I regret to report to the Senate that the last confirmation hearing for federal judges held by the Judiciary Committee was in July. Throughout August and now into the third week in September, there have been no additional hearings held or even noticed. 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 also regret that this Committee’s inaction on judicial nominations has led to Senators objecting to our continuing to meet on other matters when the Senate is in session if we are going to ignore our responsibilities regarding judicial nominations. The matter is most acute with regard to the numerous vacancies on our Courts of Appeals and the qualified women and men who have been stalled before this Committee.

This Committee has reported only 3 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, Helene White, Bonnie Campell and others should be considered by this Committee and voted on by the Senate without additional delay.

Currently there remain more judiciary vacancies than there were when Congress adjourned in 1995. We have not even kept up with attrition over that last 5 years. Earlier this week, Senator Hatch joined with me and a dozen other Senators to introduce the Federal Judgeship Act of 2000. That legislation incorporates recommendations of the Judicial Conference of the United States to authorize 70 judgeships in addition to the 64 current vacancies within the federal judiciary.

If those additional judgeships were taken into account, the so-called “vacancy rate” would be over 13 percent with over 130 vacancies.

We can make quick progress when we want to do so. The last group of nominees considered by the Judiciary Committee included three who were nominated on a Friday, had their hearing the next week and were approved and reported to the Senate within 6 days.

By contrast, we still have pending without a hearing qualified nominees like Judge Helene White of Michigan. She has been held hostage for over 45 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 without explanation to this day.

We still have pending before the Committee, the nomination of Bonnie Campbell to the Eighth Circuit. Ms Campbell had her hearing last May, but the Committee refuses to consider her nomination, vote her up or vote her down. Instead, there is the equivalent of an anonymous and unexplained secret hold. Bonnie Campbell is a distinguished lawyer, public servant and law enforcement officer. She was the Attorney General for the State of Iowa and the Director of the Violence Against Women Office at the United States Department of Justice.

We still have pending without a hearing the nomination of Roger Gregory of Virginia and Judge James Wynn of North Carolina to the Fourth Circuit. Were either of these highly-qualified jurists confirmed by the Senate, we would be finally acting to allow a qualified African American to sit on that Court for the first time. We still have pending before the Committee the nomination of Enrique Moreno to the Fifth Circuit. He is the latest in a succession of outstanding Hispanic nominees by President Clinton to that Court, but he too is not being considered by the Committee or the Senate.

Let me return briefly to the nomination of Roger Gregory. The Chairman of the Judiciary Committee indicated in his recent op-ed in the Wall Street Journal that the reason Roger Gregory would not be confirmed is because the Administration refused to consult with his home State Senators. In fact, this nomination is supported by both Virginia Senators, both Senator Warner and Senator Robb. Indeed, Senator Robb made a forceful statement on behalf of this just a few days ago. In response to that assertion in the Wall Street Journal, the Counsel to the President sent a letter to the editors of that paper that corrected the misstatement. I ask unanimous consent that a copy of that letter be included in the record at the end of my remarks.

The Chairman also suggested that it was too late in the session to move on these nominations. In addition to the recent examples I already noted, nominees now on the Senate calendar awaiting action after being before the Judiciary Committee for less than one week, there is the example of the hearing held last week by the Government Affairs Committee on two District of Columbia Superior Court judges, who one was nominated on May 1 and the other was nominated on June 26. Another example of the ability of the Senate to act is the September 8 confirmation of James E. Baker to the U.S. Court of Appeals for the Armed Forces. Of course, the Republican candidate for the presidency has said that nominations should be acted upon within 60 days. Of the 42 judicial nominations currently pending, 33 have been pending from 60 days to 4 years without final action, including Roger Gregory.

Finally, there is the contrasting example of responsible action by the Democratic majority in 1992 on the nomination of Timothy Lewis to the Third Circuit. Tim Lewis was nominated on September 17. By September 17, Roger Gregory had already been pending for well over 60 days. Tim Lewis was accorded a hearing on September 24, was voted on by the Committee on October 7, and was confirmed by the Senate on October 8, before it adjourned for rest of the campaign before the presidential election that year.

I note for the Senate that there continue to be multiple vacancies on the Third, Fourth, Fifth, Sixth, Ninth, Tenth and District of Columbia Circuits. With 22 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 11 percent nationwide. If we were to take into account the additional appellate judgeships included in the Hatch-Leahy Federal Judgeship Act of 2000 and requested by the Judicial Conference to handle their increased workloads, the vacancy rate would be 16 percent.

Pending before the Committee are a dozen nominees to the Federal Courts of Appeals who are awaiting a hearing. They include Judge Helene White of Michigan, who is now the longest pending judicial nomination at over 45 months without even a hearing; Barry Goode, whose nomination to the Ninth Circuit was the subject of numerous statements by Senator Feinstein and who has been pending for over two years; Allen Snyder, another well-respected and highly-qualified nominee who got a hearing but no Committee vote although he 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, including 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.

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. In 1992, the Committee held 15 hearings – twice as many as this Committee has found time to hold this year. The Judiciary Committee has held hearings on only five Court of Appeals nominees all year and has refused to vote on two of those. In the last 10 weeks of the 1992 session, the Committee held four hearings and all of the nominees who had hearings then were confirmed before adjournment. In the last 10 weeks of the 1992 session, we confirmed 32 judicial nominations.

What is most significant about the recent trend of judicial vacancies and vacancy rates is that the vacancies that existed in 1993, even 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 have since grown 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 are a moderate group of judges, 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 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 reiterations, 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 several years. From Margaret Morrow, 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 several 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. 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 in the history of that 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 these 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.

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.