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“REPUBLICAN ATTACKS ON THE INDEPENDENCE OF THE FEDERAL JUDICIARY” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S10924-S10927 on Oct. 22, 1997.
The publication is reproduced in full below:
REPUBLICAN ATTACKS ON THE INDEPENDENCE OF THE FEDERAL JUDICIARY
Mr. LEAHY. Madam President, last month, the President of the United States devoted a national radio address to the threats being posed to our federal judiciary by the campaign of intimidation, including the stall in confirming judicial nominees for the almost 100 vacancies that persist nationwide. It is a sad day when the President must remind the Senate of its constitutional responsibilities to consider and confirm qualified nominees to the Federal bench. I regret that we have reached this point.
The President's address was an important one. I hope that his call for an end to the intimidation, the delay, the shrill voices of partisanship will be headed. I will continue to do all that I can to defend the integrity and independence of our federal judiciary and to urge the Republican leadership of the Senate to move forward promptly on judicial nominations. I ask unanimous consent that a copy of the text of the President's address be printed in the Record at the end of my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. I have previously included in the Record on July 31 a letter dated July 14 to Senator Lott from the presidents of seven national legal associations similarly urging the Senate to act to preserve the integrity of our justice system by fulfilling its constitutional responsibility to expedite the confirmation process for federal judges so that longstanding vacancies could be filled. These bar association presidents noted the ``looming crisis in the Nation brought on by the extraordinary number of vacant federal judicial positions.''
Last month also saw the publication of a report by People for the American Way entitled ``Justice Delayed, Justice Denied: The Right Wing Attack on the Independent Judiciary.'' This report concludes that the campaign attacking the legitimacy of the judiciary and pressuring the Senate not to process the judicial nominees of the President is resulting in the judiciary not having the judges it needs to fulfil its responsibilities:
Dockets are backing up, cases are going unheard for years at a time, justice is being delayed. In the end, the right wing's campaign has increased the risk that the law will not be enforced because there are two few judges to enforce it.
During the week of September 22 through September 26, National Public Radio broadcast a series of five reports on the federal judge shortage by correspondent Nina Totenberg.
When a U.S. attorney can refer to the lack of courtrooms and Federal judges as a bottleneck in the criminal justice process and the chief judge of a Federal district court can acknowledge that the court is so overwhelmed with criminal cases that it is operating like an assembly line, that cases are not given the attention that they deserve and that you know that you're making a lot of mistakes with--because of the speed, we have reached a crisis. That is not American justice, that is not the Federal justice system on which all of us rely to protect our rights while enforcing the law.
I have addressed the Senate on this problem on a number of occasions already this year, including March 19, March 20, April 10, May 1, May 14, May 23, June 16, July 31, September 4, September 5, September 11, September 25, September 26, October 9, and October 21. I have spoken of it at meetings of the Judiciary Committee on March 6, April 17, May 22, June 12, July 10, July 31, September 18 and October 9 and in Judicial Committee hearings on March 18, May 7, June 25, July 22, September 5, and September 30.
The current vacancy crisis is having a devastating impact on the administration of justice in courts around the country. Let me note a few examples:
In the Northern District of Texas, a family filed their lawsuit 7 years ago and is still waiting for their day in court.
Chief Judge J. Phil Gilbert, head of trial court in the Southern District of Illinois, where two of the four judgeships are vacant, reported that his docket has been so burdened with criminal cases that he went for a year without having a hearing in a civil case. That happened despite the fact that 88 percent of the cases filed in all Federal trial courts were civil, while only 12 percent were criminal in 1996.
In California, one family's 1994 lawsuit against police, filed after the family's 14-year-old child was killed in a police chase 6 years ago, is still pending.
In Oregon, the Federal courts has stopped doing settlement conferences, an invaluable tool for resolving claims before trial, because of the unavailability of judges.
Due to vacancy problems, the district court in San Diego is holding only 10 civil trials per year.
In Florida, to reduce an expected backlog of 4,400 cases, 10 district court judges have announced that they will hold a 3-month marathon session in Tampa next year.
In the Ninth Circuit Court of Appeals, for which the Senate has found time to include as a rider on an appropriations bill a politically inspired plan to split the circuit but not to fill any of the 10 vacancies that plague that Court, 100 oral argument panels and 600 hearings were canceled this year due to lack of judges. As a result, it takes a year after closing briefs have been filed to schedule oral arguments.
Chief Judge Ralph Winter testified that the Second Circuit Court of Appeals expects to include a visiting judge on 80 percent of its panels over this year in light of the four unfilled vacancies on that court and its burgeoning workload.
Across the country, the number of active cases pending for at least 3 years jumped 20 percent from 1995 to 1996, and there are now more than 16,000 Federal cases older than 3 years.
These are real life examples of the harm caused by the irresponsible lack of action by this Senate in considering highly qualified judicial nominations. It is time for the Senate to fulfil its constitutional responsibility to confirm the Federal judges needed for the effective administration of justice.
Judge Stephen Trott, formerly a high-ranking Reagan appointment in the Department of Justice, included the following summary of the situation in which the ninth circuit finds itself in light of the Senate's unwillingness to consider nominees to fill the vacancies that plague that court in an opinion that he wrote early this year:
With nine [now ten] vacancies out of twenty-eight authorized judges in the United States Court of Appeals for the Ninth Circuit . . . one wonders how Congress and the President expect us promptly to process our ever increasing 8,000-plus caseload. . . . Our current 9 [now 10] vacancies mean we will process 1,500 fewer cases this year than we could with a full bench. To the litigants who wait in line for us to resolve their disputes, this unnecessary disability is unpardonable. . . . In a country that prides itself on being a nation of laws rather than just a nation of leaders, and which exalts the rule of law as the appropriate method of resolving controversies, we must do better in keeping our civil and criminal justice system able without unnecessary delay to deliver to the People the important promises of our Constitution.
In light of all of this, I was surprised to read the remarks of the distinguished chairman of the Judiciary Committee in response to the President of the United States in the Record for September 29. The Senator from Utah referred to myths and distortions, but I do not believe that he could have been referring to the statement by the President. The President spoke the truth. There is a vacancy crisis in the Federal judiciary and there is a Republican slowdown of judicial confirmations.
The Chief Justice of the United States recognized the crisis when in his 1996 end of the year report he noted:
The number of judicial vacancies can have a profound impact on the courts ability to manage its caseload effectively. Because of the number of judges confirmed in 1996 was low in comparison to the number confirmed in preceding years, the vacancy rate is beginning to climb. . . . It is hoped that the Administration and Congress will continue to recognize that filling judicial vacancies is crucial to the fair and effective administration of justice.
More recently, the Chief Justice termed the rising number of vacancies on the Federal bench ``the most immediate problem we face in the federal judiciary.'' This is hardly a partisan statement but a recognition of the seriousness of the crisis posed by judicial vacancies.
As for the slowdown, there are currently 27 judicial vacancies that the Administrative Office of the United States Courts terms judicial emergencies because they have been vacant for more than a year and one-
half. Last year the President had sent 15 nominees to the Senate to fill judicial emergencies and all were returned without action at the end of the year.
This year, after months of delay, the Senate finally filled judicial emergencies by confirming the nominations of Merrick Garland, Colleen Kollar-Kotelly, Eric Clay, Arthur Gajarsa, Henry Harold Kennedy, Jr., Joseph Battalion, Katherine Sweeney Hayden, Richard Lazzara, Marjorie Rendell, and Richard C. Casey. Some of these nominations were pending before the Senate for periods of 18 months, 12 months, 16 months, 16 months, 19 months, and 17 months.
Still, the Federal judiciary and American people face a record number of judicial emergency vacancies and await action on the nominations of Ann Aiken, James Beaty, Richard Caputo, William Fletcher, Bruce Kauffman, Stanley Marcus, Michael McCuskey, Margaret McKeown, Susan Oki Mollway, Margaret Morrow, Richard Paez, Anabelle Rodriguez, Michael Schattman, Christina Snyder, Clarence Sundram, Hilda Tagle, Jame Ware, and Helene White, who are pending before the Senate eager to get to work and fill them.
We have seen 115 judicial vacancies over the course of this year. The Senate has seen fit to confirm only 21 nominees. More than 50 additional nominees remain pending in committee and before the Senate. The Senate is not even keeping pace with attrition. Since the adjournment of Congress last year, judicial vacancies have increased by almost 50 percent. Indeed, this net increase in judicial vacancies, 29, still exceeds the number of judges confirmed over the course of the year, 21, and likely will when the Senate adjourns in November.
I have not attacked Senator Hatch on this floor and will not today. I know that if it were up to him we would be doing better, we would have fewer judicial vacancies and they would have been filled more quickly. I have asked him to hold more hearings and to consider nominations more expeditiously.
I thought we might be seeing a change in the atmosphere in the Senate in September. Anticipation of the President's radio address on the judicial vacancy crisis obviously reached the Senate. Even those who have been holding up the confirmations of Federal judges were uncomfortable defending this Senate's dismal record of having proceeded on only 9 of the 61 nominees received through August of this year.
As rumors of the President's impending address circulated around Capitol Hill, the Senate literally doubled its confirmations from 9 to 18 in the course of 23 days in September and forth first time all year achieved the snail-like pace of confirming 2 judges a month while still faced with almost 100 vacancies.
September was the only month all year that the Judiciary Committee held two confirmation hearings for judicial nominees during a single calendar month.
Following the wave of attention generated by the President's address, however, the Republican majority has reverted to its prior destructive course and the Judiciary Committee has yet to hold a hearing for any of the more than 40 nominees who have yet to be according hearings this year.
The President has sent the Senate 73 judicial nominations so far this year. The Senate has confirmed 21 judges. From the first day of this session of Congress, the Judiciary Committee has never worked through its backlog of nominees and has never had pending before it fewer than 20 judicial nominees awaiting hearings. The Committee's backlog has doubled, with 10 of these nominations having been pending since at least 1996; 5 have been pending since 1995.
Early this year, Chairman Hatch worked hard to bring the nomination of Merrick Garland to a vote. He gave that nominee his strong personal endorsement and fought for him. After an 18-month delay over 2 years, that outstanding nominee was finally confirmed 77 to 23. During that debate, the Christian Coalition circulated a letter opposing this outstanding nominee. Senator Hatch concluded the debate on the confirmation of Merrick Garland observing that he was sick of those playing politics with judges. I agreed with him then and still do. Unfortunately, the stall has continued and some in his party have continued to play very dangerous politics with judges.
In the last five rollcall votes on judicial nominees, there has been a cumulative total of one negative vote by a single Senator. Five judges were confirmed by unanimous rollcall votes and one was confirmed 98 to 1. The only judicial nominee to receive any negative votes was Judge Merrick Garland of the District of Columbia Circuit. He was opposed by the majority leader and 22 other Republican Senators. He was well qualified and was confirmed. That confirmation took over 18 months from when the Senate received the nomination.
Another of the well-qualified nominees who has been delayed far too long is Margaret Morrow. I spoke of her earlier this week when the Senate acted in less than 7 weeks to confirm the nominee to the district court in Utah. Unfortunately, not every nominee fills a vacancy in the home state of the chairman of the Judiciary Committee.
In contrast to the Senate's treatment of the Kimball nomination, Margaret Morrow's nomination has been pending before the Senate for over 16 months and pending on the Senate calendar awaiting action for more than 7 months.
Last year this nomination was unanimously reported by the Judiciary Committee and was left to wither without action for over 3 months. This year, the committee again reported the nomination favorably and it has been pending for another 4 months. There has been no explanation for this delay and no justification. This good woman does not deserve this shameful treatment.
Senator Hatch noted in his recent statement on September 29 that he will continue to support the nomination of Margaret Morrow and that he will vote for her. He said: ``I have found her to be qualified and I will support her. Undoubtedly, there will be some who will not, but she deserved to have her vote on the floor. I have been assured by the majority leader that she will have her vote on the floor. I intend to argue for and on her behalf.''
I have looked forward to that debate since June 12 when she was favorably reported to the Senate for a second time. This is a nomination that has been pending for far too long and that has been stalled here on the floor twice over 2 years without justification.
Meanwhile, the people served by the District Court for the Central District of California continue to suffer the effects of this persistent vacancy--cases are not heard, criminal cases are not being tried. This is one of the many vacancies that have persisted for so long that they are classified as judicial emergency vacancies by the Administrative Office of the U.S. Courts. There are four vacancies in the court for Los Angeles and the Central District of California. Nominees have been favorably reported by the Judiciary Committee for both of the judicial emergency vacancies in this district but both Margaret Morrow and Christina Snyder have been stalled on the Senate calendar.
This is a district court with over 300 cases that have been pending for longer than 3 years and in which the time for disposing of criminal felony cases and the number of cases filed increased over the last year. Judges in this district handle approximately 400 cases a year, including somewhere between 40 and 50 criminal felony cases. Still these judicial vacancies are being perpetuated without basis or cause by a Republican leadership that refuses to vote on these well-qualified nominees.
I am told that last week a Republican Senator announced at a speech before a policy institute that he has a hold on the Morrow nomination. A press release stated that he had placed a hold on Margaret Morrow's nomination because he wants to ``be able to debate the nomination and seek a recorded vote.'' I, too, want Senate consideration of this nomination and am prepared to record my vote.
After being on the Senate calendar for a total of 7 months, this nomination has been delayed too long. I believe all would agree that it is time for the full Senate to debate this nomination and vote on it. I have inquired about a time agreement but gotten no response. Now that an opponent has finally come forward to identify himself, I look forward to a prompt debate and a vote on this nomination in accordance with the apparent commitment of the majority leader. I look forward to that debate. I ask again, as I have done repeatedly over the last several months, why not now, why not today, why not this week?
I again urge the majority leader to call up the nomination of Margaret Morrow for a vote. She has suffered enough. The people of the Central District of California have been denied this outstanding jurist for long enough. The chairman of the Judiciary Committee said last month that he had the assurance of the majority leader that she will be called up for a vote but neither has said when that will be. I hope that the majority leader will proceed to the consideration of this nomination and that he will support Margaret Morrow to be a district court judge for the Central District of California.
Madam President, the reason I say that I am concerned that the President had to speak to this is that we should not have to be reminded of our constitutional duties. Indeed, the President was right in reminding us of this. I have served here now with numerous majority leaders--Senator Mike Mansfield of Montana, Senator Robert C. Byrd of West Virginia, Senator Howard Baker of Tennessee, Senator Robert Dole of Kansas, Senator George Mitchell of Maine--and all of these leaders of both parties are strong partisans for their parties, but all shared the responsibility as majority leader that there are certain things the Senate must do, and it is the responsibility of the leader to see that the Senate does it. One of those things, of course, is to see that the Senate votes on Presidential nominations to the Federal bench. Now, every Senator can vote against any nominee. Every Senator has that right. They can vote against them this committee and on the floor. But it is the responsibility of the U.S. Senate to at least bring them to a vote. It is our responsibility under the Constitution, it is our responsibility to the Senate itself, it is our responsibility to the American public not to allow 1 Senator to determine for all 100 Senators whether a person will be confirmed to a Federal judicial position or not. All Senators should be allowed to vote, and today they are not.
We really have not done our job as Senators. We have not fulfilled our responsibility to the Constitution. We have not fulfilled our responsibility to this body. We have not fulfilled our responsibility to advise and consent. And we certainly have not fulfilled our responsibility to the American people or the Federal judiciary.
I hope we might reach a point where we as a Senate will accept our responsibility and vote people up or vote them down. Bring the names here. If we want to vote against them, vote against them. But time after time after time I hear that there are vacancies where people are really concerned, a lot of Senators have a concern about this person. Then we come to a vote and 99 out of 100 Senators or all 100 Senators vote for that person.
This is not a fair way to do it. This is not being responsible. This is something, frankly, as I have said to my good friend, the majority leader, and he is my good friend, this is something that none of the majority leaders I have served with have ever allowed to happen, Republican or Democrat. Why? Because it would not be responsible. Why? Because it affects the administration of justice. Why? Because it fails our responsibility to the American public. Why? Because it is beneath the Senate of the United States. We should get on with the process.
Exhibit 1
Radio Address of the President to the Nation
The President. Good morning. I want to talk this morning about a very real threat to our judicial system. For more than 220 years our nation has remained young and strong by meeting new challenges in ways that renew our oldest values. Throughout our history our judiciary has given life and meaning to those values by upholding the laws and defending the rights they reflect, without regard for politics or political party.
That is the legacy of the judicial system our founders established, a legacy we recalled this Thursday on the 40th anniversary of the court-ordered desegregation of Little Rock Central High School.
But in the past 18 months this vital partnership has broken down as the Senate has refused to act on nomination after nomination. And in federal courthouses across America, almost 100 judges benches are empty. In 1996, the Senate confirmed just 17 judges--that's the lowest election-year total in over 40 years.
This year I've already sent 70 nominations to Congress, but so far they've acted on less than 20. The result is a vacancy crisis in our courts that Supreme Court Chief Justice William Rehnquist warned could undermine our courts' ability to fairly administer justice.
Meanwhile, our courts are clogged with a rising number of cases. An unprecedented number of civil cases are stalled, affecting the lives of tens of thousands of Americans--from the family seeking life insurance proceeds, to the senior citizen trying to collect Social Security benefits, to the small business protecting its right to compete. In our criminal courts nearly 16,000 cases are caught in limbo, while criminals on bail await punishment and victims await justice. Our sitting judges are overloaded and overworked, and our justice system is strained to the breaking point.
The Senate's failure to act on my nominations, or even to give many of my nominees a hearing, represents the worst of partisan politics. Under the pretense of preventing so-called judicial activism, they've taken aim at the very independence our founders sought to protect. The congressional leadership has actually threatened sitting judges with impeachment, merely because it disagrees with their judicial opinions. Under this politically motivated scrutiny, under ever-mounting caseloads, our judges must struggle to enforce the laws Congress passes and to do justice for us all.
We can't let partisan politics shut down our courts and gut our judicial system. I've worked hard to avoid that. And the people I've nominated for judgeships and had confirmed have had the highest rating of well qualified from the American Bar Association of any President since these ratings have been kept.
So today I call upon the Senate to fulfill its constitutional duty to fill these vacancies. The intimidation, the delay, the shrill voices must stop so the unbroken legacy of our strong, independent judiciary can continue for generations to come. This age demands that we work together in bipartisan fashion--and the American people deserve no less, especially when it comes to enforcing their rights, enforcing the law, and protecting the Constitution.
Thanks for listening.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. ASHCROFT. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ASHCROFT. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. I ask unanimous consent that upon the conclusion of the remarks by the distinguished Senator from Missouri, Mr. Abraham be recognized to speak for not to exceed 10 minutes; that he be followed by Mr. Breaux for not to exceed 7 minutes; that he be followed by the Senator from West Virginia, Mr. Byrd, for not to exceed 30 minutes; that he be followed by Mr. Gramm of Texas for not to exceed 20 minutes; that he be followed by Mr. Baucus for not to exceed 20 minutes; that he be followed by Mr. Warner for not to exceed 20 minutes.
The PRESIDING OFFICER (Mr. Faircloth). Without objection, it is so ordered.
Mr. BYRD. Mr. President, it may be those last four speakers will all cut their remarks a little short of what was included in the request.
Mr. ASHCROFT. Will the Senator yield?
Mr. BYRD. Yes.
Mr. ASHCROFT. I noted Senator Feinstein came to the floor earlier. Did you mean to include her in any way?
Mr. BYRD. I haven't spoken with her. Did she indicate that she wanted some time?
Mr. ASHCROFT. She had at one time wanted to speak. I don't know whether she would want to be included. I think it might be appropriate to name her in the request in the event she decided to do so.
Mr. BYRD. All right. I ask unanimous consent that at the conclusion of the remarks of the Senators aforementioned, the distinguished Senator from California [Mrs. Feinstein] be recognized for whatever time she may consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. I thank my friend from Missouri.
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