[Congressional Record Volume 144, Number 86 (Friday, June 26, 1998)]
[Senate]
[Pages S7238-S7239]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I began this year challenging the Senate to 
maintain the pace it set in the last weeks of the last session in which 
it confirmed 27 judicial nominees in 9 weeks. Instead, the Senate has 
confirmed only 31 nominees so far this year--instead of the 54 it 
should have if it had maintained last year's pace.
  I reissue my challenge for the remaining 10 weeks of this session: 
The Republican Senate can confirm another 30 nominees by the end of the 
session if it will just work at the pace it achieved in connection with 
the President's radio address last year.
  I thank the Majority Leader for calling up the nominations of Howard 
Matz and Victoria Roberts. With their confirmations, and I do believe 
that they should and will be confirmed, the Senate will have acted on 
only 33 federal judges at a time in which the federal judiciary has 
experienced 103 vacancies, many of longstanding duration. Indeed, Ms. 
Roberts would fill a judiciary emergency vacancy. We will have 45 
judicial nominations still pending before the Senate or the Judiciary 
Committee, some which were first received over three years ago.
  There are currently nine other qualified nominees on the Senate 
calendar having been reported favorably by the Judiciary Committee. I 
deeply regret that the entire Senate Executive Calendar is not being 
cleared and the Senate is not being given the opportunity to vote on 
all 11 nominees awaiting Senate action.
  The nomination held up the longest is that of Judge Sonia Sotomayor 
to fill a critical vacancy on the Second Circuit, a Circuit whose Chief 
Judge has declared an emergency situation, canceled hearings and taken 
the extraordinary step of proceeding with 3-judge panels including only 
one Second Circuit judge. Chief Judge Winter recently issued his annual 
report in which he notes that the Circuit now has the greatest backlog 
it has ever had, due to the multiple vacancies that have plagued that 
court.
  In addition, there are 36 nominees pending before the Committee and 
more nominees being received from the President every week. I hope that 
the Committee will schedule prompt hearings for each of the judicial 
nominees currently pending in Committee and the nominees we expect to 
be receiving over the next several weeks so that they may have an 
opportunity to be considered by the Committee and confirmed by the 
Senate. At the rate of six nominees a hearing, the Committee needs to 
schedule at least six more hearings this summer for currently pending 
nominees.
  The Senate continues to tolerate more than 70 vacancies in the 
federal courts with another 11 on the horizon--almost one in 10 
judgeships remains unfilled, and, from the looks of things, will remain 
unfilled into the future unless the Judiciary Committee does a better 
job and the Senate proceeds promptly to consider nominees reported to 
it.
  We have held only seven judicial nominations confirmation hearing all 
year. I recall in 1994--the most recent year in which the Democrats 
constituted the majority--when the Judiciary Committee held 25 judicial 
confirmation hearings, including hearings to confirm a Supreme Court 
Justice.
  Nine currently pending nominees for the Courts of Appeals need their 
hearings and need them promptly if they are to be considered and 
confirmed this year, only three of those were received in the last 60 
days. We have 25 currently pending nominees to the District Courts and 
only four of those were received in the last 30 days.
  Unlike earlier days in the Senate when nominees were not made to wait 
for weeks and months on the Senate calendar before they could be 
considered, that is now becoming the rule. Margaret Morrow spent 244 
days on the calendar. Patrick McCuskey and Michael McCuskey each spent 
144 days on the calendar. The average time on the calendar has gone 
from a day or two to over 44 days.
  I calculate that the average number of days for those few lucky 
nominees who are finally confirmed is continuing to escalate. In 1994 
and 1995 judicial nominees took on average 86 or 87 days from 
nomination to confirmation. In 1996, that number rose to a record 183 
days on average. Some would discount that number because it was a 
presidential election year, but even they cannot ignore that it 
shattered the previous record. Last year, the average number of days 
from nomination to confirmation rose dramatically yet again, and this 
is the first year of a presidential term. From initial nomination to 
confirmation, the average time it took for Senate action on the 36 
judges confirmed in 1997 broke the 200 day barrier for the first time 
in our history. It was 212 days. Unfortunately, that time is still 
growing and the average is still rising to the detriment of the 
administration of justice. As we begin the day the average time from 
nomination to confirmation is over 250 days. That is three times the 
time it took before this slowdown began in earnest.
  During the entire four years of the Bush Administration there were 
only three judicial nominations that were pending before the Senate for 
as long as 9 months before being confirmed and none took as long as a 
year. In 1997 alone there were 10 judicial nominations that took more 
than 9 months before a final favorable vote and 9 of those 10 extended 
over a year to a year and one-half. Of the judges confirmed so far this 
year, Hilda Tagle's confirmation took 32 months, Susan Oki Mollway's 
confirmation took 30 months, Ann Aiken's confirmation took 26 months, 
Margaret McKeown's confirmation took 24 months, Margaret Morrow's 
confirmation took 21 months, and Victoria Roberts will have taken 11 
months. An additional nine confirmation this year took more than 200 
days.

  Last year the President sent us 79 judicial nominations but the 
Senate completed action on fewer than half of them. The percentage of 
judicial nominees confirmed over the course of last year was lower than 
for any Congress over the last three decades and, possibly, at any time 
in our history.
  Left pending were 42 judicial nominees, including 11 who were first 
nominated in 1995 and 1996, and 21 to fill judicial emergencies. Still 
pending before the Senate are four nominees first nominated in 1995 and 
two more first nominated in 1996. There are still eight nominations 
pending from 1997.
  Unfortunately, over the last three years, the Senate has barely 
matched the one-year total of judges confirmed in 1994 when we were on 
course to end the vacancy gap. We have not yet made up for attrition 
over the last two years. I observed at our last nominations hearing 
that we are not even keeping up with Mark McGwire, the St. Louis 
Cardinal slugger. In the three months of the baseball season leading up 
to the All Star game, he has hit 35 home runs. The Senate has had two 
additional months and confirmed only 33 judges.
  I recall in 1992, the last year of President Bush's Administration, 
the Senate, with a Democratic majority in a presidential election year 
confirmed 63 judicial nominations. Since obtaining their majority in 
the 1994 election, the current Republican majority has not achieved 
that number of confirmation in any year. Indeed in the presidential 
election year of 1996, the Senate confirmed only 17 judges and none for 
the courts of appeals.
  The Chief Justice of the United States Supreme Court has called the 
number of judicial vacancies ``the most immediate problem we face in 
the federal judiciary.'' 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 
this 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 numerous, longstanding vacancies in some courts are harming the 
federal administration of justice. The people in these districts and 
circuits need additional federal judges. Indeed the Judicial Conference 
of the United States recommends that in addition to filling the current 
vacancies, the Congress should authorize 53 additional judgeships 
throughout the country, as set forth in S. 678, the Federal Judgeship 
Act that I introduced in May 1997. That indicates that the work demands 
of the federal judiciary justify 133 additional judges. There is a 
clamor for us to fill these vacancies and there is

[[Page S7239]]

harm by the Senate's delay and failure to do so.
  The Chief Justice of the United States Supreme Court pointedly 
declared in his 1997 Year End Report: ``Vacancies cannot remain at such 
high levels indefinitely without eroding the quality of justice that 
traditionally has been associated with the federal judiciary.'' We have 
had hearings canceled by both the Second Circuit and the Ninth Circuit 
due to judicial vacancies. Must we wait for the administration of 
justice to fail before the Senate will act on the other 45 judicial 
nominees pending before us? I hope not.
  In his most recent report on the judiciary the Chief Justice of the 
United States Supreme Court observed: ``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 in 1994.'' He went on to 
note: ``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 vote him down.''
  I hope that the Judiciary Committee and the Senate will proceed to 
consider and confirm judicial nominees more promptly and without the 
months of delay that now accompany so many nominations. I hope the 
Committee will not delay in scheduling the additional hearings we need 
to hold to consider the fine men and women whom the President has 
nominated to fill these important positions.
  Mr. President, Howard Matz, I am glad to see, was confirmed. He was 
nominated last October, reported by the committee on April 2.
  I thank the majority leader for bringing this up and getting it 
concluded. Senator Boxer of California showed enormous perseverance and 
determination in moving this forward. I commend her and her choice. I 
note that he was confirmed by unanimous vote, 85-0.
  Victoria Roberts' nomination has been on the calendar 1 month, 
pending 11 months. Senator Levin has been very strongly supportive of 
her, and I believe that also was a unanimous confirmation. I commend 
the Senators involved, and I commend the majority leader.

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