went for a year without having a hearing in a civil case. That 
happened despite the fact that 88 percent of the cases filed in all 
Federal trial courts were civil, while only 12 percent were criminal in 
1996.
  In California, one family's 1994 lawsuit against police, filed after 
the family's 14-year-old child was killed in a police chase 6 years 
ago, is still pending.
  In Oregon, the Federal courts has stopped doing settlement 
conferences, an invaluable tool for resolving claims before trial, 
because of the unavailability of judges.
  Due to vacancy problems, the district court in San Diego is holding 
only 10 civil trials per year.
  In Florida, to reduce an expected backlog of 4,400 cases, 10 district 
court judges have announced that they will hold a 3-month marathon 
session in Tampa next year.
  In the Ninth Circuit Court of Appeals, for which the Senate has found 
time to include as a rider on an appropriations bill a politically 
inspired plan to split the circuit but not to fill any of the 10 
vacancies that plague that Court, 100 oral argument panels and 600 
hearings were canceled this year due to lack of judges. As a result, it 
takes a year after closing briefs have been filed to schedule oral 
arguments.
  Chief Judge Ralph Winter testified that the Second Circuit Court of 
Appeals expects to include a visiting judge on 80 percent of its panels 
over this year in light of the four unfilled vacancies on that court 
and its burgeoning workload.
  Across the country, the number of active cases pending for at least 3 
years jumped 20 percent from 1995 to 1996, and there are now more than 
16,000 Federal cases older than 3 years.
  These are real life examples of the harm caused by the irresponsible 
lack of action by this Senate in considering highly qualified judicial 
nominations. It is time for the Senate to fulfil its constitutional 
responsibility to confirm the Federal judges needed for the effective 
administration of justice.
  Judge Stephen Trott, formerly a high-ranking Reagan appointment in 
the Department of Justice, included the following summary of the 
situation in which the ninth circuit finds itself in light of the 
Senate's unwillingness to consider nominees to fill the vacancies that 
plague that court in an opinion that he wrote early this year:

       With nine [now ten] vacancies out of twenty-eight 
     authorized judges in the United

[[Page S10925]]

     States Court of Appeals for the Ninth Circuit . . . one 
     wonders how Congress and the President expect us promptly to 
     process our ever increasing 8,000-plus caseload. . . . Our 
     current 9 [now 10] vacancies mean we will process 1,500 fewer 
     cases this year than we could with a full bench. To the 
     litigants who wait in line for us to resolve their disputes, 
     this unnecessary disability is unpardonable. . . . In a 
     country that prides itself on being a nation of laws rather 
     than just a nation of leaders, and which exalts the rule of 
     law as the appropriate method of resolving controversies, we 
     must do better in keeping our civil and criminal justice 
     system able without unnecessary delay to deliver to the 
     People the important promises of our Constitution.

  In light of all of this, I was surprised to read the remarks of the 
distinguished chairman of the Judiciary Committee in response to the 
President of the United States in the Record for September 29. The 
Senator from Utah referred to myths and distortions, but I do not 
believe that he could have been referring to the statement by the 
President. The President spoke the truth. There is a vacancy crisis in 
the Federal judiciary and there is a Republican slowdown of judicial 
confirmations.
  The Chief Justice of the United States recognized the crisis when in 
his 1996 end of the year report he noted:

       The number of judicial vacancies can have a profound impact 
     on the courts ability to manage its caseload effectively. 
     Because of the number of judges confirmed in 1996 was low in 
     comparison to the number confirmed in preceding years, the 
     vacancy rate is beginning to climb. . . . It is hoped that 
     the Administration and Congress will continue to recognize 
     that filling judicial vacancies is crucial to the fair and 
     effective administration of justice.

  More recently, the Chief Justice termed the rising number of 
vacancies on the Federal bench ``the most immediate problem we face in 
the federal judiciary.'' This is hardly a partisan statement but a 
recognition of the seriousness of the crisis posed by judicial 
vacancies.
  As for the slowdown, there are currently 27 judicial vacancies that 
the Administrative Office of the United States Courts terms judicial 
emergencies because they have been vacant for more than a year and one-
half. Last year the President had sent 15 nominees to the Senate to 
fill judicial emergencies and all were returned without action at the 
end of the year.
  This year, after months of delay, the Senate finally filled judicial 
emergencies by confirming the nominations of Merrick Garland, Colleen 
Kollar-Kotelly, Eric Clay, Arthur Gajarsa, Henry Harold Kennedy, Jr., 
Joseph Battalion, Katherine Sweeney Hayden, Richard Lazzara, Marjorie 
Rendell, and Richard C. Casey. Some of these nominations were pending 
before the Senate for periods of 18 months, 12 months, 16 months, 16 
months, 19 months, and 17 months.
  Still, the Federal judiciary and American people face a record number 
of judicial emergency vacancies and await action on the nominations of 
Ann Aiken, James Beaty, Richard Caputo, William Fletcher, Bruce 
Kauffman, Stanley Marcus, Michael McCuskey, Margaret McKeown, Susan Oki 
Mollway, Margaret Morrow, Richard Paez, Anabelle Rodriguez, Michael 
Schattman, Christina Snyder, Clarence Sundram, Hilda Tagle, Jame Ware, 
and Helene White, who are pending before the Senate eager to get to 
work and fill them.
  We have seen 115 judicial vacancies over the course of this year. The 
Senate has seen fit to confirm only 21 nominees. More than 50 
additional nominees remain pending in committee and before the Senate. 
The Senate is not even keeping pace with attrition. Since the 
adjournment of Congress last year, judicial vacancies have increased by 
almost 50 percent. Indeed, this net increase in judicial vacancies, 29, 
still exceeds the number of judges confirmed over the course of the 
year, 21, and likely will when the Senate adjourns in November.
  I have not attacked Senator Hatch on this floor and will not today. I 
know that if it were up to him we would be doing better, we would have 
fewer judicial vacancies and they would have been filled more quickly. 
I have asked him to hold more hearings and to consider nominations more 
expeditiously.
  I thought we might be seeing a change in the atmosphere in the Senate 
in September. Anticipation of the President's radio address on the 
judicial vacancy crisis obviously reached the Senate. Even those who 
have been holding up the confirmations of Federal judges were 
uncomfortable defending this Senate's dismal record of having proceeded 
on only 9 of the 61 nominees received through August of this year.
  As rumors of the President's impending address circulated around 
Capitol Hill, the Senate literally doubled its confirmations from 9 to 
18 in the course of 23 days in September and forth first time all year 
achieved the snail-like pace of confirming 2 judges a month while still 
faced with almost 100 vacancies.
  September was the only month all year that the Judiciary Committee 
held two confirmation hearings for judicial nominees during a single 
calendar month.
  Following the wave of attention generated by the President's address, 
however, the Republican majority has reverted to its prior destructive 
course and the Judiciary Committee has yet to hold a hearing for any of 
the more than 40 nominees who have yet to be according hearings this 
year.
  The President has sent the Senate 73 judicial nominations so far this 
year. The Senate has confirmed 21 judges. From the first day of this 
session of Congress, the Judiciary Committee has never worked through 
its backlog of nominees and has never had pending before it fewer than 
20 judicial nominees awaiting hearings. The Committee's backlog has 
doubled, with 10 of these nominations having been pending since at 
least 1996; 5 have been pending since 1995.
  Early this year, Chairman Hatch worked hard to bring the nomination 
of Merrick Garland to a vote. He gave that nominee his strong personal 
endorsement and fought for him. After an 18-month delay over 2 years, 
that outstanding nominee was finally confirmed 77 to 23. During that 
debate, the Christian Coalition circulated a letter opposing this 
outstanding nominee. Senator Hatch concluded the debate on the 
confirmation of Merrick Garland observing that he was sick of those 
playing politics with judges. I agreed with him then and still do. 
Unfortunately, the stall has continued and some in his party have 
continued to play very dangerous politics with judges.
  In the last five rollcall votes on judicial nominees, there has been 
a cumulative total of one negative vote by a single Senator. Five 
judges were confirmed by unanimous rollcall votes and one was confirmed 
98 to 1. The only judicial nominee to receive any negative votes was 
Judge Merrick Garland of the District of Columbia Circuit. He was 
opposed by the majority leader and 22 other Republican Senators. He was 
well qualified and was confirmed. That confirmation took over 18 months 
from when the Senate received the nomination.
  Another of the well-qualified nominees who has been delayed far too 
long is Margaret Morrow. I spoke of her earlier this week when the 
Senate acted in less than 7 weeks to confirm the nominee to the 
district court in Utah. Unfortunately, not every nominee fills a 
vacancy in the home state of the chairman of the Judiciary Committee.
  In contrast to the Senate's treatment of the Kimball nomination, 
Margaret Morrow's nomination has been pending before the Senate for 
over 16 months and pending on the Senate calendar awaiting action for 
more than 7 months.
  Last year this nomination was unanimously reported by the Judiciary 
Committee and was left to wither without action for over 3 months. This 
year, the committee again reported the nomination favorably and it has 
been pending for another 4 months. There has been no explanation for 
this delay and no justification. This good woman does not deserve this 
shameful treatment.
  Senator Hatch noted in his recent statement on September 29 that he 
will continue to support the nomination of Margaret Morrow and that he 
will vote for her. He said: ``I have found her to be qualified and I 
will support her. Undoubtedly, there will be some who will not, but she 
deserved 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 have looked forward to that debate since June 12 when she was 
favorably reported to the Senate for a second

[[Page S10926]]

time. This is a nomination that has been pending for far too long and 
that has been stalled here on the floor twice over 2 years without 
justification.
  Meanwhile, the people served by the District Court for the Central 
District of California continue to suffer the effects of this 
persistent vacancy--cases are not heard, criminal cases are not being 
tried. This is one of the many vacancies that have persisted for so 
long that they are classified as judicial emergency vacancies by the 
Administrative Office of the U.S. Courts. There are four vacancies in 
the court for Los Angeles and the Central District of California. 
Nominees have been favorably reported by the Judiciary Committee for 
both of the judicial emergency vacancies in this district but both 
Margaret Morrow and Christina Snyder have been stalled on the Senate 
calendar.
  This is a district court with over 300 cases that have been pending 
for longer than 3 years and in which the time for disposing of criminal 
felony cases and the number of cases filed increased over the last 
year. Judges in this district handle approximately 400 cases a year, 
including somewhere between 40 and 50 criminal felony cases. Still 
these judicial vacancies are being perpetuated without basis or cause 
by a Republican leadership that refuses to vote on these well-qualified 
nominees.
  I am told that last week a Republican Senator announced at a speech 
before a policy institute that he has a hold on the Morrow nomination. 
A press release stated that he had placed a hold on Margaret Morrow's 
nomination because he wants to ``be able to debate the nomination and 
seek a recorded vote.'' I, too, want Senate consideration of this 
nomination and am prepared to record my vote.
  After being on the Senate calendar for a total of 7 months, this 
nomination has been delayed too long. I believe all would agree that it 
is time for the full Senate to debate this nomination and vote on it. I 
have inquired about a time agreement but gotten no response. Now that 
an opponent has finally come forward to identify himself, I look 
forward to a prompt debate and a vote on this nomination in accordance 
with the apparent commitment of the majority leader. I look forward to 
that debate. I ask again, as I have done repeatedly over the last 
several months, why not now, why not today, why not this week?
  I again urge the majority leader to call up the nomination of 
Margaret Morrow for a vote. She has suffered enough. The people of the 
Central District of California have been denied this outstanding jurist 
for long enough. The chairman of the Judiciary Committee said last 
month that he had the assurance of the majority leader that she will be 
called up for a vote but neither has said when that will be. I hope 
that the majority leader will proceed to the consideration of this 
nomination and that he will support Margaret Morrow to be a district 
court judge for the Central District of California.
  Madam President, the reason I say that I am concerned that the 
President had to speak to this is that we should not have to be 
reminded of our constitutional duties. Indeed, the President was right 
in reminding us of this. I have served here now with numerous majority 
leaders--Senator Mike Mansfield of Montana, Senator Robert C. Byrd of 
West Virginia, Senator Howard Baker of Tennessee, Senator Robert Dole 
of Kansas, Senator George Mitchell of Maine--and all of these leaders 
of both parties are strong partisans for their parties, but all shared 
the responsibility as majority leader that there are certain things the 
Senate must do, and it is the responsibility of the leader to see that 
the Senate does it. One of those things, of course, is to see that the 
Senate votes on Presidential nominations to the Federal bench. Now, 
every Senator can vote against any nominee. Every Senator has that 
right. They can vote against them this committee and on the floor. But 
it is the responsibility of the U.S. Senate to at least bring them to a 
vote. It is our responsibility under the Constitution, it is our 
responsibility to the Senate itself, it is our responsibility to the 
American public not to allow 1 Senator to determine for all 100 
Senators whether a person will be confirmed to a Federal judicial 
position or not. All Senators should be allowed to vote, and today they 
are not.
  We really have not done our job as Senators. We have not fulfilled 
our responsibility to the Constitution. We have not fulfilled our 
responsibility to this body. We have not fulfilled our responsibility 
to advise and consent. And we certainly have not fulfilled our 
responsibility to the American people or the Federal judiciary.
  I hope we might reach a point where we as a Senate will accept our 
responsibility and vote people up or vote them down. Bring the names 
here. If we want to vote against them, vote against them. But time 
after time after time I hear that there are vacancies where people are 
really concerned, a lot of Senators have a concern about this person. 
Then we come to a vote and 99 out of 100 Senators or all 100 Senators 
vote for that person.
  This is not a fair way to do it. This is not being responsible. This 
is something, frankly, as I have said to my good friend, the majority 
leader, and he is my good friend, this is something that none of the 
majority leaders I have served with have ever allowed to happen, 
Republican or Democrat. Why? Because it would not be responsible. Why? 
Because it affects the administration of justice. Why? Because it fails 
our responsibility to the American public. Why? Because it is beneath 
the Senate of the United States. We should get on with the process.

                               Exhibit 1

              Radio Address of the President to the Nation

       The President. Good morning. I want to talk this morning 
     about a very real threat to our judicial system. For more 
     than 220 years our nation has remained young and strong by 
     meeting new challenges in ways that renew our oldest values. 
     Throughout our history our judiciary has given life and 
     meaning to those values by upholding the laws and defending 
     the rights they reflect, without regard for politics or 
     political party.
       That is the legacy of the judicial system our founders 
     established, a legacy we recalled this Thursday on the 40th 
     anniversary of the court-ordered desegregation of Little Rock 
     Central High School.
       But in the past 18 months this vital partnership has broken 
     down as the Senate has refused to act on nomination after 
     nomination. And in federal courthouses across America, almost 
     100 judges benches are empty. In 1996, the Senate confirmed 
     just 17 judges--that's the lowest election-year total in over 
     40 years.
       This year I've already sent 70 nominations to Congress, but 
     so far they've acted on less than 20. The result is a vacancy 
     crisis in our courts that Supreme Court Chief Justice William 
     Rehnquist warned could undermine our courts' ability to 
     fairly administer justice.
       Meanwhile, our courts are clogged with a rising number of 
     cases. An unprecedented number of civil cases are stalled, 
     affecting the lives of tens of thousands of Americans--from 
     the family seeking life insurance proceeds, to the senior 
     citizen trying to collect Social Security benefits, to the 
     small business protecting its right to compete. In our 
     criminal courts nearly 16,000 cases are caught in limbo, 
     while criminals on bail await punishment and victims await 
     justice. Our sitting judges are overloaded and overworked, 
     and our justice system is strained to the breaking point.
       The Senate's failure to act on my nominations, or even to 
     give many of my nominees a hearing, represents the worst of 
     partisan politics. Under the pretense of preventing so-called 
     judicial activism, they've taken aim at the very independence 
     our founders sought to protect. The congressional leadership 
     has actually threatened sitting judges with impeachment, 
     merely because it disagrees with their judicial opinions. 
     Under this politically motivated scrutiny, under ever-
     mounting caseloads, our judges must struggle to enforce the 
     laws Congress passes and to do justice for us all.
       We can't let partisan politics shut down our courts and gut 
     our judicial system. I've worked hard to avoid that. And the 
     people I've nominated for judgeships and had confirmed have 
     had the highest rating of well qualified from the American 
     Bar Association of any President since these ratings have 
     been kept.
       So today I call upon the Senate to fulfill its 
     constitutional duty to fill these vacancies. The 
     intimidation, the delay, the shrill voices must stop so the 
     unbroken legacy of our strong, independent judiciary can 
     continue for generations to come. This age demands that we 
     work together in bipartisan fashion--and the American people 
     deserve no less, especially when it comes to enforcing their 
     rights, enforcing the law, and protecting the Constitution.
       Thanks for listening.

  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. ASHCROFT. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S10927]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. ASHCROFT. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I ask unanimous consent that upon the conclusion of the 
remarks by the distinguished Senator from Missouri, Mr. Abraham be 
recognized to speak for not to exceed 10 minutes; that he be followed 
by Mr. Breaux for not to exceed 7 minutes; that he be followed by the 
Senator from West Virginia, Mr. Byrd, for not to exceed 30 minutes; 
that he be followed by Mr. Gramm of Texas for not to exceed 20 minutes; 
that he be followed by Mr. Baucus for not to exceed 20 minutes; that he 
be followed by Mr. Warner for not to exceed 20 minutes.
  The PRESIDING OFFICER (Mr. Faircloth). Without objection, it is so 
ordered.
  Mr. BYRD. Mr. President, it may be those last four speakers will all 
cut their remarks a little short of what was included in the request.
  Mr. ASHCROFT. Will the Senator yield?
  Mr. BYRD. Yes.
  Mr. ASHCROFT. I noted Senator Feinstein came to the floor earlier. 
Did you mean to include her in any way?
  Mr. BYRD. I haven't spoken with her. Did she indicate that she wanted 
some time?
  Mr. ASHCROFT. She had at one time wanted to speak. I don't know 
whether she would want to be included. I think it might be appropriate 
to name her in the request in the event she decided to do so.
  Mr. BYRD. All right. I ask unanimous consent that at the conclusion 
of the remarks of the Senators aforementioned, the distinguished 
Senator from California [Mrs. Feinstein] be recognized for whatever 
time she may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank my friend from Missouri.

                          ____________________