We now are well into June, past the half-way point of this congressional session, and the Senate has yet to hold even its first hearing for any of the scores of federal judicial nominations of the President. Some of the 42 pending nominees, and the citizens of their states, have been waiting as long as three years for the Senate do to its constitutional duty. I am encouraged that last night the Chairman sent out a notice of an initial hearing next week. Perhaps by the next business meeting of the Committee that initial hearing will have taken place and we will be in position to report judicial nominations to the Senate for confirmation.

In March the Judicial Conference augmented its past request for additional judgeships and it is now seeking authorization for an additional 69 judges. It is now three years past the traditional six-year cycle for authorizing new judgeships. I hope that this year the Judiciary Committee and the Senate will take up S.1145, the Federal Judgeship Act, which reflects the Judicial Conference’s recommendations. Considering the additional judgeships requested by the Judicial Conference along with the 71 current vacancies, the federal judiciary is being forced to operate 140 judges short of those it needs.

More than a year 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.” The New York Times reported recently how the crushing workload in the federal appellate courts has led to what it calls a “two-tier system” for appeals, skipping oral arguments in more and more cases. Law clerks and attorney staff are being used more and more extensively in the determination of cases as backlogs grow. Bureaucratic imperatives seem to be replacing the judicial deliberation needed for the fair administration of justice. These are not the ways to continue the high quality of decisionmaking for which our federal courts are admired or to engender confidence in our justice system.

When the President and the Chief Justice spoke out, the Senate briefly got about its business of considering judicial nominations last year. Unfortunately, the Republican majority has returned to the stalling tactics of 1996 and 1997 and judicial vacancies are again growing in both number and duration. Chief Justice Rehnquist wrote at the end of 1997: “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.” The Senate is not voting on nominees. The Senate is not defeating judicial nominations in up or down votes on their qualifications but refusing to consider them and killing them through inaction.

During Republican control it has taken two-year periods for the Senate to match the one-year total of 101 judges confirmed in 1994, when we were on course to end the vacancies gap. Forty-two judicial nominations are stalled awaiting the first hint of interest or action by the Judiciary Committee. I cannot remember a comparable time in my 25 years in the Senate, when the Senate has behaved so irresponsibly on judicial nominations.

By comparison, note that by June 1 in 1991 (President Bush’s third year with a Democratic Senate), the Committee had held four hearings and the Senate had confirmed 11 judges. By June 1 in 1987 (President Reagan’s third year in his second term with a Democratic Senate), the Committee had held five hearings and the Senate had confirmed 11 judges. Last year, by June 1 of 1998, this Committee had held six hearings and the Senate had confirmed 26 judges. For that matter, by June 1 of 1996, this Committee had held three hearings during the session in which the Republican-controlled Senate allowed only 17 judges to be confirmed all year.

No one should be fooled by a misleading comparison to 1993, when President Clinton was first assuming office. In the first months of that new administration, the confirmation of a new Attorney General took four hearings over three months. Other top Justice Department nominations took six more days of hearings in May and June. And a vacancy on the Supreme Court in 1993 led to the new President’s first judicial nominee, Ruth Bader Ginsburg, who was accorded a hearing and confirmed to the Supreme Court in less than 60 days. Compare that to this year, when Executive Branch nominations have not been accorded a single hearing before the Judiciary Committee and the average time for Senate action on the few judges confirmed exceeds 200 days from nomination.

The Republican-controlled Senate is this year confirming judges at a rate of one per quarter. Only two judges have been confirmed all year, both of those nominees had hearings last year and both took over 200 days from initial nomination to confirmation.

Nominees like Justice Ronnie L. White, Judge Richard Paez, Marsha Berzon and Timothy Dyk deserve to be treated with dignity and dispatch-- not delayed for two and three 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. Nominees practicing law see their work put on hold while they await the outcome of their nominations. Their families cannot plan. They are left to twist in the wind. All of this despite the fact that, by all objective accounts and studies, 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.

This failing report card on judicial confirmations is part of a larger and more destructive effort. We have seen a constitutional amendment proposed to remove life tenure that has been the bedrock of judicial independence from the political branches. We have heard demands that the Congress should seek to “intimidate” judges or veto individual decisions. We have seen calls for impeachment when a judge renders a decision with which a member of Congress disagrees.

What we are seeing is nothing short of an attack on our independent judiciary. Four years ago, the Republican congressional majority sought leverage by shutting down the Executive Branch. Since then they have found less political resistance by taking aim at the Judicial Branch.

This is not a victimless tactic. Federal law enforcement relies on judges to hear criminal cases, and individuals and businesses pay taxes to exercise their right to resolve civil disputes in the federal courts. As workloads continue to grow and vacancies are perpetuated, the remaining judges are being overwhelmed and the work of the federal judiciary is suffering.

Last October an editorial ran in the Brattleboro Reformer entitled “Playing Politics with Judgeships.” The editorial criticized the Senate for being “remiss once again in not filling vacant federal judgeships” and noted: “For a Congress that prides itself on being pro law-and-order, this is unconscionable.” The editorial ended by observing: “The judicial branch of government is supposed to be above politics-- and it would be if legislators didn’t drag it down to their level.”

Our independent federal judiciary sets us apart from virtually all others in the world. Every nation that in this century 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.

What progress we started making last year 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 from 50, when Congress recessed last year, to 71. Since some like to speak in terms of percentage, I should note that is an increase of over 40% in the last eight months. Judicial vacancies now stands at over 8.4% of the federal judiciary (71/843). If one considers the 69 additional judges recommended by the judicial conference, the vacancies rate would be over 15.3%.

What is most significant about the recent trend of judicial vacancies and vacancy rates is that the vacancies that existed in 1993 (after the creation of 85 new judgeships in 1990) had been cut almost in half in 1994, when the rate was reduced to 7.4% with 63 vacancies at the end of the 103rd Congress. We continued to make progress even into 1995. In fact, the vacancy rate was lowered to 5.8% after the 1995 session, and before the partisan attack on federal judges began in earnest in 1996 and 1997.

Progress in the reduction of judicial vacancies was reversed in 1996, when Congress adjourned leaving 64 vacancies, and in 1997, when Congress adjourned leaving 80 vacancies and a 9.5% rate. No one was happier than I that the Senate was able to make progress last year toward reducing the vacancy rate, again, in 1998. I have praised Senator Hatch for his effort. Unfortunately, the vacancies are now growing, again, back up to 71 vacancies and over an 8.4% vacancy rate.

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. That press release cannot be construed or even fairly misconstrued in this manner. That press release was pointing out at the end of the 103rd Congress that if the Senate proceeded to confirm the 14 nominees then 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%.

This 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 two 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 statement, these misleading statements continue to be repeated.

The Senate should get about the business of voting on the confirmation of the scores of judicial nominations that have been delayed with justification for too long. 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. It should not be shirked any longer.