[Congressional Record Volume 144, Number 123 (Wednesday, September 16, 1998)]
[Senate]
[Pages S10417-S10418]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I join baseball fans everywhere in 
congratulating Mark McGwire of the Cardinals and Sammy Sosa of the Cubs 
on already breaking the single season home run record this year. I hope 
that the House will soon pass the bill that we named for another 
extraordinary man, who once wore number 21 for the Cardinals. 
Coincidentally, Curt Flood wore number 21, which is Sosa's uniform 
number, and played for the Cardinals, which is the team for which 
McGwire now plays. The Curt Flood Act, to end what is left of 
baseball's antitrust exemption has passed the Senate and is awaiting 
action by the House. Baseball's resurgence is being fueled by the 
outstanding efforts of a number of players should be aided by enactment 
of our legislation.
  I came to the Senate floor in early July to note the possibility that 
the single-season record for home runs might be broken this year. I 
noted that at this year's All-Star break, Mark McGwire had 37 homers, 
Ken Griffey, Jr. 35 and Sammy Sosa 33, as they headed toward Roger 
Maris' record 61. I urged the Senate to find inspiration in the 
outstanding seasons that these and other players and teams were having 
and to improve the Senate's effort in meeting its responsibilities with 
respect to judicial vacancies.
  I went on to compare the Senate's pace in confirming much-needed 
federal judges to Mark McGwire's home run pace. It is time for an 
update. Today, McGwire's season total stands at 63. Over the weekend 
Sammy Sosa thrilled Chicago and baseball fans everywhere by passing the 
marks set by Babe Ruth and Roger Maris and totaling 62. Ken Griffey, 
Jr., now leads the American League with 52 homers, making this first 
season in major league baseball history in which three players have hit 
as many as 50 home runs.
  Unfortunately, the Senate confirmation total is stalled at 39. As 
recently as 1994, the last year in which the Senate majority was 
Democratic, the Senate confirmed 101 judges. It has taken the 
Republican Senate three years to reach the century mark for judicial 
confirmations--to accomplish what we did in one session. As Chief 
Justice Rehnquist correctly observed in his year-end report last year: 
``The Senate confirmed only 17 judges in 1996 and 36 in 1997, well 
under the 101 judges it confirmed in 1994.''
  The Senate has not even kept up with normal attrition over the past 
two years, let alone made a real difference in filling longstanding 
judicial vacancies. Both the Second Circuit and the Ninth Circuit have 
had to cancel hearings 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 3-judge panels. Recently, 
he has had to extend that certification of emergency.
  Yet in spite of that emergency, the Senate continues to stall the 
nomination of Judge Sonia Sotomayor to the Second Circuit. Her 
nomination has been stalled on the Senate calendar for over six months. 
Chief Judge Winter's most recent annual report noted that the Circuit 
now has the greatest backlog it has ever had, due to the multiple 
vacancies that have plagued that court.
  For a time Judge Sotomayor's nomination was being delayed because 
some feared that she might be considered as a possible replacement for 
Justice Stevens, should he choose to resign from the Supreme Court. 
Perhaps now that the Supreme Court term has ended and Justice Stevens 
has not resigned, the Senate will proceed to consider her nomination to 
the Second Circuit on its merits and confirm her without additional, 
unnecessary delay.
  When confirmed she will be only the second woman and second judge of 
Puerto Rican descent to serve on the Second Circuit. Just as Sammy Sosa 
is a source of great pride to the Dominican Republic and to Latin 
players and fans everywhere, Judge Sotomayor is a source of pride to 
Puerto Rican and other Hispanic supporters and to women everywhere.
  Judge Sonia Sotomayor is a qualified nominee who was confirmed to the 
United States District Court for the Southern District of New York in 
1992 after being nominated by President Bush. She attended Princeton 
University and Yale Law School. She worked for over four years in the 
New York District Attorney's Office as an Assistant District Attorney 
and was in private practice with Pavia & Harcourt in

[[Page S10418]]

New York. She is strongly support by Senator Moynihan and Senator 
D'Amato.
  Ironically, it was Judge Sotomayor who issued a key decision in 1995 
that brought an end to the work stoppage in major league baseball. If 
only the breaking of the single season home run record could signal the 
end of the work stoppage in the Senate with respect to her nomination.
  Instead of sustained effort by the Senate to close the judicial 
vacancies gap, we have seen extensive delays continued and unexplained 
and anonymous ``holds'' become regular order.
  I began this year challenging the Senate to maintain the pace it 
achieved in the last nine weeks of the last session when 27 judges were 
confirmed. Instead, the Senate has confirmed only 39 judicial nominees 
in 24 weeks in session. Had the Senate merely maintained the pace that 
it set at the end of last year, the Senate would have confirmed 72 
judges--not 39 judges--by now.
  Last week The Washington Post included an editorial critical of the 
Senate for holding nominees without a vote on the Senate calendar. It 
was right to do so. We have 12 qualified nominees on the Senate 
calendar awaiting action. Including those still pending before the 
Committee, we have a total of 45 judicial nominations awaiting action, 
some of whom were first received over three years ago.

  The Senate continues to tolerate upwards of 74 vacancies in the 
federal courts with more on the horizon--almost one in 10 judgeships 
remains unfilled and, from the looks of things, will remain unfilled 
into the future. The Judiciary Committee needs to do a better job and 
the Senate needs to proceed more promptly to consider nominees reported 
to it.
  Unfortunately, the only record that the Senate is on pace to set this 
year with respect to judicial nominations is the record for the amount 
of time it takes to be confirmed once the nomination is received by the 
Senate. For those few nominees lucky enough to be confirmed as federal 
judges the average number of days for the Senate confirmation process 
has continued 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.
  Last year, the average number of days from nomination to confirmation 
rose dramatically yet again. 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, the 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 for judges confirmed this year is 
259 days. That is three times the time it took before this partisan 
slowdown began in earnest.
  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 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 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.
  During the Reagan and Bush administrations, Democratic and Republican 
Senates promptly considered and confirmed judges and authorized 167 new 
judgeships in response to the increasing workload of the federal 
judiciary. While authorized judgeships have increased in number by 25 
percent since 1980, 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.
  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.
  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 additional judgeships were created in 1990 that the 
next significant increase 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.
  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 
127 and total almost 14 percent of the federal judiciary.
  No one should take comfort from the number of confirmations achieved 
so far this year. It is only in comparison to the dismal achievements 
of the last two years that 39 confirmations could be seen as an 
improvement. The President has been doing a better job of sending the 
Senate scores of nominees more promptly. Unfortunately, qualified and 
capable nominees are still being delayed too long and stalled without 
action.
  In commending Mark McGwire, Sammy Sosa and the others major league 
players who have inspired the nation with their achievements, I pledge 
to continue to work for comparable achievements by the Senate in 
connection with judicial confirmations.

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