[Congressional Record Volume 144, Number 88 (Tuesday, July 7, 1998)]
[Senate]
[Pages S7535-S7538]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I noticed we were in a quorum call. I was 
going to mention a situation that we have today that we may want to 
think about as we consider moving to proceed. Tonight much of America 
is going to observe a midsummer tradition, the major league baseball 
All-Star Game.
  A number of teams are having outstanding seasons, including the New 
York Yankees, Atlanta Braves and San Diego Padres. Adding special 
interest to this season is the possibility that the single-season 
records for home runs and runs batted in may be broken.
  Now, when Roger Maris and Mickey Mantle were chasing the home run 
record in 1961, they finished the first half of the season at 33 and 28 
homers, respectively. At this year's All-Star break, Mark McGwire 
already has 37 homers, Ken Griffey, Jr., 35, and Sammy Sosa 33, as they 
head toward Maris' record of 61.
  Some may recall from baseball history what Babe Ruth said when he was 
asked about his $80,000 contract for 1930--it was 10 years before I was 
born--and at the time it was the highest salary ever agreed to be paid 
to a baseball player. In a response to a reporter's comment that he was 
earning more money than the President of the United States, the Babe 
remarked, ``Why not? I had a better year than he did.''
  So, too, when the American people consider how the Senate is meeting 
its responsibilities with respect to judicial vacancies, we are going 
to have to conclude that Mark McGwire is having a better year than the 
Senate. In light of the All-Star Game being played tonight, let us 
compare the Senate's pace in confirming much-needed Federal judges to 
Mark McGwire's home run pace. The Senate got off to an early lead this 
year. From January through the end of April, the Senate confirmed 22 
judges. The Senate's pace, though, slowed in May. We have not been able 
to generate any real momentum through the spring and early summer. The 
number of Federal judges confirmed all year is only 33.

  Of course, the Senate's early lead on McGwire started to vanish once 
the baseball season started on March 31, which happens to be my 
birthday. It took ``Big Mac'' only 10 weeks to match the Senate's 
total. By June 8 he had caught and passed the Senate's total and he has 
been looking back at us ever since. McGwire is on a pace to shatter 
Maris' record and total 70 home runs in a single season.
  You can see on my chart: July--judges confirmed by the Senate, 33; 
McGwire's home runs, 37; October projections--for the Senate only 51; 
but for McGwire, 70.

[[Page S7536]]

  Unfortunately, the Senate is nowhere near a record pace. As recently 
as 1994--coincidentally, the last year in which the Senate majority was 
Democrats--the Senate confirmed 101 judges. It has taken the Republican 
Senate three years to reach the century mark and to do what a 
Democratic Senate was able to achieve in a single session.
  As Chief Justice Rehnquist--and I have no idea if like Justice 
Blackmun, he is a baseball fan or not--but he correctly observed: ``The 
Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 
101 judges it confirmed in 1994.''
  This chart also shows you where the Senate is today as compared to 
our total of judges confirmed in 1994, when we had confirmed 44 judges 
in July on our way to 101 confirmations. That out paced even Mark 
McGwire. Here again are our October projections: Judges confirmed at 
the current pace, probably around 51. I think Mark McGwire is on a pace 
to get 70. And, of course, the Congress, when last controlled by the 
Democrats confirmed 101.
  I hope that some think about this when we are watching the All-Star 
Game tonight. Would not the Senate be more productive if we could do 
just a little more and get a bit closer to the pace being set by some 
of our favorite baseball players? We are supposed to be the stars of 
the legislative firmament, but we certainly aren't All-Stars when it 
comes to this.
  We began this year with the criticism of the Chief Justice of the 
U.S. Supreme Court ringing in our ears: ``Vacancies cannot remain at 
such high levels indefinitely without eroding the quality of justice 
that traditionally has been associated with the federal judiciary.''
  Both the Second Circuit and the Ninth Circuit have had to cancel 
hearings over the past couple of years due to judicial vacancies. Chief 
Judge Winter of the Second Circuit has had to declare a circuit 
emergency and to proceed with only one circuit judge on their three-
judge panels.
  In response to the criticism of the Chief Justice, the Republican 
leadership has argued that the Senate is on a steady course and making 
steady progress. So was the Titanic as it headed towards the icebergs. 
It was only in the last 9 weeks of the last session that the Senate 
achieved any real progress. In that period, in conjunction with the 
President's national radio address on the crisis, the Senate confirmed 
27 judges in 9 weeks.
  I began this year challenging the Senate to maintain that pace. 
Instead, we confirmed only 33 judicial nominees in 18 weeks in session 
instead of the 54 we would have confirmed if we had maintained last 
year's pace.
  I have reissued my challenge for the last 10 weeks in session, which 
are all that remain to the Senate this entire year. We can confirm 
another 30 nominees by the end of the session if the Senate will work 
at the pace it achieved at the end of last year.
  We have held only seven judicial nomination hearings all year. I 
recall in 1994, the most recent year in which the Democrats constituted 
the majority, the Judiciary Committee held 25 judicial confirmation 
hearings, including hearings to confirm a Supreme Court Justice, which 
automatically take far, far more time than others. That is 25 hearings 
as compared with seven.
  They had no vacancy on the Supreme Court this year, but nine of the 
current nominees for the courts of appeals need their hearings and they 
need them promptly. We have 25 currently pending nominees to the 
district courts, and only one of those is less than 30 days old.

  We should not tolerate upwards of 73 vacancies in the Federal courts, 
with more on the horizon. Almost one in 10 judgeships remains unfilled, 
and from the looks of things, they are going to remain unfilled into 
the future. The Judiciary Committee needs to do a better job, and the 
Senate needs to proceed more promptly and to consider nominees reported 
to it.
  The nomination held the longest on the Senate calendar is Judge Sonia 
Sotomayor for a critical vacancy in the Second Circuit. I have already 
mentioned that in that circuit, which is my own, the Chief Judge has 
declared an emergency situation. Chief Judge Winter recently issued his 
annual report in which he notes that the court now has the greatest 
backlog it ever had.
  Ironically, it was Judge Sotomayor who issued a key decision in 1995 
that brought an end to the work stoppage in major league baseball. How 
wonderful it would be if today, at the time of this year's All-Star 
Game, the Senate would end its work stoppage with respect to her 
nomination and proceed to consider and confirm her.
  This brings me back to the All-Star Game, Mr. President. We will 
applaud these outstanding players and we will cheer the baseball teams 
represented. As a New Englander, I historically applaud the Red Sox, no 
matter how they do--although they had a pretty good first half. Every 
one of us has favorite players and teams. We stick with them even when 
they fall behind. But none of these teams has fallen as far behind 
where they should be as the U.S. Senate has, none has been so 
disappointing.
  Let us try harder. Let us try to confirm at least as many judges as 
Mark McGwire is going to hit home runs. If we do not want to use the 
Constitution as an inspiration, if we do not want to use judicial 
vacancies and the harm they cause as an inspiration, if we do not want 
to use the potential collapse of the Federal judicial system as an 
inspiration, maybe some can take inspiration from America's pastime and 
say, ``If Mark McGwire can do it, so can the U.S. Senate.''
  We have not yet, but hope springs eternal. Let us take his effort and 
commitment as inspiration. Let us not keep hitting foul balls. Let the 
Senate hit a home run now and then. It would be a home run for the 
American people if the Senate stopped holding the Federal judiciary 
hostage. We should help fill these vacancies. Let's do it.
  We have 45 judicial nominations pending, some of whom were first 
received over three years ago. There are currently nine qualified 
nominees on the Senate calendar who have been reported favorably by the 
Judiciary Committee.
  In addition, there are 36 nominees pending before the Judiciary 
Committee and more nominees are 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 for 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 conclusion of the debate on the nomination of Merrick Garland 
to the United States Court of Appeals for the District of Columbia, as 
23 Republicans were preparing to vote against that exceptionally well-
qualified nominee whose confirmation had been delayed 18 months, 
Senator Hatch said ``playing politics with judges is unfair, and I am 
sick of it.'' I agree with him. I look forward to a return to the days 
when judicial nominations are treated with the respect and attention 
that they deserve.
  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 in 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. The average 
time from nomination to confirmation is now over 260 days. That is 
three times the time it took before this partisan slowdown began in 
earnest.
  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 work to fulfil this 
constitutional responsibility. Those who delay

[[Page S7537]]

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 Republican Senate leadership seems to be operating under several 
false assumptions. As recently as June 22, they have stated that there 
is no problem with the scores of longstanding judicial vacancies 
because the federal judiciary has 767 active judges, which are more 
than the number of active judges sitting during the Reagan and Bush 
administrations.
  Unfortunately, their statement fails to consider the enormous growth 
in the workload of the federal courts over the last two decades. The 
federal judiciary's workload was at least 60 percent lower than it is 
today when the Reagan-Bush administrations took office. The federal 
court's criminal docket alone is up from 28,921 cases in 1980 to 50,363 
last year. That is an increase of over 70 percent in the criminal case 
filings in the federal courts.
  Moreover, if the Republicans have their way, this Congress will add 
more and more cases to the federal courts' workload. Among their 
priorities are a products liability bill, a so-called ``takings'' bill 
and a version of a juvenile crime bill that each federalizes huge 
portions of what have traditionally been cases handled through state 
courts.
  In recognition of the growing federal court workload, Congress 
authorized an additional 85 authorized judgeships back in 1984. The 
vacancies were then filed without delay by Congress, including the 
100th Congress in which there was a Democratic majority. Indeed, in 
1987 and 1988, the last two years of the Reagan administration, a 
Democratic Senate confirmed 96 judges, leaving only 23 vacancies at the 
end of that Congress.
  In 1990, a Democratic Congress created 85 additional judgeships 
during the Bush administration. That brought an anomalous spike in the 
vacancy numbers. During the 102nd Congress, in 1991 and 1992, the last 
two years of the Bush administration, the Senate Judiciary Committee 
under the chairmanship of a Democrat, held 30 confirmation hearings and 
the Democratic Senate confirmed 124 Bush nominees to the federal bench. 
In fact, in 1992, during President Bush's last year in office a 
Democratic Senate confirmed 66 of his nominations.
  Thus, during the Reagan and Bush years, both Democratic and 
Republican Senates not only promptly considered and confirmed judges 
but also authorized 167 new judgeships in response to the increasing 
workload of the federal judiciary. Authorized judgeships have increased 
in number by 25 percent since 1980 while the workload of the federal 
courts has grown by over 60 percent during the same period. That is why 
the prolonged vacancies being perpetuated by delays in the confirmation 
process are creating such strains within the federal courts.
  Presidents Reagan and Bush were able to appoint 579 federal judges, 
including 291 confirmed by a Democratic Senate from 1987 through 1992. 
In the last two years of the Bush administration, 1991 and 1992, a 
Democratic Senate held 30 hearings and confirmed 124 judges nominated 
by a President of the other party, with 66 coming in 1992, a 
presidential election year.

  When Republicans note that President Clinton has appointed 273 
federal judges over the past six years, they invariably fail to mention 
that 129 of these nominees were confirmed by a Democratic Senate in 
1993 and 1994. Over the past four years, Republican have confirmed a 
total of fewer than 145 federal judges, during a time in which the 
judicial vacancy rate has continued to hover between 70 and 110 
longstanding vacancies and the workload of federal courts continues to 
grow.
  So unlike other periods in which judicial vacancies could be 
attributed to newly-created judgeships, during the past four years the 
vacancies crisis has been created by the Senate's failure to move 
quickly to consider nominees to longstanding vacancies.
  Republicans also suggest that maintaining as many as 60 vacancies is 
``virtually full employment'' on the federal bench. I disagree. In the 
early and mid-1980's, vacancies were between 25 and 34 at the beginning 
of each session of Congress. By the fall of 1983, the vacancies for the 
entire federal judiciary had been reduced to only 16.
  With attrition and the 85 new judgeships created in 1984, vacancies 
reached 123 at the beginning of President Reagan's second term, but 
those vacancies were reduced to only 33 within two years, by the fall 
of 1986. A Democratic Senate in 1987 and 1988 reduced the vacancies 
still further to only 23 at the end of the 100th Congress.
  It was not until the additional judges were created in 1990 that the 
next significant spike in vacancies occurred and then, again, the 
Democratic Senate responsibly set about the task of helping fill those 
vacancies with qualified nominees. Although President Bush was 
notoriously slow to nominate, the Democratic Senate confirmed 124 
nominees in President Bush's last two years and cut the vacancies in 
half.
  Republicans also contend, erroneously, that the Clinton 
administration has stated that 63 vacancies is acceptable and 
``virtually full employment.'' They misinterpret a press release from 
October 1994. That press release was pointing out that if the Senate 
had proceeded to confirm the 14 nominees then on the Senate calendar it 
would have brought the total judges confirmed during President 
Clinton's first two years to over 140 and would have reduced the 
judicial vacancy rate to 4.7 percent, which the press release then 
proceeded to compare to a favorable unemployment rate of under 5 
percent.
  This was not a statement of administration position or even a policy 
statement but a poorly designed press release that included an ill-
conceived. Job vacancy rates and unemployment rates are not comparable. 
Judicial vacancy rates have significance beyond general unemployment 
statistics.
  When I learned that some Republicans had for partisan purposes seized 
upon this press release, taken it out of context, ignored what the 
press release actually said and were manipulating it into a 
misstatement of Clinton administration policy, I asked the Attorney 
General, in 1997, whether there was any level or percentage of judicial 
vacancies that the administration considered acceptable or equal to 
``full employment.''
  The Department responded:

       There is no level or percentage of vacancies that justifies 
     a slow down in the Senate on the confirmation of nominees for 
     judicial positions. While the Department did once, in the 
     fall of 1994, characterize a 4.7 percent vacancy rate in the 
     federal judiciary as the equivalent of the Department of 
     Labor `full employment' standard, that characterization was 
     intended simply to emphasize the hard work and productivity 
     of the Administration and the Senate in reducing the 
     extraordinary number of vacancies in the federal Article III 
     judiciary in 1993 and 1994. Of course, there is a certain 
     small vacancy rate, due to retirements and deaths and the 
     time required by the appointment process, that will always 
     exist. The current vacancy rate is 11.3 percent. It did reach 
     12 percent this past summer. The President and the Senate 
     should continually be working diligently to fill vacancies as 
     they arise, and should always strive to reach 100 percent 
     capacity for the federal bench.
  At no time has the Clinton administration stated that it believes 
that 60 vacancies on the federal bench is acceptable or a virtually 
full federal bench. Only Republicans have expressed that opinion. As 
the Department noted last year, the Senate should be ``working 
diligently to fill vacancies as they arise, and should always strive to 
reach 100 percent capacity for the federal bench.''
  With respect to the question of vacancies, it is also important to 
note that in 1997 the Judiciary Conference of the United States 
requested an additional 53 judgeships be created and the Republican 
Congress has refused to consider that workload justified request. My 
bill to meet that request, S.678, the Federal Judgeship Act of 1997, 
has received no attention since I introduced it over a year ago. Had 
those additional judgeships been created, as they were in 1984 and 1990 
under Republican Presidents, current judicial vacancies would number 
123 and total almost 14 percent of the federal judiciary.
  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

[[Page S7538]]

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, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GORTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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