[Congressional Record Volume 148, Number 39 (Thursday, April 11, 2002)]
[Senate]
[Pages S2601-S2602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        PACE OF JUDICIAL CONFIRMATIONS: A HISTORICAL COMPARISON

  Mr. McCONNELL. Madam President, my friends on the other side of the 
aisle have defended the slow pace of the judicial confirmation process 
by saying their treatment of President Bush's nominees compares 
favorably with precedents. I had the Congressional Research Service 
look into this, and their research showed this is clearly not the case. 
This Congress's treatment of President Bush's judicial nominees 
compares quite poorly, at all stages of the confirmation process, with 
the treatment that prior Congresses afforded the judicial nominees of 
President Bush's four predecessors during their first Congress.
  It has done a poor job with respect to confirming both district and 
appellate court nominees, but it has been particularly bad with regard 
to circuit court nominees, which is what I am going to talk about 
tonight.
  From Jimmy Carter through Bill Clinton, over 90 percent of the 
circuit court nominees received a Judiciary Committee hearing during 
the President's first Congress. This is illustrated by this chart. 
During President Carter's term, 100 percent of his circuit court 
nominees received a hearing during his first Congress. Under President 
Reagan, 95 percent--19 out of 20 circuit court nominees--received a 
hearing during his first Congress. Under the first President Bush, 95.7 
percent of his nominees for the circuit courts--22 out of 23--received 
a hearing during the first Bush's Presidency. During President 
Clinton's first Congress, 91 percent, or 20 of 22 circuit court 
nominees received a hearing during the first Congress.
  Now we are in the second session of the first Congress under 
President George W. Bush, and only 10 of 29 circuit court nominees have 
even received a hearing, for a percentage of 34.5 percent.
  What is going on here in the Senate with regard to even giving a 
hearing to circuit court judicial nominees is simply without precedent.
  No President has been treated so poorly in recent memory--not even a 
hearing. Ten of the 29 circuit court nominees of President George W. 
Bush have not even received a hearing. By contrast, only about one-
third of President Bush's circuit court nominees have received a 
hearing.
  With respect to receiving a Judiciary Committee vote, looking at it a 
different way, from Jimmy Carter through Bill Clinton at least 86 
percent of circuit court nominees received a Judiciary Committee vote.
  During President Carter's first Congress, 100 percent of his nominees 
for the circuit court received a vote in committee.
  During President Reagan's first Congress, 95 percent of his circuit 
court nominees--19 out of 20--received a vote of the committee.
  During the first President Bush's first Congress, 22 of 23 received a 
committee vote. That is 95.7 percent.
  During President Bill Clinton's first Congress, 86.4 percent of his 
circuit court nominees--19 out of 22--received a Judiciary Committee 
vote during his first 2 years. Of course, those were years during which 
his party also controlled the Senate.
  During the first 2 years of President George W. Bush, only 27.6 
percent--or 8 out of 29--of the nominees for circuit courts received a 
Judiciary Committee vote--very shabby treatment and certainly 
unprecedented in recent times.
  With respect to Senate floor votes, at least 86 percent of circuit 
court nominees from the administration of President Jimmy Carter 
through President Bill Clinton got a full Senate vote.
  Looking at President Carter's first 2 years, 100 percent of his 
nominees for the circuit court received a Senate vote.

  Looking at President Reagan's first 2 years, 95 percent of his 
nominees received a Senate vote.
  Looking at the first President Bush circuit court nominees during the 
first 2 years, 95.7--or 22 out of 23--got a full Senate vote. Of 
course, that was when the Senate was controlled by the opposition party 
under the first President Bush.
  President Clinton in his first 2 years in office, 86.4 percent--or 19 
out of 22--of the circuit court nominees got a full Senate vote. Of 
course that was during a period where President Clinton's own party 
controlled the Senate.
  Looking at the first 2 years of President George W. Bush, to this 
point,

[[Page S2602]]

only 24.1 percent of the nominees to the circuit courts have received a 
full Senate vote--only 7 of 29.
  This is really unprecedented, shabby treatment of President Bush's 
circuit court nominees.
  The final chart shows comprehensively how poorly we are doing right 
now at all stages of the process in moving circuit court nominees.
  Looking at it in terms of hearings, committee votes, or full Senate 
votes, during a President's first 2 years in office, the picture tells 
the story.
  Under President Carter, 100 percent received both a hearing, a 
committee vote, and a full Senate vote during his first 2 years.
  During President Reagan, 95 percent of his nominees received a 
hearing, a committee vote, and a full Senate vote.
  The first President Bush, 95.7 percent of his nominees got all 
three--a hearing, a committee vote, and a full Senate vote.
  President Clinton: 91 percent of his nominees in his first 2 years--
again, remembering that President Clinton's party controlled the Senate 
his first 2 years--91 percent received a hearing in committee, and 86.4 
percent received a vote both in committee and in the full Senate.
  Then, looking at President George W. Bush, only 34.5 percent of his 
nominees for circuit court--a mere 10 out of 29--have even been given a 
hearing in committee, only 27.6 percent have been given votes in 
committee, and only 24 percent--a mere 7 out of 29--have been given 
votes in the full Senate.
  This is a very poor record that I think begins to become a national 
issue. At the rate this is going, I think it will be discussed all 
across our country in the course of the Senate elections this fall.
  It is pretty clear that we are not doing a very good job of filling 
vacancies, particularly the 19 percent of vacancies that exist at the 
circuit court level, and 50 percent of the vacancies that exist in my 
own State of Kentucky.
  We did have a markup for a lone circuit court nominee this morning, 
and we had a confirmation hearing this afternoon for another lone 
circuit court nominee. I suppose that is a step in the right direction. 
Some progress is certainly, of course, better than none. But if we are 
going to address the major vacancy problem on the appellate courts, we 
must have more than one circuit court nominee per confirmation hearing, 
and we must have more than one circuit court nominee at a markup.
  Furthermore, we are going to have to have regular hearings and 
regular markups for circuit court nominees. Before today, for example, 
it had been 4 weeks since we had a markup. Thus, in the 2 weeks prior 
to recess, we had only one markup with only one circuit court nominee 
on the agenda. And that nominee was, in fact, defeated on a party-line 
vote. When Senator Hatch was chairman, 10 times he held hearings with 
more than one circuit court nominee on the agenda. With the circuit 
court vacancy rate approaching 20 percent, this is something we should 
be doing now as well.

  In sum, we need to do a better job in the confirmation process, 
particularly with respect to circuit court nominees.
  These historical precedents give us a reasonable goal to which to 
aspire, and we need to redouble our efforts to meet past practices.
  I might say in closing that we have a particular crisis in the Sixth 
Judicial Circuit, which includes the States of Michigan, Ohio, 
Kentucky, and Tennessee. The Sixth Circuit is 50-percent vacant. Eight 
out of 16 seats are not filled--not because there haven't been 
nominations. Seven of the eight nominations are before the Senate 
Judiciary Committee. A couple of them have been there for almost a 
year. No hearings have been held. We have a judicial emergency in the 
Sixth Circuit.
  I think this needs to be talked about. Regretfully, our record is 
quite sorry. We have some months left to be in session. Hopefully, this 
will improve as the weeks roll along.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded and that I be recognized to speak in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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