[Congressional Record Volume 146, Number 126 (Wednesday, October 11, 2000)]
[Senate]
[Pages S10234-S10236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. HATCH. Mr. President, during the last several weeks I have 
listened as some of my Democratic colleagues have taken the Senate 
floor to complain about the Senate's work on judicial nominations. Some 
have complained that there is a vacancy crisis in the federal courts. 
Some have complained that the Republican

[[Page S10235]]

Senate has not confirmed enough of President Clinton's judicial 
nominees. Some have complained that the confirmation record of the 
Republican Senate compares unfavorably to the Democrats' record when 
they controlled this body. Some have accused the Republican Senate of 
being biased against female and minority judicial nominees. These 
complaints and accusations are wholly false and completely without 
merit.
  First, there is and has been no judicial vacancy crisis. In 1994, 
when Senate Democrats processed the nominations of President Clinton, 
there were 63 vacancies and a 7.4 percent vacancy rate. Today, when 
Republicans control the Senate and process the nominations of President 
Clinton, there are 63 vacancies and a 7.4 percent vacancy rate--exactly 
the same as in 1994. Of the current vacancies, the President has failed 
to make a nomination for 25 of them--strong evidence that, in fact, 
there is no vacancy crisis. Nevertheless, despite the fact that there 
are the same number of vacancies and the same vacancy rate now as in 
1994, Democrats continue to claim that there is a vacancy crisis.
  Second, the Republican Senate has been fair with President Clinton in 
confirming his nominees. In fact, the Senate has confirmed President 
Clinton's nominees at almost an identical rate as it confirmed those of 
Presidents Reagan and Bush. President Reagan appointed 382 Article III 
judges. By comparison, President Clinton has appointed 377 Article III 
judges--only five fewer than were appointed by President Reagan. During 
the Reagan presidency, the Senate confirmed an average of 191 judges 
per term. During the one-term Bush presidency, the Senate confirmed 193 
judges. During the Clinton presidency, the Senate has confirmed an 
average of 189 judges per term.
  Third, the confirmation record of the Republican Senate compares 
favorably to the Democrats' record when they controlled this body. 
Comparing like to like, this year should be compared to prior election 
years during times of divided government. In 1988, the Democrat-
controlled Senate confirmed 41 Reagan judicial nominees. The Republican 
Senate this year has confirmed 39 of President Clinton's nominees--a 
nearly identical number.
  The 1992 election year requires a bit more analysis. The Democrat-
controlled Senate did confirm 64 Bush nominees that year, but this high 
number was due to the fact that Congress had recently created 85 new 
judgeships. Examining the percentage of nominees confirmed shows that 
compared to 1992, there is no slowdown this year. In 1992, the 
Democrat-controlled Senate confirmed 33 of 73 individuals nominated 
that year--or 45 percent. This year, the Senate has confirmed 25 of 46 
individuals nominated in 2000--or 54 percent, almost 10 percent higher 
than in 1992. Those who cite the 1992 high of 64 confirmations as 
evidence of an election-year slowdown do not mention these details. Nor 
do they mention that despite those 64 confirmations, the Democrat-
controlled Senate left vacant 97 judgeships when President Bush left 
office--far more than the current 63 vacancies.
  Senate Democrats often cite Chief Justice Rehnquist's 1997 remarks as 
evidence of a Republican slowdown. Referring to the 82 vacancies then 
existing, the Chief Justice said: ``Vacancies cannot remain at such 
high levels indefinitely without eroding the quality of justice that 
traditionally has been associated with the federal Judiciary.'' 
Senators who cite this statement, however, do not also cite the Chief 
Justice's similar statement in 1993, when the Democrats controlled both 
the White House and the Senate: ``There is perhaps no issue more 
important to the judiciary right now than this serious judicial vacancy 
problem.'' As the head of the Judicial Branch, the Chief Justice has 
continued to maintain pressure on the President and Senate to speedily 
confirm judges. He has not singled out the Republican Senate, however.
  The Chief Justice made additional comments in 1997, which also 
undermine the claim of a vacancy crisis. After calling attention to the 
existing vacancies, he wrote: ``Fortunately for the Judiciary, a 
dependable corps of senior judges has contributed significantly to 
easing the impact of unfilled judgeships.'' The 63 current vacancies, 
in other words, are not truly vacant. There are 363 senior judges 
presently serving in the federal judiciary. Although judges' seats are 
technically counted as vacant, they continue to hear cases at reduced 
workload. Assuming that they maintain a 25 percent workload--the 
minimum required by law--the true number of vacancies is less than 
zero.
  Last week, Senator Harkin said that this year the Senate has 
confirmed only one circuit court nominee nominated this year, and 
Senator Leahy said that this year the Judiciary Committee has reported 
only three circuit court nominees nominated this year. The fact is, 
however, the Senate has confirmed eight circuit judges this year. By 
comparison, the Democrat-controlled Senate confirmed seven of President 
Reagan's circuit court nominees in 1988 and 11 of President Bush's 
circuit court nominees in 1992.
  It is true that of the eight circuit court nominees confirmed this 
year, some were nominated during the first session and some were 
nominated during the second session of this Congress--just as the seven 
Reagan circuit court nominees confirmed in 1988 and the 11 Bush circuit 
court nominees confirmed in 1992 were nominated in both the first and 
second sessions of those Congresses.
  The fact that the Senate has confirmed eight circuit court nominees 
in this election year shows that we have been at least as fair to 
President Clinton with regard to appeals court nominees, as Democrats 
were to Presidents Reagan and Bush. The Senate has confirmed one more 
circuit court nominee in this last year of President Clinton's 
Presidency than Democrats confirmed in the last year of President 
Reagan's presidency, and only three circuit judges fewer than Democrats 
confirmed in the last year of President Bush's presidency--when 
judicial vacancies were at an all time high.
  Fourth, allegations of race or sex bias in the confirmation process 
are absolutely false and are offensive. Over the last several months, I 
have listened with dismay as some have, with escalating invective, 
implied that Senate Republicans are biased against minority or female 
judicial nominees.
  Just this month, President Clinton issued a statement alleging bias 
by the Senate. He said: ``The quality of justice suffers when highly 
qualified women and minority candidates are denied an opportunity to 
serve in the judiciary.'' The White House, though, also issued a 
statement boasting of the high number of women and minorities that 
Clinton has appointed to the federal courts: ``The President's record 
of appointing women and minority judges is unmatched by any President 
in history. Almost half of President Clinton's judicial appointees have 
been women or minorities.''

  The Senate, obviously, confirmed this record number of women and 
minorities. That is hardly evidence of systemic bias. Indeed, it cannot 
credibly be argued that President Clinton has appointed a diverse 
federal bench and that Republicans simultaneously have prevented him 
from appointing a diverse federal bench.
  Last November, Senator Joseph Biden, former Chairman of the Judiciary 
Committee, stated:

       There has been argumentation occasionally made . . . that 
     [the Judiciary] Committee . . . has been reluctant to move on 
     certain people based upon gender or ethnicity or race. . . . 
     [T]here is absolutely no distinction made [on these grounds] 
     . . . [W]hether or not [a nominee moves] has not a single 
     thing to do with gender or race. . . . I realize I will get 
     political heat for saying that, but it happens to be true.

  Why then have Democrats insisted on repeating the insidious mantra 
that the Republican Senate is discriminating against women and 
minorities in the confirmation process? Why did John Podesta, the 
President's Chief of Staff appear on CNN yesterday to complain that 
``women and minority candidates for U.S. Court of Appeals are sitting, 
stuck in the Senate Judiciary Committee''? Why did Senator Robb take 
the Senate floor to accuse Senate Republicans, in inflammatory 
language, of ``standing in the courthouse door'' and refusing to 
``desegregate the Fourth Circuit''? Why did Senator Leahy take the 
Senate floor and list all the female nominees currently pending?
  Why? Because Democrats have made the crass political decision to 
attempt to energize women and minority voters by claiming that Senate 
Republicans are biased against women and minorities nominated for 
federal judgeships. This coordinated overture to female and minority 
voters by the White House, the Gore campaign and Senate Democrats is 
unseemly.

[[Page S10236]]

  The President's determination to play politics with judicial 
nominations appears as if it will only intensify. Just last Friday, the 
President nominated African-American Andre Davis to a seat on the U.S. 
Court of Appeals for the Fourth Circuit, and it is my understanding 
that he will nominate a woman, Elizabeth Gibson, to that Court today.
  The President has persisted in making these nominations, even though 
I have made clear to him that the Judiciary Committee will not hold any 
additional nominations hearing this year. The President nominated Mr. 
Davis and Ms. Gibson, knowing full well that they have no chance of 
being confirmed. Mr. Davis and Ms. Gibson are being used for political 
purposes, so the President and Democrats can argue that Senate 
Republicans are biased against women and minorities.
  Senate Republicans, however, are not biased against women and 
minority nominees. Data comparing the median time required for Senate 
action on male vs. female and minority vs. non-minority nominees shows 
only minor differences. During President Bush's final two years in 
office, the Democrat-controlled Senate took 16 days longer to confirm 
female nominees compared with males. This differential decrease to only 
4 days when Republicans gained control of the Senate in 1994. During 
the subsequent 105th and 106th Congresses, it increased.
  The data concerning minority nominees likewise shows no clear trend. 
When Republicans gained control in 1994, it took 28 days longer to 
confirm minority nominees as compared to non-minority nominees. This 
difference decreased markedly during the 105th Congress so that 
minorities were confirmed 10 days faster than non-minorities. The 
present 106th Congress is taking only 11 days longer to confirm 
minority nominees than it is to confirm non-minority nominees.

  These minor differences are a matter of happenstance. They show no 
clear trend. Senator Biden is right when he says that ``whether or not 
[a nominee moves] has not a single thing to do with gender or race.'' 
And even if there were actual differences, a differential of a week or 
two is insignificant compared to the average time that it takes to 
select and confirm a nominee. On average, the Clinton White House 
spends an average of 315 days to select a nominee while the Senate 
requires an average of 144 days to confirm.
  Under my stewardship, the Judiciary Committee has considered 
President Clinton's judicial nominees more carefully than the 
Democratic Senate did in 1993 and 1994. Some individuals confirmed by 
the Senate then likely would not clear the committee today. The 
Senate's power of advice and consent, after all, is not a rubber stamp.
  There is no evidence, however, of bias or of a confirmation slowdown. 
There is no evidence of bias because, in fact, the Senate is not biased 
against female and minority nominees--indeed, the Senate has confirmed 
a record number of such nominees for judicial office. Furthermore, 
there is no evidence of a confirmation slowdown because, in fact, the 
confirmation process has been conducted in the normal fashion and at 
the normal speed.
  In conclusion, it always is the case that some nominations ``die'' at 
the end of the Congress. In 1992, when Democrats controlled the Senate, 
Congress adjourned without having acted on 53 Bush nominations. I have 
a list here of the 53 Bush nominees whose nominations expired when the 
Senate adjourned in 1992, at the end of the 102nd Congress. By 
comparison, there are only 40 Clinton nominations that will expire when 
this Congress adjourns. My Democratic colleagues have discussed at 
length some of the current nominees whose nominations will expire at 
the adjournment of this Congress. Madam President, I ask unanimous 
consent that this list of 53 Bush nominations that Senate Democrats 
permitted to expire in 1992 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 BUSH NOMINATIONS RETURNED BY THE DEMOCRAT-CONTROLLED SENATE IN 1992 AT
                     THE CLOSE OF THE 102D CONGRESS
------------------------------------------------------------------------
                  Nominee                               Court
------------------------------------------------------------------------
Sidney A. Fitzwater of Texas..............  Fifth Circuit.
John G. Roberts, Jr. of Maryland..........  D.C. Circuit.
John A. Smietanka of Michigan.............  Sixth Circuit.
Frederico A. Moreno of Florida............  Eleventh Circuit.
Justin P. Wilson of Tennessee.............  Sixth Circuit.
Franklin Van Antwerpen of Penn............  Third Circuit.
Francis A. Keating of Oklahoma............  Tenth Circuit.
Jay C. Waldman of Pennsylvania............  Third Circuit.
Terrence W. Boyle of North Carolina.......  Fourth Circuit.
Lillian R. BeVier of Virginia.............  Fourth Circuit.
James R. McGregor.........................  Western District of
                                             Pennsylvania.
Edmund Arthur Kavanaugh...................  Northern District of New
                                             York.
Thomas E. Sholts..........................  Southern District of
                                             Florida.
Andrew P. O'Rourke........................  Southern District of New
                                             York.
Tony Michael Graham.......................  Northern District of
                                             Oklahoma.
Carlos Bea................................  Northern District of
                                             California.
James B. Franklin.........................  Southern District of
                                             Georgia.
David G. Trager...........................  Eastern District of New
                                             York.
Kenneth R. Carr...........................  Western District of Texas.
James W. Jackson..........................  Northern District of Ohio.
Terral R. Smith...........................  Western District of Texas.
Paul L. Schechtman........................  Southern District of New
                                             York.
Percy Anderson............................  Central District of
                                             California.
Lawrence O. Davis.........................  Eastern District of
                                             Missouri.
Andrew S. Hanen...........................  Southern District of Texas.
Russell T. Lloyd..........................  Southern District of Texas.
John F. Walter............................  Central District of
                                             California.
Gene E. Voigts............................  Western District of
                                             Missouri.
Manual H. Quintana........................  Southern District of New
                                             York.
Chales A. Banks...........................  Eastern District of Arizona.
Robert D. Hunter..........................  Northern District of
                                             Alabama.
Maureen E.Mahoney.........................  Eastern District of
                                             Virginia.
James S. Mitchell.........................  Nebraska.
Ronald B. Leighton........................  Western District of
                                             Washington.
William D. Quarles........................  Maryland.
James A. McIntyre.........................  Southern District of
                                             California.
Leonard E. Davis..........................  Eastern District of Texas.
J. Douglas Drushal........................  Northern District of Ohio.
C. Christopher Hagy.......................  Northern District of
                                             Georgia.
Louis J. Leonatti.........................  Eastern District of
                                             Missouri.
James J. McMonagle........................  Northern District of Ohio.
Katharine J. Armentrout...................  Maryland.
Larry R. Hicks............................  Nevada.
Richard Conway Casey......................  Southern District of New
                                             York.
R. Edgar Campbell.........................  Middle District of Georgia.
Joanna Seybert............................  Eastern District of New
                                             York.
Robert W. Kostelka........................  Western District of
                                             Louisiana.
Richard E. Dorr...........................  Western District of
                                             Missouri.
James H. Payne............................  Oklahoma.
Walter B. Prince..........................  Massachusetts.
George A. O'Toole, Jr.....................  Massachusetts.
William P. Dimitrouleas...................  Southern District of
                                             Florida.
 Henry W. Saad............................  Eastern District of
                                             Michigan.
------------------------------------------------------------------------

  Mr. HATCH. I would note that the Reagan and Bush nominations that 
Senate Democrats allowed to expire included the nominations of 
minorities and women, such as Lillian BeVier, Frederico Moreno and Judy 
Hope.
  I do not have any personal objection to the judicial nominees who my 
Democratic colleagues have spoken about over the last few weeks. I am 
sure that they are all fine people. Similarly, I do not think that my 
Democratic colleagues had any personal objections to the 53 judicial 
nominees whose nominations expired in 1992, at the end of the Bush 
presidency.
  Many of the Republican nominees whose confirmations were blocked by 
the Democrats have gone on to great careers both in public service and 
the private sector. Senator Jeff Sessions, Governor Frank Keating and 
Washington attorney John Roberts are just a few examples that come to 
mind.
  I know that it is small comfort to the individuals whose nominations 
are pending, but the fact of the matter is that inevitably some 
nominations will expire when the Congress adjourns. It happens every 
two years. I personally believe that Senate Republicans should get some 
credit for keeping the number of vacancies that will die at the end of 
this Congress relatively low. As things now stand, 13 fewer nominations 
will expire at the end of this year than expired at the end of the Bush 
Presidency.

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