[Congressional Record Volume 147, Number 107 (Friday, July 27, 2001)]
[Senate]
[Pages S8339-S8341]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE PACE OF JUDICIAL NOMINATIONS

  Mr. LEAHY. Madam President, I was pleased that the Judiciary 
Committee was able to hold another confirmation hearing for judicial 
and executive branch nominees this week. Since the Senate was allowed 
to reorganize just before the July 4th recess, returned from that 
recess to reconvene on July 9 and then assigned members to committees 
on July 10, this was the fourth hearings on Presidential nominations 
that the Judiciary Committee has held in 2 weeks. I cannot remember any 
time in the last 6 years when the Judiciary Committee held four 
confirmation hearings in 2 weeks. Two of those hearings involved 
judicial nominees to the Courts of Appeals.
  I appreciated that when Senators Lott, Baucus, Cochran, and 
Hutchinson appeared before the Judiciary Committee to introduce 
nominees, they recognized that we were acting quickly. Likewise, the 
nominees who have appeared before the committee have recognized that we 
have been moving expeditiously and have thanked us for doing so. I 
appreciate their recognition of our efforts and their kind words.
  Just last Friday we were able to confirm a number of judicial and 
executive nominations. We confirmed Judge Roger Gregory for a lifetime 
appointment to the U.S. Court of Appeals for the Fourth Circuit. This 
is a nominee who had waited in vain since June of last year for the 
Senate to act on his nomination. In the year that followed his 
nomination he was unable even to get a hearing from the Republican 
majority. This month, in less than 2 weeks the Judiciary Committee held 
that hearing, reported his nomination favorably to the Senate on a 19 
to 0 vote and the Senate voted to confirm him by a vote of 93 to 1 
vote. The supposed controversy some contend surrounded this nomination 
was either nonexistent or quickly dissipated.
  In spite of the progress we have been making during the few weeks 
since the Senate was allowed to reorganize, in spite of the 
confirmation on Friday of three judicial nominations, include one to a 
Court of Appeals; in spite of the confirmation of two more Assistant 
Attorneys General for the Department of Justice, including the 
Assistant Attorney General in charge of the Civil Rights Division; in 
spite of the back-to-back days of hearings for the President's nominees 
to head the Drug Enforcement Administration and the Immigration and 
Naturalization Service on Tuesday and Wednesday of last week; despite 
our noticing a hearing for another Court of Appeals nominee and another 
Assistant Attorney General for this Tuesday; despite our having noticed 
expedited hearings on the nomination to be Director of the Federal 
Bureau of Investigation beginning next Monday; despite all these 
efforts and all this action, on Monday our Republican colleagues took 
to the Senate floor to change the tone of Senate debate on nominations 
into a bitterly partisan one. That was most unfortunate.
  I regret that we lost the month of June to Republican objections to 
reorganization or we might have been able to make more progress more 
quickly. There was no secret about the impact of that delay at the 
time. Unfortunately, that month is gone and we have to do the best that 
we can do with the time remaining to us this year. This month the 
Judiciary Committee is holding hearings on the nominees to head the 
FBI, DEA and INS. In addition, we have held hearings on two more 
Assistant Attorneys General and the Director of the National Institute 
of Justice.
  Just last Friday we were able to confirm Ralph Boyd, Jr. to serve as 
the Assistant Attorney General to head the Civil Rights Division. Of 
course, the Republican majority never accorded his predecessor in that 
post, Bill Lann Lee, a Senate vote on his nomination in the 3 years 
that it was pending toward the end of the Clinton administration. Some 
of those now so publicly critical of the manner in which we are 
expediting consideration of President Bush's nominations to executive 
branch positions seem to have forgotten the types of unending delays 
that they so recently employed when they were in the majority and 
President Clinton was urging action on his executive branch 
nominations.
  I noted last Friday that we have already acted to confirm six 
Assistant Attorneys General as well as the Deputy Attorney General, the 
Solicitor General and, of course, the Attorney General himself.
  We have yet to receive a number of nominations including one for the 
No. 3 job at the Department of Justice, the Associate Attorney General. 
We have yet to receive the nomination of someone to head the U.S. 
Marshals Service. Even more disturbing, we have yet to receive a single 
nomination for any of the 94 U.S. Marshals who serve in districts 
within our States. We have yet to receive the first nomination for any 
of the 93 U.S. Attorneys who serve in districts within our States.
  We have much work to do. The President has work to do. The Senate has 
work to do. That work is aided by our working together, not by the 
injecting the type of partisanship shown over the last 6 years when the 
Republican majority delayed action on Presidential nominees or the 
partisan rhetoric that was cast about on Monday. That may make for 
backslapping at Republican fundraisers, but it is counterproductive to 
the bipartisan work of the Senate.
  In this regard, I am also extremely disappointed by the decision of 
the Republican Leadership to have all Republican Senators refuse to 
chair the Senate. I was one who suggested to Senator Daschle, Senator 
Lott and others that we resume the practice of having Senators from all 
parties chair the Senate. That was a longstanding practice in the 
Senate and the practice when I first joined this body. It was our 
practice until fairly recently when a breach in Senate protocol led to 
the period in which only Senators from the majority party sat in the 
chair of the President of the Senate.
  I thought that it sharing the chair was one of the better 
improvements we made earlier this year when we were seeking to find 
ways to lower the partisan decibel level and restore collegiality to 
the Senate. It was a good way to help restore some civility to the 
Senate, to share the authority and responsibility that comes with being 
a member of the Senate. I deeply regret that the Republican minority 
has chosen no longer to participate in this aspect of the Senate. I am 
disappointed, and fear this is another sign

[[Page S8340]]

that they are coming to view the Senate through the narrow lens of 
partisanship.

  That partisan perspective, criticizing for criticism's sake or short-
term political advantage, seems to be the motivation for the statements 
made in the wake of our achievements last Friday. If the Senate 
majority is going to be criticized when we make extraordinary efforts 
of the kind we have been making over the last two weeks, some will be 
forced to wonder whether such action is worth the effort.
  Moreover, the criticism is ignorant not only of recent facts but 
wholly unappreciative of the historical context in which we are 
working. Let me mention just a few of the many benchmarks that show how 
fair the Senate majority is being.
  This year has been disrupted by two shifts in the majority. We were 
delayed until March in working out the first resolutions organizing the 
Senate and its committees. Senator Daschle deserves great credit for 
his patience and for working out the unique arrangements that governed 
during the period the Senate was divided on a 50-50 basis. Likewise, I 
complimented Senator Lott for his efforts in late February and early 
March to resolve the impasse.
  In late May and early June the Senate had the opportunity to arrange 
a timely transition to a new majority. Republican objections squandered 
that opportunity and we endured a month-long delay in reorganizing the 
Senate. Ultimately, the reorganization ended up being what could have 
been adopted on June 6. Again, I commend Senator Daschle's leadership 
and patience in keeping the Senate on course, productive and working. 
During that month the Senate considered and passed the bipartisan 
Kennedy-McCain-Edwards Patients' Bill of Rights.
  But work in the Judiciary Committee was limited to investigative 
hearings. We could not hold business meetings or fairly proceed to 
consider nominations. That period finally drew to a close beginning on 
June 29 and culminated on July 10 when Republican objections finally 
subsided, a resolution reorganizing the Senate was considered and 
Committee assignments were made.
  Now consider the progress we have made on judicial nominations in 
that context. There were no hearings on judicial nominations and no 
judges confirmed in the first half of the year with a Republican 
majority. The first hearing I chaired on July 11 was one more than all 
the hearings that had been held involving judges in the first half of 
the year. The first judicial nomination who the Senate confirmed last 
Friday was more than all the judges confirmed in the first half of the 
year.
  In the entire first year of the first Bush administration, 1989, 
without all the disruptions, distractions and shifts of Senate majority 
that we have experienced this year, only five Court of Appeals judges 
were confirmed. In the first year of the Clinton administration, 1993, 
without all the disruptions, distractions and shifts in Senate majority 
that we have experienced this year, only three Court of Appeals judges 
were confirmed all year. In less than 1 month this year--in the 2 weeks 
since the committee assignments were made on July 10, we have held 
hearings on two nominees to the Courts of Appeals and confirmed one. In 
1993, the first Court of Appeals nominee to be confirmed was not until 
September 30. During recent years under a Republican Senate majority, 
there were no Court of Appeals nominees confirmed at any time during 
the entire 1996 session, not one. In 1997, the first Court of Appeals 
nominee was not confirmed until September 26. A fair assessment of the 
circumstances of this year would suggest that the confirmation of a 
Court of Appeals nominee this early in the year and the confirmation of 
even a few Court of Appeals judges in this shortened time frame of only 
a few weeks in session should be commended, not criticized.
  The Judiciary Committee held two hearings on two Court of Appeals 
nominees this month. In July 1995, the Republican chairman held one 
hearing with one Court of Appeals nominee. In July 1996, the Republican 
chairman held one hearing with one Court of Appeals nominee, who was 
confirmed in 1996. In July 1997, the Republican chairman held one 
hearing with one Court of Appeals nominee. In 1998, the Republican 
chairman did hold two hearings with two Court of Appeals nominees, but 
neither of whom was confirmed in 1998. In July 2000, the Republican 
chairman did not hold a single hearing with a Court of Appeals nominee. 
During the more than 6 years in which the Senate Republican majority 
scheduled confirmation hearings, there were 34 months with no hearing 
at all, 30 months with only one hearing and only 12 times in almost 
6\1/2\ years did the Judiciary Committee hold as many as two hearings 
involving judicial nominations in a month. So even looking at this 
month in isolation, without acknowledging the difficulties we had to 
overcome, our productivity compares most favorably with the last 6 
years. When William Riley, the nominee included in the hearing this 
week is confirmed as a Court of Appeals Judge for the Eighth Circuit, 
we will have exceeded the Committee's record in 5 of the last 6 years. 
Given these efforts and achievements, the Republican criticism rings 
hollow.
  I also observe that the criticism that our multiple hearings are 
proceeding with one Court of Appeals nominee ignores that has been a 
standard practice by the committee for at least decades. Last year the 
Republican majority held only eight hearings all year and only five 
included even one Court of Appeals nominee. Of those five nominees only 
three were reported to the Senate all year. Nor was last year 
anomalous. With some exceptions, the standard has been to include a 
single Court of Appeals nominee at a hearing and, certainly, to average 
one Court of Appeals judge per hearing. In 1995, there were 12 hearings 
and 11 Court of Appeals judges were confirmed. In 1996 there were only 
six hearings all year, involving five Court of Appeals nominees and 
none were confirmed. In 1997 there were nine hearings involving nine 
Court of Appeals nominees and seven were confirmed. In 1998 there were 
13 hearings involving 14 Court of Appeals nominees and a total of 13 
were confirmed. In 1999, there were seven hearings involving a 
rehearing for one and nine additional Court of Appeals nominees and 
only seven Court of Appeals judges were confirmed. Thus, over the 
course of the last 6 years there have been a total of 55 hearings and 
only 46 Court of Appeals judges confirmed.
  I have also respectfully suggested that the White House work with 
Senators to identify and send more District Court nominations to the 
Senate who are broadly supported and can help us fill judicial 
vacancies in our Federal trial courts. According to the Administrative 
Office of the U.S. Courts, almost two-thirds of the vacancies on the 
federal bench are in the District Courts, 75 of 108. But fewer than 
one-third of President Bush's nominees so far, nine out of 30, have 
been for District Court vacancies. The two who were consensus 
candidates and whose paperwork was complete have had their hearing 
earlier this month and were confirmed last Friday.

  I did try to schedule District Court nominees for our hearing this 
week, but none of the files of the seven District Court nominees 
pending before the Committee was complete. Because of President Bush's 
unfortunate decision to exclude the American Bar Association from his 
selection process, the ABA is only able to begin its evaluation of 
candidates' qualifications after the nominations are made public. We 
are doing the best we can, and we hope to include District Court 
candidates at our next nominations hearing.
  The Senators who spoke earlier this week also sought to make much of 
judicial emergency designations. What they fail to mention is that of 
the 23 District Court vacancies classified as judicial emergencies by 
the Administrative Office of the Courts, President Bush has not sent 
the Senate a single nominee 23 District Court emergency vacancies 
without a nominee. Almost one-third of judicial emergency vacancies on 
the Courts of Appeals, 6 of the 16 are without a nominee, as well. Of 
course, Judge Roger Gregory was confirmed for a judicial emergency 
vacancy on the Fourth Circuit, but Republican critics make no mention 
of that either.
  What I find even more striking, as someone who worked so hard over 
the last several years to fill these vacancies, is that the Republican 
criticism fails to acknowledge that many of these emergency vacancies 
became

[[Page S8341]]

emergency vacancies and were perpetuated as emergency vacancies by the 
Republican majority's refusal to act on President Clinton's nomination 
over the last 6 years. Indeed, the Republican Senate over the last 
several years refused to take action on no fewer than a dozen nominees 
to what are now emergency vacancies on the Courts of Appeals. I remind 
my colleagues of their failure to grant a hearing or Committee or 
Senate consideration to the following: Robert Cindrich to the Third 
Circuit; Judge James A. Beaty, Jr. and Judge James A. Wynn, Jr. to the 
Fourth Circuit; Jorge Rangel, Enrique Moreno and H. Alston Johnson to 
the Fifth Circuit; Judge Helene White, Kathleen McCree-Lewis and Kent 
Marcus to the Sixth Circuit; Bonnie Campbell to the Eighth Circuit; 
James Duffy and Barry Goode to the Ninth Circuit. Those were 12 Court 
of Appeals nominees to 10 vacancies who could have gone a long way 
toward reducing the level of judicial emergencies around the country.
  So when others talk about the progress we are finally making in 
Senate consideration of judicial nominations, I hope that in the future 
they will recognize our accomplishments, understand our circumstances, 
and consider our record in historical context. I have yet to hear our 
Republican critics acknowledge any shortcomings among the practices 
they employed over the last 6 years. When they have done that and we 
have established a common basis of understanding and comparison, we 
will have taken a significant step forward. As it is, I must sadly 
observe that partisan carping is not constructive. It seems part of an 
unfortunate pattern of actions this week that are a conscious effort to 
increase the partisan rhetoric. I would rather we work together to get 
as much accomplished as we possibly can.

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