I begin by thanking Senator Schumer, the Chair of the Courts Subcommittee, for also chairing this hearing on judicial nominations. This is an extraordinary time in the Senate. All three Senate office buildings have been closed in the wake of Senate employees testing positive for anthrax. Nonetheless, the Judiciary Committee is seeking to proceed with this hearing today.

Judge Charles W. Pickering was first nominated to a vacancy on the 5th Circuit on May 25. Unfortunately, due to the change in the nomination process adopted by President Bush, his ABA peer review was not received until late July, just before the August recess. At that point we were concentrating on expediting the confirmation hearing of the new Director of the Federal Bureau of Investigation, who was confirmed in record time before the August recess. As a result of the objection of the Republican Leader to a request to retain nominations pending before the Senate, including all judicial nominations, through the August recess, that initial nomination of Judge Pickering was required by Senate Rules to be returned to the President without action. Judge Pickering was renominated last month, on September 5. It is that September 5 nomination of Judge Pickering on which we proceed today, less than six weeks after receiving the President's nomination.

Judge Pickering is nominated to serve on the United States Court of Appeals for the Fifth Circuit, which encompasses the States of Mississippi, Texas and Louisiana. 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 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 President Clinton nominated Jorge Rangel to fill this vacancy in July of 1997, Mr. Rangel never received a hearing and his nomination was returned to the President without Senate action on October 21, 1998. On September 16, 1999, President Clinton nominated Enrique Moreno to fill the same vacancy. Once again, the nominee did not receive a hearing and his nomination was returned to the President without action.

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 vacancies on the 5th Circuit. None of those nominees was ever provided a hearing before the Judiciary 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.

For the last seven years there has not been a nominations hearing on any of President Clinton's nominees to the 5th Circuit. The first nominations hearing on a nominee to the 5th Circuit in seven years was the one I noticed for October 4, 2001, at which the Committee heard from Judge Edith Brown Clement of Louisiana, who is another pending nomination of President Bush to the 5th Circuit. After seven years without a single hearing, this hearing for Judge Pickering is the second nomination hearing on a nominee to the 5th Circuit that this Committee has held this month.

Since 1999, Chief Judge King of the 5th Circuit has declared the 5th 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. That means that 5th Circuit cases are being heard and decided by three-judge panels with only one 5th Circuit judge. 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. By proceeding with Judge Clement and Judge Pickering this Committee has adopted a different approach from the last several years and is proceeding to consider President Bush's nominees to 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 another 13 nominees for United States Attorneys, the Assistant Attorney General for the Office of Legal Counsel and four additional District Court nominees from Oklahoma, Kentucky and Nebraska. We have already confirmed since July more Court of Appeals nominees than were confirmed during the first year of the Clinton Administration and, for that matter, more Court of Appeals nominees than were reported by this Committee in all of last year. With two hearing on two candidates to the 5th Circuit this month, I hope that we will soon be able to send that Circuit some help, as well.

At this hearing we consider five more judicial nominees. Along with Judge Pickering, we have before us nominees for District Court vacancies in Alabama, New Mexico, Nevada and another in Oklahoma. Despite the upheaval we have experienced this year with the shifts in the Senate majority 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 Administration and during the first year of the first Bush Administration.

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. This is serious and important work and our federal judges will be a key component in guarding our freedoms. Our system of checks and balances requires that the judicial branch review the acts of the political branches. I will want to be confident 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.

I apologize to the nominees, their families and most importantly to the public for the manner in which we are being required to proceed. Our normal hearing room is closed to us. This is a beautiful room and one of my favorite Senate rooms. The distinguished Chairman of the Appropriations Committee has graciously extended to us his hospitality. We thank him for making it possible for us to proceed at all. Unfortunately, the room does not accommodate the number of people we would like and are used to being able to be present. We are doing the best that we can under these extraordinary circumstances.