For the past few years, Senate Democrats have threatened shut-downs, claimed the existence of a so-called judicial vacancy crisis, and complained of race and sex bias in order to push through President Clinton’s judicial nominees. These allegations are false.

First, there is and has been no judicial vacancy crisis. Consider, for example, the Clinton administration’s statements on this issue. At the end of the 1994 Senate session, the Clinton administration in a press release entitled “Record Number of Federal Judges Confirmed” took credit for having achieved a low vacancy rate. At that time, there were 63 vacancies and a 7.4 percent vacancy rate. The Clinton administration’s press release declared: “This is equivalent to ‘full employment’ in the . . . federal judiciary.” Today, there are 64 vacancies – only one more than in 1994 – but instead of declaring the judiciary fully employed, Democrats claim that there is a vacancy crisis.

The Senate, in fact, has confirmed President Clinton’s nominees at almost the same rate as it confirmed those of Presidents Reagan and Bush. President Reagan appointed 382 Article III judges. Thus far, the Senate has confirmed 373 of President Clinton’s nominees, and stands ready, if Democrats allow a vote, to confirm four more. Per four-year term the similarities likewise are obvious: President Reagan averaged 191 judges in each of his two terms; President Bush appointed 193 judges; and President Clinton will average 188.5 judges per term.

Second, there has not been a confirmation slowdown this year. Comparing like to like, this year should be compared to prior election years during times of divided government. In 1988, the Democrat-controlled Senate confirmed 41 Reagan judicial nominees. Assuming (as is likely) that the four nominees currently pending are confirmed, the Republican Senate this year will have confirmed 39 of President Clinton’s nominees – a nearly identical number.

The 1992 election year requires a bit more analysis. The Democrat-controlled Senate did confirm 64 Bush nominees that year, but this high number was due to the fact that Congress had recently created 85 new judgeships. Examining the percentage of nominees confirmed shows that compared to 1992, this year there is no slowdown. In 1992, the Democrat-controlled Senate confirmed 33 of 73 individuals nominated that year – or 45 percent. This year, the Senate will confirm 25 of 44 individuals nominated in 2000 – or 57 percent. Those who cite the 1992 high of 64 confirmations as evidence of an election-year slowdown do not mention these details. Nor do they mention that despite those 64 confirmations, the Democrat-controlled Senate left vacant 115 judgeships when President Bush left office – nearly double the current number of vacancies.

Senate Democrats often cite Chief Justice Rehnquist’s 1997 remarks as evidence of a Republican slowdown. Referring to the 82 vacancies then existing, the Chief Justice said: “Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal Judiciary.” Senators who cite this statement, however, do not also cite the Chief Justice’s similar statement in 1993, when the Democrats controlled both the White House and the Senate: “There is perhaps no issue more important to the judiciary right now than this serious judicial vacancy problem.” As the head of the Judicial Branch, the Chief Justice has continued to maintain pressure on the President and Senate to speedily confirm judges. He has not singled out the Republican Senate, however. Selective use of his statements to imply that he has is inappropriate.

The Chief Justice made additional comments in 1997, which also undermine the claim of a vacancy crisis. After calling attention to the existing vacancies, he wrote: “Fortunately for the Judiciary, a dependable corps of senior judges has contributed significantly to easing the impact of unfilled judgeships.” The 64 current vacancies, in other words, are not truly vacant. There are 363 senior judges presently serving in the federal judiciary. Although these judges’ seats are technically counted as vacant, they continue to hear cases at reduced workload. Assuming that they maintain a 25 percent workload (the minimum required by law), the true number of vacancies is less than zero.

Third, allegations of race or sex bias in the confirmation process are absolutely false. Just this month, for example, President Clinton issued a statement alleging bias by the Senate. He said: “The quality of justice suffers when highly qualified women and minority candidates are denied an opportunity to serve in the judiciary.” The White House, though, also issued a statement boasting of the high number of women and minorities that Clinton has appointed to the federal courts: “The President’s record of appointing women and minority judges is unmatched by any President in history. Almost half of President Clinton’s judicial appointees have been women or minorities.” The Senate, obviously, confirmed this record number of women and minorities. That is hardly evidence of systemic bias.

Last November, Senator Joseph Biden, former Chairman of the Judiciary Committee, stated:

“There has been argumentation occasionally made . . . that [the Judiciary] Committee . . . has been reluctant to move on certain people based upon gender or ethnicity or race. . . . [T]here is absolutely no distinction made [on these grounds] . . . . [W]hether or not [a nominee moves] has not a single thing to do with gender or race. . . . I realize I will get political heat for saying that, but it happens to be true.”

The statistics confirm Senator Biden’s position. Data comparing the median time required for Senate action on male vs. female and minority vs. non-minority nominees shows only minor differences. During President Bush’s final two years in office, the Democrat-controlled Senate took 16 days longer to confirm female nominees compared with males. This differential decreased to only 4 days when Republicans gained control of the Senate in 1994. During the subsequent 105th and 106th Congresses, it increased.

The data concerning minority nominees likewise shows no clear trend. When Republicans gained control in 1994, it took 28 days longer to confirm minority nominees as compared to non-minority nominees. This difference decreased markedly during the 105th Congress so that minorities were confirmed 10 days faster than non-minorities. The present 106th Congress is taking only 11 days longer to confirm a minority nominees than it is to confirm non-minority nominees.

These minor differences are a matter of happenstance. They show no clear trend. And even if there were actual differences, a differential of a week or two is insignificant compared to the average time that it takes to select and confirm a nominee. On average, the Clinton White House spends an average of 315 days to select a nominee while the Senate requires an average of 144 days to confirm.

Under my stewardship, the Judiciary Committee has considered President Clinton’s judicial nominees more carefully than the Democratic Senate did in 1993 and 1994. Some individuals confirmed by the Senate then likely would not clear the Committee today. The Senate’s power of Advice and Consent, after all, is not a rubber stamp.

But there is no evidence of bias or of a confirmation slowdown. Senate Democrats claim that Republicans have politicized the confirmation process. Republicans, though, have not levied false charges or used petty parliamentary games.

In conclusion, it always is the case that some nominations die at the end of the Congress. In 1992, when Democrats controlled the Senate, Congress adjourned without having acted on 53 Bush nominations. Currently there are only 38 Clinton nominations that are pending before the Judiciary Committee.

It is not the end of the line for nominees that do not get confirmed this year. Republican nominees who failed to get confirmed have gone on to great careers, both in public service and the private sector. Senator Jeff Sessions, Governor Frank Keating, Washington attorney John Roberts, and law professor Lillian BeVier are just a few examples.