[Congressional Record Volume 144, Number 9 (Tuesday, February 10, 1998)]
[Senate]
[Pages S592-S593]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL VACANCIES

 Ms. MOSELEY-BRAUN. Mr. President, today, my colleague from 
Illinois, Senator Durbin, and I are recommending that President Clinton 
nominate David Herndon and Jeanne Scott for federal judgeships in the 
Southern and Central Districts of Illinois. David Herndon has been a 
highly respected Illinois Circuit Court judge since 1991. Prior to 
that, he practiced for 14 years, developing a real expertise in complex 
litigation. Jeanne Scott has served as an Illinois state judge for 18 
years. She is currently the Division Chief for Civil cases in Sangamon 
County. She has a sterling reputation as a dedicated and fair judge. 
She will be the first female federal judge in the history of the 
Central District of Illinois. It is therefore an appropriate moment for 
me to say a few words about a matter of critical importance: the 
exceptionally large number of judicial vacancies in our federal court 
system.
  Currently, there are 83 vacancies in the federal judiciary. This 
accounts for approximately one out of every ten federal judges. Twenty-
five of the vacancies have been in existence for 18 months or longer 
and are therefore regarded as ``judicial emergencies.'' Over one-third 
of the seats in the U.S. Court of Appeals for the Ninth Circuit are 
vacant. As of last year, the average number of days from nomination to 
confirmation was at a record high of 183.
  Illinois presently has seven vacant judgeships. One of these, in the 
U.S. District Court for the Southern District of Illinois, dates back 
to November of 1992. Another, in the Central District, dates back to 
October of 1994. Two of the nominees for these vacancies are awaiting 
action by the Senate Judiciary Committee and two are awaiting action by 
the full Senate. In the Southern District, the chief judge went for 
more than a year without having time to hear a single civil case 
because his criminal docket was so full. In the Central District, major 
civil trials have had to be postponed because of the shortage of 
judges. Commenting on the imminent retirement of a third judge in his 
district, Marvin Aspen, the chief judge of the Northern District, 
recently told the Chicago Sun-Times that ``if Congress does not move 
quickly . . . in a short time we could have a serious backlog.'' Last 
week, Judge Aspen called the number of judicial vacancies nationwide 
``an unprecedented scandal.''
  As Chief Justice Rehnquist stated in his 1997 Year-End Report on the 
Federal Judiciary, ``Vacancies cannot remain at such high levels 
indefinitely without eroding the quality of justice that traditionally 
has been associated with the federal judiciary.'' The Chief Justice 
placed much of the blame squarely on the Senate. He said, ``Some 
current nominees have been waiting a considerable time for a Senate 
Judiciary Committee vote or a final floor vote. The Senate confirmed 
only 17 judges in 1996 and 36 in 1997, well under the 101 judges it 
confirmed during 1994.''
  By failing to move expeditiously on judicial nominations, the 
majority party in the Senate is failing to live up to its 
responsibilities to the American people. President Clinton has made 91 
judicial nominations during the 105th Congress, but the Senate has 
confirmed only 39 of these individuals. As the Chicago Tribune 
editorialized last month, ``If Republicans don't like the choices, let 
the Senate debate them and vote them down. Doing nothing, as the Senate 
has done lately, is cowardly and cynical.''
  Worse yet, it is affecting the quality of justice in the United 
States. The increase in the number of judicial vacancies in combination 
with the growth in criminal and civil filings has created a huge 
backlog of federal cases. According to Chief Justice Rehnquist, since 
1990, the number of cases filed in courts of appeals has increased by 
21 percent and those filed in district courts have grown by 24 percent. 
There was a five percent increase in the criminal caseload in 1997. 
This resulted in the largest federal criminal caseload in 60 years.

  According to the Administrative Office of the U.S. Courts, the number 
of active cases pending for at least three years rose 20 percent from 
1995 to 1996. According to the most recent data provided by the 
Department of Justice, there are more than 16,000 federal cases that 
are more than three years old.
  Time magazine wrote last year that ``some Republicans have as much as 
declared war on [President] Clinton's choices, parsing every phrase 
they've written for evidence of what they call judicial activism.'' 
This has discouraged qualified candidates from subjecting themselves to 
the confirmation process. For instance, last September, Justice Richard 
P. Goldenhirsch of the Illinois Court of Appeals, withdrew his name 
from consideration for a federal judgeship, stating that, because of 
the ``poisoned atmosphere of the confirmation process, my nomination 
would be pending for an indefinite period of time.'' He stated that the 
protracted nature of the process was ``particularly unfair to the 
people of the Southern District of Illinois, who deserve a fully 
staffed court ready to hear their cases.''
  In condemning President Clinton's judicial nominations, one of my 
Republican colleagues described the judicial branch last year as being 
full of ``renegade judges, [who are] a robed, contemptuous intellectual 
elite.'' And in explaining why the confirmation of a California appeals 
court judge had been delayed for two years, a senior member of the 
Republican majority stated, ``If you want to blame somebody for the 
slowness of approving judges to the Ninth Circuit, blame the Clinton 
and Carter appointees who have been ignoring the law and are true 
examples of activist judging.''
  The President's record of judicial appointments belies any assertion 
that he has sought to stack the federal judiciary with the types of 
judges referred to by my colleagues. The New York Times commented last 
year that what ``may be most notable about Clinton's judicial 
appointments may be reluctance to fill the court with liberal judges.'' 
The Times noted that a statistical analysis by three scholars 
``confirms the notion that the ideology of Clinton's appointees falls 
somewhere between the conservatives selected by [Presidents] Bush and 
Reagan and the liberals chosen by President Carter.'' The Times quoted 
an author of the study, Professor Donald Songer of the University of 
South Carolina, as stating that Clinton's appointments were ``decidedly 
less liberal than other modern Democratic presidents.'' Professor 
Songer stated that, from an ideological standpoint, President Clinton's 
judges were most similar to judges selected by President Ford.
  Republican members of the Senate thus cannot claim that they are 
safeguarding the judiciary from liberal jurists. Indeed, it is they 
who, in the words of Time magazine, are currently engaged in ``what has 
become a more partisan and ideological examination of all judicial 
nominees.'' As my colleague from Vermont, Senator Leahy, stated last 
September, the ``continuing attack on the judicial branch [by 
Republican Members of Congress], the slowdown in the processing of the 
scores of good women and men the President has nominated to fill 
vacancies on the Federal courts around the country, and widespread 
threats of impeachment [against federal judges] are all part of a 
partisan ideological effort to intimidate the judiciary.''
  Mr. President, Chief Justice Rehnquist has called the independence of 
the judiciary ``the crown jewel of our system of government.'' Our 
courts are

[[Page S593]]

revered around the globe precisely because of their ability to 
administer justice impartially and without regard to the prevailing 
political climate. Republicans in Congress are seeking to undermine 
judicial independence and freedom of action. A key element of their 
strategy has been to put a choke hold on the process of confirming 
nominees sent by President Clinton. This state of affairs must not be 
allowed to continue. As Chief Justice Rehnquist has stated, ``The 
Senate is surely under no obligation to confirm any particular nominee, 
but after the necessary time for inquiry it should vote him up or 
down.'' Let the Senate heed the words of the Chief Justice and commit 
itself to enabling the federal judiciary to be, as the Supreme Court 
pediments proclaim, the guardian of our liberty and the guarantor of 
equal justice under the law.

                          ____________________