[Congressional Record Volume 145, Number 51 (Wednesday, April 14, 1999)]
[Senate]
[Pages S3670-S3672]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     THE SENATE'S CONTINUING FAILURE TO ACT ON JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, baseball season began earlier this month 
and already the Senate is lagging behind the home run pace of Mark 
McGwire. Last summer I began comparing the Senate's lack of progress on 
judicial nominations with home run pace of McGwire and other major 
leaguers. I had tried everything else I could think of: I had lectured 
the Republican majority about the Senate's duty to the judicial branch 
under the Constitution, I had cited the caseloads and backlogs in many 
courts around the country, I had introduced legislation to prevent the 
Senate from going on vacation while the Second Circuit was experiencing 
an unprecedented emergency declared by Chief Judge Winter in the face 
of five vacancies out of 12 authorized members of the court.
  I recently attended an historic meeting of the Baltimore Orioles 
major league baseball team and the Cuban team in Havana. During the 
Easter recess the Nation's Capital witnessed exhibition baseball 
between the Montreal Expos and the St. Louis Cardinals and got to see 
Big Mac in person. Maybe another baseball comparison can inspire the 
Senate into action on Federal judges this year.
  It is already mid-April and the Senate has yet to act on a single 
judicial nominee. Worse yet the Senate Judiciary Committee has yet to 
hold or even schedule a confirmation hearing. At this rate, I will have 
to start comparing the Senate's pace for the confirmation of Federal 
judges to the home run pace of American League pitchers. Since they do 
not bat, the Senate has a chance of keeping up with them.
  Of course, last year the Senate had gotten off to an early lead on 
Mark McGwire. Last January through the end of April, the Senate had 
confirmed 22 judges. By the All Star break last July, the Senate had 
confirmed 33 judges. It took Big Mac 10 weeks to catch and pass the 
Senate last year.
  This year, McGwire passed the Senate's total on opening day. That is 
because this year the Senate has yet to confirm a single Federal judge. 
That is right: In spite of the 33 judicial nominations now pending, in 
spite of the fact that at least a dozen of those nominees have been 
pending before the Senate for more than 9 months, in spite of the fact 
that four of those nominations were favorably reported by the Senate 
Judiciary Committee and were on the Senate calendar last year, in spite 
of the 67 vacancies including 28 judicial emergency vacancies, the 
Senate has yet to confirm a single Federal judge all year. Incredibly 
Mark McGwire is still on pace with what he accomplished last year. 
Regrettably, the Senate is not on even or on a slower pace than it was 
last year; it has no pace at all.
  By the end of last year, the Senate finally picked up its pace and 
confirmed 65 Federal judges--the highest total since the Republican 
majority took control of the Senate. 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 1 year when

[[Page S3671]]

Democrats last made up the majority of the Senate in 1994. Of course, 
the Senate fell short of the record-setting 70 home run total of Mark 
McGwire and 66 homers hit by Sammy Sosa.
  The Judicial Conference of the United States has recommended that 
Congress authorize an additional 69 judgeships besides, in order for 
the Federal courts to have the judicial resources they need to do the 
justice. These are in addition to the 67 current vacancies. That means 
that the Federal courts need the equivalent of 136 more judges. I 
cannot remember a time when the resource needs of the Federal courts 
were so neglected by the Congress.
  During the four years that the Republican majority has controlled the 
Senate, it has barely kept up with attrition when it comes to judicial 
vacancies. Even with the confirmations achieved last year, the current 
vacancies number as many as existed at the time the Senate recessed in 
1994. The Senate has not made the progress it should have in filling 
the longstanding vacancies that continue to plague the Federal 
judiciary. The Chief Justice of the U.S. Supreme Court and others 
continue to speak of the problem of too few judges and too much work. 
In 1997 the Chief Justice noted: ``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. The 
Second Circuit has had to declare a circuit emergency and to proceed 
with only one circuit judge on their three-judge panels.
  The New York Times ran a front-page story recently on how the 
crushing workload in the Federal appellate courts has lead to what the 
Times called a ``two-tier system'' for appeals. In testimony and 
statements over the last few years, I have seen Chief Judge Winter and 
former Chief Judge Newman of the Second Circuit, Chief Judge Hug and 
Judge Trott of the Ninth Circuit and Chief Judge Hatchett of the 
Eleventh Circuit all warn of the problem of too few judges and too much 
work. I deeply regret that these twin problems have combined to lead to 
the perception that the Federal appellate courts can no longer provide 
the same attention to individual cases that has marked the Federal 
administration of justice in the past.
  Appellate courts have had to forgo oral argument in more and more 
cases. Litigants are being denied any opportunity to see the judges who 
are deciding their causes. Law clerks and attorney staff are being used 
more and more extensively in the determination of cases as backlogs 
grow. As caseloads grow, bureaucratic imperatives seem to be replacing 
the administration of justice. These are not the ways to engender 
confidence in our system of justice, acceptance of the judicial 
process, support for the decisions being rendered or respect for 
courts. Congress needs to support the judicial branch with the judges 
and other resources it needs.

  Instead of sustained effort by the Senate to close the judicial 
vacancies gap, we have seen extensive delays continue and unexplained 
and anonymous ``holds'' become regular order.
  The only thing the Judiciary Committee does not ``hold'' any more is 
judicial confirmation hearings. 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. By April 15, 1994, we had held 5 
hearings involving 21 nominees, and the Committee had reported 18 
nominations. Even last year, the Committee had held four confirmation 
hearings by this time. This year the Committee has not held a single 
hearing on a single judicial nomination.
  The Senate continues to tolerate upwards of 67 vacancies in the 
Federal courts with more on the horizon--almost one in 13 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.
  We made some progress last year, but 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 better last year's results 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.
  Already this year the Senate has received 33 judicial nominations. I 
am confident that many more are following in the days and weeks ahead. 
Unfortunately, past delays mean that 28 of the current vacancies, over 
40 percent, are already judicial emergency vacancies, having been empty 
for more than 18 months. A dozen of the 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 3 
years to January 1996.
  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. This year 
that request has risen to 69 additional judgeships.
  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 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 4 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. 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

[[Page S3672]]

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. Prime examples are Judge 
Richard Paez, Justice Ronnie L. White, and Marsha Berzon, who have each 
had to be renominated again this year.
  I again urge the Senate to take seriously its responsibilities and 
help the President fill the longstanding vacancies in the Federal 
courts around the country. Today the score is running against the 
prompt and fair administration of justice--vacancies 67, nominations 
33, confirmations zero.
  In conclusion, last year I talked about judicial nominations and Mark 
McGwire. I talked about how well Mark McGwire had been doing. I 
compared his home run numbers, and that he was going along a lot faster 
than our judicial nominations. And I may do a little bit of that this 
year, as well.
  But I put a little magnifying glass up here to the chart. Here are 
the number of vacancies of Federal judges. Of course, a person can 
become a Federal judge only after a nomination and confirmation by the 
Senate.
  Here are the vacancies--67. I put a magnifying glass on the chart so 
everybody can see how many we have confirmed. Zero. Diddle squat. That 
is all we have done--no confirmations whatsoever. In fact, I don't 
think we have even had a hearing. We are now in the fourth month of the 
year and about to go into the fifth month. I don't think in my 25 years 
here we have ever gone this long, especially in the middle of a 
President's term, without even having any hearings.
  Mark McGwire is ahead of us in home runs, both on confirmations and 
on nomination hearings. Last year we got a little bit ahead of him, at 
least until the baseball season began. We had confirmed by the time of 
the All-Star break in July something like 33 judges. It took Mark 
McGwire almost 10 weeks to catch up and pass us last year. This time he 
passed us on the very first day he goes out to bat. The very first day 
that he is playing he beats us.
  I have heard it said that we can't confirm nominees that we don't 
have. We have 33 nominees up here right now. They are here sitting 
before the Senate. Some have already had hearings last year, and they 
just sit there and sit there, and we don't vote on them. We don't 
confirm them.
  Look at how we have done in the past. Let's go a little backward. In 
1994, we confirmed 101. In 1999, we only confirmed 65. Mark McGwire hit 
70 home runs.
  I think we will talk a little more about this as we go along. We have 
also had a problem with the time between nomination and confirmation. 
Again, it doesn't answer the question to say we can't confirm people if 
they are not nominated. In fact, they are nominated, and they still 
don't get confirmed and those that do are taking longer every year. In 
1993, it took the average time of 59 days to get them confirmed. Now it 
takes 232 days. I know of people who have declined appointments to the 
Federal bench. Why? Because they can't get confirmed at all or 
confirmed in a reasonable time.
  So the bottom line, Mr. President, is here we are with 67 vacancies 
and zero confirmations. And I am willing to bet that, at the rate we 
are going, Mark McGwire is going to be way ahead of us all year long.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. KERRY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.
  Mr. KERRY. Mr. President, I understand we are in morning business; is 
that correct?
  The PRESIDING OFFICER. We are. We are in morning business until 1 
p.m.
  Mr. KERRY. May I inquire, what is the order at 1 p.m.?
  The PRESIDING OFFICER. There is no specific business pending.
  Mr. KERRY. Mr. President, I ask unanimous consent that I be permitted 
to proceed in morning business until I complete my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KERRY. I thank the Chair.
  (The remarks of Mr. Kerry, Mr. Levin and Mr. Kennedy pertaining to 
the introduction of S. 791 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. KERRY. I thank the Chair and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. COVERDELL. 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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