Responding to recent accusations of bias against minority and female judicial nominees, Sen. Orrin Hatch made the following statement today at a meeting of the Senate Judiciary Committee:

Last week, on July 13, 2000, in a speech to the NAACP, President Clinton directed an accusation of bias at the Senate, suggesting that Republicans in the Senate are biased against minority and female judicial nominees. After mentioning some of the minority and female nominees currently pending before this Committee, he said: “I don’t want people denied their chance to serve because of their race.”1 He stated further that “[t]he quality of justice suffers when highly-qualified women and minority candidates . . . are denied the opportunity to serve.”2

The President’s reckless and unfounded accusation of bias has encouraged others to make even more reckless and more unfounded charges. Yesterday, some Members of Congress launched what can only be described as a profane attack on the United States Senate – calling the Senate a racist and sexist institution. To be precise, one member of the United States House of Representatives was quoted as saying that the Senate has “made the judiciary an exclusive club that closes the door to women and minorities. . . . [The Senate’s] determinations have been [made] on the basis of racism and sexism, plain and simple.”3

If this statement was actually made – and I hope the reports are incorrect – I am nearly at a loss for words. What a truly defamatory statement. Has the Congress really sunk so low? Are my colleagues so desperate to find issues with which they can generate voter turnout in November that the politics of destruction must be waged in this manner and assail not only the Members of the Senate, but also our noble institution? Is there nothing they won’t do for a vote? I call on President Clinton and Al Gore to put an end to this game of race-baiting politics. Their statements have encouraged this descent into gutter politics.

These circumstances compel me to declare what should be obvious – that no nominee is being denied the chance to serve as a federal judge because of his or her race or gender. Since I became Chairman of the Judiciary Committee in 1995, the Senate has confirmed more minority and female judges than at any other time in history.

The calculated statements of President Clinton plainly are meant to suggest or imply that Senate Republicans are biased against the confirmation of female and minority judicial nominees. His suggestions have been picked up by less-sophisticated partisans who have turned them into blatant attacks. These accusations of racial and gender discrimination by the Senate against female and minority nominees are not only false, they also are an assault on the personal integrity of every Member of the Senate.

The race of nominees for federal judgeships is not considered by the Judiciary Committee during the confirmation process. The Judiciary Committee questionnaire that nominees fill out and provide to the Committee does not ask nominees to disclose their race or ethnicity. Whether a nominee is male or female also plays no role in the confirmation process.

Because race and gender are not considered by the Committee, it is no surprise that minority and female nominees are confirmed in nearly identical proportions as their white male counterparts. During this Congress, the President has nominated 101 individuals for federal judgeships. According to information provided to me by the Justice Department, 27 percent of those nominees were minorities and 29 percent were women. So far, the Senate has confirmed 64 percent of the President’s 101 nominees. Of the minority nominees, the Senate has confirmed 59 percent. Of the female nominees, the Senate has confirmed 65 percent. Of the white male nominees, the Senate has confirmed 64 percent. As I said, minority nominees, female nominees, and white male nominees are being confirmed in nearly identical ratios.

One Member of Congress claimed yesterday that the Senate has “confirmed 42 percent of Clinton’s white nominees, but less than half as many, or 18 percent, of his African-American nominees.”4 These statistics are entirely false. I have no idea where this Member of Congress is getting her information. Regrettably the media uncritically picked up this bogus claim and it has been widely reported in today’s newspapers. The truth is that since 1995, when Republicans took control of the Senate and I became Chairman of this Committee, 60 percent of African-American nominees have been confirmed. It is the President who repeatedly takes credit for the racial diversity that he has brought to the federal judiciary – diversity that has been accomplished because this Committee and the Senate has approved the President’s minority nominees in record numbers.

Some also have argued that there is a judicial vacancy crisis; that “scores of vacancies . . . continue to plague our federal courts”5; and that the American people “face ever-increasing delays caused by a backlog of cases” as a result of this so-called vacancy crisis.6 This also is simply not true. Using the Clinton Administration’s own standard, the federal judiciary currently is at virtual full employment.

Presently there are 61 vacancies in the 852-member federal judiciary, yielding a vacancy rate of 7.2 percent. Of these 61 vacancies, the President has failed to make a nomination for 28 of them. A close comparison is 1994, at the end of the Democrat-controlled 103rd Congress, when there were 63 judicial vacancies, yielding a vacancy rate of 7.4 percent. At that time, the Clinton Administration argued that “[t]his is equivalent to ‘full employment’ in the 837-member federal judiciary.”7 If the federal judiciary was fully employed in 1994, then it certainly is fully employed now, when there are fewer vacancies and a lower vacancy rate.

At the end of the Bush administration in 1992, the vacancy rate stood at nearly 12 percent. By contrast, as the Clinton administration draws to a close, the vacancy rate stands at 7.2 percent – a rather low percentage of vacancies that shows that the judiciary is not suffering from an overwhelming number of vacancies. Moreover, the disparity between the vacancy rate at the end of the Bush Administration, as compared to the vacancy rate now, illustrates the fair manner in which the Republican-controlled Senate has treated President Clinton’s nominees.

The federal judiciary is at virtual full employment because the Senate has appropriately carried out its advice and consent duties. So far this year, the Judiciary Committee has held seven hearings for 30 judicial nominees. In addition, we intend to hold a hearing next week for several more nominees. So far this year, we have confirmed 30 nominees, including seven nominees for the U.S. Courts of Appeals. Today we have on the agenda four additional district court nominees and one additional circuit court nominee.

With seven court of appeals nominees already confirmed this year, and an additional appeals court nominee likely to be voted out of Committee, it is clear that the Senate and the Judiciary Committee have acted fairly with regard to appeals court nominees. In presidential election years, the confirmation of appellate court nominees historically has slowed. In 1988, the Senate confirmed seven of President Reagan’s appellate court nominees; in 1992, eleven circuit court nominees were confirmed; in 1996, zero circuit court nominees were confirmed. In all likelihood, our action with respect to Judge Rawlinson will mean that no less than eight appeals court nominees will be confirmed in this election year. As history shows, we are right on track with regard to circuit court nominees.

In summary, the Judiciary Committee and the Senate consider judicial nominees without regard to their race or gender. Any contrary accusation or even suggestion is simply false and malicious. The Judiciary Committee and the Senate assess nominees based upon their qualifications – their character, education, training, legal experience, demonstrated ability and so forth. In doing so, the Senate has carried out its constitutional advice and consent duties in good faith, with fairness to the President’s nominees, the judiciary, and the American people.

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