I am glad to see many fine judicial and executive nominees on our agenda today. I look forward to their prompt consideration by the full Senate. I spoke to the issue of judicial nominations last Friday and again this past Tuesday and say, again, with 60 current and longstanding vacancies within the federal judiciary, and seven more on the horizon, we cannot afford to stop or slow down the progress we are making.

Our judicial nominations hearing Tuesday included three nominees to fill positions on the District Court of Arizona that have all been declared judicial emergencies. Each of the nominees was nominated last Friday. They have had their hearing, are being voted out of committee today and look forward to being approved by the Senate before the week is out – within one week of nomination. This demonstrates what we can do when we want to take action. All the talk about needing six months or more to process and review nominees is just that – talk. If all goes according to schedule, these nominees will be in and out of the Senate in less than one week. We could do that with a number of nominees. There is just no reason to have a qualified nominee like Judge Helene White of Michigan held hostage for over 42 months without a hearing. She is the record holder for a judicial nominee who has had to wait the longest for a hearing and her wait continues.

The Arizona vacancies are each judicial emergency vacancies. Two were authorized in appropriations legislation last year when the Republicans Majority continued its refusal to consider a bill to meet the judicial Conference’s recommendation for 72 additional judges around the country. All we were able to authorize were a few judgeships in Arizona, Florida and Nevada. That points out one of the reasons that the comparisons that Chairman Hatch is seeking to draw to the vacancy rates at the end of the Bush Administration are incorrect. During President Reagan’s Administration and again during the Bush Administration, Congress added a significant number of new judgeships. The so-called vacancy rate that Senator Hatch is so fond of citing at the end of the Bush Administration is highly inflated by the addition of 85 new judgeships in 1990 and by the addition of 87 new judgeships in 1984, of which many where yet to be filled. By contrast the vacancies currently plaguing the federal courts are longstanding and in spite of Republican intransigence against authorizing additional judgeships requested by the Judicial Conference since 1996. If those additional judgeships were taken into account, the vacancy rate today would be over 13 percent with over 120 vacancies – hardly a comparison that the Republican majority would want to make, but that would be comparing comparable figures.

I noted for the Senate in the past that there continue to be multiple vacancies on the Fourth, Fifth, Sixth, Ninth, Tenth and District of Columbia Circuits. With 20 vacancies, our appellate courts have nearly half of the total judicial emergency vacancies in the federal court system. I know how fond our Chairman is of percentages, so I note that the vacancy rate for our Courts of Appeals is more than 11 percent nationwide. Of course that vacancy rate does not begin to take into account the additional judgeships requested by the Judicial Conference to handle their increased workloads. If we added the 11 additional appellate judges being requested, the vacancy rate would be 16 percent. By comparison, the vacancy rate at the end of the Bush Administration, even after a Democratic Majority had acted in 1990 to add 11 new judgeships for the Courts of Appeals, was only 11 percent. Even though the Congress has not approved a single new Circuit Court position within the federal judiciary since 1990, the Republican Senate has by design lost ground in filling vacancies on our appellate courts

Pending before the Committee are a dozen nominees to the Federal Courts of Appeals who are awaiting a hearing – 12 nominees, not one of which the Republican Majority saw fit to include in this week’s hearing. Left off the agenda were Judge Helene White of Michigan, who is now the longest pending judicial nomination at over 42 months without even a hearing; Barry Goode, whose nomination to the Ninth Circuit was the subject of Senator Feinstein’s statements at our Committee meeting last Thursday and who has been pending for over two years; as well as a number of qualified minority nominees whom I have been speaking about throughout the year, including Kathleen McCree Lewis of Michigan, Enrique Moreno of Texas and Roger Gregory of Virginia.

Chairman Hatch compared this year’s confirmation total against totals from other presidential election years. The only year to which this can be favorably compared was 1996 when the Republican majority in the Senate refused to confirm even a single appellate court judge to the federal bench – the total that year was zero. Again, that is hardly a comparison in which to take pride.

Let us compare to the year 1992, in which a Democratic majority in the Senate confirmed 11 Court of Appeals nominees during a Republican president’s last year in office among the 66 judicial confirmations for the year. I remember in 1992, in the waning days of the Bush Administration, Timothy Lewis was nominated to fill a vacancy on the Third Circuit. His nomination was received by the Democratic Congress on September 17; his hearing was held September 24; he was reported to the floor on October 7; and he was confirmed on October 8. In fact, in 1992 the Committee held 15 hearings – twice as many as this Committee has found time to hold this year. Late that year, we met on July 29, August 4, August 11, and September 24, and all of the nominees who had hearings then were eventually confirmed before adjournment. In the last 10 weeks of the 1992 session, between July 24 and October 8, 1992, the Senate confirmed 32 judicial nominations. I will work with the Republican Majority to try to match that record. We have a long way to go before we can think about resting on any laurels.

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% vacancy rate. No one was happier than I that the Senate was able to make progress in 1998 toward reducing the vacancy rate. I praised Senator Hatch for his effort. Unfortunately, the vacancies are now growing again.

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. Nominees like Judge Helene White, Barry Goode, Judge Legrome Davis, and J. Rich Leonard, deserve to be treated with dignity and dispatch-- not delayed for two and three years. We are still 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.

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 1998 statement, these misleading statements continue to be repeated.

With respect to the Senate’s treatment of nominees who are women or minorities, I remain vigilant. I have said that I do not regard Senator Hatch as a biased person. I have also been outspoken in my concern about the manner in which we are failing to consider qualified minority and women nominees over the last four years. From Margaret Morro, Margaret McKeown and Sonia Sotomayor, through Richard Paez and Marsha Berzon, and including Judge James Beatty, Jr., Judge James Wynn, Roger Gregory, Enrique Moreno and all the other qualified women and minority nominees who have been delayed and opposed over the last four years, I have spoken out. 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 Ronnie White to be a Federal District Court Judge in Missouri.

The Senate should be moving forward to consider the nominations of Judge James Wynn, Jr. and Roger Gregory to the Fourth Circuit. When confirmed, Judge Wynn and Mr. Gregory will be the first African-Americans to serve on the Fourth Circuit and will each fill a judicial emergency vacancy. Fifty years has passed since the confirmation of Judge Hastie to the Third Circuit and still there has never been an African-American on the Fourth Circuit. The nomination of Judge James A. Beaty, Jr., was previously sent to us by President Clinton in 1995. That nomination was never considered by the Senate Judiciary Committee or the Senate and was returned to President Clinton without action at the end of 1998. It is time for the Senate to act on a qualified African-American nominee to the Fourth Circuit. President Clinton spoke powerfully about these matters at the NAACP Convention. We should respond not be misunderstanding or mischaracterizing what he said, but instead taking action on this well-qualified nominees.

In addition, the Senate should act favorably on the nominations of Enrique Moreno to the Fifth Circuit. Mr. Moreno succeeded to the nomination of Jorge Rangel on which the Senate refused to act last Congress. These are well-qualified nominees who will add to the capabilities and diversity of those courts. In fact, the Chief Judge of the Fifth Circuit declared that a judicial emergency exists on that court, caused by the number of judicial vacancies, the lack of Senate action on pending nominations, and the overwhelming workload.

In addition, even running the gauntlet and getting a confirmation hearing does not automatically guarantee someone a vote before the current Judiciary Committee. Bonnie Campbell, nominated by the President on March 2, 2000, has completed the nomination and hearing process and is strongly supported by Senator Grassley and Senator Harkin from her home state. But her name continues to be left off the agenda at our executive meetings for the last several weeks. She is a former Iowa Attorney General and former high ranking Justice Department official who has worked extensively on domestic violence and crime victims matters. Allen Snyder is another well-respected and highly-qualified nominee who got a hearing but no Committee vote. He was nominated on September 22, 1999, received the highest rating from the ABA, enjoys the full support of his home state Senators, and had his hearing on May 10, 2000. There are and have been many others.

I continue to urge the Senate to meet its responsibilities to all nominees, including women and minorities. 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.

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