Reaction of Sen. Patrick Leahy, D-Vt., Ranking Member, Senate Judiciary Committee,To Chief Justice Rehnquist’s Year-End Report On The Federal Judiciary

[Embargoed until 12:01 a.m. E.S.T. January 1, 1998]

1997 Ends With Net Increase Of 18 Judicial Vacancies

It should concern us that the Senate’s record in filling judicial vacancies is so poor that the Chief Justice has to remind us of our constitutional duty. I hope his message will help shame the Senate into clearing the backlog early in the new year.

The year-end report on the judicial confirmation process shows that the Senate did not even keep up with attrition. There are many more vacancies in the federal judiciary today then when the Senate adjourned in 1996. When Congress adjourned in 1996 there were 64 vacancies on the federal bench. In the last 12 months, another 54 vacancies have opened. And so, after the confirmation of 36 judges in 12 months in 1997, there has been a net increase of 18 vacancies.

The Chief Justice correctly warns that these "vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary." He is also right when he says that "the Senate should act within a reasonable time to confirm or reject nominees" and that "the Senate is surely under no obligation to confirm any particular nominee, but after a necessary time for inquiry it should vote him up or vote him down." But that was not the case in 1997, with more than 40 judicial nominees relegated to limbo, having never been accorded a Senate vote.

In fact, the Senate still has pending before it 11 nominees who were first nominated during the last Congress, including five who have been pending since 1995. There remains no excuse for the Senate’s delay in considering the nominations of such outstanding individuals as Professor William A. Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, M. Margaret McKeown, Susan Oki Mollway, Margaret M. Morrow, Clarence J. Sundram, Ann L. Aiken, Annabelle Rodriguez, Michael D. Schattman and Hilda G. Tagle, all of whom have been pending since the last Congress. All of these nominees have been waiting at least a 18 months and some more than two years for Senate action. Each of these outstanding nominees deserves an up or down vote, as the Chief Justice recommends.

In 1997, some in Congress started down the destructive path of attacking the judiciary and stalling the confirmation of qualified nominees to the federal bench. Some lawmakers in positions of high responsibility have even boasted that they intend to "intimidate" the independent judiciary. As Congress reconvenes in 1998, I hope we will realize that those efforts are a disservice to the American people and to the national interest. Those who delay or prevent the filling of these vacancies must understand that they are delaying or preventing the administration of justice. Congress can talk the talk about being tough on crime, but the fact is that courts cannot try cases, incarcerate the guilty or resolve civil disputes without judges. The mounting backlogs of civil and criminal cases in the dozens of judicial emergency vacancies, in particular, are growing more critical by the day. We say we want to promote law and order. But that seems like mere lip service when matched with the Senate’s dereliction of duty in filling these vacancies.

The Chief Justice eloquently describes the importance of an independent and fully functioning federal judiciary. It is too important to be held hostage by partisan politics.