December 7, 2001

The Honorable Richard Cheney
Vice President of the United States
United States Capitol
Washington, D.C. 20510

Dear Dick,

I received your December 4 letter. I enclose for you a copy of my statement from yesterday’s Congressional Record in connection with the Senate’s confirmation of Judge Hartz to the Tenth Circuit, Judge Reeves to the Eastern District of Kentucky and Judge Heaton to the Western District of Oklahoma. It includes a recitation of the progress we have been able to make since this summer in confirming 21 judicial nominees, including six to the Courts of Appeals.

In addition to those 21 confirmations, there are another six judicial nominees pending on the Senate Executive Calendar ready for favorable action and there were another five judicial nominees included in our December 5 hearing. I am continuing to work to confirm as many of these nominees as possible this year. I hope that by adjournment, the Senate will have acted favorably on more than 30 judicial nominees.

I am familiar with the circumstances in the Sixth Circuit and with Judge Merritt’s warnings last year that these circumstances would arise if the Senate did not act last year. In spite of all of my efforts to obtain hearings and action, the prior Committee and Senate leadership would not act on either of the two nominees from Michigan – one of which set a record by never being accorded a

hearing in over four years and the other the daughter of a former Solicitor General and Court of Appeals Judge – nor on the Ohio nominee, a law professor and long-time public servant.

I am also familiar with the circumstances in the D.C. Circuit over the last several years during which Allen Snyder was accorded a hearing but never scheduled for a Committee or Senate vote and Elena Kagan was never accorded a hearing. Indeed, only one vacancy in the D.C. Circuit has been filled since 1995 – in 1997 after the nominations had been pending more than 17 months.

Because of Senate inaction over the last six and one-half years, in which a total of only 46 judges were confirmed to the Courts of Appeals, we are faced with multiple vacancies in a number of Circuits. There are many problems that have grown over time and they cannot all be remedied simultaneously and immediately.

Consider, for example, the Fifth Circuit. Since 1999, Chief Judge King of the Fifth Circuit has declared a state of emergency in the Circuit – 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 Fifth Circuit. The nominations hearing I convened this fall for Judge Clement was the first hearing for a nominee to the Fifth Circuit in seven years – since September 14, 1994. She was likewise the first Judge confirmed to the Fifth Circuit in seven years. As you know, Judge Clement was among the first nominees named by the President after he withdrew all pending judicial nominations in March.

Similarly, the Senate proceeded promptly to confirm Judge Gregory to the Fourth Circuit, Judge Riley to the Eighth Circuit and more recently Judge Hartz to the Tenth Circuit– all Circuits with multiple vacancies. As I have noted, that are many problems among the Circuit and District Courts that have grown over time, yet as I move to solve some, you chose to complain about others, without any acknowledgment of the progress we have been making.

You are correct that President Bush has sent a large number of nominations to the Senate. Still, 69 percent of the vacancies in District Courts around the country do not have a nomination and more than half of the judicial emergency vacancies do not have a nominee. Of the District Court nominations by the President, the Senate has confirmed 15, the Committee has reported another six and the Committee has held hearings on an additional five. Twenty-eight of the District Court nominations have already participated in one of the 10 hearings I have convened since July. In addition, I believe that these nominees have all been confirmed within an average of fewer than 60 days of the Senate receiving their ABA peer reviews.

Of course, when the Administration decided to change the 50-year tradition of ABA involvement early in the selection process, it extended the time that nominations must now remain pending

before the Senate Committee while we await those ratings. In addition to the 33 nominees who have already been accorded confirmation hearings, at the request of Senator Bunning and Senator McConnell, I have noticed a hearing on the nomination of David Bunning for December 10, 2001. As you know, Mr. Bunning received a "not qualified" rating from the ABA.

Our task is also complicated when the Administration chooses not to work with home state Senators and when the President sends nominations that engender greater controversy. The executive branch may view its responsibility narrowly as merely to nominate. I urge you to work with all Senators so that we can have greater consensus with regard to these important nominations. One of the lessons of this year is that consensus nominees are able to be considered and confirmed more quickly.

Since I became Chairman and members were assigned to the Judiciary Committee, I have worked to fill as many judicial vacancies as quickly as possible. The better way to do that in what remained of this year seemed to me to be to proceed with those nominations for which there was the greatest consensus. That approach has yielded dividends and since July, the Senate has confirmed more judges, including more Court of Appeals judges, than in the first year of the first Bush Administration and more judges and many more Court of Appeals judges than were confirmed in all of 1996, when a Republican Senate majority would only vote on 17 District Court nominees and not a single nominee to the Courts of Appeals. By the end of this year, I expect the Senate will confirm more than 30 judges– more judges than were confirmed in the first year of the Clinton Administration– including twice an many judges to the Courts of Appeals.

I hope this response is informative and that you take seriously my willingness to work with you.

Sincerely,

PATRICK LEAHY
Chairman