Today the Committee is completing its consideration of the nominees included in a confirmation hearing last week. I am grateful to the Chairman for his efforts in this regard.

The country in now faced with 76 current vacancies, and we know of nine more on the horizon. Last month the Judicial Conference renewed its request that Congress authorize an additional 59 judgeships and convert 10 existing temporary judgeships to permanent positions. Taken together these figures provide a picture of the vacancies crisis that continues to plague the federal courts around the country. There are only 23 weeks left in session this year for the Senate for hearings, Committee consideration and Senate consideration, debate and votes on these nominees and those that continue to be received. To date, the Senate has voted overwhelming in favor of four nominations reported last year but not acted upon by the Senate. Two nominees were confirmed by votes of 96 to two; two were confirmed by votes of 98 to zero.

Still remaining on the Senate calendar awaiting final action are Tim Dyk, Marsha Berzon and Judge Richard Paez. Each has waited more than at least 23 months for Senate action with Judge Paez, who I have called the Cal Ripken of judicial nominations, having been delayed for more than four years. With respect to these nominations, the Senate has for too long refused to do its constitutional duty and vote. I am grateful that the Majority Leader agreed last year to bring each of those nominations to a Senate vote before March 15. Nominees deserve to be treated with dignity and dispatch -- not delayed for two or three or four years.

The nomination of Judge Paez has now been pending for over four years. He has the strong support of his home State Senators and of local law enforcement. His has been a distinguished career in which he has served as a state and federal judge for what is now approaching 19 years. His story is a wonderful American story of hard work, fairness and public service. He and his family have much of which to be proud. Hispanic organizations from California and around the country have urged the Senate to act favorably on his nomination without further delay.

Within the next two weeks the Senate will be called upon to vote on this outstanding nomination, and I trust that we will do the right thing. I recall when Judge Sonia Sotomayor, another outstanding District Court Judge, was nominated to the Second Circuit and her nomination was delayed. Reportedly, she was so well qualified that some feared her quick confirmation might have led her to be considered as a possible Supreme Court nomination and that was why Senate consideration of her nomination was delayed through secret holds. Ultimately, she was confirmed to the Second Circuit. After all the delay in that case, I was struck that not a single Senator who voted against her confirmation and not a single Senator who had acted to delay its consideration uttered a single word to justify such opposition.

Of course it is every Senator’s right to vote as he or she sees fit on all matters. But I would hope that in the case of Judge Richard Paez, where his nomination has been delayed for over four years, for the longest period in the history of the Senate, those who have opposed him will show him the courtesy of using this time to discuss with us any concerns they may have and to explain the basis for any negative vote against a person so well qualified for the position to which he has been nominated by the President.

I hope that the time has finally come for a vote on Timothy Dyk. He was first nominated to a vacancy on the Federal Circuit in April 1998. After having a hearing and being reported favorably by the Judiciary Committee to the Senate in September 1998, Mr. Dyk’s nomination was left of the Senate calendar without action and then returned to the President two years ago as the 105th Congress adjourned. He was renominated in January 1999, and favorably reported to the Senate floor, again, in October 1999.

Mr. Dyk has distinguished himself with a long career of private practice in the District of Columbia. From 1964 to1990, he worked with Wilmer, Cutler & Pickering as an associate and then as a partner. Since 1990, he has been with Jones Day Reavis & Pogue as a partner and Chair of its Issues and Appeals Section.

Mr. Dyk received his undergraduate degree in 1958 from Harvard College, and his law degree from Harvard Law School in 1961. Following law school, he clerked for U.S. Supreme Court Justices Reed, Burton, and Chief Justice Warren. Mr. Dyk was also a Special Assistant to the Assistant Attorney General in the Tax Division. His has been a distinguished career in which he has represented a wide array of clients, including the United States Chamber of Commerce, the National Association of Manufacturers and many others.

I look forward to the Senate finally approving the nomination of Marsha Berzon to the Ninth Circuit Court of Appeals. One-quarter of the active judgeships authorized for that Court have been kept vacant for several years. The Judicial Conference recently requested that Ninth Circuit judgeships be increased in light of its workload by an additional five judges. That means that while Ms Berzon and four other nominations are pending to the Ninth Circuit, that Court has been forced to struggle through its extraordinary workload with 10 fewer judges than it needs.

Marsha Berzon is an outstanding nominee. By all accounts, she is an exceptional lawyer with extensive appellate experience, including a number of cases heard by the Supreme Court. She has the strong support of both California Senators and a well-qualified rating from the American Bar Association.

She was initially nominated in January 1998, over two years ago. She participated in an extensive two-part confirmation hearing before the Committee back on July 30, 1998. Thereafter she received a number of sets of written questions from a number of Senators and responded in August. A second round of written questions was sent and she responded by the middle of September. Despite the efforts of Senator Feinstein, Senator Kennedy, Senator Specter and myself to have her considered by the Committee, she was not included on an agenda and not voted on during all of 1998. Her nomination was returned to the President without action by this Committee or the Senate in late October.

In January of last year the President renominated Ms. Berzon. She participated in her second confirmation hearing, was sent additional sets of written questions, responded and received and answered another round. The Committee finally considered her nomination and reported her favorably to the Senate last July. She has awaited final action by the Senate for the last eight months.

The Chief Justice of the United States Supreme Court wrote in his Year-End Report in 1997: “Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed in 1994.” He went on to note: “The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.”

For the last several years I have been urging the Judiciary Committee and the Senate to proceed to consider and confirm judicial nominees more promptly and without the years of delay that now accompany so many nominations.

In explaining why he chose to withdraw from consideration after waiting 15 months for Senate consideration, another minority nominee, Jorge Rangel, wrote to the President and explained:

“Our judicial system depends on men and women of good will who agree to serve when asked to do so. But public service asks too much when those of us who answer the call to service are subjected to a confirmation process dominated by interminable delays and inaction. Patience has its virtues, but it also has its limits”.

All three of these nominees have been exceedingly patient. Each remains among the 10 longest-pending judicial nominations before the Senate.

Two years ago, Chief Justice William Rehnquist warned that “vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary.” Bureaucratic imperatives driven by the pressures of a burgeoning workload seem to be replacing the judicial deliberation needed for the fair administration of justice. That is not the way to continue the high quality of decision-making for which our federal courts are admired or to engender confidence in our justice system.

Especially troubling is the circuit emergency that was declared several months ago by the Chief Judge of the Court of Appeals for the Fifth Circuit. The situation in the Fifth Circuit is not one that we should tolerate. I urge the Senate to confront it by expediting consideration of the nominations of Enrique Moreno and Alston Johnson.

I agree with Senator Graham when he noted at our recent hearing that the situation in the federal courts in his State is one of crisis. Many districts along our nation’s borders have had tremendous increases in responsibilities without the necessary increases in resources to fulfill them.

What progress we started making in 1998 has been lost, and the Senate is again failing even to keep up with normal attrition. Far from closing the vacancies gap, the number of current vacancies has grown by more than 50 percent from when Congress recessed in 1998.

I have challenged the Senate to regain the pace it set in 1998 when the Committee held 13 hearings and the Senate confirmed 65 judges. That would still be one fewer than the number of judges confirmed by a Democratic Senate majority in the last year of the Bush administration in 1992. In fact, in the last two years of the Bush administration, a Democratic Senate majority with a Republican President confirmed 124 judges. We now have a Democratic President with a Republican-controlled Senate, and it would take 90 confirmations this year for the Senate to equal that total.

Progress in the reduction of judicial vacancies was reversed in 1996, the last Presidential election year, when Congress adjourned leaving 64 vacancies, and in 1997, when Congress adjourned leaving 80 vacancies. Unfortunately, vacancies are now back up to 76 and a vacancy rate of over 9 percent for all federal courts and almost 15 percent for the courts of appeals.

There is a myth that judges are not traditionally confirmed in Presidential election years. That is not true. Recall that 64 judges were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic majority in the Senate confirmed 42 Reagan nominees, and 66 in 1992 when a Democratic majority in the Senate confirmed 66 Bush nominees. The 17 confirmations in 1996 were an anomaly that should not be repeated. That has led to years of slower and lower numbers of confirmations and heavy backlogs in many federal courts.

Qualified nominees like Judge Richard Paez, Marsha Berzon and Tim Dyk deserve to be treated with dignity and dispatch -- not delayed for years. We are seeing outstanding nominees nitpicked and delayed to the point that good women and men are being deterred from seeking to serve as federal judges. All of this despite the fact that, by all objective accounts -- including the recent studies cited in this week’s National Journal -- the judges that President Clinton has appointed have been a moderate group, rendering moderate decisions, and certainly including far fewer ideologues than were nominated during the Reagan Administration.

Our independent federal judiciary sets us apart from virtually all others in the world. Every nation in this century that has moved toward democracy has sent observers to the United States in their efforts to emulate our judiciary. Those fostering this slowdown of the confirmation process and other attacks on the judiciary are risking harm to institutions that protect our personal freedoms and independence.

We must redouble our efforts to work with the President to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility. The Senate can join with the President to confirm well-qualified, diverse and fair-minded judges to fulfill the needs of the federal courts around the country. I urge all Senators to join us to make the federal administration of justice a top priority for the Senate this year. We have much to do and little time in which to do it.