[Congressional Record (Bound Edition), Volume 147 (2001), Part 20]
[Senate]
[Page 27782]
[From the U.S. Government Publishing Office, www.gpo.gov]



                          JUDICIAL NOMINATIONS

  Mr. BIDEN. Mr. President, as a former Chairman of the Senate 
Judiciary Committee, I would like to shed a bit of the light of history 
on the Committee's record this year with regard to judicial 
nominations. The first year of an Administration is always difficult, 
with a new Administration settling in and the need in the Senate to 
confirm a host of non-judicial officials to serve in that new 
Administration. As a result, the Senate's duty to ``advise and 
consent'' in judicial nominations is all the more difficult to fulfill. 
I was privileged to serve as Chairman of the Judiciary Committee the 
last two times a new Administration came into the White House. In 1993, 
when President Clinton arrived, we worked hard and confirmed 28 judges 
that first year, with the White House and the Senate controlled by the 
same party. In 1989, when the first President Bush took office, with an 
opposing Senate, we managed only 15 judicial confirmations in the first 
year.
  This year, the White House got a late start on its executive branch 
nominees, due to the election battle. For this and other reasons, no 
judges were confirmed while the Republicans held the Senate this year. 
Since June, when the Democrats took control of the Senate, the White 
House and the Senate have been controlled by different parties, 
normally a recipe for stagnation on judicial confirmations. Still, by 
the end of this year, if all goes as expected, we will have confirmed 
more judges--more than twice the number confirmed in 1989, and even 
more than we accomplished in 1993, when the White House and the Senate 
were held by the same party. And as the guy who was running the 
Judiciary Committee in 1989 and 1993, I can tell you that we were not 
sitting on our hands back then. And clearly the Committee has not been 
dawdling this year.
  Now, some people would come back and say ``well, what about appeals 
courts? Appellate judges are far more important than district court 
judges.'' As a matter of fact, we have confirmed more nominees to the 
appeals courts since June than were confirmed in all of 1993 or 1989.
  Some people will come back and say ``but Joe, you know what really 
matters is whether the number of vacancies is growing or shrinking. Are 
we filling the slots?'' That's true--what really matters is not the 
whole number of judges confirmed, but whether we are making progress on 
filling the vacancies that have opened up on the federal bench. Again, 
let's look at the numbers. In 1993, with the White House and Senate in 
the same hands, we barely managed to reduce the number of vacancies, by 
3 slots. In 1989, with the White House and the Senate split between the 
Republicans and the Democrats, the number of vacancies grew over the 
course of the year by 14 slots--the Senate could not keep pace with the 
retirements and resignations of federal judges. (It's worth noting as 
well that, during the entire recent period when the Committee was 
chaired by the Republicans, judicial vacancies grew by 65 percent). By 
contrast, this year, we will have reduced the number of vacancies by 
20, or 18 percent. And that's only since June. With the White House and 
the Senate controlled by different parties. And with the September 11 
attacks happening right smack in the middle of that period!
  I should point out that another hurdle was thrown into the Senate 
confirmation process this year, which was not there in previous years. 
The White House announced that it would no longer vet potential 
nominees with the American Bar Association's Standing Committee on the 
Judiciary. As a result, now the ABA's evaluation of nominees must 
happen as part of the Senate confirmation process, after the candidate 
has been nominated by the White House. This step adds weeks to any 
confirmation.
  I should also point out that, not only did September 11 disrupt just 
about everything that was happening in this country, but it 
particularly affected the Senate; we had to turn immediately to 
legislation necessary to authorize the war on terrorism. Moreover, the 
arrival of anthrax on Capitol Hill displaced many Senators and staff, 
including Judiciary Committee staff. My own Judiciary Committee staff 
has not had access to their judicial nominations files--not to mention 
their office--for the past two months.
  Despite all of these disruptions and delays, which I did not face 
when I chaired the Committee, and which the Republicans did not face 
during the past 6 years when they controlled the Committee, we will 
have confirmed more judges by the end of this year than in the first 
year of the Clinton Administration, and more than twice as many as in 
the first year of the first Bush Administration. And we will have 
significantly reduced the number of judicial vacancies from in just 6 
months. So, let my friends on the other side of the aisle tone down 
their rhetoric, and consult their history books.

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