[Congressional Record Volume 146, Number 54 (Thursday, May 4, 2000)]
[Senate]
[Pages S3500-S3501]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            CONTINUING SENATE STALL ON JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I, again, urge the Senate to take the 
responsible action necessary to fill the 80 judicial vacancies around 
the country. The Senate has confirmed only seven judges all year. We 
are in our fifth month and have only confirmed seven judges. We have 80 
vacancies. There are six nominations on the Senate Executive Calendar, 
including Tim Dyk, who has twice been reported by the Judiciary 
Committee. Mr. Dyk's nomination has been pending over 2 years. Does 
this all sound familiar? It is because the Senate continues to fail in 
its responsibility to the American people and the Federal courts to 
take action on judicial nominations.
  The stall has been going on since 1996, with a few brief burst of 
activity when the editorial writers and public attention has focused 
attention of these shortcomings. When there is scrutiny, then the 
majority puts through a few more.
  The Judiciary Committee is not doing any better. It has held the 
equivalent of two hearings all year. In 5 months, it has held the 
equivalent of just two hearings on judicial nominations. We heard from 
only two nominees to the courts of appeal and only nine to the district 
courts. The committee has reported only six nominees all year, just 
six.
  I know the Senate has built in to the schedule a lot of vacation and 
a number of recesses. Maybe we ought to take a day or two out of one of 
those vacations and have some hearings and some votes on the 
confirmations of the scores of judges that are needed.
  We have seen the majority announce with great fanfare that the Senate 
would have more hearings in the Judiciary Committee on Elian Gonzalez 
this year. The American public responded so loudly and correctly to 
that proposal for senatorial child abuse that the majority quickly 
backed off, trying to find some face-saving way to cancel the hearings. 
Well, without those hearings we had a whole day this week available. 
Instead of senatorial child abuse, why not have hearings on judges? We 
could have done that.
  The committee markup scheduled for this morning was canceled. We 
could have used that time for a Judiciary hearing or proceeded and 
reported a few judicial nominees.
  Most afternoons are free around here this year. We could have 
hearings a few afternoons a week and start to catch up on our 
responsibilities.
  Over the last weekend, the President again called upon us to do our 
job and complete consideration of these nominations without additional 
delay. The Chief Justice of the Supreme Court, a Republican, has 
scolded the Senate in this regard.
  I have urged the Senate time and time again to fulfill our 
responsibilities. I wish we would do this, take a couple days less 
vacation time, work a few afternoons, and confirm the judges that we 
need around the country.
  A couple of years ago, I compared the Senate pace of confirming 
judges with

[[Page S3501]]

the home run pace of such players as Mark McGwire, Sammy Sosa, and Ken 
Griffey, Jr. Over the past couple of years when I have used this 
example of how much better they do hitting home runs than we do at 
confirming judges, my friend from Utah and I have gone back and forth 
with regard to this kind of comparison. He has said I should not be 
comparing the Senate to some of the greatest home run hitters of all 
time. I understand his reluctance since this Senate certainly has not 
been a home run hitter as far as confirming judges.
  But when I looked at the sports pages today I was struck by how 
poorly we are doing. Keep in mind, that the Senate has been in session 
a couple of months longer than the baseball season, that we had a 2-
month head start. Nonetheless, as of today, there are 27 baseball 
players who have hit more home runs than the Senate has confirmed 
judges. These are not just the stars. The Senate does not fail in 
comparison to just McGwire and Sosa, but in comparison to--I know these 
are names you will not all recognize and I see the pages coming to 
attention and see how many they know--the White Sox' Paul Konerko; the 
Cubs' Shane Andrews; the Rockies' Todd Helton; the Brewers' Geoff 
Jenkins; the Angels' Troy Glaus; the Royals' Mike Sweeney. Not legends 
yet, but fine people and players who have all hit more home runs than 
the Senate--even with a 2-month head start.

  In fact, I may be doing a disservice to these major-leaguers by 
comparing them to the Senate. Why? Because these ballplayers are acting 
professionally and doing what they are paid to do. We are not acting 
professionally. We are not fulfilling our constitutional 
responsibilities. We are not doing what we are paid to do. We are 
refusing to vote yes or no on these judges.
  The vacancies on the courts of appeals around the country are 
particularly acute. Vacancies on the courts of appeals are continuing 
to rob these courts of approximately 12.3 percent of their authorized 
active strength, as they have for the last several years. The Ninth 
Circuit continues to be plagued by multiple vacancies. We should be 
making progress on the nominations of Barry Goode, Judge Johnnie B. 
Rawlinson and James E. Duffy, Jr., as well as that of Richard Tallman.
  I am acutely aware that there is no one on the Ninth Circuit from the 
State of Hawaii. I know that federal law requires that ``there be at 
least one circuit judge in regular active service appointed from the 
residents of each state in that circuit,'' 28 U.S.C. 44(c), and I would 
like to see us proceed to comply with the law and confirm Mr. Duffy, as 
well as the other well-qualified nominees to that Court of Appeals 
without further delay.
  The Fifth Circuit continues to labor under a circuit emergency 
declared last year by its Chief Judge Carolyn Dineen King. We should be 
moving the nominations of Alston Johnson and Enrique Moreno to that 
Circuit to help it meet its responsibilities.
  Earlier this year I received a copy of a letter from Judge Gilbert 
Merritt, formerly Chief Judge of the Sixth Circuit, concerning the 
multiple vacancies plaguing that Circuit. Judge Merritt was disturbed 
by a report that the Judiciary Committee would not be moving any 
nominees for the Sixth Circuit this year. We should be moving on the 
nominations of Kathleen McCree Lewis, Kent Markus, and Helene White. 
Judge Merritt wrote to us two months ago, stating:

       The Sixth Circuit Court of Appeals now has four vacancies. 
     Twenty-five per cent of the seats on the Sixth Circuit are 
     vacant. The Court is hurting badly and will not be able to 
     keep up with its work load due to the fact that the Senate 
     Judiciary Committee has acted on none of the nominations to 
     our Court. One of the vacancies is five years old and no vote 
     has ever been taken. One is two years old. We have lost many 
     years of judge time because of the vacancies.
       By the time the next President is inaugurated, there will 
     be six vacancies on the Court of Appeals. Almost half of the 
     Court will be vacant and will remain so for most of 2001 due 
     to the exigencies of the nomination process. Although the 
     President has nominated candidates, the Senate has refused to 
     take a vote on any of them.
       Our Court should not be treated in this fashion. The 
     public's business should not be treated this way. The 
     litigants in the federal courts should not be treated this 
     way. The remaining judges on a court should not be treated 
     this way. The situation in our Court is rapidly deteriorating 
     due to the fact that 25% of the judgeships are vacant. 
     Each active judge of our Court is now participating in 
     deciding more than 550 cases a year--a case load that is 
     excessive by any standard.
       In addition, we have almost 200 death penalty cases that 
     will be facing us before the end of next year. I presently 
     have six pending before me right now and many more in the 
     pipeline. Although the death cases are very time consuming 
     (the records often run to 5000 pages), we are under very 
     short deadlines imposed by Congress for acting on these 
     cases. Under present circumstances, we will be unable to meet 
     these deadlines. Unlike the Supreme Court, we have no 
     discretionary jurisdiction and must hear every case.
       The Founding Fathers certainly intended that the Senate 
     ``advise'' as to judicial nomination, i.e., consider, debate 
     and vote up or down. They surely did not intend that the 
     Senate, for partisan or factional reasons, would remain 
     silent and simply refuse to give any advice or consider and 
     vote at all, thereby leaving the courts in limbo, 
     understaffed and unable properly to carry out their 
     responsibilities for years.

  Likewise, the Fourth Circuit, the Tenth Circuit and the District of 
Columbia Circuit continue to have multiple vacancies. Shame on the 
Senate for perpetuating these crises in so many Courts of Appeals 
around the country.
  By this time in 1992, the Senate had confirmed 25 judges and the 
Committee had held 6 confirmation hearings for judicial nominees. By 
this date in 1988, the Senate had confirmed 21 judges and the Committee 
had held 7 hearings. By this time in 1998, the Senate had confirmed 17 
judges and the Committee had held 5 hearings. This year we remain 
leagues behind any responsible pace.
  Unfortunately, the Senate has not built upon the progress we had made 
filling judicial vacancies following Chief Justice Rehnquist's remarks 
in his 1997 report on the state of the federal judiciary. Last year, 
faced with 100 federal judicial vacancies, the Senate confirmed only 34 
new judges. This year we will again be facing 100 vacancies. Already we 
have seen 87 vacancies and have so far responded with the confirmation 
of only 7 judges.
  I have challenged the Judiciary Committee and the full Senate to 
return to the pace it met in 1998 when we held 13 confirmation hearings 
and confirmed 65 judges. That approximates the pace in 1992, when a 
Democratic majority in the Senate acted to confirm 66 judges during 
President Bush's final year in office.
  There is a myth that judges are not traditionally confirmed in 
Presidential election years. That is not true. Recall that 64 judges 
were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic 
majority in the Senate confirmed Reagan nominees and, as I have noted, 
66 in 1992 when a Democratic majority in the Senate confirmed 66 Bush 
nominees.
  Our federal judiciary cannot afford another unproductive election-
year session like 1996 when a Republican majority in the Senate 
confirmed only 17 judges. These 17 confirmations in 1996 were an 
anomaly that should not be repeated. Since then we have had years of 
slower and lower confirmations and heavy backlogs in many federal 
courts.
  Working together the Senate can join with the President to confirm 
well-qualified, diverse and fair-minded judges to fulfill the needs of 
the federal courts across the country. I urge the Republican leadership 
to join us in making the federal administration of justice a top 
priority for the Senate for the rest of the year.

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