[Congressional Record Volume 148, Number 3 (Friday, January 25, 2002)]
[Senate]
[Pages S117-S128]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. I thank the distinguished Presiding Officer.
  Mr. President, I appreciate the fact that the majority leader and the 
assistant majority leader moved to consider additional judicial 
nominations today. Both Senator Daschle and Senator Reid have been 
working very diligently to clear these nominations which were put on 
the Executive Calendar as we went out of session prior to the new year. 
They have worked very hard to return the Senate's consideration of 
judicial nominations to a more orderly and open process. I compliment 
the Senator from South Dakota and the Senator from Nevada for their 
efforts and thank them for their leadership. Along with our Senate 
leaders, many Senators have been working to move away from the 
anonymous holds and inaction on judicial nominations that characterized 
so much of the period from 1996 through the year 2000. Since the change 
in majority last summer, we have already made a difference in terms of 
both the process and its results. The number of vacancies and the 
number of confirmations have finally begun to move in the right 
directions.

  As we begin this new session, I will take a moment to report where we 
are

[[Page S118]]

in the handling of judicial nominations and to outline the road ahead. 
The distinguished Presiding Officer knows more of the history of this 
body than any of the nearly 260 or 270 Senators with whom I have 
served--I suspect more than a lot of others with whom he has served. I 
hope he will not feel it presumptuous if I take a few minutes to touch 
on the history and legacy of the last 6 years as it relates to judicial 
nominations.
  Those last 6 years have left a residue of problems that I think are 
going to take a continuing effort to purge. We are not going to do it 
in 1 day or 1 weekend, but it is going to have to be a continuing 
effort of both parties, Republicans and Democrats, and the White House.
  After going through that history, I am going to offer the steps that 
we in the majority will take in good faith to undo the damage of the 
last 6 years. Then I am going to call on the White House to help us 
take similar steps to help move the process forward. I do this both in 
my capacity as the Senator from Vermont--a position I honor, and I am 
always thankful to the people of my great and beautiful State for 
letting me be here--but also carrying the responsibility my caucus has 
given me by allowing me to be chairman of the Senate Judiciary 
Committee.
  One of the lessons I learned early on in this body from the 
distinguished Presiding Officer is that if you are the chairman of a 
committee, you have a responsibility to that committee, to your caucus, 
but also to the Senate, the whole Senate. I respect that.
  So let me talk about the Judiciary Committee. In a span of less than 
6 months, and in a year that was tumultuous for the Nation and the 
Senate, the Judiciary Committee, between July and the end of the 
session in December, held hearings on 34 judicial nominees. We reported 
32 and the Senate confirmed 28. As of today, we add 2 more and the 
Senate has now approved 30 of those judicial nominations.
  They are conservative Republicans, but nearly all were unanimously 
approved by Democrats, Republicans and Independent alike on the 
Judiciary Committee and by the Senate, in a democratically-controlled 
Senate.
  We reported more judicial nominees after the August recess than in 
any of the preceding 6 years, and more than in any similar period over 
the preceding 6\1/2\ years. The Senate Judiciary Committee during the 
time I have been chairman did not have and has not yet had a year in 
which to work. Last session we had less than 6 months. Still, in the 
last 5 months of last year, the Senate confirmed almost twice as many 
judges as were confirmed in the first year of the earlier Bush 
administration. We also confirmed more judges, including twice as many 
judges to the courts of appeals, as in the first year of the Clinton 
administration. The Senate confirmed the first new member of the Fifth 
Circuit in 7 years, the first new judge for the Fourth Circuit in 3 
years, and the first new judge for the Tenth Circuit in 6 years.

  Of course, more than two-thirds of the Federal court vacancies 
continue to be on the district courts, and the administration has been 
slow to make nominations to the vacancies in these trial courts. In the 
last 5 months of last year, the Senate confirmed a higher percentage of 
the President's district court nominees than a Republican majority had 
allowed the Senate to confirm in the first session of either of the 
last two Congresses with a Democratic President.
  Last year, the White House did not make nominations to almost 80 
percent of the current trial court vacancies. When we came back to 
session, we began with 55 out of the 69 vacancies without nominees.
  Since the change in majority last summer, we have acted in the Senate 
to build better practices into the confirmation process for Federal 
judges and to make it more orderly. We made some progress at the end of 
last year when, after many months, the White House and our Republican 
colleagues finally agreed to limited steps to update and to simplify 
the committee questionnaire, which seemed to have grown like Topsy over 
the years.
  And we have opened up the process as never before. For the first 
time, the Judiciary Committee is making public the blue slips sent to 
home State Senators. Until last summer these matters were treated as 
confidential materials. They were restricted from public view.
  We have moved nominees with less time from hearings to the 
committee's business meeting agenda, and then onto the floor, where 
nominees have received timely rollcall votes and confirmations. Over 
the preceding 6\1/2\ years, at least eight judicial nominees who 
completed a confirmation hearing were never considered by the committee 
and were simply abandoned without any action. Before my chairmanship, 
there were at least eight judicial nominees who got a hearing but never 
even got a vote--not a vote on the floor, Mr. President, they never got 
a vote in committee.
  Also, the past practices of extended unexplained anonymous holds on 
nominees after a hearing were not evident in the second half of last 
year, as they had been in the recent past.
  By the time the Judiciary Committee was reorganized and began its 
work last summer, the vacancies on the Federal courts were peaking at 
111. That is what I faced as the Committee began its work--111 
vacancies. Since then, 25 additional vacancies have arisen. Through 
hard work in the limited time available to us, we were able to outpace 
this high level of attrition. By contrast, when my friends on the other 
side of the aisle took charge of the Senate in January 1995, until the 
majority shifted last summer, judicial vacancies rose from 65 to more 
than 100, an increase of almost 60 percent.
  The Judiciary Committee simultaneously, during those last 5 months of 
last year, held 16 confirmation hearings for executive branch nominees. 
We sent to the Senate nominees who were confirmed for 77 senior 
executive branch posts, including the Director of the FBI, the head of 
the Drug Enforcement Administration, the Commissioner of the 
Immigration and Naturalization Service, the Director of the U.S. 
Marshals Service, the Associate Attorney General, the Director of 
ONDCP, the Director of the Patent and Trademark Office, 7 assistant 
attorneys general, and 59 U.S. attorneys.
  Senators may recall that soon after the Senate confirmed Judge Roger 
Gregory as the first new Federal judge nominated by this President last 
July, the White House counsel said in an interview that he did not 
expect the Senate to confirm more than five judges before the end of 
2001. Just think about that: The White House said last July that they 
did not expect the Senate to confirm more than five judges before the 
end of 2001.

  Of course, that estimate of 5 was actually an upward revision. 
Initially some on the other side of the aisle, after the midyear change 
of majority, had proclaimed that the Democratic majority would not 
confirm a single judge. The White House, I think, trying to appear more 
bipartisan, upped the estimate from zero to 5. Of course, we achieved 
much more than that and confirmed more than 5 times the number of 
judges that the White House counsel had predicted.
  One might have thought from the constant barrage of partisan 
criticism that 2001 resembled 1996, a year in which a Senate Republican 
majority confirmed only 17 judges, none of them appellate-level 
nominees.
  The worst fear of some, it has been clear, is that Democrats would 
treat Republican nominees as poorly as Democratic judicial nominees 
were treated by a Republican Senate. That is not what has happened. In 
just 5 months we went on to confirm 28 additional judges, as I have 
said, more than five times the number the White House predicted we 
would confirm. Think of that, Mr. President--five times what the White 
House was telling the American people we would confirm.
  The Senate can be proud of its record in the first session of the 
107th Congress of beginning to restore steadiness in its handling of 
judicial nominees. I want to build on that record in the second session 
of the 107th.
  Yesterday the Judiciary Committee held another hearing for judicial 
nominees. That was the 12th since July. This morning the Senate is 
confirming the first two judges of this session and the 29th and 30th 
since the change in majority last summer.
  The legacy of strife over the filling of judicial vacancies that we 
all must work to overcome began in 1996, when months went by without 
the Republican Senate acting on judicial nominations from a Democratic 
President.

[[Page S119]]

 Later that same year, outside groups began forming to raise money on 
their pledge to block action on judicial nominees and to ``kill'' 
Clinton nominees.
  As the new session opened in 1997, efforts were launched on the 
Republican side of the aisle to slow the pace of Judiciary Committee 
and Senate proceedings on judicial nominations and to erect new 
obstacles for nominees.
  The results were soon apparent delaying the process, and they 
persisted throughout the remainder of President Clinton's 
administration.
  Those times stand in sharp contrast to the last 5 months of last 
year, in which I noticed a hearing within 10 minutes of becoming 
chairman of the full committee, chaired unprecedented hearings during 
the August recess, and held hearings and votes throughout the period 
after September 11 and during the closure of our offices and hearing 
rooms after Senator Daschle and I received anthrax filled letters.
  I want to emphasize that. During that time, 50 men and women who were 
nominated and who went through all the vetting, FBI backgrounds, and 
everything else, never received a hearing and a committee vote, many 
after waiting for years.
  They included Judge James A. Beaty, Jr., Judge James Wynn, and J. 
Rich Leonard, nominees to longstanding vacancies on the Fourth Circuit; 
Judge Helene White, Kathleen McCree-Lewis and Professor Kent Markus, 
nominees to the Sixth Circuit; Allen Snyder and Professor Elana Kagan, 
nominees to vacancies on the D.C. Circuit; and James Duffy and Barry 
Goode, nominees to the Ninth Circuit; Bonnie Campbell, the former 
Attorney General of Iowa and former head of the Violence Against Women 
Office at the Department of Justice, nominated to the Eighth Circuit; 
Jorge Rangel, H. Alston Johnson, and Enrique Moreno, each nominated to 
the Fifth Circuit; Robert Raymar and Robert Cindrich, among the 
nominees to the Third Circuit; and District Court nominees like 
Anabelle Rodriguez, John Bingler, Michael Schattman, Lynette Norton, 
Legrome Davis, Fred Woocher, Patricia Coan, Dolly Gee, David Fineman, 
Ricardo Morado, David Cercone, and Clarence Sundram.
  None of these qualified nominees was given a vote.
  Over the course of those years, Senate consideration of nominations 
was often delayed for not months but years.
  It took more than four years of work to get the Senate to vote on the 
nominations of Judge Richard Paez and Judge William Fletcher; almost 
three years to confirm Judge Hilda Tagle; more than two years to 
confirm Judge Susan Mollway, Judge Ann Aiken, Judge Timothy Dyk, Judge 
Marsha Berzon, and Judge Ronald Gould; almost two years to confirm 
Judge Margaret McKeown and Judge Margaret Morrow and more than a year 
to confirm several others during the preceding 6\1/2\ years of 
Republican control.
  During those years, the Republican majority in the Senate went an 
entire session without confirming even a single judge for the Courts of 
Appeals.
  As few as three appellate nominees were granted hearings and 
committee votes in an entire session. During that time, the Republican 
majority averaged eight hearings a year for judicial nominees and had 
as few as six during one entire session. One session of Congress, the 
Republican majority allowed only 17 judges to be confirmed all year, 
and that included not a single judge to any Court of Appeals. All the 
while, the judicial vacancy rate continued to worsen.
  The problems did not end when President Clinton left office. New 
problems have arisen through unilateral actions taken by the Bush 
administration in its handling of judicial nominations.
  Fifty years ago, President Dwight Eisenhower started a policy of 
having the American Bar Association do a review of judicial nominees. 
That practice by President Eisenhower was followed by President 
Kennedy. It was then followed by President Johnson. It was then 
followed by President Nixon. It was then followed by President Ford. It 
was then followed by President Carter. It was then followed by 
President Reagan. It was then followed by the first President Bush. It 
was then followed by President Clinton. But when this new White House 
came in, they decided summarily to end that 50-year practice.
  Senators are still going to ask at least to have that ABA background 
done. It does not mean that peer review is controlling, by any means. 
What is happening now is that instead of having that ABA peer review 
done simultaneously with the FBI background check and having the ABA 
report come to the Senate around the same time as the FBI report, the 
Administration sends up the nominee, and the Senate has to wait 6 or 8 
weeks more to get the ABA vetting. The vetting processes could have 
done both at the same time and potentially save 2 months in the 
process.
  This unilateral approach in vetting nominees and disregarding the 
Senate's longstanding practice is similar to another disregarding of 
the longstanding practice that encouraged consultation with home-State 
Senators, both Republicans and Democrats. That has needlessly 
complicated the Senate's handling of several of the nominations.
  I realize we are looking back over the first year of a new 
administration. But I am laying out this history to them because it is 
a history of the handling of nominees that has worked fairly well for 
Republicans and Democrats alike since President Eisenhower's time. 
Maybe we ought to go back to the things that have worked.
  In addition, the White House has not responded to our repeated 
requests to help the Senate work through residual issues caused by the 
Republican Senate's earlier actions and inactions related to several 
circuit courts.
  We hear about all the vacancies on the circuit courts without mention 
of the fact that there have been previous qualified nominees for the 
vacancies on whom the Republican-controlled Senate refused to proceed. 
That has created problems that have grown and festered over time. They 
are not going to be remedied immediately, especially in the absence of 
White House cooperation.
  One of the best friends I have in the Senate is Senator Orrin Hatch 
of Utah. Senator Hatch and I can sit down and work out many of these 
things. But we cannot do it by ourselves if the White House is 
uninterested in working with us. They ought to understand that we are 
able to work out most of our problems. They ought to take advantage of 
that and work with us.
  Let us turn to look at where we go from here. I think we made a good 
beginning in the first 6 months of Democratic leadership in the Senate. 
But the way forward is not easy. If we want to have continued progress, 
it is going to require leadership and cooperation and good will not 
only within the Senate but by the White House.
  These are the steps that the Judiciary Committee will take in good 
faith. I want to lay this out for my colleagues.
  First, we are going to restore steadiness in the hearing process. The 
committee will hold regular hearings at a pace that will exceed the 
pace of the last 6 years. Following longstanding committee practice, 
each hearing typically will involve several nominees--a circuit court 
nominee and a number of district court nominees.
  Since the Senate's reorganization last July, we have convened 
judicial nominations hearings each and every month. I mention that 
because, by contrast, in the 72 months that the Republican majority 
most recently controlled scheduling such hearings, in 30 of those 
months no hearings were held at all, and in another 34 months only one 
hearing was held.
  Yesterday we held our 12th hearing since July. If we are able to keep 
pace, we will hold more hearings this session than were held in any of 
the 6\1/2\ years of Republican control and more than twice as many as 
were held in some of those years.
  Secondly, we will include hearings for a number of controversial 
nominees who do not have a blue slip problem. We will convene a hearing 
the week after next on the nomination of Charles W. Pickering for the 
Fifth Circuit Court of Appeals. I fully expect we will also have 
hearings on other nominations for which consensus will be difficult, 
including such nominees as Judge Priscilla Owen, Professor Michael 
McConnell, and Miguel Estrada.
  Third, we will continue to seek a cooperative and constructive 
working relationship not only with our colleagues on the other side of 
the aisle but also with the White House. I ask the White

[[Page S120]]

House to help make the confirmation process more orderly and less 
antagonistic, and thus make it more productive.
  Finding our way forward out of the legacy of the last 6 years is 
going to require some White House cooperation. The President represents 
one of our three branches of Government. We in the Senate represent 
one. We are talking about working together in matters that affect our 
third branch. I take very seriously the advise and consent clause of 
the Constitution. It does not say: Advise and rubberstamp. It says 
advise and consent. The distinguished Presiding Officer, the President 
pro tempore, knows better than anybody else in this body the kind of 
debate that went on at the founding of this country on the 
constitutional requirement of advice and consent. Our Founders made 
very sure we, the people, had a voice in these appointments. This is a 
democracy, not a regency.

  I will strive--whether we have a Democratic President or a Republican 
President--to uphold the right, and not just the right, the duty of the 
Senate, to fulfill its advise and consent role. It is one of the most 
important roles this body has ever had because it is exclusively in 
this great Chamber, in this great body. Senators really do not follow 
their oath of office if they do not uphold that right and that 
privilege and that duty of advice and consent.
  I have heard the distinguished Presiding Officer speak of the number 
of Presidents with whom he has served. He very correctly has pointed 
out, we do not serve under a President, we serve with a President.
  I have enormous respect for all Presidents I have served with, 
Republicans and Democrats. They are a major part of our Democratic 
framework. Whoever is President carries an awesome burden and should be 
helped in carrying out that burden. But we carry an awesome burden on 
advice and concept, as well. Let us try to bring the duties and rights 
and obligations at one end of Pennsylvania Avenue closer to the duties 
and rights and obligations at the other end of Pennsylvania Avenue and 
see how we might work together.
  So today I ask the President, for his part, to consider several 
steps, each of which makes a tangible improvement in the consideration 
of judicial nominations.
  First, the most progress can be made quickly if the White House would 
begin working with home State Senators to identify fair-minded, 
nonideological, consensus nominees to fill these court vacancies.
  One of the reasons that the committee and the Senate were able to 
work as rapidly as we did in confirming now 30 judges in the last few 
months was because those nominations were strongly supported as 
consensus nominees by people from across the political and legal 
spectrums.
  I have heard of too many situations, in too many States, involving 
too many reasonable and constructive home State Senators, in which the 
White House has shown no willingness to work cooperatively to find 
candidates to fill vacancies. The White House's unilateralism is not 
the way the process is intended to work. It is not the way the process 
has worked under past administrations. I urge the White House to show 
greater inclusiveness and flexibility and to help make this a truly 
bipartisan enterprise.
  Logjams persist in several settings, the legacy of the last 6 years. 
To make real progress, the White House and the Senate should work 
together to repair the damage and move forward.
  As I said before, the Constitution directs the President to seek the 
Senate's advice and consent in his appointments to the Federal courts. 
The lack of effort on the advice side of that obligation gives rise to 
a general impression, heightened by the White House's refusal to work 
cooperatively with some home State Democratic Senators, and by its 
unwillingness to listen to suggestions to continue the bipartisan 
commissions that have been a tradition, for years, in many States, that 
the White House and some in the Senate are intent on an ideological 
takeover of our courts.
  With the circuits so evenly split in so many places, nominees to the 
Courts of Appeals may have a significant impact on the development of 
the law for decades to come. Some of us are concerned that there not be 
a rollback in the protections of individual rights, civil rights, 
workers' rights, consumers' rights, business rights, privacy rights, 
and environmental protection.

  Secondly, I ask the President to reconsider his early decision on 
peer review vetting. It has needlessly added months to the time 
required to begin the hearing process for each nominee. For more than 
50 years, the American Bar Association was able to conduct its peer 
reviews simultaneously with the FBI background check procedures. As I 
said earlier, that meant that when nominations were sent to the Senate, 
the FBI report and the ABA report were sent at approximately the same 
time, and we could start moving forward to review nominations and 
schedule hearings from that day.
  We had occasions last year when we proceeded with hearings with fewer 
District Court nominees than I would have liked because recent 
nominees' files were not yet complete. I worry that same problem will 
be repeated this year.
  For example, in relation to the FBI and the ABA background materials 
on the 24 District Court nominations that we received in the last day 
or so, we are not going to have all that material until March or April. 
That is regrettable. It was avoidable. We could have had it all here 
today so we could start reviewing those nominations and considering 
them for hearing agendas right away.
  Now, no Senator is bound by the recommendations of the ABA. And I 
would never suggest that a Senator be bound by that. Each Senator is 
bound by their own conscience and their own sense of what is right. But 
the White House can make it clear that it is not bound either but that 
it is restoring a traditional practice--not because it intends to be 
bound by the results of that peer review but solely to remove an 
element of delay that it had inadvertently introduced into the 
confirmation process.
  The White House can expressly ask the ABA, if they want, not to send 
the results of its peer reviews to the executive but only to transmit 
them to the committee. Few actions available to either the Senate or 
the White House could make as constructive a contribution as would the 
President's resolution of this problem. I ask him to seriously and 
thoughtfully consider taking it. It would take 1 minute of decision; it 
would save months of time.
  In conclusion, whether we succeed in improving the confirmation 
process is going to depend in large measure on whether our goals are 
shared by Republican Senators and the White House. We will not have 
repaired the damage that has been done if we make progress this year 
and the improvements we are able to make are not institutionalized and 
continued the next time a Democratic President or, for that matter, a 
different Republican President is the one making judicial nominations.
  In the statements I have heard and read from the Republican side, I 
have not heard them concede any shortcomings in the practices they 
employed over the previous 6\1/2\ years, even though since the change 
in majority last summer, we have exceeded their pace and productivity 
over the prior 6\1/2\ years. If their efforts were acceptable or 
praiseworthy as some would argue, I would expect them to commend our 
better efforts since last July.
  If they did things they now regret, their admissions would go far in 
helping establish a common basis of understanding and comparison. 
Taking that step would be a significant gesture. It is something that 
has not yet occurred. I wish it would.
  Whether it occurs or not, I want to move forward. The nominees voted 
on this morning and those included at our most recent hearings 
yesterday are clear evidence, again, that consensus nominees with 
widespread bipartisan support are more easily and quickly considered by 
the committee and confirmed by the Senate. I believe there was not a 
single vote against either of the judges confirmed today.
  There are still far too many judicial vacancies. We have to work 
together to fill them. We have finally begun moving the confirmation 
and vacancy numbers in the right directions. The way forward is 
difficult. Democrats alone cannot achieve what should be our common 
goal of regaining the ground lost over the last 6 years. But all of us 
together can achieve that. I invite each with a role in this process to 
join that effort.

[[Page S121]]

  If I could close on a personal note, as I said before, the ranking 
member of the Senate Judiciary Committee, the senior Senator from Utah, 
is a close personal friend. I have been in the position of ranking 
member of that committee while he was chairman. I know many times he 
had to urge actions to move forward, actions with which many in his 
caucus did not agree. But he did, and I commend him for it. For my 
part, I pledge, during this year or whatever time I am chairman, to 
meet on a regular basis with my friend from Utah to try to iron out as 
many problems as we can. I believe there is a mutual respect between 
the two of us. But I would also urge the White House to realize that 
they do not act in a vacuum, to understand it is a democracy, to take a 
moment to reread the advice and consent clause. Let us work together. 
Things will go a lot faster and a lot better that way.
  I yield the floor.
  The PRESIDING OFFICER (Mr. LEAHY). The distinguished senior Senator 
from Utah.
  Mr. HATCH. Mr. President, I don't want to take this time to engage in 
statistical judo on judicial nominees. I personally have appreciated 
our chairman and the work he did last year. We are friends, and I 
intend to work very closely with him. Hopefully we can put through a 
lot of judges this year, as we did for President Clinton in his second 
year.
  Mr. President, the record is clear. Here are the true facts, the 
numbers for the first years and for the current session. I gave an 
extensive speech at the end of last year, and it shows where we stand 
today and what we did to establish a near record with 377 Clinton 
judges. That is five fewer than for President Reagan, the all-time 
champion of confirmed judges. I can say, categorically, there would 
have been at least three more than what President Reagan had, had it 
not been for holds on the Democrat side of the Chamber. So the all-time 
champion would have been William Jefferson Clinton as President. The 
Democrats, not the Republicans, stopped the approximately eight or nine 
additional Clinton nominees who otherwise would have been confirmed.
  Sometimes it was for petty reasons that holds were put on. But the 
fact is that holds came from the other side. One thing we did not do is 
apply any litmus test. Today, some special interest groups are urging 
the Democrats to apply one. Had we Republicans applied an abortion 
litmus test to President Clinton's nominees, perhaps fewer than a dozen 
judges would have gone through. If the Senate were to get into the 
litmus test game, we would certainly hurt this body and this country a 
great deal. Everyone knows that when we elect a President, we are 
choosing the person who has the power to pick the judges in this 
country. As long as the President's nominees are qualified, the Senate 
ought to approve the President's judges.
  There were a variety of reasons that prevented several of President 
Clinton's nominees from getting confirmed, including some who lacked 
the support of their home State Senators. But the overall record makes 
clear that we were fair. As my colleague, Senator Leahy, said, our job 
was not to simply rubberstamp President Clinton's judges. The current 
President does not expect a rubber stamp either. So, mere numbers and 
statistics--as my distinguished chairman, the Senator from Vermont, 
listed--do not give the full picture because they do not explain the 
reasons in particular cases. And our current President has been more 
deliberative, more cooperative in his selection, evaluation, and 
nomination of judges than any other President while I have been serving 
in the Senate.
  I have to be honest, I am concerned about the tone I have heard 
today. But I still remain cautiously optimistic that the Senate will do 
the right thing with regard to judges, and I keep hope alive that this 
bitter tone on judicial nominees will subsist. I think we are above 
that.
  At the outset of the second session of the 107th Congress, we have an 
opportunity in the Senate to make a real difference in the 
administration of justice in this country. This opportunity is the 
chance to halt the vacancy crisis that presently plagues the Federal 
courts. A new congressional session provides many opportunities to make 
changes and allocate our time to those matters most pressing. Our 
Nation is facing many great challenges, ranging from threats of 
terrorism at home and abroad to the struggling economy. We have a lot 
of work to do.
  One of the most pressing matters we must address this session is the 
vacancy crisis in the Federal court system. I was interested in some of 
the statistics my colleague from Vermont gave. In 1992, the Democrats 
controlled the Senate and therefore the Senate Judiciary Committee. On 
election day 1992, when William Jefferson Clinton was elected President 
of the United States, there were 97 vacancies and 54 of President 
Bush's nominees left hanging without a vote. (Some of those 54 
neglected nominees have now been renominated by the current President 
Bush.) Of the 54, there were about 6 who were nominated so late in the 
session that there wasn't really an opportunity on the part of Senator 
Biden or the committee to confirm them. So, really, 48 were left 
hanging without a vote. By contrast, when George W. Bush was elected 
President, there were 67 vacancies--30 fewer than eight years earlier 
when the Democrats controlled the Senate Judiciary Committee. And for 
those 67 vacancies, there were 41 nominees left hanging. In other 
words, the Republicans left 13 fewer nominees than the Democrats did. 
But, of the 41, 9 were nominated so late in that session that there was 
no chance any Judiciary Committee chairman could have gotten them 
through. So, in essence, there were 32 nominees that did not get voted 
on at the end of the Clinton Administration.
  The fact is that 32, contrasted with the 48 that the Democrats left 
hanging when they controlled the Senate, is a pretty good record. It 
was the best we could do given the individual circumstances presented. 
A couple were held up because of home State Senators. I could not solve 
that problem. Neither could Senator Leahy. There were some who were 
held up because of further investigation that had to be made and 
questions that had arisen. Some were held up because of other matters 
in the FBI reports or problems that existed that we could not solve 
before election day.
  On January 1 of this year, Supreme Court Chief Justice William 
Rehnquist released his 2001 year-end report on the Federal judiciary. I 
ask unanimous consent it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             2001 Year-End Report on the Federal Judiciary


                              i. overview

       The 2001 Year-End Report on the Federal Judiciary is my 
     16th. 2001 will surely be remembered by the entire country, 
     including the federal Judiciary, for the terrorist attacks of 
     September 11 and the anthrax contamination that followed.
       I received word of the first strike on the World Trade 
     Center as the 26 federal judges who are members of the 
     Judicial Conference of the United States were preparing to 
     convene at the Supreme Court the morning of September 11. It 
     soon became clear that we would have to cancel the Conference 
     session and evacuate the building, the first cancellation of 
     a Conference meeting since its creation in 1922.
       Just six and a half weeks later, our Court was forced to 
     evacuate the building again after traces of anthrax were 
     found in our off-site mail facility. For the first time since 
     our building opened in 1935, the Court heard arguments in 
     another location--the ceremonial courtroom in the District of 
     Columbia E. Barrett Prettyman Federal Courthouse. The Court 
     was also forced out of its quarters in the Capitol when the 
     British burned part of the Capitol building in August 1814.
       Despite the effects of events since September 11, the 
     federal courts, along with the rest of our government, have 
     gotten back to business, even if not business as usual. Our 
     Court has kept its argument schedule, federal (and state) 
     courts have met, albeit with heightened security, and within 
     three weeks, the Judicial Conference completed by mail all of 
     the business that had been on the schedule for September 11 
     and that could not be postponed.


    ii. ensuring a well-qualified and fully staffed judicial branch

       The federal courts were created by the Judiciary Act of 
     1789, which established a Supreme Court and divided the 
     country into three circuits and 13 districts. This structure 
     has obviously changed greatly since 1789, but one thing has 
     not changed: the federal courts have functioned through wars, 
     natural disasters, and terrorist attacks. During times such 
     as these, the role of the courts becomes even more important 
     in order to enforce the rule of law. To continue functioning 
     effectively and efficiently, however, the courts must be 
     appropriately staffed. This means

[[Page S122]]

     that necessary judgeships must be created and judicial 
     vacancies must be timely filled with well-qualified 
     candidates.

                   Promptly filling vacant judgeships

       It is becoming increasingly difficult to find qualified 
     candidates for federal judicial vacancies. This is 
     particularly true in the case of lawyers in private practice. 
     There are two reasons for these difficulties: the relatively 
     low pay that federal judges receive, compared to the amount 
     that a successful, experienced practicing lawyer can make, 
     and the often lengthy and unpleasant nature of the 
     confirmation process.
       Of the inadequacy of judicial pay I have spoken again and 
     again, without much result. Judges along with Congress have 
     received a cost-of-living adjustment this year, and for this 
     they are grateful. But a COLA only keeps judges from falling 
     further behind the median income of the profession. I can 
     only refer back to what I have previously said on this 
     subject.
       I spoke to delays in the confirmation process in my annual 
     report in 1997. Then as now I recognize that part of the 
     problem is endemic to the size of the federal Judiciary. With 
     more judges, there are more retirements and more vacancies to 
     fill. But as I said in 1997, ``[w]hatever the size of the 
     federal judiciary, the President should nominate candidates 
     with reasonable promptness, and the Senate should act within 
     a reasonable time to confirm or reject them. Some current 
     nominees have been waiting a considerable time for a Senate 
     Judiciary Committee vote or a final floor vote. The Senate 
     confirmed only 17 judges in 1996 and 36 in 1997, well under 
     the 101 judges it confirmed during 1994.''
       At that time, President Clinton, a Democrat, made the 
     nominations, and the Senate, controlled by the Republicans, 
     was responsible for the confirmation process. Now the 
     political situation is exactly the reverse, but the same 
     situation obtains: the Senate confirmed only 28 judges during 
     2001. When the Senate adjourned on December 20th, 23 court of 
     appeals nominees and 14 district court nominees were left 
     awaiting action by the Judiciary Committee or the full 
     Senate. When I spoke to this issue in 1997, there were 82 
     judicial vacancies; when the Senate adjourned on December 
     20th there were 94 vacancies. The Senate ought to act with 
     reasonable promptness and to vote each nominee up or down. 
     The Senate is not, of course, obliged to confirm any 
     particular nominee. But it ought to act on each nominee and 
     to do so within a reasonable time. I recognize that the 
     Senate has been faced with many challenges this year, but I 
     urge prompt attention to the challenge of bringing the 
     federal judicial branch closer to full staffing.
       The combination of inadequate pay and a drawn-out and 
     uncertain confirmation process is a handicap to judicial 
     recruitment across the board, but it most significantly 
     restricts the universe of lawyers in private practice who are 
     willing to be nominated for a federal judgeship. United 
     States attorneys, public defenders, federal magistrate and 
     bankruptcy judges, and state court judges are often nominated 
     to be district judges. For them the pay is a modest 
     improvement and the confirmation process at least does not 
     damage their current income. Most academic lawyers are in a 
     similar situation. But for lawyers coming directly from 
     private practice, there is both a strong financial 
     disincentive and the possibility of losing clients in the 
     course of the wait for a confirmation vote.
       Former magistrate, bankruptcy, and state court judges, as 
     well as prosecutors and public defenders, have served ably as 
     federal district and circuit judges, bringing their insights 
     into the process gained from experience. But we have never 
     had, and should not want, a Judiciary composed only of those 
     persons who are already in the public service. It would too 
     much resemble the judiciary in civil law countries, where a 
     law graduate may choose upon graduation to enter the 
     judiciary, and will thereafter gradually work his way up over 
     time. The result is a judiciary quite different from our 
     common law system, with our practice of drawing on successful 
     members of the private bar to become judges. Reasonable 
     people, not merely here but in Europe, think that many civil 
     law judicial systems simply do not command the respect and 
     enjoy the independence of ours. We must not drastically 
     shrink the number of judicial nominees who have had 
     substantial experience in private practice.
       The federal Judiciary has traditionally drawn from a wide 
     diversity of professional backgrounds, with many of our most 
     well-respected judges coming from private practice. As to the 
     Supreme Court, Justice Louis D. Brandeis, who was known as 
     ``the people's attorney'' for his pro bono work, spent his 
     entire career in private practice before he was named to the 
     Supreme Court in 1916 by President Wilson. Justice John 
     Harlan served in several government posts early in his 
     career, but the lion's share of his experience prior to his 
     nomination by President Eisenhower in 1954 was in private 
     practice. When appointed to the Court of Appeals for the 
     Second Circuit, a year before his appointment to the Supreme 
     Court, Justice Harlan succeeded Judge Augustus Hand. Judge 
     Hand and his cousin, Learned Hand, are well known as great 
     court of appeals judges; both spent virtually all the time 
     between their graduation from law school and their 
     appointment as federal judges in private practice. Retired 
     Justice Byron White, who played professional football for 
     the Detroit Lions on the weekends while attending Yale Law 
     School, was in private practice in Colorado for nearly 14 
     years before joining the Justice Department as deputy 
     attorney general to Robert Kennedy. Less than a year 
     later, President Kennedy named Justice White to the Court. 
     Justice White was the circuit Justice for the Tenth 
     Circuit, where Judge Alfred P. Murrah served as a district 
     judge in Oklahoma and as a judge on the court of appeals. 
     Judge Murrah, who spent his entire career in private 
     practice before becoming a judge, is remembered for much 
     more than having the Oklahoma City federal building named 
     after him. Before being named a judge on the Court of 
     Appeals for the Second Circuit, Justice Thurgood Marshall 
     spent his career in the private sector. He first opened 
     his own law practice in Baltimore and then for many years 
     worked as the top lawyer for the NAACP, becoming known as 
     ``Mr. Civil Rights.'' Justice Marshall left his seat on 
     the court of appeals to become Solicitor General of the 
     United States before President Johnson named him to the 
     Supreme Court in 1967. John Brown, Richard Rives, Elbert 
     Tuttle and John Minor Wisdom, well-known for their courage 
     in enforcing this Court's civil rights decisions as judges 
     on the Court of Appeals for the Fifth Circuit, all served 
     almost exclusively in private practice before their 
     appointments to the bench.
       On behalf of the Judiciary, I ask Congress to raise the 
     salaries of federal judges, and I ask the Senate to schedule 
     up or down votes on judicial nominees within a reasonable 
     time after receiving the nomination.

                   Creating necessary new judgeships

       Last year I expressed hope that the 107th Congress would 
     take action on the Judicial Conference's request to establish 
     10 additional court of appeals judgeships, 44 additional 
     district court judgeships and 24 new bankruptcy judgeships. 
     No additional court of appeals judgeships have been created 
     since 1990. No new bankruptcy judgeships have been created 
     since 1992, although the number of cases filed has increased 
     by nearly 500,000 since then. The 107th Congress has not 
     created a single new judgeship.
       Despite a significant increase in workload, the Courts of 
     Appeals for the First, Second, and Ninth Circuits have not 
     increased in size for 17 years--since 1984. During that time 
     period, appellate filings in the First Circuit have risen 
     65%, in the Second Circuit they have risen almost 58%, and in 
     the Ninth Circuit appellate filings have almost doubled--
     rising 94.6%. The Judicial Conference has asked that the 
     Congress create one new appellate judgeship for the First 
     Circuit, two judgeships for the Second Circuit, five for the 
     Ninth Circuit and two for the Sixth Circuit, which has had 
     only one additional judgeship since 1984.
       Congress has recognized the crisis faced by the 
     overwhelming caseloads in the Southwestern border states. 
     Although we are thankful that Congress has provided 
     additional judges during the 106th Congress for four of the 
     five affected districts, it has not alleviated the very 
     serious problem faced by the Southern District of California, 
     based in San Diego, a district with no judicial vacancies. 
     The judges there have the highest number of filings per judge 
     of any federal district court in the nation and the Judicial 
     Conference has requested that eight additional district 
     judgeships be created for this district.
       I urge the Congress to act on all of the pending requests 
     for new judgeships during its next session.


                 III. International Judicial Exchanges

       The federal Judiciary continues to play a vital role in the 
     development of independent judicial systems in countries 
     around the world. This year over 800 representatives from 
     more than 40 foreign judicial systems formally visited the 
     Supreme Court of the United States seeking information about 
     our system of justice.
       On September 25, 2001, I led a small delegation 
     representing the federal Judiciary on a judicial exchange in 
     Guanajuato, Mexico. The visit was at the invitation of Genaro 
     David Gongora Pimentel, President of the Mexican Supreme 
     Court, and followed a similar visit to Washington by a 
     Mexican delegation in November 1999. Our traveling to Mexico 
     within two weeks of the September 11 attacks underscored the 
     importance of this exchange. I am grateful to President 
     Gongora Pimentel and his colleagues for their invitation to 
     meet with them in Mexico and for their commitment to 
     strengthening cross-border judicial relations in North 
     America.
       The visit brought home not only the close connections of 
     our two countries, but the importance of working with other 
     judiciaries to improve the functioning of all judicial 
     systems. The Federal Judicial Center, the Administrative 
     Office of the United States Courts, and the International 
     Judicial Relations Committee of the Judicial Conference have 
     also provided many international visitors with information, 
     education, and technical assistance to improve the 
     administration and independence of foreign courts and enhance 
     the rule of law. Through these judicial exchanges, we also 
     gain valuable insights into our own judicial system by 
     exchanging information with foreign visitors and by visiting 
     foreign courts. Improving the administration of justice--here 
     and in other courts around the world--have become even more 
     important in the age of the global economy.

[[Page S123]]

                         IV. The Year in Review

                 The Supreme Court of the United States

       The work of the Supreme Court continues to grow modestly, 
     putting an increasing strain on the Supreme Court's building, 
     the infrastructure of which has not been changed in any basic 
     way since the building was opened in 1935. I wish to thank 
     Chairman Byrd, Ranking Minority Member Stevens, Chairman 
     Young, Ranking Minority Member Obey, Chairman Hollings, 
     Ranking Minority Member Gregg, Chairman Wolf, and Ranking 
     Minority Member Serrano for their efforts to secure funds to 
     modernize our Supreme Court building. I am hopeful that the 
     remaining funds necessary to implement our building 
     modernization program, which has been in the planning stage 
     for several years, will be included in our Fiscal Year 2003 
     appropriation. Significant safety and security upgrades to 
     the Supreme Court building are included in the project and 
     should not be delayed.
       The total number of case filings in the Supreme Court 
     increased from 7,377 in the 1999 Term to 7,852 in the 2000 
     Term--an increase of 6.4%. Filings in the Court's in forma 
     pauperis docket increased from 5,282 to 5,897--an 11.6% rise. 
     The Court's paid docket decreased by 138 cases, from 2,092 to 
     1,954--a 6.6% decline. During the 2000 Term, 86 cases were 
     argued and 83 were disposed of in 77 signed opinions, 
     compared to 83 cases argued and 79 disposed of in 74 signed 
     opinions in the 1999 Term. No cases from the 2000 Term were 
     scheduled for reargument in the 2001 Term. Although the 
     closing of our building did not delay any scheduled 
     arguments, the interruption in mail delivery in the 
     Washington area may have an impact on the number of cases 
     heard by the Court this Term.

                      The Federal Courts' caseload

       In Fiscal Year 2001, filings in the 12 regional courts of 
     appeals rose 5% to 57,464--a new all-time high.\1\ Civil 
     filings in the U.S. district courts fell 3% to 258,517,\2\ 
     and, after six consecutive years of growth, the number of 
     criminal cases and defendants declined slightly.\3\ The 
     essentially static level of criminal filings was reflected in 
     a 1% gain in the number of defendants activated in the 
     pretrial services system.\4\ The number of persons on 
     probation and supervised release went up by 4% to an all-time 
     high of 104,715.\5\ Filings in the U.S. bankruptcy courts 
     climbed 14% from 1,262,102 to 1,437,354, following two years 
     of decline.\6\


        v. the administrative office of the united states courts

       The Administrative Office of the United States Courts 
     serves as the central support agency for the administration 
     of the federal court system. In light of the terrorist 
     attacks of September 11 and the ensuing anthrax 
     contamination, the Administrative Office played a pivotal 
     role in ensuring that the federal courts around the country 
     had effective security precautions and mail-screening 
     procedures in place. An emergency response team was convened 
     to work with the staff of the affected courts in New York to 
     get communications and computer systems working and to return 
     the courts to normal operations as soon as possible. In 
     November 2001, Administrative Office Director Leonidas Ralph 
     Mecham created a Judiciary Emergency Preparedness Office to 
     focus on the planning aspects of crisis response.
       Even before September 11, court security was a high 
     priority. A study of the court security program by 
     independent security experts was completed in November. The 
     consultants concluded that although there have been 
     substantial improvements in court security over the last two 
     decades, security needs continue to grow. They recommended 
     options or enhancing the physical security of courthouses, 
     addressing security needs during court proceedings, improving 
     the protection of judges in and outside the courthouse, and 
     conducting background checks on employees. The Judicial 
     Conference's Committee on Security and Facilities and the 
     Administrative Office are currently reviewing the report's 
     recommendations.
       One of the Administrative Office's key priorities is to 
     secure adequate funding from Congress so that the federal 
     courts can carry out their critical work and maintain the 
     quality of justice. Director Mecham, Judge John Heyburn II, 
     chair of the Judicial Conference's Budget Committee, and 
     Judge Jane Roth, chair of the Security and Facilities 
     Committee, deserve credit for their efforts in this area. The 
     funding provided to the courts for fiscal year 2002 
     represents a 7.1% increase and will provide the courts 
     adequate staff (including probation and pretrial services 
     offices) to meet growing workloads. I want to express thanks 
     to the Congress for funding an increase in the rates of pay 
     for private ``panel'' attorneys accepting appointments under 
     the Criminal Justice Act of $90 per hour. This has been a 
     high priority for the Judiciary for several years. I am 
     also pleased to report that Congress has continued to 
     provide significant funds for the courthouse construction 
     program, funding 15 needed courthouse construction 
     projects costing $280 million.
       Last year, an independent consultant concluded that the 
     Judiciary is making effective use of technology and that it 
     is doing so with fewer resources invested in technology when 
     compared with other organizations. The Administrative Office 
     continues to develop and implement automated systems that 
     will enhance the management and processing of information and 
     the performance of court business functions. Deployment of a 
     new bankruptcy court case management/electronic case files 
     system began this year, and it is now operating in 14 
     bankruptcy courts. The system's electronic case files 
     capabilities include the ability to receive and file 
     documents over the Internet. The creation of electronic files 
     will reduce the volume of paper records and make these 
     records more readily accessible. Testing of the district 
     court case management/electronic case files system began in 
     2001, and development work on the appellate court system is 
     underway.
       Under the guidance of the Judicial Conference's Committee 
     on Court Administration and Case Management, the 
     Administrative Office completed a two-year study on how to 
     balance privacy concerns with the rights of the public to 
     access court electronic records. After extensive public 
     comment, the Committee recommended that civil case documents 
     be made available electronically to the same extent they are 
     available at the courthouse (except that certain personal 
     identifiers will be partially redacted). A similar policy 
     will be followed for bankruptcy case documents assuming 
     necessary statutory changes are enacted. The Committee 
     recommended that there be no electronic access to documents 
     in criminal cases at this time. These policies were endorsed 
     by the Judicial Conference in September, and several 
     Conference Committees, supported by Administrative Office 
     staff, are currently working to implement them.
       A review of the Judiciary's use of libraries, lawbooks, and 
     legal research materials--both hard copy and electronic--was 
     completed in 2001. While the use of on-line legal resource 
     materials is expanding and continues to show promise for 
     increased use, the study concluded that a clear and 
     compelling need continues to exist for lawbooks and other 
     legal research materials in hard-copy format. The Judicial 
     Conference adopted recommendations to control costs further 
     and to improve the management of court libraries.


                    vi. the federal judicial center

       The Federal Judicial Center, the federal courts' statutory 
     agency for education and research, last year provided 
     education to some 50,000 participants in traditional and 
     distance education programs and continued its research and 
     analysis to improve the litigation process. A few highlights 
     of the Center's work in 2001 follow.
       Science and technology. Litigation is increasingly 
     dominated by scientific and technical evidence. The Center's 
     efforts to help judges included its acclaimed Reference 
     Manual on Scientific Evidence, now in its second edition, and 
     a six-part Federal Judicial Television Network series, 
     Science in the Courtroom, on principles of microbiology, 
     epidemiology, and toxicology, and how to manage cases 
     involving these types of evidence. Other judicial education 
     programs dealt with genetics, the human aging process, 
     astrophysics, and the impact of computer technology on the 
     law of intellectual property.
       To assist federal judges in dealing with the sophisticated 
     technology many attorneys use to present evidence, the Center 
     provided federal judges its Effective Use of Courtroom 
     Technology: A Judge's Guide to Pretrial and Trial, developed 
     in cooperation with the National Institute for Trial 
     Advocacy. It also provided judges a Guide to the Management 
     of Cases in ADR, which it prepared in light of the growing 
     use of alternatives to traditional litigation.
       Management skills for federal courts in uncertain times. 
     Center programs responded to another challenge facing the 
     courts: the need for leadership skills and management 
     practices befitting the complex organizations that federal 
     courts have become. Courts must integrate technology with 
     increasingly sophisticated business practices, and deal with 
     growing caseloads and diverse workforces and litigants, while 
     pursuing their overarching purpose to deliver justice for 
     all.
       Demystifying the legal process. The Center assisted the 
     Judicial Conference's Advisory Committee on the Federal Rules 
     of Civil Procedure with a different type of challenge. The 
     Committee has proposed a requirement that attorneys use 
     ``plain language'' in the notices they send to potential 
     class members in class action suits and asked the Center to 
     develop illustrative language as examples. The Center tested 
     alternative workings with focus groups of ordinary citizens 
     typical of class members. This testing explored recipients' 
     willingness to open and read a notice as well as their 
     ability to comprehend and apply the information it contained. 
     From this research, the Center produced illustrative notices, 
     which remain on the Center's Web site (www.fic.gov) for 
     public comment and use.
       International judicial cooperation. Given its international 
     reputation, the Center gets frequent visitors from other 
     countries seeking to create or enhance their judicial branch 
     research and education centers. Although it does not use its 
     own funds in responding to these requests, the Center has 
     been of assistance this year in important ways. It hosted 
     seminars or briefings of 422 foreign judges and officials 
     representing 34 countries. The Center also responded to more 
     specific requests for assistance. For example, a delegation 
     from the Russian Academy of Justice spent a week at the 
     Center attending a program on teaching methodology. Three 
     Center representatives traveled to Moscow for a follow-up 
     workshop focusing on distance learning and judicial this. 
     Center personnel also played an important role in the

[[Page S124]]

     U.S. delegation's visit to Mexico, which I described earlier, 
     and will continue that relationship by organizing a seminar 
     next May in Washington for interchange with Mexican judicial 
     educators.


              VII. The United States Sentencing Commission

       On May 1, 2001, the newly reconstituted United States 
     Sentencing Commission completed its first full sentencing 
     guidelines amendment cycle and submitted to Congress a 
     package of guidelines amendments covering 26 areas. This 
     package of amendment resolved 19 circuit conflicts and 
     included responses to nine new congressional directives (five 
     with emergency amendment authority). For the first time in 
     years, there are no congressional directives awaiting 
     implementation by the Commission.
       The amendment include a multi-part, comprehensive economic 
     crimes package with a new loss table that significantly 
     increases penalties for crimes involving high-dollar loss 
     amounts, but gives judges greater discretion in sentencing 
     defendants convicted of crimes with relatively low loss 
     amounts. The amendments also increase the penalties for 
     ecstasy and amphetamine trafficking; counterfeiting; high-
     dollar fraud offenses; child sex offenses; and the use of 
     nuclear, biological, and chemical weapons. The Commission 
     also expanded eligibility for first-time, non-violent 
     offenders to obtain relief under the guidelines' ``safety 
     valve'' provision and it clarified that participants who play 
     a limited role in a crime are eligible for an adjustment 
     to their sentences under the guidelines ``mitigating 
     role'' provision. The guidelines went into effect November 
     1, 2001.
       On June 19, 2001, the Sentencing Commission held a public 
     hearing in Rapid City, South Dakota, in response to the March 
     2000 Report of the South Dakota Advisory Committee to the 
     U.S. Commission on Civil Rights, which recommended that an 
     assessment of the impact of the federal sentencing guidelines 
     on Native Americans in South Dakota be undertaken. As a 
     result of suggestions made at the hearing and subsequent 
     written submissions, the Commission is forming an ad hoc 
     advisory group on issues related to the impact of the Federal 
     Sentencing Guidelines on Native Americans in Indian Country.
       The Tenth Annual National Seminar on the Federal Sentencing 
     Guidelines, co-sponsored by the Commission and the Federal 
     Bar Association, was held May 16-18, 2001, in Palm Springs, 
     California. More than 400 federal judges, U.S. probation 
     officers, and attorneys attended. During fiscal year 2001, 
     Commission staff also participated in training for thousands 
     of individuals at training sessions across the country 
     (including ongoing programs sponsored by the Federal Judicial 
     Center and other agencies). Commission staff continue to work 
     with the Federal Judicial Center and the Administrative 
     Office to plan and develop educational and informational 
     programming for the Federal Judicial Television Network. 
     During the year, the Commission's ``Helpline'' provided 
     assistance to approximately 200 callers per month.
       Finally, congratulations are due to Sentencing Commission 
     Chair Diana E. Murphy who, together with Judge Frank M. 
     Coffin of the U.S. Court of Appeals for the First Circuit, 
     received the 19th Annual Edward J. Devitt Distinguished 
     Service to Justice Award on September 10, 2001. This award 
     recognizes Article III judges who have achieved exemplary 
     careers and have made significant contributions to the 
     administration of justice, the advancement of the rule of 
     law, and the improvement of society as a whole.


                            VIII. Conclusion

       Once again the Judiciary can look back upon the year ended 
     as one of accomplishments in the face of adversity. In spite 
     of the terrorist attacks that have affected the entire 
     country, our courts continue to conduct business, day in and 
     day out. We continue to find ways to perform our work more 
     efficiently.
       Despite an alarming number of judicial vacancies, our 
     courts continue to serve as a standard of excellence around 
     the world. At bottom, federal judges are able to administer 
     justice day in and day out because of their commitment and 
     the commitment and hard work of court staff around the 
     country. My thanks go out to all of them.
       I extend to all my wish for a happy New Year.


                               end notes

     \1\ Original proceedings surged 48%, largely as a result of a 
     rise in habeas corpus petitions filed by prisoners. Criminal 
     appeals grew 5%, administrative agency appeals increased 2%, 
     and civil appeals rose 1%. Bankruptcy appeals fell 5%. 
     Appeals filings have increased 22% since 1992.
     \2\ Filings with the United States as plaintiff seeking the 
     recovery of student loans dropped 47%. New administrative 
     procedures implemented by the Department of Education led to 
     fewer such filings in the federal courts. Excluding student 
     loan filings, total civil filings increased 1%. Total private 
     case filings fell less than 1%. Filings related to federal 
     question litigation were consistent with the total decline in 
     private cases, falling less than 1% to 138,441. Diversity of 
     citizenship and civil rights filings each rose less than 1%. 
     Filings related to federal question litigation and diversity 
     of citizenship were greatly affected by the stabilization of 
     personal injury/product liability case filings related to 
     breast implants, oil refinery explosions, and asbestos. 
     Despite an 11% decrease in total filings with the United 
     States as plaintiff or defendant, filings with the United 
     States as defendant increased 10% to 40,644. This was mostly 
     due to a 23% surge in federal prisoner petitions and an 8% 
     rise in social security filings. Motions to vacate sentences 
     filed by federal prisoners grew by 36%. Social security 
     filings related to disability insurance and supplemental 
     security income rose 9% and 6%, respectively. Civil filings 
     have increased 9% since 1992.
     \3\ Filings of criminal cases dropped by 37 cases to 62,708, 
     and the number of defendants decreased 1% to 83,252. As a 
     result of the creation of 10 additional Article III 
     judgeships, criminal cases per authorized district judgeship 
     declined from 96 to 94. This was the first decrease in cases 
     per judgeship since 1994, when the effects of a hiring freeze 
     on assistant U.S. attorneys was being felt. In succeeding 
     years, federal courts saw increases in criminal filings, 
     primarily due to immigration and drug law-related cases in 
     districts along the Southwestern border of the United States. 
     This year, drug cases rose 5% to 18,425, firearms cases rose 
     9% to set yet another record at 5,845, traffic cases rose 6% 
     to 4,958, robbery cases rose 8% to 1,355, and sex offense 
     cases rose 8% to 1,017. Immigration filings fell by 873 
     cases, a 7% decline over last year due to fewer immigration 
     cases reported by the Western District of Texas, the Southern 
     District of California, and the District of New Mexico. 
     However, in the Western District of Texas and in the Southern 
     District of California, the decline in immigration filings 
     was offset by a rise in drug filings. As a result, overall 
     criminal filings increased 2% in the Western District of 
     Texas and declined 3% in the Southern District of California. 
     Criminal filings since 1992 have increased 30%.
     \4\ In 2001, the number of defendants activated in the 
     pretrial services system increased 1% to 86,140, and the 
     number of pretrial reports prepared rose 1%. During the past 
     five years, pretrial services case activations and pretrial 
     reports prepared each rose 24%, persons interviewed grew 16%, 
     and defendants released on supervision increased 25%. 
     Pretrial case activations have risen each year since 1994, 
     and this year's total is 54% higher than that for 1994.
     \5\ There is an average lag of several years before 
     defendants found guilty and sentenced to prison appear in the 
     probation numbers. Supervised release following a period of 
     incarceration continues to account for a growing percentage 
     of those under supervision and now stands at 65% of this 
     total. In contrast, the number of individuals on parole is 
     small and declining, composing only 4% of those under 
     supervision. Of the 104,715 persons under probation 
     supervision, 42% had been charged with a drug-related 
     offense. The number of persons on probation has increase 22% 
     since 1992.
     \6\ Nonbusiness petitions rose 14% and business petitions 
     increased 7%. Filings increased under all chapters except 
     Chapter 12, jumping 17% under Chapter 7, rising 7% under 
     Chapter 11, and increasing 8% under Chapter 13. Bankruptcy 
     filings under Chapter 12, which constituted 0.03% of all 
     petitions filed, fell 31%. This decrease resulted from the 
     expiration of the provisions for Chapter 12 on July 1, 2000. 
     Subsequently, Public Law 107-8 extended the deadline for 
     filing Chapter 12 petitions to June 1, 2001, and Public Law 
     107-17 extended the deadline further to October 1, 2001. 
     Bankruptcy filings have increased 47% since 1992.

  Mr. HATCH. In his report, the Chief Justice stressed the urgent need 
to fill vacancies promptly, particularly in light of the threats facing 
our Nation at present. He noted that although the structure and scope 
of the judiciary have changed dramatically since its creation in 1789,

       [O]ne thing has not changed: The Federal courts have 
     functioned through wars, natural disasters, and terrorist 
     attacks. During times such as these, the role of the courts 
     becomes even more important in order to enforce the rule of 
     law. To continue functioning effectively and efficiently, 
     however, the courts must be appropriately staffed. This means 
     that necessary judgeships must be created and judicial 
     vacancies must be timely filled with well-qualified 
     candidates.

  In light of the September 11 attacks, I share the Chief Justice's 
concern about the potential impact of the vacancies on the Federal 
judiciary and our Nation's ability to fight the war on terrorism. 
Federal judges are instrumental in combating terrorism by presiding 
over hearings and trials and by imposing just sentences. What is more, 
they play a crucial role in protecting civil liberties by ensuring that 
our law enforcement officials abide by the letter and the spirit of the 
law. In addition to their integral function in the criminal justice 
system, Federal judges preside over and decide civil cases that impact 
everyday business relationships.
  Federal judges are tasked with preserving the rights of employers and 
workers alike. They also provide the certainty of dispute resolution 
necessary for future business and employment decisions. But when there 
is a shortage of Federal judges, criminal matters must understandably 
take precedence due to speedy trial concerns and other concerns. The 
unintended consequence is that the American workers and their employers 
are left hanging in limbo when their cases are not being heard in a 
timely manner.
  Today, we have 99 judicial vacancies. This is a far cry from the 
appropriately staffed judiciary of which Chief Justice Rehnquist spoke. 
When the Chief Justice addressed the vacancy crisis in the 1997 year-
end report, there were 82 empty seats on the Federal bench, nearly 20 
fewer than the present situation. Commenting on the 1997 statistic, the 
Washington Post, in January 1998, in an editorial remarked:

       The problem of judicial vacancies is getting out of hand. 
     Nearly 10 percent of the 846 seats on the Federal bench are 
     now empty.

  One key Democratic Senator called these figures ``pretty 
frightening,'' and said, ``If this continues, it becomes a 
constitutional crisis.''
  There are now 99 vacancies, or 17 more than when the editorial and 
the

[[Page S125]]

statements by the Democratic Senator were made. If 82 vacancies was a 
serious crisis in 1997, what do we have now with 99 vacancies?
  We in the Senate have an opportunity to address this situation. We 
can make a real difference in the administration of justice in this 
country simply by fulfilling our constitutional responsibilities of 
advise and consent. In fact, Chief Justice Rehnquist specifically urged 
the Senate ``to act with reasonable promptness and to vote each nominee 
up or down.''
  He continued:

       The Senate is not, of course, obliged to confirm any 
     particular nominee, but it ought to act on each nominee and 
     to do so within a reasonable time.

  I could not agree more with the Chief Justice. This is precisely what 
I tried to accomplish as Judiciary Committee chairman while abiding by 
our customs and rules of the Senate. But now some of President Bush's 
judicial nominees have been waiting more than 8 months for a hearing. 
All but a handful of them have had their blue slips returned. Their FBI 
background investigations are completed, and their ABA ratings are 
submitted.
  At a time when our national security is at stake, we have a duty to 
follow the Chief Justice's admonition and act promptly on these 
nominees. As we embark on the second session of this Congress, we in 
the Senate have the perfect opportunity to do just this. I sincerely 
hope we accomplish this goal. I will continue to cooperate with our 
Democratic chairman, and I hope the rhetoric on both sides of the aisle 
is cooled so we can confirm as many as possible of the highly qualified 
nominees pending before us.
  A realistic yardstick of our success will be how President Bush's 
second year in office will compare to President Clinton's second year 
in office. In 1994, the second year of President Clinton's first term, 
the Senate confirmed 100 judicial nominees. I was an integral part of 
that. I worked very hard to get them confirmed. I had to override 
people on my side of the aisle and convince some of them that the 
nominees should be confirmed. As a result of this work, there were only 
63 vacancies in the Federal judiciary when the Senate adjourned on 
December 1, 1994.
  I am confident the Republicans and Democrats can work together to 
achieve or even hopefully exceed the goal of confirming 100 judges in 
2002, particularly the many circuit court nominees who are pending to 
fill emergency vacancies in the appellate courts around this country.
  I have been gratified this morning to hear the comments of the 
distinguished Senator from Vermont that he wants to do that; that he 
wants to do the best he can, and that he believes we can. I think we 
are off to a good start.
  There are two district court nominees awaiting a vote by the Senate 
after today. Our first confirmation hearing was held yesterday. We have 
to keep up the pace of hearings and confirmation votes so we do not 
fall further behind in filling the vacancies that plague our Federal 
judiciary.
  I look forward to working with our Democratic colleagues to 
accomplish this goal. Having said that, let me make this clear. We have 
had a total confirmed since the distinguished chairman took over in the 
middle of last year of 30 judges. That means 6 circuit court nominees 
and 24 U.S. district court nominees. I commend my colleague. I think it 
is certainly a decent start.

  On the other hand, we have currently pending 23 circuit court 
nominations--23. Most of them have well qualified ratings by the ABA. I 
do not think anybody can make a case that they are not qualified to 
serve. Just to mention four: John Roberts was one of those nominees 
submitted by the first President Bush who was left hanging without 
Senate action back in 1992. Roberts is considered one of the top five 
appellate lawyers in the country. He is not an ideologue. He is 
probably more conservative than most of the Clinton nominees were, but 
the fact is he is a tremendously effective advocate and an excellent 
nominee for the court. He should not be held up any longer. He went 
through that back in 1992. Why does he have to go through it again, 
especially for 8 months?
  Miguel Estrada--I am pleased to hear the distinguished Senator from 
Vermont indicate that he will have a hearing. Miguel Estrada is one of 
the brightest people in law. He came from Honduras and attended 
Columbia University as an undergraduate. He graduated with honors and 
then went on to Harvard Law School and graduated with honors there. He 
is considered one of the brightest people in law today, and, of course, 
he is a very successful attorney. He is a Hispanic nominee that I think 
our colleagues should be pleased that the President has sent to the 
Senate.
  Jeffrey Sutton is one of the best appellate lawyers in the country. 
He has argued a number of cases in the Supreme Court, including in the 
last few weeks. He is also a decent human being. He has very good 
ratings from the ABA. He is a person we ought to put on the Circuit 
Court of Appeals.
  I am pleased the distinguished Senator from Vermont mentioned one of 
my State's nominees, Michael McConnell. Michael McConnell is considered 
one of the greatest constitutional experts in the country. I do not 
think you can categorize him in any particular political pigeonhole. 
This is a fair and circumspect man who is going to do a tremendous job 
on the bench.
  I asked one of the leading deans of a law school in the country, a 
very liberal Democrat, what he thought of Michael McConnell. By the 
way, McConnell was tenured at the University of Chicago before moving 
to Utah to raise his family. He moved to the University of Utah where 
he has been a pillar of good teaching ever since. When I asked the 
liberal dean, ``What do you think of Michael McConnell?'' he said these 
words:

       Senator, I've met two legal geniuses in my lifetime, and 
     Michael McConnell is one of them.

  And he is. He is a great nominee.
  There are other excellent nominees I would like to mention, but I do 
not have enough time today.
  We have 23 circuit court nominees pending. Many of them have been 
nominated to seats declared to be judicial emergencies by the 
Administrative Office of the Courts.
  Again, there are 23 U.S. circuit court judges pending, and 36 U.S. 
district court judges, for a total of 60 who are awaiting action. I am 
gratified by my colleague from Vermont's expression that he wants to 
move these nominees through the Senate process. It means a lot to me, 
and I compliment him for his comments today.
  With regard to some of the statistics, we certainly disagree, and we 
can both make our cases with regard to that. I did want to make some of 
these points because, to me, it is very important that we make the 
record clear.
  Mr. President, I am also pleased today we have confirmed two 
excellent judicial nominations. These two nominees are Marcia Krieger 
and James Mahan. They were unanimously approved by the Senate Judiciary 
Committee.
  I was gratified to see that done on December 13, and I expect the 
unanimous vote they received today tells everybody the Bush 
administration is doing a good job on these judgeship nominees.
  Our vote today on these two nominees, along with the nominations 
hearing Chairman Leahy held yesterday, in my opinion, is a step in the 
right direction. It is a good beginning to this session.
  I think it is important to start our work early because we have a lot 
of work to do. As I said before, there are presently 99 vacancies in 
the Federal judiciary, which represents a vacancy rate of almost 12 
percent, one of the highest in history.
  As Alberto Gonzalez, counsel to President Bush, says in today's Wall 
Street Journal: The Federal courts desperately need reinforcements.
  Mr. President, I ask unanimous consent that the full text of Judge 
Gonzalez' article be printed in the Record at this point.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Jan. 25, 2002]

                        The Crisis in Our Courts

                         (By Alberto Gonzales)

       Federal courts protect constitutional rights, resolve 
     critical civil cases, and ensure that criminals are punished. 
     But as Chief Justice William Rehnquist cautions, the ability 
     of our courts to perform these functions is in jeopardy due 
     to the ``alarming number'' of judicial vacancies, 101 as of 
     today.

[[Page S126]]

       President Bush has responded to the vacancy crisis by 
     nominating a record number of federal judges: 90 since taking 
     office, almost double the nominations that any of the past 
     six presidents submitted in the first year. Despite his 
     decisive action, the Senate has not done enough to meet its 
     constitutional responsibility. It has voted on less than half 
     of the nominees. Indeed, it has voted on only six of the 29 
     nominees to the courts of appeals. And the Senate has failed 
     even to grant hearings to many nominees, who have languished 
     before the Judiciary Committee for months.
       For example, on May 9, 2001, the president announced his 
     first 11 nominees. All were deemed ``well qualified'' or 
     ``qualified'' by the American Bar Association, whose rating 
     system Judiciary Committee Chairman Patrick Leahy has called 
     the ``gold standard'' for evaluating nominees. Yet his 
     committee has held hearings for only three of the 11. 
     Although the Senate did confirm 28 judges last year, its 
     overall record was unsatisfactory, given the number of 
     vacancies and pending nominees.
       As Congress returns to work, the administration 
     respectfully calls on the Senate to make the vacancy crisis a 
     priority and to ensure prompt hearings and votes for all 
     nominees. The Senate should make this practice permanent, 
     adhering to it well after President Bush leaves office, so as 
     to ensure that every judicial nominee by a president of 
     either party receives a prompt hearing and vote.
       The federal courts desperately need reinforcements. There 
     are 101 vacancies out of 853 circuit and district court 
     judgeships. The 12 regional circuit courts of appeals have an 
     extraordinary 31 vacancies out of 167 judgeships (19%). The 
     chief justice recently warned of the dangerous impact the 
     vacancies have on the courts and the American people, and the 
     Judicial Conference has classified 39 vacancies as ``judicial 
     emergencies.''
       In 1998, when there were many fewer judicial vacancies, 
     Sen. Thomas Daschle, now majority leader, and Mr. Leahy 
     expressed their concern about the ``vacancy crisis''--with 
     the latter explaining that the Senate's failure to vote on 
     nominees was ``delaying or preventing the administration of 
     justice.''
       Today's crisis is worse, and is acute in several places. 
     The D.C. Circuit Court of Appeals, which, other than the 
     Supreme Court, is often considered the most important federal 
     court because of the constitutional cases that comes before 
     it, has four vacancies on a 12-judge court. The Sixth Circuit 
     Court of Appeals has eight vacancies on a court of 16. In 
     March 2000, when that court had only four vacancies, its 
     chief judge stated that it was ``hurting badly and will not 
     be able to keep up with its work load.''
       In the past, senators of both parties have accused each 
     other of illegitimate delays in voting on nominees. The past 
     mistreatment of nominees does not justify today's behavior. 
     Finger-pointing does nothing to put judges on the bench and 
     ease the courts' burdens; it only distracts the Senate from 
     its constitutional obligation to act on the president's 
     judicial nominees.
       President Bush has encouraged the Senate to act in a 
     bipartisan fashion, both now and in the future. He put it 
     best at the White House last May while announcing his first 
     11 nominees: ``I urge senators of both parties to rise above 
     the bitterness of the past, to provide a fair hearing and a 
     prompt vote to every nominee. That should be the case for no 
     matter who lives in this house, and no matter who controls 
     the Senate. I ask for the return of civility and dignity to 
     the confirmation process.''
       It is time for the Senate to heed his call.

  Mr. HATCH. This week, the White House submitted 24 new judicial 
nominations to the Senate. They are really doing a good job in this 
White House, and I know it has been difficult for them.
  Since we already had 38 nominees still pending from last session, and 
we confirmed 2 today, we now have a total of 60 nominees awaiting 
action from the Judiciary Committee. Yesterday's hearing and today's 
votes make me optimistic we will vote on all of our nominees as 
expeditiously as possible this year, and I am counting on our chairman 
to help get that done.
  It certainly is possible to confirm all 60 this year, in addition to 
the other nominations we will receive later. In 1994, the second year 
of President Clinton's first term, as I mentioned earlier, the Senate 
confirmed 100 judicial nominees. I am confident Republicans and 
Democrats can work together to achieve or even hopefully exceed this 
number in 2002, particularly with regard to the many circuit court 
nominees pending to fill emergency vacancies in appellate courts around 
this country. To do this, we have to keep up the pace of hearings and 
confirmation votes so we do not fall further behind in filling the 
vacancies that plague our Federal judiciary.
  As Chief Justice Rehnquist noted, and as I have stated, in his 2001 
year-end report:

       To continue functioning effectively and efficiently . . . 
     the courts must be appropriately staffed.
       This means that necessary judgeships must be created and 
     judicial vacancies must be timely filled with well-qualified 
     candidates.

  So I sincerely hope we will accomplish this goal. I look forward to 
cooperating with my chairman, the distinguished Senator from Vermont, 
and all of our other Democrat colleagues, and I hope the rhetoric on 
both sides of the aisle is cooled so we can confirm as many as possible 
of the highly qualified nominees pending before us.
  Today's nominees are good examples of the kind of highly qualified 
nominees President Bush has submitted to the Senate. Chief Bankruptcy 
Judge Marcia Krieger, who has been nominated to the District Court in 
the District of Columbia, attended Lewis & Clark College, from which 
she graduated after 3 years summa cum laude, and earned her law degree 
from the University of Colorado School of Law. She has experience as a 
lawyer and as a specialist in bankruptcy. She has served as a 
bankruptcy court judge since 1994.
  Judge James Mahan, who has been nominated to the District Court for 
the District of Nevada, achieved a great reputation as a lawyer in Las 
Vegas for 17 years, primarily focusing on business and commercial 
litigation. In the process, he earned an AV rating from the Martindale-
Hubbell legal directory, high praise from his peers. I have held that 
rating from the earliest day it could be given to me, and I understand 
what goes into getting an AV rating. It is very important because it is 
a secret ballot by your peers, some of whom may not like you but 
nevertheless acknowledge you are of the highest legal ability and legal 
ethics. And he has that rating.
  In February 1999, he was named a judge on the Clark County District 
Court. Since taking the bench, Judge Mahan has heard civil and criminal 
matters and trials involving a 3,000 case docket.
  Both Judge Krieger and Judge Mahan have already established 
themselves as capable jurists. After today, they will be able to share 
their expertise in the Federal system, and I am confident they will 
bring honor and dignity to the Federal district court bench. I am very 
pleased our colleagues have unanimously confirmed both of them.
  Again, I thank my good friend and distinguished chairman of the 
Judiciary Committee for the work he has done up to now, and hopefully 
we can do better in the future. I appreciate being able to work with 
him.
  The PRESIDING OFFICER (Mr. Levin). The Senator from Vermont.
  Mr. LEAHY. Mr. President, I appreciate the words of my friend from 
Utah. Obviously, we cannot determine the course the White House might 
take. They can make that decision on their own, and I expect will. We 
can only determine what the Senate does. As I said before, it is advise 
and consent, not advise and rubberstamp.
  I only urge the White House to seek, as Presidents have throughout my 
lifetime, advice from the home State Senators of both parties on 
judgeships. Senator Hatch and I can move far more quickly on judges 
when that kind of consensus has been reached, just as we have 
demonstrated by moving through numerous conservative Republican 
nominees but for whom there was consensus.
  Frankly, it would be a much easier job if only the Senator from Utah 
and I had to make these decisions. Again, I hope the White House will 
listen to what the two of us have been saying. We have demonstrated we 
will work together. They also have to help. They have to help in the 
consultation. They have to help in getting the information on to the 
FBI, and the ABA reports. They have to also make sure when they speak 
about these issues they speak accurately.
  I thank my good friend from Utah for his comments. I will continue to 
work with him.
  I also see the distinguished assistant Republican leader. He and the 
assistant Democratic leader, Senator Reid, have worked very closely 
together with each other to try to schedule votes on judges. Both have 
worked with me and with Senator Hatch. I think that is helpful. It 
reflects the way the Senate is supposed to work. Our distinguished 
leaders, Senator Daschle and Senator Lott, have worked closely on this 
and will continue to do that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.

[[Page S127]]

  Mr. NICKLES. Mr. President, I thank my friend and colleagues from 
Vermont and Utah for their comments. On the issue of judges, I think 
the Senate, and particularly with the leadership of both Senator Leahy 
and Senator Hatch, did very well on district court judges. We moved a 
total of 28 judges last year, and 2 now, so that is 30 judges we have 
confirmed this Congress, 6 of whom were circuit court judges and the 
rest were district court judges. So I compliment them.
  The percentage of district court judges has been a good percentage 
for the number who were nominated through the summer. So that was good. 
On circuit court judges, the record is not quite so good. We have 
confirmed six. President Bush has nominated 29.
  I comment to the chairman of the committee and the ranking member of 
the committee, there are 23 circuit court judges, only 1 of whom has 
had a hearing. In the 23 who are pending, there are some outstanding 
nominees. For example, Miguel Estrada is a native Honduran who came to 
the United States. He graduated top of his class from Columbia and 
Harvard Law School. He has argued 16 cases before the Supreme Court. I 
hope we have a hearing for him. He was nominated in May, so I again ask 
the chairman of the committee, before he leaves--before he leaves, I 
wanted to again compliment him for the work he has done on district 
court judges. I think we have made good progress, but on circuit court 
judges there are 23 who are pending, 1 of whom has had a hearing, Judge 
Pickering, but of the 22 who have not had a hearing, several are 
outstanding, many of whom were nominated in May. I believe eight were 
nominated in May. I urge my friend and colleague to take a look at such 
outstanding individuals. I mentioned Miguel Estrada, John Roberts. 
Miguel Estrada argued 16 cases before the Supreme Court; John Roberts, 
also for the D.C. Circuit Court of Appeals, argued 36 cases before the 
Supreme Court. Undoubtedly, they are two of the most well-qualified 
individuals anywhere in the country. They have yet to have a hearing 
scheduled.

  I say thank you. The Senator has moved all of the district court 
judges from Oklahoma. I am pleased about that. All four were sworn in 
and will be good consensus judges. I ask and urge my colleague to move 
forward as quickly as possible on the 23 circuit court nominees, 
schedule their hearings, and see if we cannot move some of those 
nominees through as soon as possible.
  Mr. LEAHY. If the Senator will yield, that question is directed 
toward me. I say to the distinguished Senator from Oklahoma that while 
he was off the floor attending to other duties, I laid out some plans 
and intentions for the handling of judicial nominees, including those 
for the courts of appeals--I believe those are some of those 
mentioned--including Mr. Estrada and others were referenced. With 
adequate cooperation, we will be able to move forward. We held hearings 
yesterday on another court of appeals nominee, Michael Melloy, of Iowa; 
as well as hearings on Robert Blackburn, to be U.S. district judge for 
the District of Colorado; and James Gritzner, to be U.S. district court 
judge for the Southern District of Iowa; and Cindy K. Jorgenson, to be 
U.S. district judge for the District of Arizona; and Richard J. Leon, 
to be U.S. district judge for the District of Columbia; and Jay C. 
Zainey, to be U.S. district judge for the Eastern District of 
Louisiana. Those hearings were held within 28 hours of coming back into 
session.
  Mr. NICKLES. I thank my colleague. The committee has done a wonderful 
job on district court judges, and I urge them to consider some of the 
circuit court nominees.


                    NOMINATION OF MARCIA S. KRIEGER

  Mr. ALLARD. Mr. President, it is both an honor and a privilege to 
stand before my colleagues today and thank them for accepting the 
nomination of The Honorable Marcia S. Krieger to the U.S. District 
Court for the District of Colorado. Marsha S. Krieger is a person of 
outstanding legal credentials, and has served the people of Colorado 
and the United States with great diligence and dedication for many 
years.
  Judge Krieger has strong ties to Colorado and is familiar with the 
issues faced by people in the State, an important aspect of any Federal 
judge who will work with fellow citizens through a myriad of complex 
litigation settings. She graduated from the University of Colorado 
School of Law, and has since spent many years as a sole practitioner, 
practicing in a law firm, and, most recently, serving as Judge.
  Since 1994, Judge Krieger has served on the Bankruptcy Court--a key 
indicator of her efficiency and effectiveness; she was also unanimously 
chosen by the federal judges to become Chief Bankruptcy judge in 
January 2000.
  However, practicing law is not her only passion. Judge Krieger, 
manages to find time to teach, sharing her knowledge of the law with 
future attorneys, teaching in a manner that provides hands-on learning, 
sharing with students her passion for the law.
  Marsha Krieger presides over the court with a stern hand and keen 
intellect--she has the ability to decisively pull the issue from 
complex litigation with certainty and accuracy.
  According to an article in the Denver Post, Judge Krieger is widely 
respected by other judges and by lawyers that have appeared before 
them. She has extensive experience, solid knowledge of the law, and has 
a reputation for fairness.
  This vote is significant for many reasons--Colorado hasn't added a 
judge since 1984. Making matters more serious, only four active judges 
struggle to do the work of nine judges.
  The legal community believes the Judge to be well qualified as well. 
The Honorable Lewis T. Babcock, Chief Judge of the United States 
District Court for the District of Colorado, in a letter to Senator 
Leahy and Senator Hatch stated, ``I know Judge Krieger, and believe her 
to be well qualified.''
  I thank Senator Hatch and Senator Leahy.
  I ask unanimous consent to print in the Record the editorial from the 
Denver Post and the letter from the Honorable Lewis T. Babcock, Chief 
Judge of the U.S. District Court for the District of Colorado.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Bush Taps 2 Judges

       Tuesday, September 11, 2001.--The White House nominated two 
     distinguished Colorado judges to the U.S. District Court 
     yesterday, and both will receive the full support of U.S. 
     Sens. Wayne Allard and Ben Nighthorse Campbell.
       President Bush's nominations, as predicted in these pages 
     Aug. 12, recommend U.S. Chief Bankruptcy Judge Marsha Krieger 
     and 16th Judicial District Judge Robert Blackburn for the 
     bench.
       We are delighted by the White House decision. Both judges 
     have extensive experience, solid knowledge of the law and a 
     reputation for fairness. They are widely respected by other 
     judges and by lawyers who have appeared before them.
       Both should prove extremely helpful to the Federal court in 
     Colorado, which hasn't added a judge since 1984 despite 
     increasingly complex and mushrooming caseloads.
       We commend Republicans Allard and Campbell, as well as the 
     White House, for pushing to fill these vacancies quickly. We 
     also congratulate the senators for zeroing in on such highly 
     qualified candidates.
       Krieger, daughter of retired Colorado Court of Appeals 
     Judge Don Smith, has served on the Bankruptcy Court since 
     1994 and was unanimously chosen by the federal judges to 
     become chief bankruptcy judge in January 2000.
       Blackburn has been one of two district judges serving Bent, 
     Crowley and Otero Counties since 1988, having previously 
     served simultaneously as a deputy district attorney, Bent 
     County attorney, and municipal judge and attorney for the 
     town of Kim.
       Both judges are graduates of the University of Colorado 
     School of Law.
       The next step calls for the Senate Judiciary Committee to 
     send ``blue slips'' to Colorado's senators. Allard and 
     Campbell then will return the blue slips, signaling their 
     approval of Krieger and Blackburn.
       Next, the Judiciary Committee will independently 
     investigate the candidates and vote on whether to approve 
     them. The nominations then would be sent to the Senate floor, 
     and approval there would result in ``judicial commissions'' 
     by the president.
       The Senate process often drags on for months and months. We 
     urge the committee and the full Senate to exercise all 
     reasonable speed with the Krieger and Blackburn nominations. 
     The long-overworked federal court of Colorado needs qualified 
     new judges, and it needs them now.

[[Page S128]]

     
                                  ____
                                              U.S. District Court,


                                         District of Colorado,

                                   Denver, CO, September 20, 2001.
     Hon. Patrick Leahy,
     Russell Senate Office Building,
     Washington, DC.

     Hon. Orrin Hatch,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senators Leahy and Hatch: In this time of national 
     crisis I appreciate that you have much added to your ordinary 
     labors in government. I take to heart our president's 
     admonition to go to work and do our jobs. It is axiomatic 
     that our federal judiciary must perform not only its usual 
     role under our Constitution, but a heightened role in 
     response to terrorism. Specifically, at this time this nation 
     requires that judicial vacancies be fairly and expeditiously 
     filled.
       More specifically, I urge you to act expeditiously on the 
     confirmation of nominees Marsha Kreiger and Robert Blackburn 
     to vacancies existing in the United States District Court for 
     the District of Colorado. I know Judge Kreiger and Judge 
     Blackburn and believe them to be well qualified. As you know, 
     the Honorable Richard P. Matsch did much to restore this 
     nation's confidence in its courts during the trials of 
     McVeigh and Nichols. He is now recovering from recent liver 
     transplant surgery. It will be a long period of recovery. So, 
     the District of Colorado struggles to do the work of seven 
     active judges with four. By the way, the Judicial Conference 
     of the United States has approved two additional seats for 
     the District of Colorado. Thus, the District of Colorado 
     struggles to do the work of a demonstrated need for nine 
     active judges with four active judges.
       I urge you not only to act to fill the existing two 
     vacancies, but to address the demonstrated need for two 
     additional seats in this district.


                      nomination of james c. mahan

  Mr. ENSIGN. Mr. President, it is an honor to come before the U.S. 
Senate today to lend my support to a man of the highest legal 
distinction, Judge Jim Madhan.
  A long-time resident of Las Vegas, NV, Judge Mahan began his studies 
not in our great State, but at the University of Charleston in 
Charleston, WV. Following graduation he attended graduate school before 
joining the U.S. Navy where he served until honorably discharged in 
1969. Jim then studied and graduated from Vanderbilt University Law 
School.
  Following graduation, Judge Mahan began his work in Nevada, first as 
a law clerk and then as an associate attorney. In 1982 he formed the 
law firm of Mahan & Ellis, where he practiced law primarily in the 
areas of business and commercial litigation for 17 years. In February 
1999, Judge Mahan's legal experience and expertise were recognized by 
Gov. Kenny Guinn, who named him as his first appointment to the Clark 
County District Court.
  Since taking the bench, Judge Mahan has heard civil and criminal 
matters involving a 3,000 case docket assigned to him. Judge Mahan's 
service on the bench has been of the highest order. He has overseen 
many of Nevada's most complex and controversial cases since taking the 
bench and has done so with great care, fairness, and prudence. In a 
survey conducted last year by Nevada's largest newspaper, Judge Mahan's 
retention rates scored the highest of any judge serving on State or 
local court in Nevada, and that includes the Nevada Supreme Court.
  Judge Mahan's extensive legal background and his commitment to public 
service make him an excellent choice as U.S. District Court Judge for 
the District of Nevada. I know his wife Eileen and his son James, Jr., 
are proud of him for being here today, and the State of Nevada is proud 
of Jim and all that he represents for our great State. I am proud to 
support Judge Jim Mahan before the Senate today.

                          ____________________