December 11, 2001

Today, we have before us three judicial nominations to fill vacancies in the District of Columbia, the Eastern District of Louisiana and Kansas. When the Senate acts favorably on these nominations, we will have confirmed 24 federal judges since July, including six to the Courts of Appeals.

This summer, when I became chairman of the Judiciary Committee, federal court vacancies were rising to 111. Since July, we have worked hard and the Senate has been diligent in considering and confirming two dozen judges, thereby beginning the process of lowering the vacancies on our federal courts. Since I became Chairman, 19 additional vacancies have arisen. Still, we have been able to outpace this high level of attrition and lower the vacancies to under 100. We will try to keep that number moving in the right direction. In spite of the upheavals we have experienced this year with the shifts in chairmanship, the delay in reorganizing the Senate and assigning members to the committees, the vacancies that have arisen since this summer, the need to focus our attention on responsible action in the fight against international terrorism and the threats and dislocations of the anthrax attacks, we are making progress. Far from taking a "time out," as Republicans were suggesting, this Committee has been in overdrive since July and we redoubled our efforts after September 11, 2001.

During the last six and one-half years when a Republican majority controlled the process, the vacancies rose from 65 to at least 103, an increase of almost 60 percent. Since July, we have been making strides to reverse that record and have worked hard to reduce vacancies below the 111 vacancies that existed in July.

In addition to the three nominations being considered by the Senate today, another three nominations to vacancies on the District Courts in New Mexico, Arizona and Georgia are on the Senate Executive Calendar, and another five nominations were included in a hearing last Wednesday. If the Committee is able to report those nominations and the Senate acts favorably on them before recessing for the year, we will have confirmed 32 judges since July. That would be more judges confirmed since the August recess than in any other of the last six and one-half years. It would be more judges than were confirmed in the first year of the Clinton Administration and include twice as many judges to the Courts of Appeals as were confirmed that year. It would be more than twice as many judges as were confirmed in the first year of the first Bush Administration, including more judges to the Courts of Appeals.

The President has yet to send nominations to fill more than half of the current vacancies. This is a particular problem with the 71 District Court vacancies, for which 50 – over 70 percent – do not have nominations pending.

We have been able to reduce vacancies over the last six months through hard work and a rapid pace of scheduling hearings. Until I became Chairman of the Judiciary Committee, no judicial nominees had been given hearings this year. No judicial nominees had been considered by the Judiciary Committee or been voted upon by the Senate. After almost a month’s delay in the reorganization of the Senate in June while Republicans sought leverage to change the way the way judicial nominations had traditionally been considered and abruptly abandoned the practices that they had employed for the last six and one-half years, I noticed our first hearing on judicial nominees within 10 minutes of the reorganization resolution being adopted by the Senate.

I have previously noted that during the six and one-half years that the Republican majority most recently controlled the confirmation process, in 34 of those months they held no confirmations for any judicial nominees at all, and in 30 other months they conducted only a single confirmation hearing involving judicial nominees. Since the Committee was assigned its members in early July, 2001, we have held confirmation hearings every month, including two in July, two during the August recess, two during December and three hearings during October. Only once during the previous six and one-half years has the Committee held as many as three hearings in a single month. On the other hand, on at least three occasions during the past six and one-half years the Committee had gone more than five months without holding a single hearing on a pending judicial nominee. We have held more hearings involving judicial nominees since July 11, 2001 than our Republican predecessors held in all of 1996, 1997, 1999 or 2000. In the last six months of this extraordinarily challenging year, the Committee has held 11 hearings involving judicial nominees.

Last week the Committee held its tenth hearing on judicial nominations and yesterday I chaired our eleventh since the Committee was assigned its membership on July 10, 2001. During the three months since September 11, the Judiciary Committee has held seven judicial confirmation hearings– the same number that the Republican majority held in all of 1999 and one more than they held in all of 1996. Since July we have held hearings on 34 judicial nominees, including seven to the Courts of Appeals. Since September 11 we have held hearings on 27 judicial nominees, including four to the Courts of Appeals.

Working with the Majority Leader and the Deputy Leader, I have adopted a practice for the second half of this year of working with all Senators and with the Administration to try to fill an many judicial vacancies as possible. To date we have succeeded in confirming 24 judges. We have persevered through extraordinary circumstances during which the Senate building housing the Judiciary Committee hearing room was closed, as were the buildings housing the offices of all the Senators on the Committee. We persevered through a partisan filibuster preventing action on the bill that funds our nation’s foreign policy initiatives and provides funds to help build the international coalition against terrorism. We showed patience and resolve when at our November hearing a family members of one of the nominees grew faint and required medical attention. That hearing was completed after attending to those medical needs.

We have accomplished more, and at a faster pace, than in years past. Even with the time needed by the FBI to follow up on the allegations that arose regarding Judge Wooten in connection with his confirmation hearing, we have proceeded much more quickly than at any time during the last six and one-half years. Thus, while the average time from nomination to confirmation grew to well over 200 days for the last several years, we have considered nominees much more promptly. Measured from receipt of their ABA peer reviews, we have confirmed the judges this year, including the Court of Appeals nominees, on average in less than 60 days. So, we are working harder and faster than previously on judicial nominations, despite the difficulties being faced by the nation and the Senate.

We have also completed work on a number of judicial nominations in a more open manner than ever before. For the first time, this Committee is making public the "blue slips" sent to home State Senators. Until my chairmanship, these matters were treated as confidential materials and restricted from public view. We have moved nominees with less time from hearings to the Committee’s business meeting agenda, and then out to the floor, where nominees have received timely roll call votes and confirmations. The past practices of extended unexplained anonymous holds on nominees after a hearing have not been evident in the last six months of this year as they were in the past. Indeed over the past six and one-half years at least eight judicial nominees who completed a confirmation hearing were never considered by the Committee but left without action.

Just last year two of the three Court of Appeals nominees reported to the Senate, Bonnie Campbell of Iowa and Allen Snyder of the District of Columbia, were both denied Committee consideration from their May hearings until the end of the year. In fact, only one Court of Appeals nominee all last year was confirmed after being according a hearing a Committee consideration that year. That was reminiscent of a Republican majority in the Senate refusing to confirm a single Court of Appeals nominee in all of 1996– not one.

Likewise the extended, unexplained, anonymous holds on the Senate Executive Calendar that characterized so much of the last six and one-half years have not slowed the confirmation process this year. Majority Leader Daschle has moved swiftly on judicial nominees reported to the calendar. Once those judicial nominees have been afforded a timely roll-call vote, the record shows that the only vote against any of President Bush’s nominees to the federal courts to date was cast by the Republican Leader.

With respect to law enforcement, I have noted that the Administration was quite slow in making United States Attorney nominations, although it had called for the resignations of United States Attorneys early in the year. Since we began receiving nominations just before the August recess, we have been able to report, and the Senate has confirmed, 57 of these nominations. We have only a few more United States Attorney nominations received in November and December, and await approximately 30 nominations from the Administration. These are the President’s nominees based on the standards that he and the Attorney General have devised.

I note, again, that it is most unfortunate that we still have not received even a single nomination for any of the United States Marshal positions. United States Marshals are often the top federal law enforcement officer in their district. They are an important front-line component in homeland security efforts across the country. We are near the end of the legislative year without a single nomination for these 94 critical law enforcement positions. It will likely be impossible to confirm any United States Marshals this year having not received any nominations in the first 11 and one-half months of the year.

In the wake of the terrorist attacks on September 11, some of us have been seeking to join together in a bipartisan effort in the best interests of the country. For those on the Committee who have helped in those efforts and assisted in the hard work to review and consider the scores of nominations we have reported this year, I thank them. As the facts establish and as our actions today and all year demonstrate, we are moving ahead to fill judicial vacancies with nominees who have strong bipartisan support. These include a number of very conservative nominees.

The nominations before the Senate today are John Bates for the District of Columbia, Julie Robinson for the District Court in Kansas, and Kurt Engelhardt for the District Court in the Eastern District of Louisiana.

Before I became Chairman, the last confirmation to the District Court for the District of Columbia was that of Judge Ellen Huvelle. Despite being a distinguished judge in the D.C. Superior Court for nearly a decade, her nomination was pending for almost 7 months before she received a hearing. Judge Colleen Kollar-Kotelly had similar credentials and suffered even worse delays. Judge Kollar-Kotelly also served as a distinguished local judge. Her confirmation, nonetheless, required two nominations over two years before she was finally confirmed in 1997. She was not confirmed for eight months after her confirmation hearing. Of course, she has now replaced Judge Jackson as the judge in charge of proceedings on the government suit and proposed settlement of that legal action against Microsoft.

Despite nominees for vacancies on the District Court for the District of Columbia over the past several years, no nomination to this District Court had received a hearing in over two years. Things changed this July. First, we moved expeditiously to consider the nomination of Judge Reggie Walton to one of those longstanding vacancies. I chaired an unprecedented August recess hearing for Judge Walton and he was confirmed in September. Now we are proceeding, with the support of Representative Norton, to fill a second longstanding vacancy on the District Court for the District of Columbia. John Bates will be the second confirmation to the United States District Court for the District of Columbia in the last three months, after years of inaction.

The vacancy that is being filled by Judge Robinson is one that existed before I became chairman. Indeed, last year the President had nominated Keith Gary Sebelius in anticipation of that vacancy. In the last six months of last year Mr. Sebelius was not included in a hearing and his nomination died without Committee action and without Senate action when it was returned to the White House last December. Last year the Republican majority held only two hearings involving only seven District Court nominees in July and no hearings for any other judicial nominees in August, September, October, November or December, in spite of the vacancies and pending judicial nominations to fill them. This year, during the same time frame, the Committee has held 11 hearings involving 34 judicial nominations of which 27 have already been reported favorably to the Senate.

With respect to the vacancy in Kansas, Senators Roberts and Brownback wrote to me in October enclosing a letter from the Chief Judge of that District indicating that the vacancy combined with medical leave for a senior Judge had created a serious problem in that District. Chief Judge Lungstrum noted in his letter to Senator Roberts that the District in Kansas was without an active judge it its Topeka division. Just as we responded quickly to the Chief Judge of the District Court in Montana and the Chief Judge of the District Court in the Eastern District of Kentucky, we have responded to Chief Judge Lungstrum. Judge Robinson was included in a hearing on November 7 and reported by the Committee last month.

With respect to the vacancy on the Eastern District of Louisiana, that vacancy predated my chairmanship, as well. I recall the nomination in 1997 of Judge Lemelle to a vacancy on that court, the hearing held on his nominations more than 11 months later and his confirmation later still that year. I am glad to work with Senators Breaux and Landrieu to help fill another vacancy on that important court and to be able to do so within one-third the time it took to confirm the last judge to this District.

I am proud of the work the Committee has done on nominations, and I am proud that by the end of today we will have confirmed 24 judges. I hope that by the end of this session that total will rise to about 30 as the Committee continues its work on the nominations heard last week and the Senate confirms the additional three nominees previously reported by the Committee.

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