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“THE PACE OF JUDICIAL NOMINATIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S8339-S8341 on July 27, 2001.
The publication is reproduced in full below:
THE PACE OF JUDICIAL NOMINATIONS
Mr. LEAHY. Madam President, I was pleased that the Judiciary Committee was able to hold another confirmation hearing for judicial and executive branch nominees this week. Since the Senate was allowed to reorganize just before the July 4th recess, returned from that recess to reconvene on July 9 and then assigned members to committees on July 10, this was the fourth hearings on Presidential nominations that the Judiciary Committee has held in 2 weeks. I cannot remember any time in the last 6 years when the Judiciary Committee held four confirmation hearings in 2 weeks. Two of those hearings involved judicial nominees to the Courts of Appeals.
I appreciated that when Senators Lott, Baucus, Cochran, and Hutchinson appeared before the Judiciary Committee to introduce nominees, they recognized that we were acting quickly. Likewise, the nominees who have appeared before the committee have recognized that we have been moving expeditiously and have thanked us for doing so. I appreciate their recognition of our efforts and their kind words.
Just last Friday we were able to confirm a number of judicial and executive nominations. We confirmed Judge Roger Gregory for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit. This is a nominee who had waited in vain since June of last year for the Senate to act on his nomination. In the year that followed his nomination he was unable even to get a hearing from the Republican majority. This month, in less than 2 weeks the Judiciary Committee held that hearing, reported his nomination favorably to the Senate on a 19 to 0 vote and the Senate voted to confirm him by a vote of 93 to 1 vote. The supposed controversy some contend surrounded this nomination was either nonexistent or quickly dissipated.
In spite of the progress we have been making during the few weeks since the Senate was allowed to reorganize, in spite of the confirmation on Friday of three judicial nominations, include one to a Court of Appeals; in spite of the confirmation of two more Assistant Attorneys General for the Department of Justice, including the Assistant Attorney General in charge of the Civil Rights Division; in spite of the back-to-back days of hearings for the President's nominees to head the Drug Enforcement Administration and the Immigration and Naturalization Service on Tuesday and Wednesday of last week; despite our noticing a hearing for another Court of Appeals nominee and another Assistant Attorney General for this Tuesday; despite our having noticed expedited hearings on the nomination to be Director of the Federal Bureau of Investigation beginning next Monday; despite all these efforts and all this action, on Monday our Republican colleagues took to the Senate floor to change the tone of Senate debate on nominations into a bitterly partisan one. That was most unfortunate.
I regret that we lost the month of June to Republican objections to reorganization or we might have been able to make more progress more quickly. There was no secret about the impact of that delay at the time. Unfortunately, that month is gone and we have to do the best that we can do with the time remaining to us this year. This month the Judiciary Committee is holding hearings on the nominees to head the FBI, DEA and INS. In addition, we have held hearings on two more Assistant Attorneys General and the Director of the National Institute of Justice.
Just last Friday we were able to confirm Ralph Boyd, Jr. to serve as the Assistant Attorney General to head the Civil Rights Division. Of course, the Republican majority never accorded his predecessor in that post, Bill Lann Lee, a Senate vote on his nomination in the 3 years that it was pending toward the end of the Clinton administration. Some of those now so publicly critical of the manner in which we are expediting consideration of President Bush's nominations to executive branch positions seem to have forgotten the types of unending delays that they so recently employed when they were in the majority and President Clinton was urging action on his executive branch nominations.
I noted last Friday that we have already acted to confirm six Assistant Attorneys General as well as the Deputy Attorney General, the Solicitor General and, of course, the Attorney General himself.
We have yet to receive a number of nominations including one for the No. 3 job at the Department of Justice, the Associate Attorney General. We have yet to receive the nomination of someone to head the U.S. Marshals Service. Even more disturbing, we have yet to receive a single nomination for any of the 94 U.S. Marshals who serve in districts within our States. We have yet to receive the first nomination for any of the 93 U.S. Attorneys who serve in districts within our States.
We have much work to do. The President has work to do. The Senate has work to do. That work is aided by our working together, not by the injecting the type of partisanship shown over the last 6 years when the Republican majority delayed action on Presidential nominees or the partisan rhetoric that was cast about on Monday. That may make for backslapping at Republican fundraisers, but it is counterproductive to the bipartisan work of the Senate.
In this regard, I am also extremely disappointed by the decision of the Republican Leadership to have all Republican Senators refuse to chair the Senate. I was one who suggested to Senator Daschle, Senator Lott and others that we resume the practice of having Senators from all parties chair the Senate. That was a longstanding practice in the Senate and the practice when I first joined this body. It was our practice until fairly recently when a breach in Senate protocol led to the period in which only Senators from the majority party sat in the chair of the President of the Senate.
I thought that it sharing the chair was one of the better improvements we made earlier this year when we were seeking to find ways to lower the partisan decibel level and restore collegiality to the Senate. It was a good way to help restore some civility to the Senate, to share the authority and responsibility that comes with being a member of the Senate. I deeply regret that the Republican minority has chosen no longer to participate in this aspect of the Senate. I am disappointed, and fear this is another sign that they are coming to view the Senate through the narrow lens of partisanship.
That partisan perspective, criticizing for criticism's sake or short-
term political advantage, seems to be the motivation for the statements made in the wake of our achievements last Friday. If the Senate majority is going to be criticized when we make extraordinary efforts of the kind we have been making over the last two weeks, some will be forced to wonder whether such action is worth the effort.
Moreover, the criticism is ignorant not only of recent facts but wholly unappreciative of the historical context in which we are working. Let me mention just a few of the many benchmarks that show how fair the Senate majority is being.
This year has been disrupted by two shifts in the majority. We were delayed until March in working out the first resolutions organizing the Senate and its committees. Senator Daschle deserves great credit for his patience and for working out the unique arrangements that governed during the period the Senate was divided on a 50-50 basis. Likewise, I complimented Senator Lott for his efforts in late February and early March to resolve the impasse.
In late May and early June the Senate had the opportunity to arrange a timely transition to a new majority. Republican objections squandered that opportunity and we endured a month-long delay in reorganizing the Senate. Ultimately, the reorganization ended up being what could have been adopted on June 6. Again, I commend Senator Daschle's leadership and patience in keeping the Senate on course, productive and working. During that month the Senate considered and passed the bipartisan Kennedy-McCain-Edwards Patients' Bill of Rights.
But work in the Judiciary Committee was limited to investigative hearings. We could not hold business meetings or fairly proceed to consider nominations. That period finally drew to a close beginning on June 29 and culminated on July 10 when Republican objections finally subsided, a resolution reorganizing the Senate was considered and Committee assignments were made.
Now consider the progress we have made on judicial nominations in that context. There were no hearings on judicial nominations and no judges confirmed in the first half of the year with a Republican majority. The first hearing I chaired on July 11 was one more than all the hearings that had been held involving judges in the first half of the year. The first judicial nomination who the Senate confirmed last Friday was more than all the judges confirmed in the first half of the year.
In the entire first year of the first Bush administration, 1989, without all the disruptions, distractions and shifts of Senate majority that we have experienced this year, only five Court of Appeals judges were confirmed. In the first year of the Clinton administration, 1993, without all the disruptions, distractions and shifts in Senate majority that we have experienced this year, only three Court of Appeals judges were confirmed all year. In less than 1 month this year--in the 2 weeks since the committee assignments were made on July 10, we have held hearings on two nominees to the Courts of Appeals and confirmed one. In 1993, the first Court of Appeals nominee to be confirmed was not until September 30. During recent years under a Republican Senate majority, there were no Court of Appeals nominees confirmed at any time during the entire 1996 session, not one. In 1997, the first Court of Appeals nominee was not confirmed until September 26. A fair assessment of the circumstances of this year would suggest that the confirmation of a Court of Appeals nominee this early in the year and the confirmation of even a few Court of Appeals judges in this shortened time frame of only a few weeks in session should be commended, not criticized.
The Judiciary Committee held two hearings on two Court of Appeals nominees this month. In July 1995, the Republican chairman held one hearing with one Court of Appeals nominee. In July 1996, the Republican chairman held one hearing with one Court of Appeals nominee, who was confirmed in 1996. In July 1997, the Republican chairman held one hearing with one Court of Appeals nominee. In 1998, the Republican chairman did hold two hearings with two Court of Appeals nominees, but neither of whom was confirmed in 1998. In July 2000, the Republican chairman did not hold a single hearing with a Court of Appeals nominee. During the more than 6 years in which the Senate Republican majority scheduled confirmation hearings, there were 34 months with no hearing at all, 30 months with only one hearing and only 12 times in almost 6\1/2\ years did the Judiciary Committee hold as many as two hearings involving judicial nominations in a month. So even looking at this month in isolation, without acknowledging the difficulties we had to overcome, our productivity compares most favorably with the last 6 years. When William Riley, the nominee included in the hearing this week is confirmed as a Court of Appeals Judge for the Eighth Circuit, we will have exceeded the Committee's record in 5 of the last 6 years. Given these efforts and achievements, the Republican criticism rings hollow.
I also observe that the criticism that our multiple hearings are proceeding with one Court of Appeals nominee ignores that has been a standard practice by the committee for at least decades. Last year the Republican majority held only eight hearings all year and only five included even one Court of Appeals nominee. Of those five nominees only three were reported to the Senate all year. Nor was last year anomalous. With some exceptions, the standard has been to include a single Court of Appeals nominee at a hearing and, certainly, to average one Court of Appeals judge per hearing. In 1995, there were 12 hearings and 11 Court of Appeals judges were confirmed. In 1996 there were only six hearings all year, involving five Court of Appeals nominees and none were confirmed. In 1997 there were nine hearings involving nine Court of Appeals nominees and seven were confirmed. In 1998 there were 13 hearings involving 14 Court of Appeals nominees and a total of 13 were confirmed. In 1999, there were seven hearings involving a rehearing for one and nine additional Court of Appeals nominees and only seven Court of Appeals judges were confirmed. Thus, over the course of the last 6 years there have been a total of 55 hearings and only 46 Court of Appeals judges confirmed.
I have also respectfully suggested that the White House work with Senators to identify and send more District Court nominations to the Senate who are broadly supported and can help us fill judicial vacancies in our Federal trial courts. According to the Administrative Office of the U.S. Courts, almost two-thirds of the vacancies on the federal bench are in the District Courts, 75 of 108. But fewer than one-third of President Bush's nominees so far, nine out of 30, have been for District Court vacancies. The two who were consensus candidates and whose paperwork was complete have had their hearing earlier this month and were confirmed last Friday.
I did try to schedule District Court nominees for our hearing this week, but none of the files of the seven District Court nominees pending before the Committee was complete. Because of President Bush's unfortunate decision to exclude the American Bar Association from his selection process, the ABA is only able to begin its evaluation of candidates' qualifications after the nominations are made public. We are doing the best we can, and we hope to include District Court candidates at our next nominations hearing.
The Senators who spoke earlier this week also sought to make much of judicial emergency designations. What they fail to mention is that of the 23 District Court vacancies classified as judicial emergencies by the Administrative Office of the Courts, President Bush has not sent the Senate a single nominee 23 District Court emergency vacancies without a nominee. Almost one-third of judicial emergency vacancies on the Courts of Appeals, 6 of the 16 are without a nominee, as well. Of course, Judge Roger Gregory was confirmed for a judicial emergency vacancy on the Fourth Circuit, but Republican critics make no mention of that either.
What I find even more striking, as someone who worked so hard over the last several years to fill these vacancies, is that the Republican criticism fails to acknowledge that many of these emergency vacancies became emergency vacancies and were perpetuated as emergency vacancies by the Republican majority's refusal to act on President Clinton's nomination over the last 6 years. Indeed, the Republican Senate over the last several years refused to take action on no fewer than a dozen nominees to what are now emergency vacancies on the Courts of Appeals. I remind my colleagues of their failure to grant a hearing or Committee or Senate consideration to the following: Robert Cindrich to the Third Circuit; Judge James A. Beaty, Jr. and Judge James A. Wynn, Jr. to the Fourth Circuit; Jorge Rangel, Enrique Moreno and H. Alston Johnson to the Fifth Circuit; Judge Helene White, Kathleen McCree-Lewis and Kent Marcus to the Sixth Circuit; Bonnie Campbell to the Eighth Circuit; James Duffy and Barry Goode to the Ninth Circuit. Those were 12 Court of Appeals nominees to 10 vacancies who could have gone a long way toward reducing the level of judicial emergencies around the country.
So when others talk about the progress we are finally making in Senate consideration of judicial nominations, I hope that in the future they will recognize our accomplishments, understand our circumstances, and consider our record in historical context. I have yet to hear our Republican critics acknowledge any shortcomings among the practices they employed over the last 6 years. When they have done that and we have established a common basis of understanding and comparison, we will have taken a significant step forward. As it is, I must sadly observe that partisan carping is not constructive. It seems part of an unfortunate pattern of actions this week that are a conscious effort to increase the partisan rhetoric. I would rather we work together to get as much accomplished as we possibly can.
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