[Congressional Record Volume 144, Number 41 (Thursday, April 2, 1998)]
[Senate]
[Pages S3028-S3031]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   NOMINATION OF G. PATRICK MURPHY, OF ILLINOIS, TO BE UNITED STATES 
          DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS

  The assistant legislative clerk read the nomination of G. Patrick 
Murphy, of Illinois, to be United States District Judge for the 
Southern District of Illinois.
  Mr. REID. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.

[[Page S3029]]

  Ms. MOSELEY-BRAUN. Mr. President, I rise today in strong support of 
two outstanding judicial nominees from my state of Illinois, G. Patrick 
Murphy and Michael P. McCuskey.
  It is therefore appropriate that I also 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. Thirty 
of the vacancies have been in existence for 18 months or longer and are 
therefore regarded as ``judicial emergencies.''
  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 will be confirmed 
today 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.'' The chief judge of the Southern District, 
Phil Gilbert, says that they are currently managing to get the job 
done, but they ``badly'' need additional judges. Michael Mihm of the 
Central District says that they are also continuing to function, but 
they are definitely feeling the pinch. They have had to delay at least 
one major civil trial, and are increasingly dependent on visiting 
judges. Litigants are often forced to travel long distances to get 
their day in court.
  The situation in the Southern and Central Districts of Illinois is 
dire. There are four judgeships in the Southern District, and 2 of them 
are vacant, a vacancy rate of 50%, which is much higher than the 
nationwide rate of 10% vacancies. The Central District numbers are 
exactly the same. The Southern District vacancy is one of the oldest in 
the country. As of today, 1,972 days have passed without a judge in 
that seat. And the Central District seat has been vacant for 1,275 
days.
  Today, two Illinois nominees for those districts will be confirmed by 
the full Senate. These nominees, Mike McCuskey and Pat Murphy, have 
been pending on the floor for 147 days. There is no question of their 
qualifications; both were unanimously recommended by the Judiciary 
Committee in November.

  Mike McCuskey was born in Peoria, and has served as a state court 
judge for the last nine years. Prior to attending law school, he taught 
high school history, and coached baseball. He worked his way through 
law school as a security guard. Judge McCuskey has a reputation as an 
outstanding jurist, fair, firm and thorough. He is also known for his 
community service, such as reading to grade school children and 
emceeing senior citizen activities at the County Fair.
  Pat Murphy was born in Marion, Illinois. He enlisted in the Marines 
at the age of 17, and spent his 18th birthday in Vietnam. Upon 
returning to Illinois, he attended college and law school with the help 
of the GI Bill. After both of his parents died, he helped raise his 
four younger siblings, although, as he puts it, they all raised each 
other. Mr. Murphy has extensive legal experience, with over 100 jury 
trials and 200 bench trials under his belt. The first year he was 
eligible, he was elected to the prestigious American College of Trial 
Attorneys. He has a sterling reputation among all who have worked with 
him or against him. He is also known for his generosity to veterans, 
giving pro bono representation to any veteran who asks for help.
  As both of these nominees have languished on the Senate calendar, the 
delay has taken its toll on their personal lives. Several weeks ago, 
Judge McCuskey was forced to choose between his home and his current 
state court job. Last year he signed a housing contract, which was 
finalized in March. Since he entered the contract, the rules of 
residency for a state court judge changed. This confirmation vote comes 
just in time for him. He can now move into his new house without 
worrying about losing his state court judgeship. If this confirmation 
vote did not come today, he would have been forced to default on his 
contract. Pat Murphy is a solo practitioner. He has been unable to 
predict his ability to continue to represent clients. Yet, he has had 
to make a living over the last one hundred and fifty days.
  Consideration of these nominees has been long overdue, and I am so 
pleased that they will finally be confirmed by the full Senate. Both of 
these men are highly qualified and will be a credit to the federal 
judiciary. Moreover, the vacancies they fill will help resolve a crisis 
in Illinois--a crisis that is evident throughout our nation.
  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 134 
judicial nominations during the 105th Congress, but the Senate has 
confirmed only 51 of these individuals. As the Chicago Tribune 
editorialized earlier this year, ``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. In 1997, Federal courts handled a record number of cases. 
Bankruptcy filings jumped more than 50 %, civil and appellate cases 
increased for the fourth consecutive year, and criminal caseloads were 
more crowded than at any time in the last 60 years. 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. Goldenhersch 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

[[Page S3030]]

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 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.
  Mr. LEAHY. Mr. President, I come to the floor to congratulate Senator 
Durbin and Senator Moseley-Braun on finally, at long last, achieving a 
vote on the nominations of Patrick Murphy and Judge Michael McCuskey. 
The Senators from Illinois have had to labor long and hard just to 
reach this point. I know that Senator Durbin did everything that he 
could think of to bring to the attention of the Republican leadership 
the need to consider and confirm these two judicial nominees who have 
been languishing on the Senate calendar without action for the last six 
months. I, too, have spoken about the plight of the Federal courts in 
the Southern and Central Districts of Illinois more often over the last 
several weeks and months than I would like to remember.
  We thank the Democratic Leader, Senator Daschle, for his efforts on 
behalf of these nominees and on behalf of achieving a vote. And I thank 
the Majority Leader for finally scheduling this vote and for working 
through whatever problems existed on the Republican side of the aisle 
that have delayed these nominations from early November to the end of 
the last session and for the first three months of this new session.
  It is long past time for the Senate to consider the nominations of 
Patrick Murphy and Judge Michael McCuskey. The Senate Judiciary 
Committee unanimously reported these two nominations to the full Senate 
on November 6, 1997--almost six months ago. Their confirmations are 
desperately needed to help end the vacancy crisis in the Federal 
District Courts of Illinois.
  Pat Murphy is an outstanding judicial nominee. A decorated Marine, he 
has practiced law in the State of Illinois for 20 years as a trial 
lawyer and tried about 250 cases to verdict or judgment as sole 
counsel. During his legal career, Mr. Murphy has made an extensive 
commitment to pro bono service--dedicating approximately 20 percent of 
his working time to representing disadvantaged clients in his 
community.
  Judge Michael McCuskey is also an outstanding judicial nominee. Judge 
McCuskey served as a Public Defender for Marshall County in Lacon, 
Illinois, for 8 years and has served as a State court judge for several 
years, first on the bench in the 10th Judicial Circuit and then on the 
Third District Appellate Court of Illinois. The American Bar 
Association recognized his stellar qualifications by giving Judge 
McCuskey its highest rating of well-qualified for this nomination.
  The mounting backlogs of civil and criminal cases in the dozens of 
emergency districts, like the Southern and Central Districts of 
Illinois, are growing more critical by the day. Indeed, in the Southern 
District of Illinois, where Pat Murphy will serve when confirmed, Chief 
Judge Gilbert has reported that his docket has been so burdened with 
criminal cases that he went a year without trying a civil case.
  The Chief Justice of the United States Supreme Court has called 
judicial vacancies ``the most immediate problem we face in the federal 
judiciary.'' There is no justification for the Senate's delay in 
considering these two fine nominees for Districts suffering from 
judicial emergency vacancies.
  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 fulfill 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.
  Last week the Chief Judge of the Second Circuit Court of Appeals 
certified that the persisting vacancies on that Court require him to 
certify an emergency situation and to begin canceling hearings and 
proceeding with only one Second Circuit Judge on certain 3-judge 
appellate panels. There is a nominee for the Second Circuit on the 
Senate calendar awaiting Senate consideration, Judge Sonia Sotomayor.
  I came to the Senate floor last week to plead with the Republican 
leadership to proceed to consideration of the nomination of Judge Sonia 
Sotomayor to the Second Circuit. I renew that plea today and urge a 
vote on this nomination before the Senate adjourns for a 2-week recess. 
We should not go on recess while the Second Circuit needs action on 
nominees to alleviate a crisis.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of G. Patrick Murphy, of Illinois, to be 
United States District Judge for the Southern District of Illinois?
  On this question, the yeas and nays have been ordered, and the clerk 
will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms) is necessarily absent.
  I further announce that, if present and voting, the Senator from 
North Carolina (Mr. Helms) would vote ``yea.''
  The result was announced--yeas 98, nays 1, as follows:

                       [Rollcall Vote No. 61 Ex.]

                                YEAS--98

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel

[[Page S3031]]


     Harkin
     Hatch
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--1

       
     Faircloth
       

                             NOT VOTING--1

       
     Helms
       
  The nomination was confirmed.
  Mr. LEAHY. Mr. President, I move to reconsider the vote by which the 
nomination was confirmed.
  Mr. DURBIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________