[Congressional Record Volume 143, Number 160 (Thursday, November 13, 1997)]
[Senate]
[Pages S12559-S12560]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     JUDICIAL CONFIRMATION PROCESS

  Mr. HATCH. Mr. President, as we complete the 1st session of the 105th 
Congress, I would like to update my colleagues on how we have advanced 
the judicial confirmation process. Let me say from the outset that I 
believe one of the Senate's most important functions is its 
constitutional authority, and responsibility, to render advice and 
consent to the President in his nomination of Federal judges.
  Unique in our system of Government, Federal judges serve for life, 
and are entirely unaccountable to the electorate. When a single Federal 
judge is confirmed by the U.S. Senate, he or she will exercise enormous 
power over our people, our States, and our public and private 
institutions, for years and years to come. As the scope of Federal 
law--both statutory and constitutional--has exploded to cover virtually 
all areas of our lives and culture, and as our society has become more 
litigious, Federal judges have come to wield vast power over countless 
aspects of our everyday lives. Moreover, the troubling trend toward 
increased judicial activism has only enhanced the power that judges 
exercise in our society.
  As a result, I have dedicated considerable time and energy to 
thoroughly review each nominee in an effort to ensure that only 
individuals of the highest caliber are permitted to serve on the 
Federal bench. At the same time, of course, I am cognizant that as 
President, Mr. Clinton is entitled to some deference in his choice of 
Federal judges, and I have sought to respect the President's decisions.
  To date, the Senate has confirmed 239 Clinton judges, of which 35 
were confirmed this year alone. Those 239 judges represent nearly one-
third of the entire Federal bench. We currently have nine judges 
pending on the Senate floor. If those judges are confirmed, as I hope 
they will be, the Senate will have confirmed 44 Federal judges during 
this session.
  I believe that the Judiciary Committee has been proceeding fairly and 
at reasonable pace. Indeed, I strongly believe that we must do our best 
to reduce the approximately 80 vacancies that currently exist in the 
Federal courts. There are, however, limits to what the Judiciary 
Committee can do. We cannot, no matter how hard we may try, confirm 
judges who have yet to be nominated. Of the 43 nominees currently 
pending, 9 were received in the last month.
  And 13 of those pending nominees are individuals simply renominated 
from last Congress. So, of those 80 vacancies, 45 are, in effect, a 
result of the administration's inaction. Forty-three total pending - 8 
incomplete paperwork = 35 real nominees; 80 vacancies - 35 real 
nominees = 45 White House inaction.
  Moreover, of the 79 total judicial nominees sent forward to the 
committee this year, 47 have now had hearings. Of the 47 nominees that 
have had hearings, 41 have been reported out of committee. Of those 41 
nominees reported out of committee, 35 have been confirmed, and 9 are 
pending on the Senate floor.
  The committee has moved noncontroversial nominees at a relatively 
speedy pace. In fact, I pledge that when the administration sends us 
qualified, noncontroversial, nominees, they will be processed fairly 
and promptly. Indeed, in the last few months, the administration has 
finally begun sending us nominees that I have for the most part found 
to be quite acceptable. Take Ms. Frank Hull, for example. She was 
nominated for a very important seat on the Eleventh Circuit. Ms. Hull 
was nominated June 18, had her hearing July 22, and was confirmed on 
September 4. This is a remarkably fast turnaround.
  Or consider Mr. Alan Gold from Florida. He was nominated in February. 
We completed his paperwork and our review in March and April, he had a 
hearing shortly thereafter in May, and he was reported out of committee 
and confirmed before the July 4 recess.
  Two other good examples are Ms. Janet Hall from Connecticut and Mr. 
Barry Silverman, of Arizona. Ms. Hall was nominated to the U.S. 
District Court June 5, 1997, the committee had a hearing on July 22, 
and she was confirmed September 11. Mr. Silverman may have even set the 
record: The committee received his nomination on November 8, held his 
hearing on November 12, and reported him out of committee today.
  Clearly, when it comes to new, noncontroversial nominees, we are, in 
fact, proceeding with extraordinary speed and diligence.
  More controversial nominees, however, take more time. Indeed, many of 
the individuals renominated from the 104th Congress have proven 
difficult to move for a variety of reasons. Unfortunately, of the 79 
individuals nominated this Congress, only 56 have been new; the other 
23 are individuals who were previously nominated, but have been 
controversial and proven difficult to move through the committee--much 
less to confirm. When the administration simply sends back nominees who 
had problems last Congress, it takes much more time, and is much more 
difficult, to process them. It is worth pointing out that there was, in 
virtually every instance, a reason why the Senate confirmed 239 other 
Clinton nominees but not those 23. And, if all we are left with are 
judges whom we are not ready to move, I will not compromise our advice 
and consent function simply because the White House has not sent us 
qualified nominees. As I said at the outset, the Senate's advice 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 sat 
down with the White House and Justice Department and explained the 
problems with each nominee, and they understand perfectly well why 
those nominees have not moved.
  Many inaccurate accounts have been written charging that this body 
has unreasonably held up judicial nominations. That claim is simply not 
true. As of today, we have processed 47 nominees--35 confirmed, 9 on 
the floor, 2 are pending in committee and 1 withdrawn. Now, not all of 
these judges have yet been confirmed, but I expect that they will be 
confirmed fairly promptly. Assuming most of these nominees are 
confirmed, I think you will see that our efforts compare quite 
favorably to prior Congresses, in terms of the number of judges 
confirmed at this point in the 1st session of a Congress. As of today, 
we have confirmed 35 judges. If we confirm the 9 judges pending on the 
Senate floor, we will have confirmed 44 Federal judges this year.

  Republicans confirmed 55 judges as of the end of the 1st session in 
the 104th Congress. Indeed, the Democrats confirmed only 28 judges for 
President Clinton at the end of the 1st session back in the 103d 
Congress. Although the Democrats confirmed 57 judges as of the end of 
the first session back in 1991, for a Republican President, they 
confirmed only 15 judges in 1989 and 42 judges in 1987, both for 
Republican Presidents. So the plain fact is that we are right on track 
with, if not ahead of, previous Congresses. And this is particularly 
significant given the fact that we have more authorized judgeships 
today than under Presidents Bush or Reagan. In fact, there are more 
sitting judges today than there were throughout virtually all of the 
Reagan and

[[Page S12560]]

Bush administrations. As of today, there are 763 active Federal judges. 
At this point in the 101st and 102d Congresses, by contrast, when a 
Democrat-controlled Senate was processing President Bush's nominees, 
there were only 711 and 716 active judges, respectively.
  The Democrat Senate actually left a higher vacancy rate under 
President Bush: Just compare today's 80 vacancies to the vacancies 
under a Democratic Senate during President Bush's Presidency. In May 
1991 there were 148 vacancies, and in May 1992 there were 117 
vacancies. I find it interesting that, at that time, I don't recall a 
single news article or floor speech 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 our 
courts.
  It is plain then, that current vacancies not result of Republican 
stall. First, even the Administrative Office of the Courts has 
concluded that most of the blame for the current vacancies falls on the 
White House, not the Senate. It has taken President Clinton an average 
of 534 days to name nominees currently pending, for a vacancy--well 
over the time it has historically taken the White House. It has taken 
the Senate an average of only 97 days to confirm a judge once the 
President finally nominates him or her, and in recent months we've been 
moving noncontroversial nominees at a remarkably fast pace. As a 
result, with the exception of nominees whose completed paperwork we 
have not yet received, the White House has only sent up 43 nominees for 
these 80 vacant seats--of which 13 were received just prior to the 
Senate going into recess. Forty-five of those seats are, in effect 
vacant because of White House inaction.
  Second, those vacancies were caused by a record level of resignations 
after the elections. During President Clinton's first 4 years, we 
confirmed 204 judges--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 
Senator Biden 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 and his judicial nominees. We reduced the 
vacancy level to a level which the Justice Department itself considers 
virtual full employment. But after the election last fall, 37 judges 
either resigned or took senior status--a dramatic number in such a 
short period. This is what has led to the current level of 80 
vacancies.

  Many Judicial ``Emergencies'' are far from that: I would also like to 
clarify a term that is now bandied about with little understanding of 
what it really means a judicial ``emergency'' is simply a seat that has 
been unfilled for a certain period of time. In reality, though, many of 
those seats are far from emergencies. Indeed, of the 29 judicial 
emergencies, the administration has not even put up a nominee for 7 of 
those seats. As for the others, I think you will find that a number of 
the relevant districts do not in fact have an overly burdensome 
caseload.
  And, keep in mind that the Clinton administration is on record as 
having stated that 63 vacancies--a vacancy rate of just over 7 
percent--is considered virtual full employment of the Federal 
judiciary. The current vacancy rate is only 9 percent. How can a 2 
percent rise in the vacancy rate--from 7 to 9 percent--convert full 
employment into a crisis?
  It can't. The reality is that the Senate has moved carefully and 
deliberately to discharge its constitutional obligation to render 
advice and consent to the President as he makes his appointments. I am 
satisfied by the committee's work this session, and look forward to 
working with the administration in the coming months to identify 
qualified candidates to elevate to the Federal bench.
  I yield the floor I thank the Chair.
  Mr. ROBB addressed the Chair.
  The PRESIDING OFFICER. The Senator from Virginia.

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