[Congressional Record Volume 144, Number 66 (Thursday, May 21, 1998)]
[Senate]
[Pages S5316-S5317]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       RESPONSE TO VACANCY CLAIMS

  Mr. HATCH. Mr. President, I rise today to respond to a floor speech 
my good friend and colleague Senator Leahy recently delivered. In that 
address, Senator Leahy once again brought attention to the so-called 
vacancy crisis that is facing our Federal Judiciary. Now, I don't blame 
Senator Leahy for that. After all, that is his job. He needs to press 
us a bit to move judges for the Clinton Administration. And indeed, we 
had some disconnects in the past that prevented us from holding 
hearings on perhaps as many judges as we would have liked.
  That having been said, I am pleased that Senator Leahy and I have 
worked out some of the kinks in the process and have worked together to 
ensure that qualified nominees are confirmed. Similarly, I am happy to 
report that I have worked over the last few months with White House 
Counsel Chuck Ruff to ensure that the nomination and confirmation 
process is a collaborative one between the White House and members of 
the Senate. I think it's fair to say that after a few bumpy months in 
which the process suffered due to inadequate consultation between the 
White House and some Senators, the process is now working rather 
smoothly. I think the progress is due to the White House's renewed 
commitment to good faith consultation with Senators of both parties. I 
also want to compliment Senator Leahy for his willingness to work with 
me to get hearings scheduled for nominees. Let me take a moment, 
however, to correct some of the pernicious myths that persist on the 
subject of the confirmation process.
  Quite simply, contrary to what you may have read in the popular 
press, there is no general vacancy crisis. So far this year, the Senate 
has confirmed 26 of President Clinton's nominees. We have confirmed a 
total of 62 Judges this Congress, in addition to a number of Executive 
branch nominees. In fact, 266 active Federal Judges, or roughly 35% of 
all sitting Article III judges, were appointed by this Administration. 
As of today there are 768 active Federal Judges. What does that number 
mean? It means that there are currently more sitting federal judges 
hearing cases than in any previous administration. In fact, since 
becoming Chairman, I have yet to cast a vote against a single Clinton 
judicial nominee.
  Just as a matter of comparison, at this point in the 101st and 102nd 
Congress when George Bush was president and Democrats controlled the 
Senate, there were only 711 and 716 active judges, respectively. Thus, 
we have 50 more sitting federal judges today than we did in 1992, yet 
some would have us believe that our federal courts are being 
overwhelmed by a tidal wave of cases.
  Keep in mind that the Clinton administration is on record as having 
stated that 63 vacancies is virtual full employment of the federal 
judiciary. The Administrative Office of the U.S. Courts lists the 
current number of federal judicial vacancies as 76, a far cry from the 
``nearly 100'' I have heard some claim. In fact, by the 
administration's own admission we are 13 judges away from a fully 
employed federal judiciary. Which begs the question: if we are only 13 
judges away from full employment how can we be mired in a vacancy 
crisis? Only 13 judges out of 843 authorized--I think it is time to put 
the vacancy crisis argument to rest.
  Moreover, let's compare today's vacancy level of 76, with those that 
existed during the early 1990's when the Democratic and Republican 
parties' fortunes were reversed. In May of 1991, there were 148 federal 
judicial vacancies. One year later, in May of 1992, there were 117 
federal judicial vacancies. I remember those years. I don't, however, 
remember one comment about it in the media. I don't recall one 
television show mentioning it. I don't recall one writer writing about 
it. Nobody seemed to care. Nobody, that is, except the Chief Justice of 
the United States, William Rehnquist. Back then, in his year-end 
report, he called upon the Democratically controlled Senate to confirm 
more judges, much like he did this past year. Yet no one seemed too 
concerned about the Chief Justice's comments back then. Now, when we 
have a Democrat in the White House, all of a sudden it has become a 
crisis when we have virtually half the vacancies today that we had in 
1991. And it becomes a crisis even though the Chief Justice's message 
is virtually the same now as it was back then.
  I also think it important to note that at the end of the Bush 
Administration, there were 115 vacancies, for which 55 nominees were 
pending before the Judiciary committee. None of those 55 nominees even 
received the courtesy of a hearing, however. Compare this to the 65 
vacancies remaining at the end of President Clinton's first term. I 
think there is quite a difference.
  Some have mentioned a deliberate effort among Republican members of 
the Senate to unduly delay the confirmation of Judicial nominees. 
Nothing could be further from the truth. The judiciary committee has in 
fact processed nominees at a remarkably fast pace this session. Of the 
25 nominees currently pending in the Judiciary committee without a 
hearing, 10 were received since April. Today, there are only 5 nominees 
pending on the Senate Floor, and I expect that we will vote on their 
confirmations before the session ends.

  A good deal has been said by critics with regard to the vacancies on 
the Second and Ninth Circuits. It is true that these two circuits have 
had unusual difficulties. It should be mentioned, however, that 
nominations to the Ninth Circuit were held up to decide whether the 
Circuit should be split or not. Now that a commission is in place to 
study that issue, we have been able to move a number of Ninth Circuit 
nominations. In fact, we have confirmed more judges to the Ninth 
Circuit --three--than to any other circuit. Of the five Ninth Circuit 
judges still pending in the Senate, two have had hearings and one is 
pending on the floor. We received two of the other nominees only this 
session. And there are still vacancies remaining on that circuit--two 
vacancies of which have not even received a nominees. And one of those 
vacancies has been open since December of 1996.
  This represents a failure not on the part of the Judiciary Committee 
but on the Clinton Administration. President Clinton's failure to 
nominate judges expeditiously has in fact slowed the process, as the 
committee is left with an increasingly smaller base of qualified 
nominees to hold hearings on. In fact, fewer than half of the current 
vacancies have nominees pending, with many of those having incomplete 
paperwork. Rather than succumbing to the petulance of finger pointing, 
we all would be better served by an administration committed to sending 
us qualified nominees as expeditiously as possible.
  Now, we also acknowledge that there have been problems with 
confirming

[[Page S5317]]

nominees to the Second Circuit, but we have made a strong effort to 
ameliorate them. Unfortunately an unexpected illnesses have taken their 
toll on the Second Circuit, but we have done our part in committee. Two 
of the four nominees to that court are pending on the Senate floor, the 
other two recently had a hearing, and I expect will be voted out of 
Committee on Thursday.
  Apparently, President Clinton has not shared this sense of urgency 
with regard to the Second Circuit. In fact, of the five current 
vacancies on that court, one sat without a nominee for almost two 
years, another did not receive a nominee for over ten months, and the 
other waited just over eight months to receive a nominee. Most 
disturbing of all is the seat vacated by Senior Judge Jon Newman, 
vacant since July 1, 1997, which is yet to receive a nominee. As I have 
stated so often before, I'm a pretty good chairman of the Judiciary 
Committee, but I can't get judges confirmed that have not been 
nominated.
  Now, while the debate about vacancy rates on our federal courts is 
not unimportant, it remains more important that the Senate perform its 
advice and consent function thoroughly and responsibly. Federal judges 
serve for life and perform an important constitutional function, 
without direct political accountability to the people. Accordingly, the 
Senate should never move too quickly on nominations before it. Just 
this past year we saw two examples of what can happen when we try to 
move nominations along perhaps too quickly. In one instance, a nominee 
for a federal district court was reported out of the Judiciary 
Committee before all the details of her record as a state trial judge 
were known. As it happens, the District Attorney in the nominee's city, 
who happened to be of her party, and the district attorneys' 
association in her home state all publicly opposed the nomination, 
setting forth facts demonstrating a very serious anti-prosecution bias 
in her judicial record. It's cases like these that underscore the 
importance of proceeding very deliberately with nominations for these 
most important life-tenured positions.
  Let me make an important point here: federal judges should not be 
confirmed simply as part of a numbers game to reduce the vacancy rate 
to a particular level. While I plan to continue to oversee a fair and 
principled confirmation process, as I always have, I want to emphasize 
that the primary criteria in this process is not how many vacancies 
need to be filled, but whether President Clinton's nominees are 
qualified to serve on the bench, and will not, upon receiving their 
judicial commission, spend a lifetime career rendering politically 
motivated, activist decisions. The Senate has an obligation to the 
American people thoroughly to review the records of the nominees it 
receives to ensure that they are capable and qualified to serve as 
federal judges, and as part of that assessment of qualification, to 
ensure that nominees properly understand the limitations of the 
judicial role.
  Clearly, I believe the Committee has done its part. I hope to 
continue to work with the Administration and with Senator Leahy to 
ensure that qualified individuals will serve on the federal bench.

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