[Congressional Record Volume 143, Number 160 (Thursday, November 13, 1997)]
[Senate]
[Pages S12569-S12570]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             JUDICIAL NOMINATIONS DURING THE FIRST SESSION

  Mr. LEAHY. Mr. President, as we wrap up our business for the first 
year of the 105th Congress, I believe it is appropriate to take account 
of the Senate's advice and consent on judicial nominations. As I have 
said many times this year in the Judiciary Committee and on the Senate 
floor, the Senate has failed to fulfill its constitutional 
responsibilities to the Federal judiciary.
  In recent days, the Senate has quickened its painfully slow pace on 
reviewing and confirming judicial nominations. I have commended the 
Chairman of the Judiciary Committee for holding two judicial 
nominations hearings in September and October and for holding another 
hearing yesterday, which brings the total for the year to nine.
  Unfortunately, we had no hearings at all in 4 months--January, 
February, April or August--and none is anticipated in December. I 
repeat that we have never had a day go by this session without having a 
backlog of at least 20 judicial nominations awaiting a hearing. Even 
with the virtual frenzy of last-minute hearings, we will close the year 
with more than 30 nominees having never been accorded a confirmation 
hearing.
  I acknowledge that the majority leader has allowed the Senate to 
proceed to confirm 13 judicial nominees in the last week, but that 
still leaves eight outstanding nominees on the Senate Calendar still to 
be considered.
  I understand that Senator Boxer has received a commitment from the 
Republican leadership to proceed to consideration of the longstanding 
nomination of Margaret Morrow by the middle of February next year. I 
commend the Senator from California for achieving what appeared to be 
impossible, getting the Senate to debate this outstanding nominee. I 
deeply regret that we have not proceeded to debate and vote to confirm 
Margaret Morrow to the District Court for the Central District of 
California this year. Hers is the nomination that has been stalled 
before the Senate the longest, since June 12.
  She has twice been reported to the Senate favorably by the Judiciary 
Committee. She has been unfairly maligned and her family and law 
partners made to suffer for far too long without cause or 
justification. Some have chosen to use her nomination as a vehicle for 
partisan political, narrow ideological, and conservative fund raising 
purposes. She deserved better treatment. The people of California 
deserved to have this nominee confirmed and in place hearing cases long 
ago. The wait can never be rectified or justified.
  I hope that the Republican leadership will not require any of the 
other nominees currently pending on the calendar to remain hostage to 
their inaction. Ann Aiken was finally reported favorably by the 
Judiciary Committee earlier this month. Her nomination was first 
received in November 1995, 2 years ago. She had an earlier hearing in 
September 1996 and another last month. This is a judicial emergency 
vacancy that should be filled without further delay.
  G. Patrick Murphy would be a much-needed addition to the District 
Court for the Southern District of Illinois. He

[[Page S12570]]

was reported unanimously by the Judiciary Committee and his 
confirmation should be expedited.
  Michael P. McCuskey was likewise reported without a single objection 
by the Judiciary Committee for a vacancy that is a judicial emergency 
that ought to be filled without delay.
  Frederica Massiah-Jackson is a Pennsylvania State court judge. The 
Senate should move to consider her nomination without the months of 
delay that will ensue following adjournment.
  As we enter the final hours of this session, the Senate has confirmed 
36 of the President's 77 judicial nominations. That is certainly better 
than the 17 confirmed last year. It is better than the total of only 9 
who had been confirmed before September this year. But in a time period 
in which we have experienced 121 vacancies on the Federal courts, the 
Senate has proceeded to confirm judges at an annual rate of only three 
per month. And that does not begin to consider the natural attrition 
that will lead to more vacancies over the next several months.
  I want to thank the President of the United States for helping. Not 
only has the President sent us almost 80 nominees this year but he 
devoted a national radio address to reminding the Senate of its 
constitutional responsibility to consider and confirm qualified 
nominees to the Federal bench. When he spoke, the American people, and 
maybe even the Senate, listened. Since word that he would be speaking 
out on this issue reached Capitol Hill, the pace has picked up a bit.
  Unfortunately, the final report on this session of Congress is that 
the Senate did not make progress on the judicial vacancy crisis. In 
fact, there are many more vacancies in the Federal judiciary today than 
when the Senate adjourned last year. At the snail's pace that the 
Senate has proceeded with judicial nominations this year, we are not 
even keeping up with attrition. When Congress adjourned last year, 
there were 64 vacancies on the Federal bench. In the last 11 months, 
another 57 vacancies have occurred. Thus, after the confirmation of 36 
judges in 11 months, there has been a net increase of 16 vacancies, an 
increase of more than one-third in the number of current Federal 
judicial vacancies.
  Judicial vacancies have been increasing, not decreasing, over the 
course of this year and therein lies the vacancy crisis, which the 
Chief Justice of the United States Supreme Court has called the rising 
number of vacancies ``the most immediate problem we face in the Federal 
judiciary.''
  The Senate still has pending before it 11 nominees who were first 
nominated during the last Congress, including five who have been 
pending since 1995. While I am delighted that we are moving more 
promptly with respect to some of this year's nominees, I remain 
concerned about the other vacancies and other nominees.
  There remains no excuse for the Senate's delay in considering the 
nominations of such outstanding individuals as Professor William A. 
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, M. Margaret 
McKeown, Susan Oki Mollway, Margaret M. Morrow, Clarence J. Sundram, 
Ann L. Aiken, Annabelle Rodriguez, Michael D. Schattman and Hilda G. 
Tagle, all of whom have been pending since the last Congress. All of 
these nominees have been waiting at least 18 months and some more than 
2 years for Senate action.
  Most of these outstanding nominees have been waiting all year for a 
hearing. Professor Fletcher and Ms. Mollway had both been favorably 
reported last year. Judge Paez had a hearing last year but has been 
passed over so far this year. Judge Paez, Professor Fletcher, and Ms. 
McKeown are all nominees for judicial emergency vacancies on the Ninth 
Circuit, as well.
  Next year, I hope that the Committee will proceed without delay to 
consider these nominations, as well as the nominations of Clarence 
Sundram and Judge Sonia Sotomayor, who have participated in hearings 
but are still bottled up in the Judiciary Committee.
  We should be moving promptly to fill the vacancies plaguing the 
Federal courts. Thirty-five confirmations in a year in which we have 
witnessed 121 vacancies is not fulfilling the Senate's constitutional 
responsibility.
  At the end of Senator Hatch's first year chairing the Committee, 
1995, the Senate adjourned having confirmed 58 judicial nominations. In 
the last year of the Bush Presidency, a Democratic majority in the 
Senate proceeded to confirm 66 judges.
  Unfortunately, this year there has been a concerted campaign of 
intimidation that threatens the very independence and integrity of our 
judiciary. We are witnessing an ideological and political attack on the 
judiciary by some, both outside and within Congress. Earlier this fall 
the Republican Majority Whip in the House and the Majority Leader in 
the Senate talked openly about seeking to ``intimidate'' the Federal 
judiciary. It is one thing to criticize the reasoning of an opinion, 
the result in a case, or to introduce legislation to change the law. It 
is quite another matter to undercut the separation of powers and the 
independence that the Founders created to insulate the judiciary from 
politics. Independent judicial review has been an important check on 
the political branches of our Federal Government that have served us so 
well for over 200 years.
  I want to commend all those who have spoken out against this 
extremist and destructive rhetoric.
  I also thank my Democratic colleagues for their patience this year. 
No Democrat has delayed or placed a ``hold'' on a single judicial 
nominee for a single day, all year. It is the normal course in the 
Senate when one Senator sees the recommendations of other Senators of 
the other party moving through to confirmation while his or her 
nominees are being held back, to place such a hold. This year we 
resisted.
  I have urged those who have been stalling the consideration of the 
President's judicial nominations to reconsider and to work with us to 
have the Judiciary Committee and the Senate fulfil its constitutional 
responsibility. Those who delay or prevent the filling of these 
vacancies must understand that they are delaying or preventing the 
administration of justice. Courts cannot try cases, incarcerate the 
guilty or resolve civil disputes without judges. The mounting backlogs 
of civil and criminal cases in the dozens of emergency districts, in 
particular, are growing more critical by the day.
  I hope that when we return in January, there will be a realization by 
those in this body who have started down this destructive path of 
attacking the judiciary and stalling the confirmation of qualified 
nominees to the Federal bench that those efforts do not serve the 
national interest or the American people. I hope that we can once again 
remove these important matters from partisan and ideological politics.

                          ____________________