[Congressional Record Volume 146, Number 142 (Wednesday, November 1, 2000)]
[Senate]
[Pages S11490-S11491]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       SENATE'S FAILURE ON JUDICIAL NOMINATIONS IN 106TH CONGRESS

 Mr. LEAHY. Mr. President, of the 105 judicial vacancies that 
have occurred so far this year, the Senate has acted to fill only 39. 
The last year of the Bush Administration, a presidential year in which 
we had the reverse situation with a Republican President and a 
Democratic Senate, the Senate confirmed 66 judges--70 percent more than 
the number confirmed this year. Over the 2-year span of this Congress, 
the Senate will have confirmed only 73 judges. By contrast, the 
Democratic Senate in the last two years of President Bush's 
Administration confirmed 124 judges--70 percent more judges than the 
number confirmed by this Congress. Indeed, in the last eleven weeks of 
Congress in 1992, a Democratic Senate held four judicial nominations 
hearings and confirmed 29 judges. In the last eleven weeks of this 
Congress, Republicans will have managed to hold no hearings and confirm 
no judges.
  President Clinton has tried to make progress on bringing greater 
diversity to our federal courts. He has been successful to some extent. 
With our help, he could have done so much more. We will end this 
Congress without having acted on any of the African American nominees 
sent to us to fill vacancies on the Fourth Circuit and finally 
integrate the Circuit with the highest percentage of African American 
population in the country, but the one Circuit that has never had an 
African American judge. We could have acted on the nomination of 
Kathleen McCree Lewis and confirmed her to the Sixth Circuit to be the 
first African American woman to sit on that Court. Instead, we will end 
the year without having acted on any of the outstanding nominees to the 
Sixth Circuit pending before us.
  This Judiciary Committee reported only three nominees to the Courts 
of Appeals all year. We 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, Judge James 
Wynn, Kathleen McCree Lewis, as well as Judge Helene White, Bonnie 
Campbell and others should have been considered by this Committee and 
voted on by the Senate this year.
  There continue to be multiple vacancies on the Third, Fourth, Fifth, 
Sixth, Ninth, Tenth and District of Columbia Circuits. With 24 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 12 percent 
nationwide. If we were to take into account the additional appellate 
judgeships included in the Hatch-Leahy Federal Judgeship Act of 2000, 
S. 3071, a bill that was requested by the Judicial Conference to handle 
current workloads, the vacancy rate on our federal courts of appeals 
would be more than 17 percent.
  The Chairman declares that ``there is and has been no judicial 
vacancy crisis'' and that he calculates vacancies at ``less than 
zero.'' The extraordinary service that has been provided by our corps 
of senior judges does not mean there are no vacancies. In the federal 
courts around the country there remain 66 current vacancies and 12 more 
on the horizon. With the judgeships included in the Hatch-Leahy Federal 
Judgeship Act of 2000, there would be over 135 vacancies across the 
country. That is the truer measure of vacancies, many of which have 
been long-standing judicial emergency vacancies in our southwest border 
states. The Chief Judges of both the Fifth and Sixth Circuits have had 
to declare their entire courts in emergencies since there are too many 
vacancies and too few Circuit judges to handle their workload.
  After creating 85 additional judgeships in 1990, Congress reduced the 
vacancies from 131 in 1991, to 103 in 1992, to 112 in 1993, to 63 in 
1994. Vacancies were going down and we were acting with Republican and 
Democratic Presidents to fill the 85 judgeships created

[[Page S11491]]

by a Democratic Congress under a Republican President in 1990. We will 
end this session with more vacancies than at the end of the session in 
1994, without having added the judgeships requested by the Judicial 
Conference. Since Republicans assumed control of the Senate in the 1994 
election, the Senate has not closed the vacancy gap at all and the 
workloads in many of our courts have gotten significantly worse. More 
vacancies are continuing longer, and it has taken longer to confirm 
nominees to existing vacancies. We have lost ground and squandered 
opportunities for progress in the past six years.
  As I have pointed out, the vacancies are most acute among our Courts 
of Appeals and in our southwest border States. We have not acted to add 
the judgeships requested by the Judicial Conference to meet increased 
workloads over the last decade. According to the Chief Justice's 1999 
year-end report, the filings of cases in our Federal courts have 
reached record heights. In fact, the filings of criminal cases and 
defendants reached their highest levels since the Prohibition Amendment 
was repealed in 1933. Also in 1999, there were 54,693 filings in the 12 
regional Courts of Appeals. Overall growth in appellate court caseload 
last year was due to a 349 percent upsurge in original proceedings. 
This sudden expansion resulted from newly implemented reporting 
procedures, which more accurately measure the increased judicial 
workload generated by the Prisoner Litigation Reform Act and the 
Antiterrorism and Effective Death Penalty Act, both passed in 1996.
  I regret to report again today that the last confirmation hearing for 
federal judges held by the Judiciary Committee was in July, as was the 
last time the Judiciary Committee reported any nominees to the full 
Senate. Throughout August, September, October, and now into November, 
there were no additional hearings held or even noticed, and no 
executive business meetings included any judicial nominees on the 
agenda. 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. During that presidential 
election year the Senate confirmed 66 judges; this year the Senate will 
not reach 40.
  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 have joined with the President to confirm well-qualified, 
diverse and fair-minded nominees to fulfill the needs of the federal 
courts around the country.
  I regret that the Judiciary Committee did not hold additional 
hearings after July, that the Senate only acted on 39 nominees all 
year, and that we took so long on so many of them. I deeply regret the 
lack of a hearing and a vote on so many qualified nominees, including 
Roger Gregory, Judge James Wynn, Judge Helene White, Bonnie Campbell, 
Enrique Moreno and Allen Snyder. The Senate squandered a number of 
important opportunities to help our courts and should have accorded 
these qualified and outstanding nominees fair up or down votes.

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