[Congressional Record Volume 146, Number 113 (Thursday, September 21, 2000)]
[Senate]
[Pages S8934-S8936]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           DELAYS IN SENATE CONFIRMATION OF JUDICIAL NOMINEES

  Mr. LEAHY. Mr. President, I regret to report to the Senate that the 
last confirmation hearing for federal judges held by the Judiciary 
Committee was in July. Throughout August and now into the third week in 
September, there have been no additional hearings held or even noticed. 
By contrast, in 1992, the last year of the Bush Administration, a 
Democratic majority in the Senate held three confirmation hearings in 
August and September and continued to work to confirm judges up to and 
including the last day of the session.
  I also regret that the Judiciary Committee's inaction on judicial 
nominations has led to Senators object to Senate committees continuing 
to meet on other matters when the Senate is in session. The matter is 
most acute with regard to the numerous vacancies on our Courts of 
Appeals and the qualified women and men who have been stalled before 
this Committee.
  This Judiciary Committee has reported only 3 nominees to the Courts 
of Appeals all year. We have held hearings without even including a 
nominee to the Courts of Appeals and denied a Committee vote to two 
outstanding nominees who succeeded in getting hearings. I certainly 
understand the frustration of those Senators who know that Roger 
Gregory, Helene White, Bonnie Campell and others should be considered 
by this Committee and voted on by the Senate without additional delay.
  Currently there remain more judiciary vacancies than there were when 
Congress adjourned in 1995. We have not even kept up with attrition 
over that last 5 years. Earlier this week, Senator Hatch joined with me 
and a dozen other Senators to introduce the Federal Judgeship Act of 
2000. That legislation incorporates recommendations of the Judicial 
Conference of the United States to authorize 70 judgeships in addition 
to the 64 current vacancies within the federal judiciary. If those 
additional judgeships were taken into account, the so-called ``vacancy 
rate'' would be over 13 percent with over 130 vacancies.
  We can make quick progress when we want to do so. The last group of 
nominees considered by the Judiciary Committee included three who were 
nominated on a Friday, had their hearing the next week and were 
approved and reported to the Senate within 6 days.
  By contrast, we still have pending without a hearing qualified 
nominees like Judge Helene White of Michigan. She has been held hostage 
for over 45 months without a hearing. She is the record holder for a 
judicial nominee who has had to wait the longest for a hearing and her 
wait continues without explanation to this day.
  We still have pending before the Committee, the nomination of Bonnie 
Campbell to the Eighth Circuit. Ms. Campbell had her hearing last May, 
but the Committee refuses to consider her nomination, vote her up or 
vote her down. Instead, there is the equivalent of an anonymous and 
unexplained secret hold. Bonnie Campbell is a distinguished lawyer, 
public servant and law enforcement officer. She was the Attorney 
General for the State of Iowa and the Director of the Violence Against 
Women Office at the United States Department of Justice. And she enjoys 
the full support of both of her home State Senators, Senator Harkin and 
Senator Grassley. I commend Senator Harkin for his remarks on Ms. 
Campbell's nomination earlier today. I understand his frustration and 
believe that this Senate's failure to act on this highly qualified 
nominee is without justification.
  We still have pending without a hearing the nomination of Roger 
Gregory of Virginia and Judge James Wynn of North Carolina to the 
Fourth Circuit. Were either of these highly-qualified jurists confirmed 
by the Senate, we would be finally acting to allow a qualified African 
American to sit on that Court for the first time. We still have pending 
before the Committee the nomination of Enrique Moreno to the Fifth 
Circuit. He is the latest in a succession of outstanding Hispanic 
nominees by President Clinton to that Court, but he too is not being 
considered by the Committee or the Senate.
  Let me return briefly to the nomination of Roger Gregory. The 
Chairman of the Judiciary Committee indicated

[[Page S8935]]

in his recent op-ed in the Wall Street Journal that the reason Roger 
Gregory would not be confirmed is because the Administration refused to 
consult with his home State Senators. In fact, this nomination is 
supported by both Virginia Senators, both Senator Warner and Senator 
Robb. Indeed, Senator Robb made a forceful statement on behalf of this 
just a few days ago. In response to that assertion in the Wall Street 
Journal, the Counsel to the President sent a letter to the editors of 
that paper that corrected the misstatement. I ask unanimous consent 
that a copy of that letter be included in the Record at the end of my 
remarks.
  The Chairman also suggested that it was too late in the session to 
move on these nominations. In addition to the recent examples I already 
noted, nominees now on the Senate calendar awaiting action after being 
before the Judiciary Committee for less than one week, there is the 
example of the hearing held last week by the Government Affairs 
Committee on two District of Columbia Superior Court judges, who one 
was nominated on May 1 and the other was nominated on June 26. Another 
example of the ability of the Senate to act is the September 8 
confirmation of James E. Baker to the U.S. Court of Appeals for the 
Armed Forces. Of course, the Republican candidate for the presidency 
has said that nominations should be acted upon within 60 days. Of the 
42 judicial nominations currently pending, 33 have been pending from 60 
days to 4 years without final action, including Roger Gregory.
  Finally, there is the contrasting example of responsible action by 
the Democratic majority in 1992 on the nomination of Timothy Lewis to 
the Third Circuit. Tim Lewis was nominated on September 17. By 
September 17, Roger Gregory had already been pending for well over 60 
days. Tim Lewis was accorded a hearing on September 24, was voted on by 
the Committee on October 7, and was confirmed by the Senate on October 
8, before it adjourned for rest of the campaign before the presidential 
election that year.
  I note for the Senate that there continue to be multiple vacancies on 
the Third, Fourth, Fifth, Sixth, Ninth, Tenth and District of Columbia 
Circuits. With 22 current vacancies, our appellate courts have nearly 
half of the total judicial emergency vacancies in the federal court 
system. I note that the vacancy rate for our Courts of Appeals is more 
than 11 percent nationwide. If we were to take into account the 
additional appellate judgeships included in the Hatch-Leahy Federal 
Judgeship Act of 2000 and requested by the Judicial Conference to 
handle their increased workloads, the vacancy rate would be 16 percent.
  Pending before the Committee are a dozen nominees to the Federal 
Courts of Appeals who are awaiting a hearing. They include Judge Helene 
White of Michigan, who is now the longest pending judicial nomination 
at over 45 months without even a hearing; Barry Goode, whose nomination 
to the Ninth Circuit was the subject of numerous statements by Senator 
Feinstein and who has been pending for over two years; Allen Snyder, 
another well-respected and highly-qualified nominee who got a hearing 
but no Committee vote although he received the highest rating from the 
ABA, enjoys the full support of his home state Senators, and had his 
hearing on May 10, 2000. There are and have been many others, including 
a number of qualified minority nominees whom I have been speaking about 
throughout the year, including Kathleen McCree Lewis of Michigan, 
Enrique Moreno of Texas and Roger Gregory of Virginia.
  Let us compare to the year 1992, in which a Democratic majority in 
the Senate confirmed 11 Court of Appeals nominees during a Republican 
president's last year in office among the 66 judicial confirmations for 
the year. In 1992, the Committee held 15 hearings--twice as many as 
this Committee has found time to hold this year. The Judiciary 
Committee has held hearings on only five Court of Appeals nominees all 
year and has refused to vote on two of those. In the last 10 weeks of 
the 1992 session, the Committee held four hearings and all of the 
nominees who had hearings then were confirmed before adjournment. In 
the last 10 weeks of the 1992 session, we confirmed 32 judicial 
nominations.
  What is most significant about the recent trend of judicial vacancies 
and vacancy rates is that the vacancies that existed in 1993, even 
after the creation of 85 new judgeships in 1990, had been cut almost in 
half in 1994, when the rate was reduced to 7.4 percent with 63 
vacancies at the end of the 103rd Congress. We continued to make 
progress even into 1995. In fact, the vacancy rate was lowered to 5.8 
percent after the 1995 session, and before the partisan attack on 
federal judges began in earnest in 1996 and 1997.
  Progress in the reduction of judicial vacancies was reversed in 1996, 
when Congress adjourned leaving 64 vacancies, and in 1997, when 
Congress adjourned leaving 80 vacancies and a 9.5 percent vacancy rate. 
No one was happier than I that the Senate was able to make progress in 
1998 toward reducing the vacancy rate. I praised Senator Hatch for his 
effort. Unfortunately, the vacancies have since grown again.
  During Republican control it has taken two-year periods for the 
Senate to match the one-year total of 101 judges confirmed in 1994, 
when we were on course to end the vacancies gap. Nominees like Judge 
Helene White, Barry Goode, Judge Legrome Davis, and J. Rich Leonard, 
deserve to be treated with dignity and dispatch--not delayed for two 
and three years. We are still seeing outstanding nominees nitpicked and 
delayed to the point that good women and men are being deterred from 
seeking to serve as federal judges. Nominees practicing law see their 
work put on hold while they await the outcome of their nominations. 
Their families cannot plan. They are left to twist in the wind. All of 
this despite the fact that, by all objective accounts and studies, the 
judges that President Clinton has appointed are a moderate group of 
judges, rendering moderate decisions, and certainly including far fewer 
ideologues than were nominated during the Reagan Administration.

  With respect to the Senate's treatment of nominees who are women or 
minorities, I remain vigilant. I have said that I do not regard Senator 
Hatch as a biased person. I have also been outspoken in my concern 
about the manner in which we are failing to consider qualified minority 
and women nominees over the last several years. From Margaret Morrow, 
Margaret McKeown and Sonia Sotomayor, through Richard Paez and Marsha 
Berzon, and including Judge James Beatty, Jr., Judge James Wynn, Roger 
Gregory, Enrique Moreno and all the other qualified women and minority 
nominees who have been delayed and opposed over the last several years, 
I have spoken out. The Senate will never remove the blot that occurred 
last October when the Republican Senators emerged from a Republican 
Caucus to vote lockstep against Justice Ronnie White to be a Federal 
District Court Judge in Missouri.
  The Senate should be moving forward to consider the nominations of 
Judge James Wynn, Jr. and Roger Gregory to the Fourth Circuit. Fifty 
years has passed since the confirmation of Judge Hastie to the Third 
Circuit and still there has never been an African-American on the 
Fourth Circuit in the history of that Circuit. The nomination of Judge 
James A. Beaty, Jr., was previously sent to us by President Clinton in 
1995. That nomination was never considered by the Senate Judiciary 
Committee or the Senate and was returned to President Clinton without 
action at the end of 1998. It is time for the Senate to act on a 
qualified African-American nominee to the Fourth Circuit. President 
Clinton spoke powerfully about these matters at the NAACP Convention. 
We should respond not be misunderstanding or mischaracterizing what he 
said, but instead taking action on these well-qualified nominees.
  In addition, the Senate should act favorably on the nominations of 
Enrique Moreno to the Fifth Circuit. Mr. Moreno succeeded to the 
nomination of Jorge Rangel on which the Senate refused to act last 
Congress. These are well-qualified nominees who will add to the 
capabilities and diversity of those courts. In fact, the Chief Judge of 
the Fifth Circuit declared that a judicial emergency exists on that 
court, caused by the number of judicial vacancies, the lack of Senate 
action on pending nominations, and the overwhelming workload.

[[Page S8936]]

  I continue to urge the Senate to meet its responsibilities to all 
nominees, including women and minorities. That highly-qualified 
nominees are being needlessly delayed is most regrettable. The Senate 
should join with the President to confirm well-qualified, diverse and 
fair-minded nominees to fulfill the needs of the federal courts around 
the country.
  I ask unanimous consent that an article for the Wall Street Journal 
be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Sept. 12, 2000]

                   `Racial Division' Charge Is Untrue

       In ``Senate Isn't Guilty of Racism In Confirming Judges,'' 
     Sen. Orrin Hatch states that in recent weeks the president 
     has ``nominated numerous minorities for federal judgeships 
     without consulting home-state senators'' (editorial page, 
     Sept. 5). This is simply untrue. The administration has 
     adhered to its practice of consulting with home-state 
     senators prior to nominating judicial candidates, and it did 
     so with the two nominees Sen. Hatch mentioned by name.
       One of those, Roger Gregory, an accomplished African-
     American attorney from Virginia, was nominated for the Fourth 
     Circuit at the end of June. Sen. Hatch says the president 
     moved a judgeship from North Carolina to Virginia in order to 
     make the nomination, but the seat for which Mr. Gregory was 
     nominated has not been filed before, nor allocated to any 
     particular state in the Fourth Circuit. Moreover, Roger 
     Gregory has the strong support of both of his home-state 
     senators (who were indeed consulted prior to nomination). 
     Democratic Sen. Chuck Robb recommended Mr. Gregory to the 
     president and has been working tirelessly on Mr. Gregory's 
     behalf. Republican Sen. John Warner has joined Sen. Robb in 
     requesting that Sen. Hatch give Mr. Gregory a hearing.
       The Fourth Circuit, which hears cases from Maryland, North 
     Carolina, South Carolina. Virginia and West Virginia, has the 
     largest African-American population of any circuit in the 
     country. Yet it has never had an African-American judge. It 
     is extraordinary to suggest that the president's nomination 
     of a highly qualified candidate who has the support of both 
     home-state senators is part of some effort to ``generate 
     racial divisions.'' Rather than make such claims, the 
     Republican leadership should demonstrate its color-blind 
     bipartisanship by promptly confirming Roger Gregory.
       Indeed, the Senate has a great deal more work to do on 
     judges. Sen. Hatch states that in 1994 the administration had 
     argued that a ``7.4%'' vacancy rate in the judiciary was 
     equivalent to full employment. Using that figure, he suggests 
     that the administration has no basis for complaining about 
     vacancies, because the vacancy rate is now close to that 
     level. But the figure cited by the administration in 1994 was 
     actually 4.7%. To attain even this modest goal, the Senate 
     would need to reduce judicial vacancies to 40. That is, the 
     Senate would need to confirm an additional 24 nominees this 
     year. We look forward to working with the Senate Republicans 
     to achieve this goal.

                                                   Beth Nolan,

                                         Counsel to the President,
                                                  The White House.
       Washington.

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