I am pleased that the Committee is able to continue holding confirmation hearings on Executive Branch and Judicial Branch nominees in spite of the fact that we have focused our attention on our response to the terrorist attacks and threat of terrorism since September 11. In particular, I thank Senator Kohl for agreeing to chair this hearing on short notice. The last few weeks have been incredibly difficult for everybody, and I would again like to thank the staff of the Judiciary Committee for working overtime to get the paperwork on these nominees in sufficient shape that we could proceed with this hearing today.

Judge Edith Brown Clement from Louisiana was among the first nominees sent to this Committee by the President in May. Unfortunately, in the wake of a Republican objection to keeping that nomination and many others pending over the August recess, Senate rules required that her nomination be returned to the President without action on August 3. She was re-nominated last month. She is nominated to serve on the United States Court of Appeals for the Fifth Circuit, which encompasses the States of Texas, Louisiana and Mississippi. This is one of the many Circuits that were left with multiple vacancies through the end of the Clinton Administration.

Since April 7, 1999, the seat previously occupied by Judge Duhe of the 5th Circuit has been vacant. Although former President Clinton nominated Alston Johnson to fill that vacancy only 15 days later, on April 22, 1999, Mr. Johnson was never granted a hearing by the Judiciary Committee, then chaired by Senator Hatch. Since January 23, 1997, Judge Garwood's seat on the 5th Circuit has been vacant. Despite the fact that former President Clinton nominated Jorge Rangel to fill this vacancy in July of 1997, Mr. Rangel never received a hearing and his nomination was returned on October 21, 1998. On September 16, 1999, former President Clinton nominated Enrique Moreno to fill the same vacancy. Once again, the nominee did not receive a hearing.

Over the last several years I have commented on those vacancies as I urged action on the nominations of Jorge Rangel, Enrique Moreno and Alston Johnson to fill those vacancies on the 5th Circuit. None of those nominees were ever provided a hearing before this Committee or acted upon by the Senate. After 15 months without action, Mr. Rangel asked not to be re-nominated. After 15 months and two nominations, Enrique Moreno's nomination was returned to the President without action. After nearly 23 months and two nominations without action, Mr. Johnson's nomination was withdrawn by President Bush in March of 2001. Indeed this is the first nominations hearing on a nominee to the 5th Circuit in seven years – not since September 14, 1994. Since 1999, Chief Judge King of the 5th Circuit has declared her Circuit in a state of emergency such that the hearing and determination of cases and controversies could be conducted by panels of three judges selected without regard to the qualification in 28 U.S.C. § 46(b) that a majority of each panel be composed of judges of the 5th Circuit.

I recall when delays in the confirmation process threw the 2nd Circuit into a similar emergency in March of 1998, and how hard I worked to get those vacancies filled to end that emergency in my Circuit. I am glad that we are proceeding with Judge Clement today in order to try to help the 5th Circuit.

Since the Senate was allowed to reorganize and the Committee membership was set, we have maintained a sustained effort to consider judicial and executive nominees. Today, at our Executive Session, the agenda contained the names of 14 nominees for United States Attorneys, the Director of the United States Marshals Service, the Associate Attorney General, and two more judicial nominees, including another for a Court of Appeals. We have already confirmed since July as many Court of Appeals nominees as were reported during the first year of the Clinton Administration and we have reported as many such nominees as were reported by this Committee all last year.

At this hearing we consider five more judicial nominees and an Assistant Attorney General for the Office of Legal Counsel at the Department of Justice. Despite the upheaval we have experienced this year with the shifts in chairmanship and, more importantly, the need to focus our attention on responsible action in the fight against international terrorism, we are ahead of the pace for hearings and confirmations of judges during the first year of the Clinton and the first Bush Administrations.

The nominees before us today will play important roles in the days, months, and years to come. The recent vicious attacks on our people have given all of us a heightened awareness of the critical importance of our civil liberties, of the many possible threats to those freedoms, and of the necessity of responding to the challenge of international terrorism without sacrificing what is best about America. The Assistant Attorney General for the Office of Legal Counsel is in charge of drafting the legal opinions of the Attorney General, assisting the Attorney General in his function as legal advisor to the President and all executive branch agencies, and of providing his own written opinions and oral advice in response to requests from the Counsel to the President. The Office of Legal Counsel is also responsible for providing legal advice to the executive branch on all constitutional questions as well as for reviewing legislation for constitutionality. This is serious and important work.

As federal judges, the nominees before us today will have a vital role to play in protecting and preserving our civil liberties in the days ahead. Our system of checks and balances requires that the judicial branch review the acts of the political branches. I know that the nominees before us today will take this responsibility seriously and will rely on their experience and on our rich history of judicial precedent to make wise decisions in the challenging times ahead.