[Congressional Record (Bound Edition), Volume 147 (2001), Part 14]
[Senate]
[Pages 19751-19752]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           JUDICIAL VACANCIES

  Mr. KYL. Mr. President, I could not help thinking, particularly as I 
listened to the distinguished majority leader discuss the activity in 
his office today and the concern about his staff and their current 
terrorist threat that reaches the U.S. Capitol staff now, about how 
many ways this threat of terrorism affects all of us. I certainly hope 
all of the majority leader's staff is well and suffers no ill effects 
from what may well have been another reach of terrorist attack here in 
the United States.
  It reminds us how this kind of unlawful extralegal activity can 
affect a society which has always been so free and so open, precisely 
because we are a nation of laws and precisely because we believe in the 
rule of law.
  Of course, in our society that rule of law ultimately rests upon the 
judge and our courts for its administration. Of course, it is the 
judges who are the ultimate arbiters of the law. We could not function 
long as a free society without our judges. Yet today we are speaking 
about the fact that an unacceptable number of vacancies exist in our 
courts, vacancies that must be filled if we are to be able to properly 
administer that law we revere so much.
  Currently, there are 108 empty seats in the Federal judiciary. We are 
speaking of the Federal courts alone. That represents a 12.6-percent 
vacancy in the total number of judgeships.
  I note, as others I believe have perhaps also noted, that of those, 
there are 41 judicial emergencies. In other words, more than a third of 
these vacancies, according to the Administrative Office of the Courts, 
represents judicial emergencies--meaning that they are in districts and 
in courts in which there is an overwhelming burden of cases in which, 
without having a judge to fill the court position, essential justice 
will not be done. It certainly raises the question about why we as a 
Senate are not able to act on the judges or the candidates for judge 
whom the President has nominated.
  It is in this regard that I feel my responsibility most strongly 
because not only am I a Member of this body but I am also a member of 
the Judiciary Committee. Until the Judiciary Committee acts, we as a 
body are not able to give our final advice and consent. In fact, I am 
especially keen on the issue because three of these vacancies represent 
nominations for a district court for my own State of Arizona. All three 
of them are also designated by the administrative office as judicial 
emergencies.
  This is not a hypothetical or a theoretical matter; it is a very real 
matter for us today, which should touch all of us, but it certainly 
touches some of us very strongly. It is, therefore, with some sadness 
that I hear my colleagues talk about the potential of holding up action 
on appropriations bills in order to take up the matter of judicial 
nominations.
  Historically, the Senate has been able to do many things at the same 
time. We have considered legislative matters on the floor when we have 
had other calendars from which we took up matters. Indeed, many of the 
nominations, including judicial nominations, are considered as a 
relatively routine matter, sometimes at the end of the legislative day 
when the majority leader will simply ask for unanimous consent to 
consider a number of nominees. It is mostly the case that judicial 
nominees as well as others are considered in that fashion without even 
having a rollcall vote.
  It has been the custom of the current chairman of the Judiciary 
Committee this year to call for, I believe in most all cases, rollcall 
votes, which is fine. I would actually prefer to do it that way. But it 
has not been deemed necessary in the past because most of these 
nominations are not controversial--my point being that we can consider 
and act upon frequently large numbers of nominations without having to 
take a lot of the Senate's time for debate. It has always been that 
way. The Senate can do many things at once. We hold committee hearings 
when we have actions pending on the floor. It is simply not true that 
we can only do one thing at a time.
  Part of the reason we don't have the number of judges confirmed we 
should is that some have made the arguments that we are too busy doing 
other things and we have to be on the floor doing the antiterrorist 
legislation, or some other business before the Senate, and therefore we 
can't take up the nominations. That, I submit, is not an accurate 
statement of the way the Senate operates.
  But for those who say we can't do more than one thing at a time, I 
have said: Fine; then given the fact that we have time and time again 
asked for action on judicial nominations that has not been forthcoming 
by and large, perhaps it is time to give those nominations the proper 
priority they deserve and to get them on the calendar so we can 
consider them. As a result of that, I, on a couple of other occasions, 
suggested that rather than taking up a particular appropriations bill, 
we should get on with nominations. No. Some colleagues argued: We need 
to get on with these appropriations bills. We will take up those 
nominations in due course.
  As a matter of fact, there have been two explicit agreements reached 
between the majority leader, minority leader, and others about how to 
follow this process, with the specific commitment made to take action 
on those nominees, at least those who were nominated prior to the 
August recess. Still, we do not see action occurring at a pace fast 
enough to be able to conclude that by the end of our session this year 
we will have, indeed, taken action on the nominations pending prior to 
the August recess.
  That is why I have decided that if, in fact, it is the case that we 
cannot do more than one thing at a time, then we will simply call a 
timeout on the appropriations process, go to these nominations, see how 
many of them we can get done as appropriate, and then return to the 
appropriations process.
  No one suggests we will not complete that process this year. We have 
to do it. We will do it. I will be supportive of it, as well. That is 
essentially the reason why I have suggested we call a timeout on that 
process, so we can get those nominations done.
  I will continue my statement, but I know the distinguished majority 
whip wishes to speak.
  Mr. REID. I apologize for the interruption, but I want to make clear 
I thought there was going to be a request for morning business. We have 
no one on our side wishing more morning business.
  I want to make sure that everyone understands the next hour is that 
time set aside for Senator Leahy and Senator McConnell. So any time 
that is going to be used would have to be, under the previous 
agreement, given to them by the managers of the legislation or whoever 
decides to dole out the time for each side.
  Mr. THOMAS. Will the Senator yield for a question?
  Mr. REID. Yes.
  Mr. THOMAS. Would it be appropriate to ask unanimous consent that we 
have morning business until 5 p.m.?
  Mr. REID. I have spoken to Senator Leahy. He would agree to give up 
15 minutes of his time.
  Would Senator McConnell be willing to give up 15 minutes of his time?
  Mr. KYL. I say to the Senator from Nevada, Senator McConnell has 
asked

[[Page 19752]]

me to represent him during this period of time. I would be happy to do 
that if that would be the preference of the Senator from Nevada and the 
Senator from Vermont.

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