[Congressional Record Volume 145, Number 32 (Tuesday, March 2, 1999)]
[Senate]
[Pages S2092-S2093]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    JUDICIAL NOMINATIONS IN THE FIRST SESSION OF THE 106TH CONGRESS

  Mr. LEAHY. Mr. President, as the Senate belatedly begins this 
congressional session, I look forward to working with the Democratic 
Leader, the Majority Leader, Senator Hatch, the Chairman of the Senate 
Judiciary Committee, and all Senators again this year with respect to 
fulfilling our constitutional duty regarding judicial nominations.
  Last year the Senate confirmed 65 federal judges to the District 
Courts and Courts of Appeals around the country and to the Court of 
International Trade. That was 65 of the 91 nominations received for the 
115 vacancies the federal judiciary experienced last year.
  Together with the 36 judges confirmed in 1997, the total number of 
article III federal judges confirmed during the last Congress was a 2-
year total of 101--the same total that was confirmed in one year when 
Democrats made up the majority of the Senate in 1994. The 104th 
Congress (1995-96) had resulted in a 2-year total of only 75 judges 
being confirmed. By way of contrast, I note that during the last two 
years of the Bush Administration, even including the presidential 
election year of 1992, a Democratic Senate confirmed 124 federal 
judges.
  As we begin this year there are 64 current judicial vacancies and 
seven more on the horizon. In 1983, at the beginning of the 98th 
Congress there were only 31 vacancies. Even after the creation of 85 
new judgeships in 1984, the number of vacancies had been reduced by a 
Democratic majority in the Senate for a Republican President to only 41 
at the start of the 101st Congress in 1989.
  After the first Republican Senate in a decade, during the 104th 
Congress (1995-96), the number of unfilled judicial vacancies increased 
for the first time in decades without the creation of any new 
judgeships. Vacancies went from 65 at the start of 1995, to 89 at the 
start of the 105th Congress in 1997. That is an increase in judicial 
vacancies of 37 percent without a single new judgeship having been 
authorized.
  We made some progress last year when the Senate confirmed 65 judges. 
That only got us back to the level of vacancies that existed in 1995. 
If last year is to represent real progress and a change from the 
destructive politics of the two preceding years in which the Republican 
Senate confirmed only 17 and 36 judges, we need to at least duplicate 
those results again this year. The Senate needs to consider judicial 
nominations promptly and to confirm without additional delay the many 
fine men and women President Clinton is sending us.
  We start this year already having received 19 judicial nominations. I 
am confident that many more are following in the days and weeks ahead. 
Unfortunately, past delays mean that 26 of the current vacancies, over 
40 percent, are already judicial emergency vacancies, having been empty 
for more than 18 months. A dozen of the 19 nominations now pending had 
been received in years past. Ten are for judicial emergency vacancies. 
The nomination of Judge Paez to the Ninth Circuit dates back over three 
years to January 1996. Judge Paez along with three others were reported 
favorably by the Judiciary Committee to the Senate last Congress but 
were never considered by the full Senate. I hope that the Senate will 
confirm all these qualified nominees without further delay.
  In addition to the 64 current vacancies and the seven we anticipate, 
there is also the longstanding request by the Federal judiciary for 
additional judges who are needed to hear the ever growing caseload in 
our Federal courts. In his 1998 Year-End Report of the Federal 
Judiciary, Chief Justice Rehnquist noted: ``The number of cases brought 
to the federal courts is one of the most serious problems facing them 
today.'' Criminal cases rose 15 percent in 1998, alone. Yet the 
Republican Congress has for the past several years simply refused to 
consider the authorization of the additional judges requested by the 
Judicial Conference.
  In 1984 and in 1990, Congress did respond to requests for needed 
judicial resources by the Judicial Conference. Indeed, in 1990, a 
Democratic majority in the Congress created judgeships during a 
Republican presidential administration.
  In 1997, 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 115 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 several years.
  In order to understand the impact of judicial vacancies, we need only 
recall that more and more of the vacancies are judicial emergencies 
that have been left vacant for longer periods of time. Last year the 
Senate adjourned with 15 nominations for judicial emergency vacancies 
left pending without action. Ten of the nominations received already 
this year are for judicial emergency vacancies.
  In his 1997 Year-End Report, Chief Justice Rehnquist focused 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.'' 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.''
  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 favorably vote and 9 of those 10 extended 
over a year to a year and one-half. In 1998 another 10 confirmations 
extended over 9 months: Professor Fletcher's confirmation took 41 
months--the longest-pending judicial nomination in the history of the 
United States--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, Judge Sonia Sotomayor's 
confirmation took 15 months, Rebecca Pallmeyer's confirmation took 14 
months, Dan Polster's confirmation took 12 months, and Victoria 
Roberts' confirmation took 11 months.

  I calculate that the average number of days for those few lucky 
nominees who are finally confirmed is continuing to escalate. In 1996, 
the Republican Senate shattered the record for the average number of 
days from nomination to confirmation for judicial confirmation. The 
average rose to a record 183 days. In 1997, the average number of days 
from nomination to confirmation rose dramatically yet again, and that 
was during 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. Last year, in 1998, the Senate broke the 
record, again. The average time from nomination to confirmation for the 
65 judges confirmed in 1998 was over 230 days.
  At each step of the process, judicial nominations are being delayed 
and stalled. Judge Richard Paez, Justice Ronnie L. White, Judge William 
J. Hibbler and Timothy Dyk were each left on the Senate calendar 
without action when the Senate adjourned last October. Marsha Berzon, 
Matthew Kennelly and others were each denied a

[[Page S2093]]

vote before the Judiciary Committee following a hearing. Helene N. 
White, Ronald M. Gould and Barry P. Goode, were among a total of 13 
judicial nominees never accorded a hearing last year before the 
Judiciary Committee.
  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.
  It is my hope that we can start in the right spirit and move in the 
right direction by reporting out the nominations of Timothy Dyk to the 
Federal Circuit; Judge Richard Paez and Marsha L. Berzon to the Ninth 
Circuit; William J. Hibbler and Matthew F. Kennelly to the District 
Court for the Northern District of Illinois; and Ronnie L. White to the 
District Court for the Eastern District of Missouri. They have each 
already had confirmation hearings before the Senate Judiciary 
Committee. Four of the six have previously been reported favorably by 
the Committee. The Senate should act to confirm these six nominees 
before the end of the month.
  We should proceed to confirmation hearings for Helene N. White, 
Ronald M. Gould, Barry P. Goode, Lynette Norton, Legrome D. Davis and 
Virginia Phillips. Each of these nominations has been before the 
Committee for more than nine months already. It is time for us to 
proceed.
  With the continued commitment of all Senators we can make real 
progress this year. We can help fill the longstanding vacancies that 
are plaguing the Federal judiciary and provide the resources needed to 
the administration of justice across the country.

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