[Congressional Record Volume 144, Number 146 (Wednesday, October 14, 1998)]
[Senate]
[Pages S12578-S12579]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                JUDICIAL NOMINATIONS BEING HELD HOSTAGE

  Mr. LEAHY. Mr. President, there are currently 21 qualified nominees 
on the Senate calendar who have been reported favorably by the 
Judiciary Committee. Ten of those nominations would fill judicial 
emergency vacancies, which have been without a judge for over 18 
months. We have been trying for days, weeks, months and in some cases 
years to get votes on these nominees.
  The Majority Leader has yet to call up the nomination of Judge 
Richard Paez to the Ninth Circuit. That nomination was first received 
by the Senate back in January 1996, almost three years ago. His 
nomination was delayed at every stage and this is now the judicial 
nomination that has been pending the longest on the Senate Executive 
Calendar this year, seven months. Over the last few days the Majority 
Leader has repeatedly indicated that he would be calling up this 
nomination, but he has not done so.
  I have heard rumors that some on the Republican side planned to 
filibuster this nomination. I cannot recall a judicial nomination being 
successfully filibustered. I do recall earlier this year when the 
Republican Chairman of the Judiciary Committee and I noted how improper 
it would be to filibuster a judicial nomination. During this year's 
long-delayed debate on the confirmation of Margaret Morrow, Senator 
Hatch said: ``I think it is a travesty if we ever start getting into a 
game of filibustering judges.'' Well, it appears that travesty was 
successfully threatened by some on the Republican side of the aisle and 
kept the Majority Leader from fulfilling his commitment to call up the 
nomination for a confirmation vote.
  Like the nomination of Bill Lann Lee to head the Civil Rights 
Division, it appears that some on the Republican side have decided to 
take the Paez nomination as a partisan trophy and to kill it--and to do 
so through obstruction and delay rather than allowing the Senate to 
vote up or down on the nomination.
  Judge Paez and all 21 judicial nominations recommended to the Senate 
by the Judiciary Committee deserve better. They should be cleared for 
confirmation without further delay. I note that of the 21 judicial 
nominations on the Senate Executive Calendar, 19 were reported 
unanimously by the Senate Judiciary Committee over the last five 
months. Those judicial nominations which cannot be cleared by unanimous 
consent ought to be scheduled for debate and a confirmation vote 
without further delay.
  Let me put this in perspective: Most Congresses end without any 
judicial nominations left on the Senate Executive Calendar. The Senate 
calendar is usually cleared of such nominations by a confirmations 
vote. Indeed the 99th, 101st, 102nd, and 103rd Congresses all ended 
without a single judicial nomination left on the Senate calendar. The 
Democratic Senate majority in the two Congresses of the Bush 
Administration ended both those Congresses, the 101st and 102nd, 
without a single judicial nomination on the calendar.
  By contrast, the Republican Senate majority in the last Congress, the 
104th, left an unprecedented seven judicial nominations on the Senate 
Executive Calendar at adjournment without Senate action. And today, 
this Senate still has 21 judicial nominations on its calendar. The goal 
should be to vote on all judicial nominations on the calendar. To leave 
as many as seven judicial nominations without action at the end of this 
Congress is shameful; to be toying with the prospect of 21 is 
irresponsible.
  In his 1997 Year-End Report, Chief Justice Rehnquist focused again on 
the problem of ``too few judges and too much work.'' He noted the 
vacancy crisis and the persistence of scores of judicial emergency 
vacancies and 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.''
  That is good advice. That is what this Senate should do, take up 
these nominations and vote them up or vote them down. I believe that if 
the Senate were given an opportunity to have a fair vote on the merits 
of the nomination of Judge Richard Paez or Timothy Dyk or any of the 21 
judicial nominations pending on the Senate Executive Calendar, they 
would be confirmed. Perhaps that is why we are not being allowed to 
vote.
  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 our constitutional responsibility. Those who delay or 
prevent the filling of these vacancies must understand that they are 
harming the administration of justice. Courts cannot try cases, 
incarcerate the guilty or resolve civil disputes without judges.
  We began this year with the criticism of the Chief Justice of the 
United States 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.'' Nonetheless, instead of sustained effort by the Senate to 
close the judicial vacancies gap, we have seen extensive delays 
continued and unjustified and anonymous ``holds'' become regular order.
  To date, the Senate has actually been losing ground to normal 
attrition over the last two years. When Congress adjourned in 1996 
there were 64 vacancies on the federal bench. In the last 24 months, 
another 87 vacancies have opened. And so, after the confirmation of 36 
judges in 1997 and 48 so far this year, there has still been a net 
increase in judicial vacancies. The Senate has not even kept up with 
attrition. There are more vacancies in the federal judiciary today than 
when the Senate adjourned in 1996.
  This is without regard to the Senate's refusal to consider the 
authorization of the additional judges needed by the federal judiciary 
to deal with their ever increasing workload. In 1984 and in 1990, 
Congress did respond to requests for needed judicial resources by

[[Page S12579]]

the Judicial Conference. Indeed, in 1990, a Democratic majority in the 
Congress created judgeships during a Republican presidential 
administration. Last year the Judicial Conference of the United States 
requested that an additional 53 judgeships be authorized around the 
country. If Congress had passed the Federal Judgeship Act of 1997, S. 
678, as it should have, the federal judiciary would have 120 vacancies 
today. That is the more accurate measure of the needs of the federal 
judiciary that have been ignored by the Congress over the past two 
years. In that light, the judicial vacancies crisis continues unabated.
  In order to understand why a judicial vacancies crisis is plaguing so 
many federal courts, we need only recall how unproductive the 
Republican Senate has been over the last three years. More and more of 
the vacancies are judicial emergencies that have been left vacant for 
longer periods of time. The President has sent the Senate qualified 
nominees for 23 of those judicial emergency vacancies, nominations that 
are still pending as the Senate prepares to adjourn.
  When the American people consider how the Senate is meeting its 
responsibilities with respect to judicial vacancies, it must recall 
that 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.
  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.
  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 48 judicial confirmations could be seen as 
an improvement. I recall that in 1992, during a presidential election 
year and President Bush's last year in office, a Democratic Senate 
confirmed 66 of his nominations.
  I began this year challenging the Senate to maintain that pace. 
Instead, the Senate has confirmed only 48 judicial nominees instead of 
the 84 judges the Senate would have confirmed had it maintained the 
pace it achieved at the end of last year. The Senate has acted to 
confirm only 48 of the 91 nominations received for the 115 vacancies 
the federal judiciary experienced this year.
  I know that some are still playing a political game of payback for 
the defeat of the nomination of Judge Bork to the Supreme Court and 
other Republican judicial nomination over the last decade. I remind the 
Senate that the Senate voted on the Bork nomination and voted on the 
nomination of Clarence Thomas and did so in each case in less than 15 
weeks. To delay judicial nominations for months and years and to deny 
them a vote is wrong.

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