[Congressional Record (Bound Edition), Volume 147 (2001), Part 14]
[Senate]
[Pages 19752-19753]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           JUDICIAL VACANCIES

  Mr. KYL. Let me summarize where I was, Mr. President.
  The point is, we are a country that relies upon our courts to 
administer the rule of law. At the Federal level that means we need to 
have a fully staffed Federal judiciary. We always know there are a 
certain number of vacancies at any given time. But we need to complete 
action on as many of the nominations pending before us as possible, 
certainly before we leave perhaps some time next month.
  In the past, it has been the case that Members of both parties have 
expressed concern about the fact that we have vacancies and that we 
need to fill those vacancies. I will make note of that in just a moment 
because some of my colleagues on the other side have been eloquent 
about their commitment to try to get the process done.
  My point is, with over 40 vacancies designated as emergencies by the 
Administrative Office of the Courts that characterizes vacancies as 
``emergency'' or ``nonemergency,'' with over 100 vacancies now, over 40 
of which are emergencies, it is not business as usual. We cannot 
continue to have maybe one hearing a week, with maybe one or two judges 
being considered. We have only confirmed eight judges this entire year; 
most of them quite recently--only eight.
  At that pace, we are clearly not going to be able to act even on the 
President's nominees that existed at the time we began the August 
recess. These are nominations made in May, in June, I believe, mostly--
maybe a couple in July. Clearly, we ought to at least act on those 
nominations before we terminate our business this session.
  But if we do not get about that task very soon, there will not be 
enough in the pipeline coming from the Judiciary Committee to get that 
work done. That is why I have said we are going to have to have a 
timeout. If the argument is we just don't have time, we are too busy 
doing other things, then I am willing to say: Then let's call a 
timeout. Let's get to the nominations. And when there is a sufficient 
number of nominations completed, then we will go back to our other 
priorities.
  We will continue to pass continuing resolutions to fund all of the 
various operations that are the subject of the appropriations bills. 
There will be nothing lost from that process.
  We will pass the appropriations bills. No one suggests otherwise. But 
in terms of priorities, if we do not act soon on these judges, two 
things will happen: No. 1, we are not going to have enough time to 
complete the work on those before we quit; second, we will not fill 
these vacancies that have been declared emergency vacancies by the 
Administrative Office of the Courts.
  So that is my reason for calling this timeout. It is my reason for 
urging people to vote against the motion to proceed to the foreign 
operations bill, which I very strongly support, incidentally.
  I will represent to my colleagues that Senator McConnell, who is the 
ranking member of that subcommittee, did, indeed, ask me to represent 
him until he arrives this afternoon. He may be in the Chamber by 5 
o'clock. He may not. But it is his view that this is an appropriate 
objection at this time to moving forward with action on that bill.
  Since I see a couple of my colleagues are in the Chamber to speak, 
let me simply say, when I resume my comments, I will speak 
statistically to where we are in this current situation vis-a-vis past 
administrations and make the point that it pretty much does not matter 
how you cut it. By any statistical measure, we are far behind.
  In the Reagan administration of 8 years, in the Clinton 
administration of 8 years, in the previous Bush administration of 4 
years--in every case, with one exception, every single Presidential 
nominee for the courts that was made prior to the August recess was 
acted upon before Congress adjourned for the year.
  There are 30-some vacancies for the courts now. I do not see, at the 
current pace at which we are operating, how we can come close to 
completing action on those nominations. Actually, if you were to 
compare the numbers through October 31, it would be a better measure, 
and that would make it virtually impossible for us to get all these 
nominations done when we are so far behind at this point.
  I think an even more conservative proposal of just acting on those 
nominees the President sent to the Senate prior to August would be 
perfectly appropriate. I see no reason for us not to do it. That is why 
I am willing to say until we do that, we need to defer action on our 
other business so we can indeed get about this job.
  With that, Mr. President, I reserve the time until we take up the 
motion to proceed to the bill.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. Mr. President, I want to follow up a bit on what my 
friend from Arizona has talked about. Certainly, each of us recognizes 
that things have changed substantially since September 11.
  I spent the weekend in Cheyenne, WY, and much of it with the National 
Guard. These great men and women are continuing to carry out their 
duties in protecting the country, as well as now doing the special 
things, such as airport security, and other requirements they have. 
Some have just returned from Bosnia, as a matter of fact.
  I guess my point is, things changed for all of us; and special things 
come up at times such as we are in now. But it is also necessary for 
us, after we have done the things we have to do for those special 
times, to go ahead and do the things that we ordinarily have to do. 
Life goes on, and we have to continue to pursue that.
  I think very much that is the case now with issues we have before us, 
special things such as airport security, special things such as the 
declaration, really, of war on terrorism, which we have done. Those 
things needed to be done.
  Now, of course, we need to do appropriations. But we also have to do 
the mundane things such as the confirmation of judges, the seating of 
U.S. attorneys, many of whom have a very real role in this matter of 
domestic terrorism.
  I, too, believe we have to work these two things out together. I 
understand the frustration of the leadership in the majority when they 
are seeking to move things, but I have to remind us, for example, that 
on July 21, 2000, while objecting to Majority Leader Lott's attempt to 
proceed with the intelligence authorization bill, the minority leader--
now majority leader--said this:

       I hope we can accommodate this unanimous consent request 
     for intelligence authorization. As does Senator Lott, I 
     recognize that it's important. I hope we can address it. We 
     must address additional appropriations bills. There is no 
     reason that we can't. We will find a compromise if there is a 
     will, and I am sure there is. But we also want to see the 
     list of what we expect will probably be the final list of 
     judicial nominees to be considered in hearings before the 
     Judiciary Committee.
  This is what he said as he held up that appropriations bill.
  Our friend from Nevada, on July 24, while objecting to Senator Lott's 
repeated attempt to move forward, said:

       We believe there should be certain rights protected. Under 
     this Constitution, we have

[[Page 19753]]

     a situation that was developed by our Founding Fathers in 
     which Senators would give the executive branch, the 
     President, recommendations for people to serve in the 
     Judiciary. Once these recommendations are made, the President 
     would send the names to the Senate and we would confirm them 
     and approve of those names. One of the problems we are having 
     is it is very difficult to get people approved and confirmed. 
     This has nothing to do with the energy and water bill. It 
     does, however, have something to do with other bills.

  That was as he objected to continuation.
  We find ourselves in the same position. We need to move forward to do 
the things that must be done. We need to do the things that are 
ordinarily done. I suggest we can do those things at the same time.
  The PRESIDING OFFICER. The Senator from Kansas.
  (The remarks of Mr. Roberts pertaining to the introduction of S. 1546 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Nevada.

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