Today, October 5th, is the first anniversary of an event I hope never to witness against here in the United States Senate. One year ago today, the country was harmed by a party-line vote to defeat the nomination of Justice Ronnie White to the Federal District Court in Missouri. I believe the vote was unprecedented, and I hope that it is never repeated. It is a stain on the Senate. I have spoken to this nomination on October 15 and 21, 1999, and since.

Fifty-one years ago this month the Senate confirmed President Truman’s nomination of William Henry Hastie to the Court of Appeals for the Third Circuit, the first Senate confirmation of an African American to our federal courts. Thirty-one years ago the Senate confirmed President Johnson’s nomination of Thurgood Marshall to the United States Supreme Court. Last year, this Senate rejected President Clinton’s nomination of Justice Ronnie White in a manner that made me doubt seriously whether this Senate, serving at the end of a half century of progress, would have voted to confirm Judge Hastie or Justice Marshall. This year, the Judiciary Committee has refused to move forward with a hearing on Roger Gregory or Judge James Wynn to the Fourth Circuit.

When Senators do not vote their conscience, they risk the debacle that we witnessed last October 5th, when a partisan political caucus vote resulted in a fine man and highly qualified nominee being rejected by all Republican Senators on a party-line vote. The Senate will never remove the blot that occurred last October when the Republican Senators emerged from a Republican Caucus to vote lockstep against Justice White. At a Missouri Bar Association forum last week, Justice White expressed concern that the rejection of his nominations to a federal judgeship will have a “chilling effect” on the desire of other young African American lawyers to seek to serve on our judiciary.

President Clinton has tried to make progress on bringing greater diversity to our federal courts. He has been successful to some extent. With our help, we could have done so much more. We will end this Congress without having acted on any of the African American nominees, Judge James Wynn or Roger Gregory, sent to us to fill vacancies on the Fourth Circuit and finally integrate the Circuit with the highest percentage of African American population in the country, but the one Circuit that has never had an African American judge. We could have acted on the nomination of Kathleen McCree Lewis and confirmed her to the Sixth Circuit to be the first African American woman to sit on that Court. Instead, we will end the year without having acted on any of the three outstanding nominees to the Sixth Circuit pending before us.

This Judiciary Committee has reported only three nominees to the Courts of Appeals all year. We have held hearings without even including a nominee to the Courts of Appeals and denied a Committee vote to two outstanding nominees who succeeded in getting hearings. I certainly understand the frustration of those Senators who know that Roger Gregory, Judge James Wynn, Kathleen McCree Lewis, as well as Judge Helene White, Bonnie Campbell and others should have been considered by this Committee and voted on by the Senate this year.

There continue to be multiple vacancies on the Third, Fourth, Fifth, Sixth, Ninth, Tenth and District of Columbia Circuits. With 23 current vacancies, our appellate courts have nearly half of the total judicial emergency vacancies in the federal court system. I note that the vacancy rate for our Courts of Appeals is more than 12 percent nationwide. If we were to take into account the additional appellate judgeships included in the Hatch-Leahy Federal Judgeship Act of 2000, S.3071, a bill that was requested by the Judicial Conference to handle current workloads, the vacancy rate on our federal courts of appeals would be more than 17 percent.

The Chairman declares that “there is and has been no judicial vacancy crisis” and that he calculates vacancies at “less than zero.” The extraordinary service that has been provided by our corps of senior judges does not mean there are no vacancies. In the federal courts around the country there remain 63 current vacancies and several more on the horizon. With the judgeships included in the Hatch-Leahy Federal Judgeship Act of 2000, there would be over 130 vacancies across the country. That is the truer measure of vacancies, many of which have been long-standing judicial emergency vacancies in our southwest border states. The Chief Judges of both the Fifth and Sixth Circuits have had to declare their entire courts in emergencies since there are too many vacancies and too few Circuit judges to handle their workload.

The Chairman misconstrues the lessons of the 63 vacancies at the end of the 103rd Congress in 1994. I would point out that in 1994 the Senate confirmed 101 judges to compensate for normal attrition and to fill the vacancies and judgeships created in 1990. In fact, that Congress reduced the vacancies from 131 in 1991, to 103 in 1992, to 112 in 1993, to 63 in 1994. Vacancies were going down and we were acting with Republican and Democratic Presidents to fill the 85 judgeships created by a Democratic Congress under a Republican President in 1990. Since Republicans assumed control of the Senate in the 1994 election the Senate has not even kept up with normal attrition. We will end this year with more vacancies than at the end of the session in 1994. As I have pointed out, the vacancies are most acute among our courts of appeals. Further, we have not acted to add the judgeships requested by the Judicial Conference to meet increased workloads over the last decade.

According to the Chief Justice’s 1999 year-end report, the filings of cases in our Federal courts have reached record heights. In fact, the filings of criminal cases and defendants reached their highest levels since the Prohibition Amendment was repealed in 1933. Also in 1999, there were 54,693 filings in the 12 regional courts of appeals. Overall growth in appellate court caseload last year was due to a 349 percent upsurge in original proceedings. This sudden expansion resulted from newly implemented reporting procedures, which more accurately measure the increased judicial workload generated by the Prisoner Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act, both passed in 1996.

Let me also set the record straight, yet again, on the erroneous but oft-repeated argument that “the Clinton Administration is on record as having stated that a vacancy rate just over 7% is virtual full-employment of the judiciary.” That is not true.

The statement can only be alluded to an October 1994 press release. It should not be misconstrued in this manner. That press release was pointing out that at the end of the 103rd Congress if the Senate had proceeded to confirm the 14 nominees then pending on the Senate calendar, it would have reduced the judicial vacancy rate to 4.7%, which the press release then proceeded to compare to a favorable unemployment rate of under 5%.

Unfortunately, the Chairman’s assertions are demonstrably false. Contrary to his statement, the Justice Department’s October 12, 1994 press release that he cites does not equate a 7.4% vacancy rate with “full employment,” but rather a 4.7% rate. Additionally, the vacancy rate was not reduced to 4.7% in 1994, and stands at three times that today.

The Justice Department release was not a statement of administration position or even a policy statement but a poorly designed press release that included an ill-conceived comment. Job vacancy rates and unemployment rates are not comparable. Unemployment rates are measures of people who do not have jobs not of federal offices vacant without an appointed office holder.

When I learned that some Republicans had for partisan purposes seized upon this press release, taken it out of context, ignored what the press release actually said and were manipulating it into a misstatement of Clinton administration policy, I asked the Attorney General, in 1997, whether there was any level or percentage of judicial vacancies that the administration considered acceptable or equal to “full employment.”

The Department responded:

There is no level or percentage of vacancies that justifies a slow down in the Senate on the confirmation of nominees for judicial positions. While the Department did once, in the fall of 1994, characterize a 4.7 percent vacancy rate in the federal judiciary as the equivalent of the Department of Labor ‘full employment’ standard, that characterization was intended simply to emphasize the hard work and productivity of the Administration and the Senate in reducing the extraordinary number of vacancies in the federal Article III judiciary in 1993 and 1994. Of course, there is a certain small vacancy rate, due to retirements and deaths and the time required by the appointment process, that will always exist. The current vacancy rate is 11.3 percent. It did reach 12 percent this past summer. The President and the Senate should continually be working diligently to fill vacancies as they arise, and should always strive to reach 100 percent capacity for the federal bench.

At no time has the Clinton administration stated that it believes that 7% vacancies on the federal bench is acceptable or a virtually full federal bench. Only Republicans have expressed that opinion. As the Justice Department noted three years ago in response to an inquiry on this very questions, the Senate should be “working diligently to fill vacancies as they arise, and should always strive to reach 100 percent capacity for the federal bench.”

Indeed, I informed the Senate of these facts in a statement in the Congressional Record on July 7, 1998, so that there would be no future misunderstanding or misstatement of the record. Nonetheless, in spite of the facts and in spite of my July 1998 statement and subsequent statements on this issue over the past three years, these misleading statements continue to be repeated.

Ironically, the Senate could reduce the current vacancy rate to under 5% if we confirmed the 39 judicial nominees that remain bottled up before the Judiciary Committee. Instead of misstating the language of a six-year-old press release that has since been discredited by the Attorney General herself, the Chairman would have my support if we were working to get those 39 more judges confirmed.

I regret to report again today that the last confirmation hearing for federal judges held by the Judiciary Committee was in July, as was the last time the Judiciary Committee reported any nominees to the full Senate. Throughout August and September and now into the first week in October, there have been no additional hearings held or even noticed, and no executive business meetings have included any judicial nominees on the agenda. By contrast, in 1992, the last year of the Bush Administration, a Democratic majority in the Senate held three confirmation hearings in August and September and continued to work to confirm judges up to and including the last day of the session.

I continue to urge the Senate to meet its responsibilities to all nominees, including women and minorities. So long as the Senate is in session, I will urge action. That highly-qualified nominees are being needlessly delayed is most regrettable. The Senate should join with the President to confirm well-qualified, diverse and fair-minded nominees to fulfill the needs of the federal courts around the country.

As I noted on the floor earlier this week, the frustration that many Senators feel with the lack of attention this Committee has shown long pending judicial nominees has simply boiled over. I understand their frustration and have been urging action for some time. This could all have been easily avoided if we were continuing to move judicial nominations like Democrats did in 1992, when we held hearings in September and confirmed 66 judges that presidential election year.

I regret that the Judiciary Committee and the Senate is not holding additional hearings, that we only acted on 39 nominees all year and that we have taken so long on so many of them. I deeply regret the lack of a hearing and a vote on so many qualified nominees, including Roger Gregory, Judge James Wynn, Judge Helene White, Bonnie Campbell, Enrique Moreno, Allen Snyder and others. And, I regret that a year ago today, the Senate rejected the nomination of Justice Ronnie White to the Federal District Court of Missouri on a partisan, party-line vote.