[Congressional Record Volume 143, Number 161 (Monday, December 15, 1997)]
[Senate]
[Pages S12719-S12720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              JUDICIAL CONFIRMATIONS IN THE 105TH CONGRESS

 Mr. SARBANES. Mr. President, now that we have concluded the 
1st session of the 105th Congress, I want to again focus the attention 
of the Senate and the American people on the glacial pace of Federal 
judicial confirmations during this session.
  Mr. President, the reluctance of the Senate to confirm the 
President's nominees to the Federal bench is a carryover from the 2d 
session of the 104th Congress, during which the Republican-controlled 
Senate, in an unprecedented display of election-year inaction, 
confirmed only 17 district court nominees and no circuit court 
nominees.
  This pattern of inaction has continued into the 105th Congress, 
during which the Senate has confirmed only 36 of the President's 
judicial nominees--7 circuit judges and 29 district court judges. 
Admittedly, there was some effort made in the waning days of the 
session to confirm judges, but the overall numbers remain highly 
disturbing and worthy of attention.
  In the last 2 years, the Senate has confirmed 53 judicial nominees, 
while a total of 81 seats on the bench continue to lie vacant, and 41 
nominees await committee or floor consideration.
  In other words, there are still more nominees pending in the Senate 
than were confirmed this year, and more than twice the number of 
nominees confirmed last year.
  Compare the number of nominees confirmed thus far this year and in 
the 104th Congress to the number confirmed in the last two 
Democratically controlled Congresses, one of which featured a 
Republican President. In the 102d Congress, the Senate confirmed 124 
Federal judges, while in the 103d Congress it confirmed 129 Federal 
judges. In the 104th Congress, the Republicans confirmed but 75 judges, 
while this year it confirmed 36. In other words, in the last 3 years, 
the Republican majority in the Senate has confirmed fewer Federal 
judges than the Democratically controlled Senate did in either the 102d 
or the 103d Congress.
  I ask my colleagues to further compare the figures of the last 2 
years with the number of judicial nominees confirmed by Democratically 
controlled Senates during years when a Republican White House faced a 
Democratic challenge--when, as in 1996, the party in control of the 
Senate had an incentive to delay confirmations, in the hopes that the 
Presidential election would effect a transfer of the White House to its 
party.

[[Page S12720]]

  In 1992, when President Bush stood for reelection and the Democrats 
controlled the Senate, the Senate confirmed 11 circuit court judges and 
55 district court judges. In other words, the Democratically controlled 
Senate in 1992 confirmed almost four times the number of Republican 
nominees confirmed by the Republican controlled Senate in 1996, and 
almost 25 percent more judges than the Republican Senate has confirmed 
in the last 2 years combined.
  Similarly, in 1988, when Vice President Bush stood for election, the 
Democratically controlled Senate confirmed 7 circuit court judges and 
33 district court judges--over twice the number of judges confirmed 
last year, and more judges than were confirmed in this past nonelection 
year.
  Clearly, in the last couple of years, the politicization of the 
confirmation process has increased. Today, the Republican majority in 
the Senate is effectively bottling up nominees in committee and on the 
floor, in stark contrast to the behavior of Democratically controlled 
Senates over the last decade.
  This politicization, Mr. President, has been extended to include the 
practice of denying nominees an up or down vote on the Senate floor, or 
even in the Judiciary Committee. If the majority of the Senate opposes 
a judicial nominee enough to derail a nomination by an up or down vote, 
then at least the process has been served. Instead, however, the 
President's nominees are not even receiving that courtesy from this 
Senate: Some of the individuals whose nominations are pending before 
the Judiciary Committee or the full Senate have not been allowed a vote 
on the floor, much less in committee, for close to 2 years. It is 
especially troubling that of the 14 nominees who have been held up the 
longest by the Republican majority in the Senate, 12 are women or 
minorities.
  Let me give one example of this phenomenon--that of James Beaty, the 
President's nominee to the Fourth Circuit Court of Appeals, which 
includes my State of Maryland.
  Judge Beaty, currently a district court judge in North Carolina, was 
nominated by the President to the court of appeals in the 104th 
Congress, during which he did not even receive a vote in committee. He 
was renominated on January 7 of this year, and has yet to receive even 
a hearing in the committee, much less an up-or-down vote there, or on 
the floor.
  Some have argued against Judge Beaty's nomination that, in their 
view, the fourth circuit does not need an additional judge, and that 
failure to confirm him would amount to a conservation of taxpayer 
resources. Assuming for the sake of argument that that is the case--and 
I would disagree that it is the case--Congress should act affirmatively 
to eliminate the vacant seat on that court before a nominee comes 
before it, not stall an individual's nomination into oblivion with 
arguments created after the fact. When you have a nominee sent to the 
Senate and then claims are made that the seat is unnecessary, it is 
simply impossible to divorce the claim that the seat is unnecessary 
from an ad hominem attack on the candidate himself.
  Judge Beaty, if confirmed to the fourth circuit, would be the first 
African-American to sit on that court. Prior to becoming a district 
court judge, Judge Beaty maintained a general civil and criminal 
litigation practice in Winston-Salem, NC, and then served as a State 
court judge for 13 years. These accomplishments entitle him, at the 
very least, to an up-or-down vote on the floor of the U.S. Senate. 
Instead, he has not even received a committee hearing--much less a 
committee vote, at the hands of the majority.
  By any measure, Mr. President, the Congress has become increasingly 
politicized in the last few years. I submit to my colleagues, however, 
that if there is one subject that should remain immune from political 
games and pressure it is our Federal judicial system, which is the envy 
of the world for its independence and integrity, and which is 
absolutely fundamental to our system of government.
  It is essential for the maintenance of public confidence in this 
system that the confirmation process be as far removed from politics as 
possible. Yet we seem to be moving in the exact opposite direction, as 
we hear Members of the other party calling for impeachment of judges on 
the basis of decisions with which the Members disagree, and for defeat 
of judicial nominees deemed to possess liberal or activist tendencies.
  This behavior--while perhaps politically advantageous in the short 
run--betrays a basic and dangerous misunderstanding of the role of the 
courts in our system of government.
  Moreover, on a purely practical level, the Senate's failure to 
confirm the 42 nominees before it adjourns hamstrings the courts' 
ability to deal with its ever-increasing caseload--an increase that, I 
might add, Mr. President, is in large part due to the majority's 
proclivity for federalizing areas of law that have been historically 
left to the States.
  So we have district judges throughout the country putting aside all 
civil cases in order to deal with their criminal dockets, because their 
courts have been left shorthanded by the Senate's inaction. We have 
courts of appeals canceling oral arguments because of shortages on 
their courts. We have Chief Justice Rehnquist--hardly the kind of 
liberal judicial activist that so concerns the majority--calling the 
problem of judicial vacancies the most pressing problem facing the 
Federal courts today. And yet we see little in the way of movement by 
the Senate to alleviate these burdens.
  Mr. President, I hope my colleagues--especially my Republican 
colleagues--will give serious attention to the problems, both practical 
and philosophical, that will result if the Senate does not revisit its 
approach to the judicial confirmation process, and that in this area, 
the second session of the 105th Congress will proceed in a markedly 
different manner than the last 2 years.
  In closing, I would like to commend the efforts of my colleague from 
Vermont, Senator Leahy, the ranking member of the Judiciary Committee, 
in this area. He has tried to jog the Senate into acting to resolve 
this problem: I regret that his calls for action have not been heeded 
thus far, though I hold out hope that common sense and respect for our 
constitutional system will prevail in the long run.

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