December 13, 2001

The Senate has on its calendar three judicial nominations to fill vacancies on the federal courts in New Mexico, Georgia, and Arizona. When the Senate acts favorably on all three of these nominations, we will have confirmed 27 federal judges since July, including six to the Courts of Appeals. That is as many judges as were confirmed in all of 1993, the first year of the Clinton Administration, but with more judges this year being confirmed 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 five nominees who appeared at a hearing just last week and were nominated to vacancies on the District Courts in Alabama, Colorado, Nevada, Texas, and another for Georgia, have been reported out of Committee today and are should be ready for consideration by the Senate before we conclude the year.

If the Senate acts favorably on these nominees before recessing for the year, we will have confirmed 32 judges since July, and 28 since the August recess. This is more judges than were confirmed after the August recess in any of the last six years and more than were confirmed at any time in a comparable period during the last six-and-one-half years while a Republican majority controlled the Senate.

This 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 65 District Court vacancies, for which 50 do not have nominations pending. For those who like to speak in terms of percentages, that means 77 percent of the District Court vacancies do not have a nominee. I urge the White House, as I have for years, to work with home state Senators of both parties to identify, select and nominate strong, consensus, fair nominees for these important vacancies.

Since the Senate was allowed to reorganize this summer and members were assigned to committees, we have moved expeditiously to hear, report and confirm a large number of federal judges to our federal trial courts around the country. The first two confirmations to the district courts were Judge Cebull and Judge Haddon to the District Court in Montana. The Chief Judge of that Court had written to us asking for our immediate attention and help because he had no active associate judge in that District. We responded. Working with Senator Baucus and Senator Burns, a Democrat and a Republican, the two nominees were included in our very first hearings, which was held the day after Committee members were assigned. They were both confirmed the following week, on July 20.

Similarly, we heard from the Chief Judge of the District Court for the Eastern District of Kentucky. We responded by holding hearings for three judicial nominees to vacancies in that Court and have proceeded to confirm two so quickly that they had to delay being sworn in to wind down their legal practices.

Similarly, when we heard from the Chief Judge of the District Court for Kansas, we responded. We moved expeditiously to hold a hearing, report and confirm Judge Robinson to alleviate the emergency situation that the Chief Judge indicated existed in Topeka.

If we are able to confirm the nominees from the December 5 hearing before we adjourn, the Senate will have confirmed 26 of the 36 nominations to the federal trial courts received this year. That is over 70 percent of the federal trial court nominees. This exceed in less than six months, the number and percentage of federal trial court judges confirmed in all of 1999, the first session of the last Congress. This also exceeds the percentage of federal trial judges confirmed in the 1995 and 1997, as well. Accordingly, this year we have confirmed a higher percentage of the federal trial judges nominated than in the first year of any of the last three Congresses, in which a Republican majority was in control. The President has nominated only one federal trial court judge during the last two months. I hope to be able to incorporate a number of the remaining nine federal trial court nominees in hearings we will hold early in the next session.

To date, we have been able to move forward with the nomination of Judge Wooten to the federal trial court in South Carolina and proceeding with a full and fair hearing on the nomination of David Bunning to the federal trial court in Kentucky. We have proceeding promptly on very conservative nominees. Including the nominees on the floor for consideration today, the Senate has confirmed 11 nominees from States with two Republican Senators, nine from States with a Democratic Senator and a Republican Senator, and four from States with two Democratic Senators. We have confirmed all of these judges in an average of less than 61 days from the time we received a peer review from the ABA.

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, I set our first hearing on judicial nominees within10 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 on Monday of this week I chaired our eleventh hearing since the Committee was assigned its membership on July 10, 2001. During the three months difficult 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. After the votes today, we will have succeeded in confirming 27 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 have accomplished more, and at a faster pace, than in years past. 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 61 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.

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.

William P. Johnson is the third federal judge confirmed from New Mexico in the last few weeks. We expedited consideration of M. Christina Armijo in October and she was confirmed to the federal district court on November 6. Likewise, Harris Hartz, President Bush’s nominee to the Tenth Circuit from New Mexico, participated in our October 25 hearing and was confirmed last week, on December 6. All three nominees came to us with the strong support of Senator Domenici and Senator Bingaman. Their confirmations are examples of the sort of progress we can make on consensus nominees with bipartisan support. When we confirm Mr. Johnson, we will help fill another judicial emergency vacancy. Unfortunately, half such emergency vacancies, 19, have no nominee.

Frederick Martone was nominated in September and received a mixed peer review rating from the ABA in late October. A minority of the ABA review committee considered this nominee not qualified. This is one of a number of nominations for which the ABA peer review has yielded a mixed result. The Senate has proceeded to confirm one such nomination to a Court of Appeals and will be considering several others. In this case, having considered the nomination independently, I am prepared to support the nomination. Mr. Martone was included in our November 7 hearing and reported by the Committee on November 29. He is supported by Senator McCain and Senator Kyl. Over the last two years we have created four additional judgeships for Arizona. Two of those new judgeships remain to be filled and I look forward to working with the Senators from Arizona and all Senators in helping fill those additional judgeships, as well. It is a shame that the Senate has not seen fit to create the judgeships needed so desperately in the Southern District of California. When we confirm Mr. Martone, we will help fill another judicial emergency vacancy.

Clay Land was nominated in late September to fill a vacancy in the Middle District of Georgia. With the support of Senator Cleland and Senator Miller and a strong rating from the ABA, Mr. Land was included in our November 7 hearing and favorably reported by the Committee on November 29. He is nominated for a judgeship created by legislation last year. He is the first of two nominations for the federal trial court in Georgia that I hope the Senate will act to confirm before adjournment this year. The other nominee is also supported by Senator Cleland and Senator Miller for a judgeship created at the end of last year and has a strong rating from the ABA. Although not nominated until October, Charles Ashley Royal has already had a hearing and was reported by the Judiciary Committee today along with four other judicial nominees.

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.

I am proud of the work the Committee has done on nominations. I hope that by the end of this session that total will rise above 30 as the Committee continues its work in preparation for the beginning of the Second Session next year.

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