March 19, 1997 CONGRESSIONAL RECORD — SENATE S2515 impacts of the deficit on such impor- ports. The same effect appears to have base, that the importance of insisting tant things as our manufacturing ca- resulted from our need for the Japa- on fair play in the matter of trade will pacity and the integrity of our indus- nese to participate in our treasury bill become clear. trial base, on productivity, jobs and auctions. This becomes a closed cycle— Finally, the legislation requires the wages in specific sectors. the need to finance the trade deficit Commission to examine alternative Throughout the 1980’s, my own State with foreign capital, resulting in reg- strategies which we can pursue to of West Virginia literally bled manu- ular involvement of the Japanese Gov- achieve the systematic reduction of the facturing jobs. We saw the jobs of hard- ernment in our treasury bill auctions, deficit, particularly how to retard the working, honest West Virginians in the seems to dampen our efforts to push migration of our manufacturing base glass, steel, pottery, shoe manufac- the Japanese on market-opening ar- abroad, and the changes that might be turing and leather goods industries— rangements. Naturally, without recip- needed to our basic trade agreements and other so-called smokestack indus- rocal open markets, the trade imbal- and practices. tries—hemorrhage across our borders ance remains exaggerated between the These are the purposes of the Com- and shipped overseas. While economic United States and Japan, prompting mission that Senator DORGAN and I development efforts in my State have further need for Japanese financial have proposed in this legislation. commendably encouraged our busi- support to fund the national debt. Of I commend the distinguished Senator nesses to refocus to help recover from course, this is a vicious circle. Thus, from North Dakota for his studious ap- those losses, the lack of knowledge some argue that the need for Japanese proach to this question. He is as knowl- about the causes and impact of our involvement in financing our national edgeable, if not more so, than certainly trade deficit leaves West Virginia, and debt hurt the ability of our trade nego- most other Senators, and perhaps any the nation as a whole, at a disadvan- tiators to get stronger provisions in other Senators, as far as I am con- tage in the arena of global competi- the dispute settled last year over the cerned, on this subject. I am pleased to tion. Japanese market for auto parts. join him in offering this proposal for We debate the trade deficit from time Similar considerations appear to pre- the consideration of the Senate. to time. We moan about it. We com- vail in negotiating market access with I hope that many of our colleagues plain about it. But, if we do not under- the Chinese in the area of intellectual will join us, and that we can secure stand the nature, of the long-term property. While our trade negotiator passage of the proposal in the near fu- vulnerabilities that such manufac- managed a laudable, very specific ture. turing imbalances create in our econ- agreement with the Chinese in 1995 in Mr. President, I yield the floor. omy and standard of living, we are this area, the Chinese were derelict in I suggest the absence of a quorum. surely in the dark. It appears to me implementing it, leading to another The PRESIDING OFFICER. The that debate over trade matters too high-wire negotiation last year to clerk will call the roll. often takes on the form of rhetorical avoid sanctions on the Chinese, and to The legislative clerk proceeded to bombast regarding so-called protec- get the Chinese to implement the ac- call the roll. tionists versus so-called free traders. cord as they had promised. Again, it is Mr. HATCH. Mr. President, I ask This is hardly a debate worthy of the unclear whether the Chinese will now unanimous consent that the order for name, given the problems we are fac- follow through in a consistent manner the quorum call be rescinded. ing. It is not an informed debate. We with the implementing mechanisms for The PRESIDING OFFICER (Ms. COL- are talking past each other, and in far the intellectual property agreement LINS). Without objection, it is so or- too general terms. It has been more of belatedly agreed to in the latest nego- dered. an ideological exchange than a real de- tiation. The highly trumpeted mantra f bate, primarily because we have not about how the U.S.-China relationship EXECUTIVE SESSION had sufficient analytical work done on will be one of, if not the most impor- the data bearing on this problem. Nei- tant, U.S. bilateral relationship for the ther side knows enough about what is next half century, has a chilling effect NOMINATION OF MERRICK B. GAR- really transpiring in our economy, on insisting on fair, reciprocal treat- LAND, OF MARYLAND, TO BE given the very recent nature of these ment, and good faith implementation U.S. CIRCUIT JUDGE FOR THE persistent deficits. of agreements signed with the Chinese DISTRICT OF COLUMBIA Certainly we know that the deficit government. The PRESIDING OFFICER. The Sen- reflects on the ability of American The Chinese government has again ate will proceed to executive session. business to compete abroad. We want recently reiterated its desire to become The clerk will report the nomination. to be competitive. Certainly we know a member of the World Trade Organiza- The assistant legislative clerk read that specific deficits with specific trad- tion and certainly her interest in join- the nomination of Merrick B. Garland, ing partners cause frictions between ing that organization is a commend- of Maryland, to be U.S. circuit judge the United States and our friends and able indication of her willingness to for the District of Columbia Circuit. allies. This is particularly the case submit to the rules of that organiza- The PRESIDING OFFICER. The Sen- with the Japanese, and is quickly be- tion regarding her trading practices. ator from Utah is recognized. coming the case with China. It is clear There is legitimate concern however, Mr. HATCH. Madam President, be- that the trade deficit has contributed that insufficient progress has been fore we get to the specific discussion of to the depreciation of the dollar and made by the Chinese on removing a the merits of Merrick B. Garland, let the ability of Americans to afford for- wide variety of non tariff discrimina- me make an important point. There eign products. Less clear, but of vital tory barriers to U.S. goods and serv- have been some suggestions made that importance, is the relationship of the ices, as she committed to do in the 1992 this Republican Congress is not moving trade deficit to other important policy bilateral Market Access Memorandum as rapidly or as well as it should on questions on the table between the of Understanding [MOU]. Indeed, in the judges, or at least last year did not United States and our foreign trading 1996 report by the United States Trade move as well or as rapidly as it should partners. Representative entitled foreign trade have on judges. Attempts by the United States to re- barriers, the amount of material de- With regard to judicial vacancies, the duce tariff and nontariff barriers in the voted to the range of such barriers on important point I would like to make Japan and China markets, which clear- the part of China is exceeded only by before getting into factual distortions ly restrict access of U.S. goods to those the material on Japan, indicating that that are being made about the judici- markets, have been crippled by the we have a continued persistent problem ary confirmation process is this. Fed- intervention of other, more important that needs serious attention along eral judges should not be confirmed policy goals. During the cold war, the these lines. simply as part of a numbers game to United States-Japan security relation- It will only be when we truly under- reduce the vacancy rate to a particular ship had a severe dampening effect on stand the specific impacts of these level. our efforts to reduce these myriad bar- large deficits on our economy, particu- While I plan to oversee a fair and riers in Japan to United States ex- larly our industrial and manufacturing principled confirmation process, as I

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2516 CONGRESSIONAL RECORD — SENATE March 19, 1997 always have, I want to emphasize that until mid-March or April and can- It is true, 28 nominees did not get the primary criteria in this process is didates were not reported to the floor confirmed last Congress. There is no not how many vacancies need to be until after these hearings. use kidding about it. We had 28 who did filled but whether President Clinton’s In the 100th Congress, the first hear- not make it through. But this was at a nominees are qualified to serve on the ing was not held until March 4, 1987. In point where there were only 65 vacan- bench and will not, upon receiving the 101st Congress, the first judges cies in the court, or, in other words, a their judicial commission, spend a life- hearing was not held until April 5, 1989. full Federal judiciary. There is some time career rendering politically moti- And in the 102d Congress, when there extra consideration here. Compare this vated, activist decisions. The Senate was a vacancy rate of 15 percent in the to the end of the 102d Congress when, has an obligation to the American peo- courts, the first hearing was not held notwithstanding 97 vacancies in the ple to thoroughly review the records of until March 13, 1991. Federal system, the Democratic Senate the nominees it receives to ensure that So I think some of the arguments left 55 Bush nominees unconfirmed. they are qualified and capable to serve made against what we have been doing Let us talk about the present vacan- as Federal judges. Frankly, the need to are just fallacious and I think done for cies. Due to an unprecedented number do that is imperative, and the record of partisan reasons. We ought to get rid of of retirements since Congress ad- activism demonstrated by so many of the partisanship when it comes to journed, there are currently 95 vacan- President Clinton’s nominees calls for judges and go ahead and do what is cies in our Federal system or a vacancy all the more vigilance in reviewing his right. I have tried to do that. rate of 11.25 percent as of March 1 of Now let us talk about the number of this year. That is the most recent re- nominees. So I have no problem with those who judges confirmed last year. Democrats port from the Administrative Office of want to review these nominees with have been critical of the fact that only the Courts. Notice that when the 105th great specificity. The recent allega- 17 judges were confirmed last year. The Congress convened on January 7, 1997, fact is that President Clinton had al- tions by my colleagues on the other there were 85 vacancies, or a 10.7 per- ready had so many judges confirmed side of the aisle and in the media that cent vacancy rate. But a little perspec- that he only nominated 21 judges last tive reveals that this is by no means a there is a Republican stall of judges is year. During President Clinton’s first high level for the beginning of the Con- nothing short of disingenuous. The fact is that last Congress under term, he had 202 judges confirmed— gress. In fact, it is lower than the va- Republican leadership the Federal more than President Bush, 194; Presi- cancy rates at the beginning of the courts had 65 vacancies—as you see, dent Reagan, 164 in his first term; Democratically controlled 102d and President Ford, 65 in his term. I might the Federal courts had 65 vacancies— 103d Congresses, where the vacancy say that as a result there were very few which is virtually identical to the rates were 126 vacancies in the 102d, at vacancies to fill at the end of the 104th a 14.89 percent vacancy rate, with 109 number of vacancies—63—there were at Congress, and the courts were virtually vacancies in the 103d, for a 12.88 va- the end of the previous Congress when at full capacity. cancy rate. the Democrat-controlled Congress was In fact, at the close of the last Con- So, there is little or no reason to be processing Clinton judges. gress, there were only 65 vacancies in this critical or this irritated with what Historically speaking, this is a very the entire system, which is a vacancy has gone on. I pledge to the Senate to low vacancy rate. In contrast, at the rate of 7.7 percent. In fact, the number do the very best that I can to try to end of the 102d Congress, when Senator of vacancies under my chairmanship at confirm President Clinton’s judges, if BIDEN chaired the Judiciary Com- the close of the 104th Congress, 65 va- they are not superlegislators, if they mittee and President Bush was at the cancies—when a Republican Senate are people who will uphold the law and White House, there were 97 vacancies— was processing Clinton’s nominees— interpret the law and the laws made by as you can see, back in the 102d Con- was virtually identical to the number those who are elected to make them. gress, 97 vacancies—in the Federal sys- of vacancies at the end of the 103d Con- Judges have no reason on Earth to be tem for an 11.46 percent vacancy rate, gress, 63, when a Democrat-controlled making laws from the bench or to act nearly twice the vacancy rate than at Senate was processing President Clin- as superlegislators from the bench and the adjournment of the 104th or last ton’s nominees. At that point the De- to overrule the will of the majority of Congress. That rate was, of course, 7.7 partment of Justice proclaimed that the people in this country when the percent at that time. they had nearly reached full employ- laws are very explicitly written—or at The vacancies have risen since the ment in the 837-member Federal judici- any other time, I might add. end of Congress so that there are now ary. That is in an October 12, 1994, De- Having said all that, we are bringing 95 vacancies, or a vacancy rate of just partment of Justice press release. our first two nominees this year to the over 11 percent. But a little perspective When the Democrats left open 7.44 floor, one of whom is in contention. I reveals that this is by no means a high percent of Federal judgeships after think unjustifiably so. level for the beginning of a Congress. President Clinton’s first 2 years, we Madam President, I rise to speak on In fact, it is far lower than the vacancy had approached ‘‘full employment’’ of behalf of the nomination of Merrick B. rates at the beginning of Democrat- the Federal judiciary. But, when Re- Garland for a seat on the U.S. Court of controlled Congresses, like the 102d publicans are in control, a virtually Appeals for the District of Columbia when the vacancy rate at the beginning identical vacancy level becomes an Circuit. On March 6, 1997, the Judiciary of that Congress was 14.89 percent, and ‘‘unprecedented situation,’’ the ‘‘worst Committee, including a majority of Re- the 103d Congress at 12.88 percent. In kind of politicizing of the Federal judi- publican members, by a vote of 14 to 4, the 104th, it was down to 8.27 and now ciary.’’ Those are comments that were favorably reported to the full Senate it is 10.07. made by my friend, Senator LEAHY. Mr. Clinton’s nomination of Merrick B. Moreover, we just reported two And ‘‘partisan tactics by Senate Re- Garland. Based solely on his qualifica- judges out of the committee this past publicans,’’ according to the New York tions, I support the nomination of Mr. Thursday—Merrick Garland for the DC Times. This is nothing short of dis- Garland and I encourage my colleagues circuit and Colleen Kollar-Kotelly for ingenuous. to do the same. the DC district court. We had a hearing In contrast, at the end of the 102d To my knowledge, no one, absolutely on four judicial nominees just yester- Congress when Senator BIDEN chaired no one disputes the following: Merrick day. I hope that will put to rest any of the Judiciary Committee and President B. Garland is highly qualified to sit on the partisan allegations that have been Bush was in the White House, there the D.C. circuit. His intelligence and seen deployed about delaying tactics to were 97 vacancies in the Federal sys- his scholarship cannot be questioned. hold up nominees. tem for an 11.46 percent vacancy rate— He is a magna cum laude graduate of In fact, this is the most prompt re- nearly twice the vacancy rate than at the Harvard Law School. Mr. Garland porting of judges to the floor in recent adjournment of the 104th Congress, was articles editor of the law review, Congresses. When the Senate was under which was 65 vacancies at a 7.7 percent one of the most important positions for the control of the other party, the first vacancy rate. any law student at any university, but hearing on judicial nominees in the What about the judges who were left in particular at Harvard; a very dif- new Congress was typically not held unconfirmed at the end of last August? ficult position to earn. And he has

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2517 written articles in the Harvard Law loads of the Federal judiciary and am have been complex administrative ap- Review and the Yale Law Journal, two fully prepared to work with Senator peals and only 7 percent easily disposed of the most prestigious journals in the GRASSLEY as chairman of that Sub- of prisoner petitions. country, on issues such as administra- committee on the Courts, on legisla- Moreover, most of the administrative tive law and antitrust policy. tion to authorize or deauthorize seats appeals heard in the D.C. circuit in- His legal experience is equally im- wherever such adjustments on the allo- volved the Federal Energy Regulatory pressive. Mr. Garland has been a Su- cation of Federal judges are warranted, Commission, the Federal Communica- preme Court law clerk, a Federal based upon court caseloads. tions Commission and the Environ- criminal prosecutor, a partner in one of With respect to the D.C. circuit, how- mental Protection Agency and are the most prestigious Washington firms, ever, the retirement of Judge James much more complex and time con- Arnold & Porter, Deputy Assistant At- Buckley, in August 1996, last year, now suming than even the immigration and torney General in the Justice Depart- leaves only 10 active judges on the 12- labor appeals, which comprise most of ment’s Criminal Division, and, since seat court. Accordingly, the Garland the administrative agency cases filed April of 1994, Principal Associate Dep- confirmation does not present the Sen- in other circuits. uty Attorney General to Jamie ate with a question whether the 12th In short, simply comparing the num- Gorelick, at the Justice Department, seat on the D.C. Circuit should be ber of cases filed in the D.C. circuit to where he has directed the Depart- filled, and I have made it clear to the the number filed in other circuits, and ment’s investigation and prosecution administration that I do not intend to even comparing the number of agency of the Oklahoma City bombing case. fill that seat unless and until they can appeals, is not a reliable indicator of And he has done a superb job there. show, and I believe it will take quite a the courts’ comparative workloads. Mr. Garland’s experience, legal bit of time before they could show it, As Senators, we have a responsibility skills, and handling of the Oklahoma that there is a need for the filling of to the public to ensure that candidates City bombing case have earned him the that seat. In fact, I would be, right for the Federal bench are scrutinized support of officials who served in the now, for doing away with that seat. If for political activists. A judge who does Justice Department during the Reagan at some future time we need that not appreciate the inherent limits on and Bush administrations, including extra, 12th seat, fine, we will pass a bill judicial authority under the Constitu- former Deputy Attorney General to grant it again. But right now it is tion and would seek to legislate from George Terwilliger, former Deputy At- not needed. the bench rather than interpret the law torney General Donald Ayer, former I would just say, rather, with the two is a judicial activist, and nominees who head of the Office of Legal Counsel, current vacancies, Garland will be fill- will be judicial activists are simply not Charles Cooper, and former U.S. attor- ing only the 11th seat. So the 12th seat qualified to sit on any Federal bench, neys Jay Stephens and Dan Webb—all is not in play anymore, which was the let alone the Federal circuit court of Republicans, I might add, who are critical seat. appeals or any Federal circuit court of strong supporters of Mr. Garland, as I The confirmation of Merrick B. Gar- appeals. believe they should be, as I believe we land to fill the court’s now vacant 11th As chairman of the Judiciary Com- all should be. seat is supported by D.C. Circuit Judge mittee, I will continue to carefully Oklahoma Governor Frank Keating, Laurence Silberman, a Reagan ap- scrutinize the records involved in cases who himself was denied one of those pointee who himself testified against of judicial nominees and to exercise judgeships by our friends on the other creating and/or preserving unneeded ju- the Senate’s advise-and-consent power side—even though I think most all of dicial seats on his circuit, meaning the to ensure we keep activists off the them admitted he would have made a 12th seat, and who has stated that, ‘‘it bench. In addition, I will continue to tremendous judge, but has since done would be a mistake, a serious mistake, speak out both in the Senate and in well for himself in becoming the Gov- for Congress to reduce’’—that is, the other forums to increase public aware- ernor of Oklahoma and has distin- Circuit Court of Appeals for the Dis- ness of harm to our society posed by guished himself. I might add his nomi- trict of Columbia—‘‘down below 11 such activists. Although we can never nation, back in 1992, for the 10th Cir- judges.’’ guarantee what the future actions of cuit Court of Appeals in the 102d Con- I am aware that there may be some any judicial nominee will be or any gress, was never voted on by the Judi- who take the position that the D.C. cir- judge, for that matter, and it may be ciary Committee. He languished in the cuit’s workload statistics do not even difficult to discern whether a par- committee for quite a length of time. warrant 11 judges. With all due respect, ticular candidate will be an activist, I But Governor Keating has endorsed Mr. I think these arguments completely do not believe there is anything in Mr. Garland’s nomination, praising in par- miss the mark, and caution my col- Garland’s record to indicate that, if ticular his leadership in the Oklahoma leagues to appreciate that certain sta- confirmed, he could amount to an ac- City bombing case. As he should be tistics can, if not properly understood, tivist judge or might ultimately be an praised. be misleading. activist judge. Mr. Garland was originally nomi- The position that the D.C. circuit Accordingly, I believe Mr. Garland is nated in September 1995. His nomina- should have fewer than 11 judges is a fine nominee. I know him personally, tion was favorably reported by the Ju- belied not just by the statements of I know of his integrity, I know of his diciary Committee but not acted on by Judge Silberman, who himself wanted legal ability, I know of his honesty, I the Senate during the 104th Congress, to get rid of the 12th seat, but also by know of his acumen, and he belongs on much to my chagrin, because I think the fact that comparing workloads in the court. I believe he is not only a fine he should have passed in that last Con- the D.C. circuit to that of other cir- nominee, but is as good as Republicans gress. But to my colleagues’ credit, and cuits is, to a large extent, a pointless can expect from this administration. In certainly to the leader’s credit, the exercise. fact, I would place him at the top of new majority leader, he has cooperated There is little dispute that the D.C. the list. There are some other very with the Judiciary Committee in bring- circuit’s docket is, by far, the most good people, so I don’t mean to put ing this nomination to the floor. complex and time consuming in the them down, but this man deserves to be At the time of Mr. Garland’s original Nation. Justice Department statistics at the top of the list. Opposition to this nomination to fill the seat vacated by show that whereas in a typical circuit, nomination will only serve to under- Judge Abner Mikva, who went on to be- 5.9 percent of all cases filed are admin- mine the credibility of our legitimate come White House Counsel, concerns istrative appeals, which are generally goal of keeping proven activists off the were raised by several, including sev- far more time consuming than other bench. eral distinguished judges here in Wash- appeals, and 26.7 percent are prisoner I fully support his nomination, and I ington, as to whether the D.C. circuit petitions which tend to be disposed of urge my colleagues to strongly con- needed its full complement of 12 judges far more quickly than other appeals. sider voting in favor of confirmation. due to a declining workload on the While that is true in other circuit I hope that we will also confirm the Court. I support Senator GRASSLEY’s courts, 45.3 percent of the cases filed in nominee Colleen Kollar-Kotelly, al- efforts to study the systemwide case- the D.C. circuit over the past 3 years though we will only be voting on

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2518 CONGRESSIONAL RECORD — SENATE March 19, 1997 Merrick Garland today, that is my un- court of appeals, has that person been I compliment the distinguished ma- derstanding. I hope we will put both held up? What fatal flaw in his char- jority leader and my good friend from these judges through. I do not know of acter has been uncovered? None, there Utah, the chairman of the Senate Judi- any opposition to the nominee Colleen is no fatal flaw. There was not a person ciary Committee, in scheduling this Kollar-Kotelly, and I know very lim- who spoke against, credibly spoke one nominee to the Federal Court of ited opposition at this point to Mr. against, his qualifications to be a Appeals, but there are still 24 current Garland. Like I say, I do not think judge, but he was one of the unlucky vacancies on the Federal courts of ap- there is a legitimate argument against victims of the Republican shutdown of peals. That number is rising. Mr. Garland’s nomination, and I hope the confirmation process last year. I We are way behind the pace of con- that our colleagues will vote to con- liken it to pulling the wings off a fly. firming the judges we have seen in our firm him today. This is what happened. past Congresses. In fact, let us take a I reserve the remainder of my time. The Judiciary Committee reported look at—I just happen to have a chart Mr. LEAHY addressed the Chair. his nomination to the Senate in 1995— on that, Madam President. I know Sen- The PRESIDING OFFICER. The Sen- in 1995. But here we are in 1997, and we ators were anxiously hoping I might. ator from Vermont is recognized. finally get to vote on it. Number of judges confirmed in past Mr. LEAHY. Madam President, I am Madam President, we have 100 vacan- Congresses: 102d Congress, 124; 103d delighted the Senate is finally consid- cies on the Federal bench. At this rate, Congress, 129; 104th Congress, 75. So far ering the nomination of Merrick Gar- by the end of this Congress, with nor- in the 105th Congress, none. I assume land to the U.S. Court of Appeals, the mal attrition, we will probably have that is going to change later this after- District of Columbia Circuit. I com- 130 or 140. We had an abysmal record noon when we finally do confirm one pliment my good friend, the senior last session dealing with Federal judi- judge. But look at this: 102d Congress, Senator from Utah, for his kind re- cial vacancies. 124; 103d Congress, 129 confirmed; 104th marks about Mr. Garland. We ought to show what we have here. Congress, 75 confirmed. The 105th Con- Like the distinguished chairman of Here, Madam President, are the num- gress, zippo. the Senate Judiciary Committee, I too ber of judges confirmed during the sec- I think we ought to take a look at believe that Merrick Garland is highly ond Senate session in Presidential elec- this next chart. We have 94 judicial va- qualified for this appointment and tion years: cancies. Just put the old magnifying would make an outstanding Federal In 1980, 9 appeals court judges, 55 dis- glass—I used to be in law enforcement, judge. trict court judges. Madam President. We actually used In 1984, 10 appeals court judges, 33 My concern that I have expressed be- these things. Of course, we were kind of district court judges. fore is that this is the first and only ju- In 1988, 7 Court of Appeals judges, 35 a small jurisdiction and I am just a dicial nomination scheduled for consid- district court judges. small-town lawyer from Vermont. We eration in these first 3 months of the In 1992—incidentally, 1992, Democrats do the best we can. But the magnifying 105th Congress. The Senate is about to were in charge with a Republican glass shows zero. I am pleased by the go on vacation for a couple of weeks. It President—11 appeals court judges, 55 end of this afternoon I can put a ‘‘1’’ in will be the only judgeship considered, district court judges. there, and let us hope that maybe we as I understand it. In the past, the Sen- So what happens when you switch it will get some more. Let us hope maybe ate has not had to wait the Ides of over, put in a Republican Senate and we will get some more. March for the first judicial confirma- Democratic President? Do you see the We can joke about it, but it is not a tion. The Federal judiciary has almost same sense of bipartisanship? Not on joking matter. We have people with 100 vacancies now and, with the Ides of your life. their lives on hold. When the President March, we are getting only one va- It is 11 appeals court judges, 55 dis- asks some man or woman to take a cancy filled. trict court judges with a Republican Federal courtship, their entire practice I, too, am sorry we have not pro- President and a Democratic Congress. is put on hold—it is kind of a good ceeded to confirm and schedule the Switch it to a Democratic President news/bad news situation. The President nomination of Judge Colleen Kollar- and a Republican Congress—zero, nada, calls up and says, ‘‘I’ve got good news Kotelly to the district court bench. zip, goose egg for the court of appeals for you. I’m going to nominate you for Here is one nominee we could go with, judges and only 17 for the district court the Federal bench. Now I have bad and we ought to be able to do that judges. Not too good. news for you. I’m going to nominate today, too. We have some other charts here. you for the Federal bench.’’ He or she The Senate first received Merrick Chief Justice Rehnquist spoke on this. finds their law practice basically stops Garland’s nomination from the Presi- A Chief Justice speaks only in a re- on the date of that nomination. They dent on September 5, 1995. We are now strained fashion, when he does. But cannot bring on new clients. Their way into March of 1997. So we have this look what he said. Look at what Chief partners give him or her a big party nomination that has been here since Justice William Rehnquist said about and say, ‘‘Please move out of your of- 1995. All but the most cynical say this the pace we have seen in this Senate: fice,’’ because they know it is going to man is highly qualified, a decent per- The number of judicial vacancies can have take a year or 2 or 3 to get through the son, a brilliant lawyer, a public servant a profound impact on a court’s ability to confirmation process. who will make an outstanding judge, manage its caseload effectively. Because the This is partisanship of an unprece- but his nomination sat here from 1995 number of judges confirmed in 1996 was low dented nature. I have spoken twice on until today. in comparison to the number confirmed in this floor today on what happens when This is a man who has broad bipar- preceding years, the vacancy rate is begin- we forget the normal traditions of the ning to climb . . . It is hoped that the ad- tisan support. Governor Keating of ministration and Congress will continue to Senate. Traditionally—certainly not in Oklahoma; Governor Branstad of Iowa; recognize that filling judicial vacancies is my lifetime—no Democratic majority William Coleman, Jr., a former mem- crucial to the fair and effective administra- leader or Republican majority leader of ber of a Republican President’s Cabi- tion of justice. the Senate would bring up a resolution net, former Reagan and Bush adminis- The administration is sending up for a vote directly attacking the Presi- tration officials, Robert Mueller, Jay judges, but it is like tossing them down dent of the United States—directly or Stephens, Dan Webb, Charles Cooper— into a black hole in space. Nothing indirectly attacking the President of all have supported Merrick Garland. So comes back out. the United States—on a day when the this is not a case of somebody out of In fact, 25 percent of the current va- President is heading off to a summit the pale. In fact, the Legal Times titled cancies have persisted for more than 18 with other world leaders, especially him, ‘‘Garland: A Centrist Choice.’’ I months. They are considered a judicial with the leader of the other nuclear su- will put those recommendation letters emergency jurisdiction. perpower, Russia. Yet, that tradition, in the RECORD later on. There are 69 current vacancies in our which, as I said, has existed my whole So why, when you have somebody Nation’s district courts. Almost one in lifetime, was broken today. who, in my 22 years here, is one of the six district court judgeships is or soon The other thing is that no matter most outstanding nominees for the will become vacant. which party controls the Senate, no

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2519 matter what party controls the Presi- Representative from Plymouth County that Clinton for appointment to the United dency, we have always worked together we served with in the Iowa Legislature. States Court of Appeals for the DC Circuit. so that the President, having been Recently, he has been overseeing the fed- Merrick is an outstanding lawyer with a very distinguished career both in private elected, can, subject to normal—nor- eral investigation and prosecution efforts in the Oklahoma City bombing, having been practice at Arnold & Porter and in govern- mal—advise and consent, can appoint sent there the second day after the blast oc- ment service, first as a special assistant to the judges he wants. And that tradition curred. He was serving in the position as me when I was Attorney General and then has been broken. principal Associate Deputy Attorney Gen- later as an Assistant United States Attorney If we are going to go against these eral. for the District and, most recently, as Chief basic tenets of bipartisanship, then the I am enclosing a number of news clippings Associate Deputy Attorney General to Jamie Senate will not be the conscience of about Merrick Garland. I would especially Gorelick. Additionally, his academic back- encourage you to review the Legal Times ground was outstanding, culminating in his the Nation that it should be. The Sen- clerkship to Supreme Court Justice Brennan. ate will suffer. And if the Senate suf- and article entitled: Garland, A Centrist Choice. In every way, he is a superb candidate for fers, the country suffers. As always, I appreciate all of your efforts. that bench, and I just wanted you to know of I withhold the balance of my time. Hope all is going well for you. my personal admiration for him. PRIVILEGE OF THE FLOOR Sincerely, Kindest regards. Madam President, if I might just for TERRY E. BRANSTAD, Sincerely, a moment, I ask unanimous consent Governor of Iowa. BENJAMIN R. CIVILETTI. that Tom Perez of Senator KENNEDY’s MCGUIRE WOODS, BATTLE & BOOTHE, III, staff be granted floor privileges. O’MELVENY & MYERS, Washington, DC, October 11, 1995. Washington, DC, October 16, 1995. The PRESIDING OFFICER. Without Re Nomination of Merrick B. Garland to the Hon. ORRIN G. HATCH, objection, it is so ordered. Chairman, Senate Committee on the Judiciary, U.S. Court of Appeals for the District of Mr. LEAHY. Madam President, I ask U.S. Senate, Russell Senate Office Building, Columbia Circuit. unanimous consent that a number of Washington, DC. Hon. ORIN G. HATCH, letters I referred to be printed in the DEAR ORRIN: As you know, President Clin- Chairman, United States Senate Committee on RECORD. ton has nominated Merrick B. Garland, Es- the Judiciary, Dirksen Senate Office Build- There being no objection, the mate- quire, to fill the judicial vacancy on the ing, Washington, DC. rial was ordered to be printed in the United States Court of Appeals for the Dis- DEAR SENATOR HATCH: I have been asked to express my views to you on Merrick Gar- RECORD, as follows: trict of Columbia Circuit caused by the re- tirement of Chief Judge Mikva. land’s nomination to sit on the Federal STATE OF OKLAHOMA, I write this letter to indicate my full sup- Court of appeals in the District of Columbia. OFFICE OF THE GOVERNOR, port and admiration of Mr. Garland and urge First, I believe Mr. Garland is an accom- Oklahoma City, OK, February 19, 1996. that you soon have a hearing of the Senate plished and learned lawyer and is most cer- Senator BOB DOLE, Committee on the Judiciary and thereafter tainly qualified for a seat on this important U.S. Senate, Washington, DC. support him to fill the vacancy. bench. Second, my experience with Mr. Gar- SENATOR DOLE: I endorse Merrick Garland Mr. Garland has a first-rate legal mind, land leads me to the conclusion that he for confirmation to the United States Court took magna cum laude and summa cum would decide cases on the law based on an of Appeals for the D.C. Circuit. Merrick will laude advantages of education at Harvard objective and fair analysis of the positions of be a solid addition to this esteemed court. College and Harvard Law School. In private the parties in any dispute. Third, I perceive A Harvard Law School graduate in 1977, a practice, he became and has the reputation Mr. Garland as a man who believes and fol- former Assistant United States Attorney and of being an outstanding courtroom lawyer. lows certain principles, but not one whose a former partner in Washington’s Arnold and In addition, on several occasions, he satisfied philosophical beliefs would overpower his ob- Porter Law Firm, Merrick will bring an his urge to be a public servant by two law jective analysis of legal issues. array of skills and experience to this judge- I know of no reason to suggest that the clerkships, one for Mr. Justice William J. ship. Merrick is further developing his tal- President’s choice for his vacancy on the Brennan and the other for the late Judge ents and enhancing his reputation as the Court of Appeals should not be confirmed. As Henry J. Friendly. He has also served in the Principle Associate Deputy Attorney Gen- you, of course, have demonstrated during Justice Department on several occasions. I eral. your tenure as Chairman, the President’s Last April, in Oklahoma City, Merrick was have known Merrick Garland as a lawyer and nominees are his choices and are entitled to at the helm of the Justice Department’s in- as a friend and greatly admire his personal be confirmed where it is clear that th4e vestigation following the bombing of the integrity, learning in the law and his desire nominee would be a capable and fair jurist. I Oklahoma City Federal Building, the blood- to be a great public servant. His legal, social believe Mr. Garland meets that criteria and iest and most tragic act of terrorism on and political views are those most Ameri- support favorable consideration of his nomi- American soil. During the investigation, cans admire and are well within the fine nation. Merrick distinguished himself in a situation hopes and principles of this country, which Sincerely yours, you have often expressed in conversations where he had to lead a highly complicated GEORGE J. TERWILLIGER, III. investigation and make quick decisions dur- with me as to the type of person you would like to see on the federal judiciary, particu- ing critical times. JONES, DAY, REAVIS & POGUE, Merrick Garland is an intelligent, experi- larly on the appellate courts. Washington, DC, October 10, 1995. enced and evenhanded individual. I hope you I first got to know Mr. Garland when he Re Merrick B. Garland. give him full consideration for confirmation was Special Assistant to Deputy and then Attorney General Civiletti, as my daughter, Senator ORRIN G. HATCH, to the United States Court of Appeals for the U.S. Senate, Senate Russell Office Building, D.C. Circuit. Lovida, Jr., was the other Special Assistant. I still see him and his wife from time to time Washington, DC. Sincerely, DEAR SENATOR HATCH: I first met Merrick and they are the type of Americans whom I FRANK KEATING, Garland in the mid–1970’s, when we over- greatly admire. Governor. lapped as students at the Harvard Law As is stated at the outset of this letter, I School. While I have not known him well, I hope you will see to it that Mr. Garland soon OFFICE OF THE GOVERNOR, have been well aware that his academic has his hearing and that you, at and after Des Moines, IA, October 10, 1995. background is impeccable, and that he is re- the hearing, will actively support him for Senator CHARLES E. GRASSLEY, puted to be a very bright, highly effective confirmation. If you have any questions, Hart Senate Office Building, Washington, DC. and understated lawyer. please give me a call and I will walk over to DEAR CHUCK: I am writing to ask your sup- During January of 1994, while he was serv- port and assistance in the confirmation proc- see you. ing in the Department of Justice, I had occa- ess for a second cousin, Merrick Garland, Take care. sion to deal with him directly on a matter of who has been nominated to be a judge on the Sincerely, some public moment and sensitivity. I was U.S. Court of Appeals for the District of Co- WILLIAM T. COLEMAN, Jr. struck by the thoroughness of his prepara- lumbia. tion, the depth of his understanding of the Merrick Garland has had a distinguished VENABLE, BAETJER AND HOWARD, LLP, matters in issue, both factural and legal, and legal career. He was a partner for many Baltimore, MD, September 7, 1995. his ability to express himself simply and years in the Washington law firm of Arnold Re Merrick B. Garland. convincingly. I was still more impressed and Porter. During the Bush Administration, Hon. BARBARA A. MIKULSKI, with his comments, from obvious personal Merrick was asked by Jay Stephens, the U.S. U.S. Senate, Hart Senate Office Bldg., Wash- conviction, on the essential role of honesty, Attorney for the District of Columbia, to ington, DC. integrity, and forthrightness in government. take on a three year stint as an Assistant DEAR SENATOR MIKULSKI: I just wanted to Our discussions at that time were followed U.S. Attorney. As I’m sure you know, Jay call your attention to the fact that Merrick by further conversations on several later oc- Stephens is the son of Lyle Stephens, the B. Garland has been nominated by President casions. I have also had an opportunity to

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observe from a distance his performance in If I can be of any further assistance, please WINSTON & STRAWN, the Department and to discuss that perform- do not hesitate to call me. Chicago, IL, October 10, 1995. ance with people closer to the scene. I am Sincerely, Hon. ORRIN G. HATCH, left with a distinct impression of him as a ROBERT S. MUELLER, III. Chairman of the Judiciary Committee, Russell person of great skill, diligence, and sound Senate Office Building, Washington, DC. judgment, who is driven more by a sense of PILLSBURY MADISON & SUTRO, DEAR SENATOR HATCH: It is my under- public service than of personal aggrandize- Washington, DC, November 28, 1995. standing that Merrick Garland’s name has ment. Hon. ORRIN G. HATCH, been submitted to the Senate Judiciary My own service in the Justice Department Chairman, Senate Judiciary Committee, Dirksen Committee to fill a vacancy on the D.C. Cir- during the last two Republican Administra- Senate Office Building, Washington, DC. cuit Court of Appeals. Merrick is a very tal- tions convinced me that government suffers Hon. CHARLES E. GRASSLEY, ented lawyer, who has had an outstanding greatly from a shortage of people combining Chairman, Senate Judiciary Subcommittee on career in both the private and public sectors. In particular, he has exhibited exceptional such exceptional abilities with a primary Administrative Oversight and the Courts, legal abilities during his recent term of of- drive to serve interests beyond their own. Hart Senate Office Building, Washington, fice in the U.S. Department of Justice. Merrick Garland’s nomination affords the DC. Throughout the United States, Merrick has Senate chance to place one such person in a DEAR SENATOR HATCH AND GRASSLEY: I am position where such impulses can be har- writing with respect to the nomination of been recognized as a person within the Clin- nessed to the maximum public good. I hope Merrick Garland to serve as a judge on the ton Department of Justice who is fair, that the Senate will seize that opportunity. United States Court of Appeals for the Dis- thoughtful and reasonable. He clearly pos- Very Truly Yours, trict of Columbia Circuit. I understand you sesses the ability to address legal issues and DONALD B. AYER. have significant reservations about filling resolve them in a fair and equitable manner. Accordingly, in my opinion, Merrick will the existing vacancy on the District of Co- be an outstanding addition to the D.C. Cir- lumbia Circuit at this time. In the event you SHAW, PITTMAN, POTTS & TROWBRIDGE, cuit Court of Appeals, and I strongly rec- consider filling the vacancy at this time, I Washington DC, November 9, 1995. ommend his confirmation by your com- commend Merrick Garland for your consider- Hon. ORRIN HATCH, mittee. If you have any further questions, ation. Chairman, Senate Judiciary Committee, U.S. please do not hesitate to contact me. I have known Mr. Garland for nearly ten Senate, Washington, DC. Very truly yours, years. We met initially during my service as DEAR SENATOR HATCH: I write to express DAN K. WEBB. my support for President Clinton’s nomina- Deputy Counsel to the President while Mr. Garland was assisting in an Independent tion of Merrick Garland to the position of AMERICAN BAR ASSOCIATION, STAND- Counsel investigation. During the course of circuit Judge of the United States Court of ING COMMITTEE ON FEDERAL JUDI- that contact, I was impressed with Mr. Gar- Appeals for the District of Columbia. I’ve CIARY, land’s professionalism and judgment. After I known Merrick since 1978, when we served as Washington, DC, September 21, 1995. was appointed United State Attorney for the law clerks to Supreme Court Justices—he for Re Merrick Brian Garland, United States District of Columbia, Mr. Garland expressed Justice Brennan and I for Justice (now Chief Court of Appeals for the District of Co- to me an interest in gaining additional pros- Justice) Rehnquist. Like our respective lumbia Circuit. bosses, Merrick and I disagreed on many ecutorial experience, and applied for a posi- Hon. ORRIN G. HATCH, legal issues. Still, I believe that Merrick pos- tion as an Assistant United States Attorney. Chairman, Committee on the Judiciary, sesses the qualities of a fine judge. I hired Mr. Garland for my staff, and ini- tially assigned him to a narcotics unit where Dirksen Senate Office Building, Washington, You are no doubt well aware of the details DC. of Merrick’s background as a practicing law- he had an opportunity to assist in inves- tigating a number of significant cases and to DEAR SENATOR HATCH: Thank you for af- yer, a federal prosecutor, a law teacher, and fording this Committee an opportunity to now a high-ranking official of the Depart- gain valuable trial experience. Mr. Garland quickly established himself as a dedicated express an opinion pertaining to the nomina- ment of Justice. This varied background has tion of Merrick Brian Garland for appoint- given Merrick a breadth and depth of legal prosecutor who was willing to handle the tough cases. He conducted thorough inves- ment as Judge of the United States Court of experience that few lawyers his age can Appeals for the District of Columbia Circuit. rival, and he has distinguished himself in all tigations, and became a skilled trial attor- ney. Our Committee is of the unanimous opin- of his professional pursuits. He is a man of ion that Mr. Garland is Well Qualified for great learning, not just in the law, but also Subsequently, after gaining significant trial experience, Mr. Garland was assigned to this appointment. in other disciplines. Not only is Merrick A copy of this letter has been sent to Mr. the Public Corruption section of the U.S. At- enormously gifted intellectually, but he is Garland for his information. torney’s Office. There he had an opportunity thoughtful as well, for he respects other Sincerely, to investigate and try a number of complex, points of view and fairly and honestly as- CAROLYN B. LAMM, sensitive cases. In the Public Corruption sec- sesses the merits of all sides of an issue. And Chair. he has a stable, even-tempered, and cour- tion, Mr. Garland demonstrated an excellent capacity to investigate complex trans- Mr. SESSIONS addressed the Chair. teous manner. He would comport himself on The PRESIDING OFFICER. The Sen- the bench with dignity and fairness. In short, actions, and approached these important I believe that Merrick Garland will be among cases with maturity and balanced judgment. ator from Alabama is recognized. President Clinton’s very best judicial ap- He was thorough and thoughtful in exer- Mr. SESSIONS. Thank you very pointments. cising his responsibility, and he always acted much. Sincerely, in accord with the highest ethical and pro- I am here today to speak on a subject fessional standards. CHARLES J. COOPER. that is most important to all of us in During his service as an Assistant United America, the Federal judiciary. State Attorney, Mr. Garland distinguished Washington, DC, November 25, 1995. himself as one of the most capable prosecu- I had the honor for 12 years to serve Hon. ORRIN G. HATCH, tors in the Office. He brought to bear a num- as a U.S. attorney, and during that Chairman, Senate Judiciary Committee, Senate ber of outstanding talents. He was bright. He time I practiced in Federal court be- Dirksen Building, Washington, DC. had the intellectual capacity to parse com- fore Federal judges. All of our cases DEAR MR. CHAIRMAN: I write with regard to plex transactions. He built sound working re- that were appealed were appealed to the nomination of Merrick Garland to the lationships with agents and staff based on Federal circuit courts of appeals. And Court of Appeals for the District of Colum- mutual respect. He was willing to work hard bia. that is where those final judgments of to get the job done. He was dedicated to his appeal were ruled on. I think an effi- I have known Mr. Garland since 1990 when job. He exercised sound judgment, and ap- he was an Assistant United States Attorney proached his work with professionalism and cient and effective and capable Federal and I was the Assistant Attorney General for thoughtfulness. He exhibited excellent inter- judiciary is a bulwark for freedom in the Criminal Division in the Department of personal skills, and was delightful to work America. It is a cornerstone of the rule Justice. Over the Years I have had occasion with. In sum, his service as an Assistant of law, and it is something that we to see his work in several cases. United States Attorney was market by dedi- must protect at all costs. We need to be Based both on my own observations and on cation, sound judgment, excellent legal abil- professional and expeditious in dealing his reputation in the legal community, I be- ity, a balanced temperament, and the high- with those problems. lieve him to be exceptionally qualified for a est ethical and professional standards. These I must say, however, I do not agree Circuit Court appointment. Throughout my are qualities which I believe he would bring that there has been a stall in the han- association with him I have always been im- to the bench as well. pressed by his judgment. Most importantly, I appreciate the opportunity to provide dling of judges. As Senator HATCH has Mr. Garland exemplifies the qualifies of fair- these comments for your consideration. so ably pointed out, there were 22 ness, integrity and scholarship which are so Sincerely, nominations last year, and 17 of those important for those who sit on the bench. JAY B. STEPHENS. were confirmed. We are moving rapidly

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2521 on the nominations that are now before circuit in America. They have 378 cases is why I continue to advocate the elimi- the Judiciary Committee. filed per judge in a year’s time. Both of nation of the 12th judgeship. There is one today I want to talk those judges talked to us and talked to So that is the former chief judge of about, Merrick Garland, because really our committee about their concerns for the D.C. circuit saying that to fill the I do not believe that that judgeship the Federal judiciary and gave some 12th judgeship would be frivolous, and should be filled based on the caseload observations they had learned. he noted that there is a continuing de- in that circuit, and for no other reason. First of all, Judge Tjoflat, former cline in the caseload in the circuit. But I think it is important to say chief judge of the eleventh circuit, tes- Madam President, let me point out that there is not a stall, that I or other tified how when the courts of appeals something that I think is significant. Senators could have delayed the vote get larger and those numbers of judges Judge Buckley, who is a distinguished on Merrick Garland for longer periods go up from 8, 10, 12, to 15, the member of that court has taken senior of time had we chosen to do so. We collegiality breaks down. It is harder status. But that does not mean that he want to have a vote on it. We want to to have a unified court. It takes more will not be working. At a minimum, he have a debate on it. We want this Sen- time to get a ruling on a case. It has would be required as a senior-status ate to consider whether or not this va- more panels of judges meeting, and judge to carry one-third of his normal cancy should be filled. And I think it they are more often in conflict with caseload. Many senior judges take should not. one another. It is difficult to have the much more than one-third of their Senator HATCH brilliantly led, re- kind of cohesiveness that he felt was caseload. They are relieved of adminis- cently, an effort to pass a balanced desirable in a court. Judge Wilkinson trative obligations, and they can han- budget amendment on the floor of this agreed with that. dle almost a full judicial caseload. It Senate. For days and hours he stood I think what is most important with does not indicate, because Judge Buck- here and battled for what would really regard to our decision today, however, ley announced he would be taking sen- be a global settlement of our financial is what they said about their need for ior status, that he would not be doing crisis in this United States. We failed more judges. Judge Tjoflat, of the elev- any work. He would still be handling a by one vote to accomplish that goal. enth circuit, said even though they significant portion of his former case- But it was a noble goal. have 575 filings per judge in the Elev- load. I think that is another argument That having slipped beyond us, I enth Circuit Court of Appeals, they do we ought to think about. think it is incumbent upon those of us not need another judge. Even Judge Finally, the numbers are very inter- who have been sent here by the tax- Harvey Wilkinson said even though esting with regard to the eleventh cir- payers of America to marshal our cour- they have 378 filings per judge in the cuit in terms of the declining caseload age and to look at every single expend- fourth circuit, they do not need an- mentioned by Judge Silberman in his iture this Nation expends and to decide other judge. He also noted, and the letter to Senator HATCH. We have ex- whether or not it is justified. And if it records will bear it out, that the amined the numbers of this circuit and is not justified, to say so. And if it is Fourth Circuit Court of Appeals has discovered that there has been a 15 per- not justified, to not spend it. the fastest disposition rate, the short- cent decline in filings in the D.C. cir- In this country today a circuit court est time between filing and decision, of cuit last year. That is the largest de- of appeals judge costs the taxpayers of any circuit in America, and they are cline of any circuit in America. It ap- America $1 million a year. That in- the third busiest circuit in America. parently will continue to decline. At cludes their library, their office space, That is good judging. That is good ad- least there is no indication that it will law clerks, secretaries, and all the ministration. That is fidelity to the not. If that is so, that is an additional other expenses that go with operating taxpayers’ money, and they ought to reason that this judgeship should not a major judicial office in America. be commended for that. be filled. That is a significant and important ex- When you look at that and compare I think Senator LEAHY, the most able penditure that we are asking the citi- it to the situation we are talking about advocate for Mr. Garland, indicated in zens of the United States to bear. And today with 11 judges in the D.C. cir- committee that it would be unwise to I think we ought to ask ourselves, is it cuit, they now have only 124 cases per use these kinds of numbers not to fill a needed? judge, less than one-fourth the number judgeship, but it seems to me we have I want to point out a number of of cases per judge as the eleventh cir- to recognize that, if you fill a judge- things at this time that make it clear cuit has. What that says to me, Madam ship, that is an appointment for life. If to me that this judgeship, more than President, is that we are spending that judgeship position needs to be any other judgeship in America, is not money on positions that are not nec- abolished, the first thing we ought to needed. Let me show this chart behind essary. do is not fill it. That is just good public me which I think fundamentally tells The former chief judge of the D.C. policy. That is common sense. That is the story. We have 11 circuit courts of circuit, with just 123 cases per judge, the way it has always been done in this appeal in America. Every trial that is back in 1995 said he did believe the 11th country, I think. We ought to look at tried in a Federal court that is ap- judgeship should be filled but he did that. pealed goes to one of these circuit not believe the 12th should be filled. As So what we have is the lowest case- courts of appeal. From there, the only recently as March of this year, just a load per judge in America, declining by other appeal is to the U.S. Supreme few weeks ago, he wrote another letter as much as 15 percent last year, and it Court. Most cases are not decided by discussing that situation. This is what may continue to decline this year. The the Supreme Court. The vast majority he said in a letter addressed to Senator numbers are clear. The taxpayer should of appeals are decided in one of these 11 HATCH: not be burdened with the responsibility circuit courts of appeal. You asked me yesterday for my view as to of paying for a Federal judge sitting in Senator GRASSLEY, who chairs the whether the court needs 11 active judges and a D.C. circuit without a full caseload of Subcommittee on Court Administra- whether I would be willing to communicate cases to manage. tion, earlier this year had hearings on that view to other Senators of your com- Let me say this about Mr. Garland. I mittee. As I told you, my opinion on this the caseloads of the circuit courts of matter has not changed since I testified be- have had occasion to talk with him on appeals. He had at that hearing the fore Senator GRASSLEY’s committee in 1995. I the phone. I told him I was not here to just recently former chief judge of the said then and still believe that we should delay his appointment, his hearing on Eleventh Circuit Court of Appeals, have 11 active judges. On the other hand, I his case. I think it is time for this Sen- which has the highest caseload per then testified and still believe that we do not ate to consider it. I think it is time for judge in America. Total appeals filed need and should not have 12 judges. Indeed, us to vote on it. Based on what I see, per judge for the year ending Sep- given the continued decline in our caseload that judgeship should not be filled. He tember 30, 1996, was 575 cases per judge. since I last testified, I believe the case for has a high position with the Depart- the 12th judge at any time in the foreseeable He also had testifying before that com- future is almost frivolous, and, as you know, ment of Justice and, by all accounts, mittee Chief Judge Harvey Wilkinson since I testified, Judge Buckley has taken does a good job there. There will be a from the Fourth Circuit Court of Ap- senior status and sits part time, and I will be number of judgeship vacancies in the peals. They are the third most busy eligible to take senior status in 3 years. That D.C. trial judges. He has been a trial

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2522 CONGRESSIONAL RECORD — SENATE March 19, 1997 lawyer. He would be a good person to only on those occasions when it was tune of about $1 million per year for fill one of those. I would feel com- down to 10 active judges. each seat. The total price tag for fund- fortable supporting him for another Additionally, according to the Ad- ing an article III judge over the life of judgeship. ministrative Office of the U.S. Courts, that judges is an average of $18 million. Based on my commitment to frugal it costs more than $800,000 a year to Madam President, $18 million is a management of the money of this Na- pay for a circuit judge and the ele- whole lot of money that we would be tion, I feel this position should not be ments associated with that judge’s wasting if we fill the vacancies on the filled at this time. I oppose it, and I work. In light of recent efforts to cur- D.C. circuit. urge my colleagues to do so. tail Federal spending, again, I agree In 1995, I chaired a hearing before the The PRESIDING OFFICER. The Sen- with my colleague from Alabama that Judiciary Subcommittee on Adminis- ator from Arizona is recognized. it is imprudent to spend such a sum of trative Oversight and the Courts on the Mr. KYL. Thank you, Madam Presi- money unless the need is very clear. D.C. circuit. At the hearing, Judge dent. First, let me associate myself Senators GRASSLEY and SESSIONS Lawrence Silberman—who sits on that with the remarks of my distinguished have made sound arguments that the court—testified that 12 judges were colleague from Alabama who has just D.C. circuit does not need to fill the just too many. According to Judge Sil- spoken. My position is quite the same 11th seat. Their arguments are reason- berman, when the D.C. circuit has too as his with respect to this nominee. able and not based upon partisan con- many judges there just isn’t enough Certainly, I must begin by saying that siderations. Similarly, my concerns work to go around. I believe Mr. Garland is well qualified with the Garland nomination are based In fact, as for the 12th seat, the main for the court of appeals. He earned de- strictly on the caseload requirements courtroom in the D.C. courthouse does grees from Harvard College and Har- of the circuit, not on partisanship or not even fit 12 judges. When there are vard Law School and clerked for Judge the qualifications of the nominee. 12 judges, special arrangements have to Friendly on the U.S. Court of Appeals I would not want the opposition to be made when the court sits in an en for the Second Circuit and for Justice the nomination, therefore, to be con- banc capacity. Brennan on the Supreme Court and, sidered partisan in any way. Thus, al- I would ask my colleagues to con- since 1993, he has worked for the De- though I do not believe that the admin- sider the steady decrease in new cases filed in the D.C. circuit. Since 1985, the partment of Justice. So there is no istration has met its burden of showing number of new case filings in the D.C. question, he is qualified to serve on the that the 11th seat needs to be filled, in circuit has declined precipitously. And court. the spirit of cooperation, and to get the it continues to decline, even those who Like my colleague from Alabama, nominee to the floor of the Senate, I support filling the vacancies have to my colleague from Iowa, and others, I voted to favorably report the nomina- admit this. At most, the D.C. circuit is believe that the 12th seat on this cir- tion of Merrick Garland from the Judi- only entitled to a maximum of 10 cuit does not need to be filled and am ciary Committee when we voted on judges under the judicial conference’s quite skeptical that the 11th seat, the that a couple of weeks ago. But, at the formula for determining how many seat to which Mr. Garland has been time, I reserved the right to oppose fill- judges should be allotted to each court. nominated, needs to be filled either. ing that 11th vacancy when the full Judge Silberman recently wrote to The case against filling the 12th seat is Senate considered the nomination. the entire Judiciary Committee to say very compelling, and it also makes me That time has now come, and being that filling the 12th seat would be—in question the need to fill the 11th seat. fully persuaded by the arguments made his words—‘‘frivolous.’’ According to In the fall of 1995, the Courts Sub- by Senator SESSIONS and Senator the latest statistics, complex cases in committee of the Judiciary Committee GRASSLEY, I reluctantly will vote the D.C. circuit declined by another 23 held a hearing on the caseloads of the against the confirmation of this nomi- percent, continuing the steady decline D.C. circuit. Judge Silberman, who has nee. in cases in the D.C. circuit. With fewer served on the D.C. circuit for the past Based on the hearing of the Courts and fewer cases per year, it doesn’t 11 years, testified that most members Subcommittee, caseload statistics, and make sense to put more and more of the D.C. circuit have come to think other information, as I said, I have judges on the D.C. circuit. That would of the D.C. circuit as a de facto court of concluded that the D.C. circuit does be throwing taxpayer dollars down a 11. In other words, even though there not need 12 judges and does not, at this rat hole. are 12 seats, theoretically, it is really point, need 11 judges. Therefore, I will So the case against filling the cur- being thought of as an 11-member court vote against the nomination of Merrick rent vacancies is compelling. I believe by its members. In fact, in response to Garland. that Congress has a unique opportunity written questions, Judge Silberman If Mr. Garland is confirmed and an- here. I believe that we should abolish pointed out that the courtroom, nor- other vacancy occurs, thereby opening the 12th seat and at least the 11th seat mally used for en banc hearings, seats up the 11th seat again, I plan to vote should not be filled at this time. I be- only 11 judges. In other words, that is against filling the seat—and, of course, lieve that a majority of the Juidicary what they can accommodate. the 12th seat—unless there is a signifi- Committee agrees the case has been When Congress created the 12th cant increase in the caseload or some made against filling the 12th seat and judgeship in 1984, Congress may have other extraordinary circumstance. Chairman HATCH has agreed not to fill thought that the D.C. circuit’s case- Madam President, I want to thank it. So, no matter what happens today, load would continue to rise, as it had Senator GRASSLEY for his leadership in at least we know that the totally un- for the previous decade. But, in fact, as this area, as chairman of the sub- necessary 12th seat will not be filled. my colleague from Alabama has point- committee, and for allowing me to At least the taxpayers can rest a little ed out, exactly the opposite has oc- speak prior to his comments, which I easier on that score. curred; the caseload has dropped. It is gather will be delivered next. Abolishing judicial seats is com- the only circuit in the Nation with I yield the floor. pletely nonpartisan. If a judicial seat is fewer new cases filed now than in 1985. The PRESIDING OFFICER. The Sen- abolished, no President— Democrat or During the entire period, the D.C. cir- ator from Iowa is recognized. Republican—could fill it. As long as cuit has had a full complement of 12 Mr. GRASSLEY. Madam President, I any judgeship exists, the temptation to judges for only 1 year. rise today to express my views of the nominate someone to fill the seat will In a letter to Senator GRASSLEY, pending nomination. As chairman of be overwhelming—even with the out- Judge Silberman wrote that the D.C. the Subcommittee on Administrative rageous cost to the American taxpayer. circuit can easily schedule its upcom- Oversight and the Courts, I have close- Again, according to the Federal ing arguments with 11 judges and re- ly studied the D.C. circuit for over a judges themselves, the total cost to the main quite current. Further, Judge Sil- year now. And I can confidently con- American taxpayer for a single article berman noted that while the D.C. cir- clude that the D.C. circuit does not III judge is about $18 million. That’s cuit, unlike most others, has not had need 12 judges or even 11 judges. Filling not chump change. That’s something any senior judges available to sit with either of these two seats would just be to look at. That’s real money we can it, the court has invited visiting judges a waste of taxpayer money—to the save.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2523 Here in Congress, we have downsized I would like to make a few comments be isolated problems, but there is no committees and eliminated important about the Judicial nomination process national crisis—period. support agencies like the Office of in general. Just about every day or so On February 5, I had the opportunity Technology Assessment. The same is we hear the political hue and cry about to chair a judiciary subcommittee true of the executive branch. Congress how slow the process has been. This is hearing on judicial resources, concen- has considered the elimination of even though we confirmed a record trating on the fourth circuit. My ef- whole Cabinet posts. It is against this number of 202 judges in President Clin- forts in regard to judgeship allocations backdrop that we need to consider ton’s first term—more than we did in are based upon need and whether the abolishing judgeships where appro- either President Reagan’s or President taxpayers should be paying for judge- priate—like in the D.C. circuit or else- Bush’s first term. ships that just are not needed. We where. I have heard the other side try to heard from the chief judge that filling While some may incorrectly question make the argument that not filling va- the current two vacancies would actu- Congress’ authority to look into these cancies is the same as delaying justice. ally make the court’s work more dif- matters, we are in fact on firm con- Well, when you have Clinton nominees ficult for a number of reasons. He ar- stitutional ground. Article III of the or judges who are lenient on murderers gued that justice can actually be de- Constitution gives Congress broad au- because their female victim did not layed with more judges because of the thority over the lower Federal courts. suffer enough, or you have a judge that added uncertainty in the law with the Also, the Constitution gives Congress tries to exclude bags of drug evidence increased number of differing panel de- the ‘‘power of the purse.’’ Throughout against drug dealers, or a judge that cisions. I am sorry that only three Sen- my career, I have taken this responsi- says a bomb is not really a bomb be- ators were there to hear this very en- bility very seriously. I, too, am a tax- cause it did not go off and kill some- lightening testimony. payer, and I want to make sure that body—then I think that’s when justice We in the majority have been criti- taxpayer funds aren’t wasted. is denied. cized for not moving fast enough on Some may say that Congress should The American people have caught on nominations. However, we know there simply let judges decide how many to this. And, I think the American peo- was a higher vacancy rate in the judici- judgeships should exist and how they ple would just as soon leave some of ary at the end of the 103d Democrat should be allocated. I agree that we these seats unfilled rather than filling Congress than there was at the end of should defer to the judicial conference them with judges who are soft on the 104th Republican Congress. Even to some degree. However, there have criminals or who want to create their though there were 65 vacancies at the been numerous occasions in the past own laws. end of last year, there were only 28 where Congress has added judgeships We have heard repeatedly from the nominees that were not confirmed. All without the approval of the Judicial other side that a number of judicial of them had some kind of problem or Conference in 1990, the last time we emergency vacancies exist. We are told concern attached to them. The big created judgeships, the Congress cre- that not filling these vacancies is caus- story here is how the administration ated judgeships in Delaware, the Dis- ing terrible strife across the country. sat on its rights and responsibilities trict of Columbia and Washington Now, to hear the term ‘‘judicial emer- and did not make nominations for State without the approval of the Judi- gency’’ sounds like we are in dire more than half of the vacancies. And cial Conference. In 1984, when the 12th straits. But, in fact, a judicial emer- some of the 28 nominations that were judgeship at issue in this hearing was gency not only means that the seat has not confirmed were only sent to us created—Congress created 10 judge- been open for 18 months. It does not near the end of the Congress. Yet, the ships without the prior approval of the mean anything more than that, despite administration has the gall to blame Judicial Conference. It is clear that if the rhetoric we hear. others for their failings. Congress can create judgeships without In fact, it is more than interesting to I think it is also important to re- judicial approval, then Congress can note that out of the 24 so-called judi- member the great deal of deference we leave existing judgeships vacant or cial emergencies, the administration on this side gave to the President in abolish judgeships without judicial ap- has not even bothered to make a nomi- his first term. As I said, we have con- proval. It would be illogical for the nation to half them. That is right, Mr. firmed over 200 nominees. All but four, Constitution to give Congress broad President. After all we have heard including two Supreme Court nomi- authority over the lower Federal about Republicans not filling these so- nees, were approved by voice vote. courts and yet constrain Congress from called judicial emergencies which are That is a great deal of cooperation. acting unless the lower Federal courts not really emergencies, we find that Some would say too much cooperation. first gave prior approval. the administration has not even sent But now, after 4 years of a checkered Madam President, I ask my col- up nominees for half of them after hav- track record, it is clear to me that we leagues to vote ‘‘no’’ on the current ing over a year and a half to do so. need to start paying a lot more atten- nomination and strike a blow for fiscal But, we continue to hear about this tion to whom we’re confirming. Be- responsibility. Spending $18 million on so-called caseload crisis. My office even cause like it or not, we are being held an unnecessary judge is wrong. I have got a timely fax from the judicial con- responsible for them. nothing against the nominee. Mr. Gar- ference yesterday bemoaning the in- I cannot help but remember last year land seems to be well qualified and crease in caseload. Well, Mr. President, when some of us criticized a ridiculous would probably make a good judge—in I sent out the first time ever national decision by a Federal judge in New some other court. Now, I’ve been survey to article III judges last year. I York who tried to exclude over- around here long enough to know learned many things from the re- whelming evidence in a drug case. where the votes are. I assume Mr. Gar- sponses. Among them, I learned that What was one of the first things we land will be confirmed. But, I hope that while caseloads are rising in many ju- heard from the administration? After by having this vote—and we’ve only risdictions, the majority of judges be- they also attacked the decision, they had four judicial votes in the last 4 lieved the caseloads were manageable turned around and attacked the Repub- years—a clear message will be sent with the current number of judges. A lican Members who criticized the deci- that these nominations will no longer number of judges would even like to sion. They said, you Republicans voted be taken for granted. see a reduction in their ranks. for the nominee, so you share any of Let’s be honest—filling the current We know that much of the increased the blame. vacancies in the D.C. circuit is about caseload is due to prisoner petitions, Well, the vote on Judge Baer was a political patronage and not about im- which are dealt with very quickly and voice vote. But, I think many of us proving the quality of judicial decision easily, despite the hue and cry we hear. woke up to the fact that the American making. And who gets stuck with the As a matter of fact the judicial con- people are going to hold us accountable tab for this? The American taxpayer. I ference even admits some of the in- for some of these judges and their bad think it’s time that we stand up for crease is due to prisoners filing in decisions. So, there is no question the hardworking Americans and say no to order to beat the deadline for the new scrutiny is going to increase, thanks to this nomination. filing fees we imposed. So, there may this administration, and more time and

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2524 CONGRESSIONAL RECORD — SENATE March 19, 1997 effort is going to be put into these However, qualifications and char- Senator GRASSLEY for the fine leader- nominees. And, yes, we will continue to acter are not the only factors we must ship he is providing in this important criticize bad decisions. If a judge that consider in deciding whether to con- area. Through Senator GRASSLEY’s has life tenure cannot withstand criti- firm someone for a Federal judgeship. hard work, we have learned and con- cism, then maybe he or she should not A more fundamental question is wheth- tinue to learn much about the needs of be on the bench. er we should fill the position itself. Mr. the Federal courts. Now, having said all of this, we have Garland was nominated for the 11th During one such subcommittee hear- before us a nominee who we’re ready to seat on the D.C. circuit. I do not feel ing this year, the Chief Judge of the vote on. I had been one of those holding that this vacancy needs to be filled. Court of Appeals for the Fourth Cir- up the nominee for the D.C. circuit, the Thus, I cannot vote in favor of this cuit, J. Harvie Wilkinson III, explained nomination before us. I believe I have nomination. that having more judges on the circuit made the case that the 12th seat should The caseload of the D.C. circuit is court does not always mean fewer cases not be filled because there is not considerably lower than any other cir- and a faster disposition of existing enough work for 12 judges, or even 11 cuit court in the Nation. In 1996, the ones. He indicated it may mean just judges for that matter. My argument eleventh circuit had almost five times the opposite. More judges can mean has always been with filling the seat— the number of cases per judge as the less collegial decisionmaking and more not the nominee. Now that we have two D.C. circuit. The fourth circuit had intracircuit conflicts. As a result of open seats—even though the caseload over three times as many cases filed. such differences, more en banc hearings continues to decline—I’m willing to Specifically, about 378 appeals were are necessary to resolve the disputes. make a good faith effort in allowing filed per judge in the fourth circuit in More fundamentally, a large Federal the Garland nomination to move for- 1996, compared to only about 123 in the judiciary is an invitation for the Con- ward. D.C. circuit. gress to expand Federal jurisdiction But, given the continued caseload de- Moreover, the caseload of the D.C. and further interfere in areas that have cline, and the judicial conference’s own circuit is falling, not rising. Statistics been traditionally reserved for the formula giving the circuit only 9.5 from the Administrative Office show a States. judges, I cannot support filling even decline in filings in the D.C. circuit In summary, I oppose this nomina- the 11th seat. So, I will vote ‘‘no.’’ I as- over the past year. sume I will be in the minority here and tion only because I do not believe that I am well aware of the argument that the caseload of the D.C. circuit war- the nominee will be confirmed, but I the cases in the D.C. circuit are more think the point has to be made. I very rants an additional judge. Mr. Garland complex and take more time to handle, is a fine man, but I believe that my much appreciate Chairman HATCH’s ef- and therefore we should not expect the first obligation must be to the tax- forts in regard to my concerns, and his D.C. circuit to have the same caseload decision to not fill the unnecessary payers of this Nation. per judge as other circuits. However, Mr. President, I yield the floor. 12th seat. this fact cannot justify the great dis- The PRESIDING OFFICER. The dis- So, there have been a lot of personal parity in the caseload that exists today tinguished Senator from Vermont. attacks lately. Motives are questioned between the D.C. circuit and any other Mr. LEAHY. Mr. President, how and misrepresented. This is really be- circuit. This is especially true since much time is remaining to the distin- neath the Senate. And I hope it will the D.C. circuit caseload is declining. guished senior Senator from Utah and not continue. In short, it is my view that the existing Despite the attacks that have been myself? membership of the D.C. circuit is capa- launched against those of us who want ble of handling that court’s caseload. The PRESIDING OFFICER. The Sen- to be responsible, all we are saying is Mr. President, one of the core duties ators have 54 minutes. send us qualified nominees who will in- of a Member of this great Body is to de- Mr. LEAHY. I thank the Chair. terpret the law and not try to create it. termine how to spend, and whether to Mr. President, I am concerned when I Send us nominees who will not favor spend, the hard-earned money of the hear attempts to tie Mr. Garland’s defendants over victims, and who will taxpayers of this Nation. We must ex- nomination to the number of judges in be tough on crime. Send us nominees ercise our duty prudently and conserv- the D.C. circuit. Let us remember that who will uphold the Constitution and atively because it is not our money or Mr. Garland is there to fill the 11th not try to change it. As long as the the Government’s money we are spend- seat on the D.C. circuit, not the 12th judgeships are actually needed, if the ing; it is the taxpayers’ money. Today, seat. Even Judge Silberman, who has administration sends us these kinds of argued for abolishing the 12th seat for nominees, they will be confirmed. the Republican Congress is working diligently to find spending cuts that this court, has testified that ‘‘it would I thank the Chair. be a mistake, a serious mistake, for The PRESIDING OFFICER (Mr. will permit us to finally achieve a bal- Congress to reduce down below 11 FAIRCLOTH). The Chair recognizes the anced budget. In making these hard judges.’’ That is a verbatim quote from Senator from South Carolina. choices, no area should be overlooked, Mr. THURMOND. Mr. President, I including the judicial branch. Under Judge Silberman. rise today in opposition to the nomina- the Constitution, the Congress has the But we should also remember that tion of Merrick B. Garland to be a power of the purse, and it has broad au- when we just put numbers here, num- judge on the U.S. Court of Appeals for thority over the lower Federal courts. bers do not tell the whole story. The the District of Columbia Circuit. I This body has the power to eliminate D.C. circuit’s docket is by far the most commend Senators SESSIONS, KYL, and or decide not to fund vacant lower Fed- complex and difficult in the Nation. GRASSLEY for taking this course. eral judgeships, just as it had the You can have a dozen routine matters Let me state from the outset that my power to create them in the first place. in another circuit and one highly com- opposition has nothing to do with the The cost of funding a Federal judge- plex issue involving the U.S. Govern- nominee himself. I have no reserva- ship has been estimated at about $1 ment in the D.C. circuit, brought be- tions about Mr. Garland’s qualifica- million per year. This is a substantial cause it is the D.C. circuit, that one tions or character to serve in this ca- sum of money, and a vastly greater would go on and equal the dozen or pacity. He had an excellent academic sum if we consider the lifetime service more anywhere else. record at both Harvard College and of a judge. We must take a close look We can debate later on the size of the Harvard Law School before serving as a at vacant judgeships to determine D.C. circuit, whether it should be 11 or law clerk on the U.S. Court of Appeals whether they are needed. 12. But we are talking about the 11th for the Second Circuit and the U.S. Su- In this regard, Senator GRASSLEY, seat. And what Senators ought to be preme Court. Also, he has served in dis- the chairman of the Judiciary Sub- talking about is the fact that Merrick tinguished positions in private law committee on the Courts and Adminis- Garland is a superb nominee. He has practice and with the Department of trative Oversight, has been holding been seen as a superb nominee by Re- Justice. Moreover, I have no doubt that hearings regarding the proper alloca- publicans and Democrats alike, by all Mr. Garland is a man of character and tion of Federal judgeships. I would like writers in this field. At a time when integrity. to take this opportunity to commend some seem to want people who are not

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2525 qualified, here is a person with quali- will ask them to read the Constitution. be laughable. At that time, the call to fications that are among the best I Article II, section 4, of the Constitu- impeach was popular within a narrow have ever seen. tion states: and intolerant group which did not un- So, let us not get too carried away The President, Vice President and all civil derstand how our democracy works or with the debate on what size the court Officers of the United States, shall be re- what was its strength. Apparently, it is should be. We can have legislation on moved from Office on Impeachment for, and fashionable in some quarters to slo- that. The fact is, we have a judge who Conviction of, Treason, Bribery, or other ganeer about impeaching Federal is needed, a judge who was nominated, high Crimes and Misdemeanors. judges again. and whose nomination was accepted The Founders of this country did not It was wrong in the 1950’s to have and voted on by the Senate Judiciary consider disagreement with a Member somebody who wanted to protect the Committee in 1995. It is now 1997. Let of the House of Representatives as an sin and stain of segregation to call for us stop the dillydallying. I suppose, as impeachable offense. In fact, the the impeachment of Earl Warren. It is we are not doing anything else—we do Founders of this country would have wrong for some today to call for the not have any votes on budgets or chem- laughed that one right out. Can you impeachment of a Federal judge be- ical weapons treaties or any of these imagine? I suggested some read the cause of a disagreement with a single other things we can do—I suppose we Constitution and, I must admit, in a decision. can spend time on this. We ought to moment of exasperation, I suggested So I hope all of us—all of us—stop just vote this through, because at the perhaps some who were making these acting as though we can go to some- rate we are currently going we are fall- claims had never read a book at all. thing way beyond our Constitution be- ing further and further behind, and But, of course, they have. There is one cause a judge comes out with a deci- more and more vacancies are con- by Lewis Carroll. It is called Alice in sion that we may disagree with. That tinuing to mount over longer and Wonderland. The queen had a couple is not a high crime or misdemeanor; it longer times, to the detriment of great- different points she made. One, of is not an impeachable offense. Maybe it er numbers of Americans and the na- course, if all else failed was, ‘‘Off with is an appealable question, but not an tional cause of prompt justice. their heads.’’ The other is, ‘‘The law is impeachable offense. We in the Congress cannot act as Frankly, I fear these delays are going what I say the law is.’’ some super court of appeals. Good to persist. In fact, the debate on what We all lift our hands at the beginning Lord, we even had a suggestion over should be in the courts took an espe- of our term in office and swear alle- the weekend that maybe even the Con- cially ugly turn over the last 2 weeks. giance to that Constitution, but all of gress should have the power to vote to Some Republicans have started calling a sudden there is something found in override any decision. In fact, it would for the impeachment of Federal judges there that none of us knew about. Im- be a super court of appeals. Good Lord, who decide a case in a way they do not peach a judge because you disagree Mr. President, look at the pace of this like. A Member of the House Repub- with a judge’s decision? I tried an Congress. We have almost 100 vacancies lican leadership called for the impeach- awful lot of cases before I came here. I on the Federal court and certainly by ment of a Federal judge in Texas be- was fortunate in that, a chance to try the end of business yesterday, we had cause he disagreed with his decision in cases at the trial level and the appel- not filled a single one of them. We have the voting rights case, a decision that, late level. Sometimes I won, some- not had a minute of debate on the whichever way he went, was going to times I lost, but there was always an budget. We have done nothing about be appealed by the other side. If he appeal. In fact, I found in the cases I bringing up campaign finance reform. ruled for the plaintiffs, the defendants won as a prosecutor, the person on the Cooler heads are prevailing. I com- were going to appeal; if he ruled for the way to jail would invariably file an ap- mend the distinguished majority lead- defendants, the plaintiffs would have peal. I just knew the appeal would be er, Senator LOTT, for his remarks on appealed. But this Member of the other made. That is the way the courts go. these impeachment threats. He is body decided, forget the appeals, he You do not suddenly say because I quoted as saying that impeachment disagrees, so impeach the judge. He is won the case, the judge was to be im- should be based on improper conduct of quoted in the Associated Press as say- peached. a judge, not on his or her decisions or ing, ‘‘I am instituting the checks and I think back to about 40 years ago appeals. I think that is the way it balances. For too long we have let the and those who wanted to impeach the should be. I think perhaps we should judiciary branch act on its own, U.S. Supreme Court. Why? Because step back before we go down this dark unimpeded and unchallenged, and Con- they refused to uphold segregation— road. gress’ duty is to challenge the judicial let’s impeach the Court. In fact, I made I understand, Mr. President, that the branch.’’ my first trip here to the U.S. Capitol in distinguished senior Senator from The suggestion of using impeachment Washington, DC, when I was in my late Maryland wishes 5 minutes; is that cor- as a way to challenge the independence teens. At that time, for the first time, rect? of the Federal judiciary, an independ- I saw the billboards and demonstra- Mr. SARBANES. If the Senator can ence of the judiciary that is admired tions against the Chief Justice after yield me 5 minutes, I would appreciate throughout the world, the independ- the landmark Brown versus Board of it. ence of a judiciary that has been the Education decision. I wondered what Mr. LEAHY. Mr. President, I yield 5 hallmark of our Constitution and our was going on. minutes to the distinguished senior democracy, the independence of a Fed- In the 1950’s, it was not uncommon to Senator from Maryland. The PRESIDING OFFICER. The eral judiciary that has made it possible see billboards and bumper stickers say- Chair recognizes the distinguished Sen- for this country to become the wealthi- ing, ‘‘Impeach Earl Warren.’’ These ator from Maryland. est, most powerful democracy known signs were so prevalent, Mr. President, Mr. SARBANES. I thank the Chair. in history and still remain a democ- that a young man from Georgia at that I would like to ask the distinguished racy—to talk of using impeachment to time once remarked that his most Senator from Vermont a couple of challenge that independence demeans vivid childhood memory of the Su- questions, if I can, about the charts he our Constitution, and it certainly de- preme Court was the ‘‘Impeach Earl was referring to earlier. I want to means the Congress when Members of Warren’’ signs that lined Highway 17 make sure I understand them fully. Congress speak that way. It is also the near Savannah. He said: ‘‘I didn’t un- This one, as I understand, shows the height of arrogance. It ignores the derstand who this Earl Warren fellow number of judges that have been con- basic principle of a free and inde- was, but I knew he was in some kind of firmed in the last three Congresses—we pendent judicial branch of Govern- trouble.’’ are now in the 105th Congress. There ment. We would not have the democ- That young man from Georgia is now are currently 94 vacancies in the Fed- racy we have today without that inde- a Supreme Court Justice himself, Jus- eral court system? pendence. tice Clarence Thomas. Mr. LEAHY. There are. There will I wonder if some have taken time to In hindsight, it seems laughable, as very soon be 100. reread the Constitution. Maybe I give in hindsight the current calls of im- Mr. SARBANES. As yet, no judges them too much benefit of the doubt. I peachment of current judges will also have been confirmed in this Congress?

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2526 CONGRESSIONAL RECORD — SENATE March 19, 1997 Mr. LEAHY. That’s right. prepared: The number of judges con- years, you had a Republican President Mr. SARBANES. This is the first firmed during the second Senate ses- and a Democratic Senate, is that not judge that has come before us? sion in the Presidential election years. correct? Mr. LEAHY. That is right. Now, what has happened? What hap- Mr. LEAHY. Right. Mr. SARBANES. Although I gather pened in 1996 is dramatic. No appeals Mr. SARBANES. It is in both these there are some 25 judges pending in the court judges were confirmed and only years, not just the contrast of the last Judiciary Committee. 17 district court judges. year of the Bush Presidency. But in the Mr. LEAHY. Between 23 and 25, Mr. LEAHY. If my friend from Mary- last year of the second Reagan admin- enough to fill a quarter of the vacan- land will yield on that, I will point out istration, we confirmed 7 appeals cies that are pending. Of course, on Mr. the contrast. In 1992 we had a Repub- judges, then 11 for the last year of the Garland, he came before the committee lican President and a Democratic Sen- Bush administration, and last year the in 1995 and was approved by the com- ate; we confirmed 11 appellate court number was zero. For district court mittee the first time in 1995. We are judges and 55 district court judges. judges in those years it was 35, 55 and now in 1997. It is not moving with alac- Four years later you have a Demo- 17. That is a dramatic difference. An rity. cratic President and a Republican Sen- element has intruded itself in this con- Mr. SARBANES. It is not even mov- ate and look at the vast difference: firmation process that was not here- ing with the speed of a glacier, one zero appellate court judges and only 17 tofore present. might observe. district court judges, notwithstanding Mr. LEAHY. If the Senator would Mr. LEAHY. I was going to say, there an enormous vacancy rate. yield a moment. is a certain glacier connotation to the I think what it shows is that, if you In 1984, there was a Republican Sen- speed of confirming judges. want something to demonstrate par- ate and Republican President, and you see 10 and 33. In 1992, there is a Repub- Mr. SARBANES. In the previous Con- tisanship, when the Democrats con- lican President and Democratic Sen- gress, the 104th Congress, 75 judges trolled the Senate with a Republican ate, and the Democratic Senate actu- were confirmed? President, they still cooperated to give ally did better for the Republican Mr. LEAHY. That’s right. that Republican President a significant President than the Republican Senate Mr. SARBANES. The previous Con- number of judges in the second session, for the Republican President. gress, the 103d, 129, and the one before in a Presidential election year, the that, the 102d, 124; is that correct? Mr. SARBANES. Exactly. time it normally slows down, as con- Let me say I am very deeply con- Mr. LEAHY. The Senator is correct. trasted to the absolute opposite, the cerned about this development. I want Mr. SARBANES. There is a signifi- unprecedented opposite, of what hap- to commend the Senator from Vermont cant falloff in the number of judges pened when you have a Democratic because he has been speaking out on being confirmed. President and a Republican Senate. this very important matter for some Mr. LEAHY. In the 104th Congress, I Mr. SARBANES. Let me take the time now. tell my friend from Maryland, there Senator’s—— Moving to the pending nomination, I was an unprecedented slowdown in the Mr. CHAFEE. Could I ask a question want to speak first to Merrick Gar- confirmation of judges to the extent in here at the proper time? I do not land’s merits, although let me say that that I think the only year that we want to interrupt the flow. I had a I do not understand any of my col- could find, certainly in recent memory, question of the manager? leagues to be questioning his capabili- where no court of appeals judges were Mr. LEAHY. The Senator from Mary- ties and qualifications to serve on the confirmed at all was in the second ses- land has the floor. bench. In fact, Members on both sides sion of the 104th Congress. The slow- Mr. SARBANES. I yield for the in- have spoken very highly of Merrick down was so dramatic in the second quiry. Garland and noted his outstanding session of the 104th Congress that it Mr. CHAFEE. My question is this. As character. dropped the number down to certainly I understand it, there are 3 hours on I was privileged, since he is a resi- an unprecedented low, considering the this bill, so presumably that would dent of my State, to have the honor to vacancies. take us up to around 6 o’clock, as I un- introduce him at his confirmation Mr. SARBANES. I am quite con- derstand. hearing before the Senate Judiciary cerned with these developments. The Mr. LEAHY. Unless time is yielded Committee. That was on November 30, Congress has become much more polit- back. 1995, almost 18 months ago. I believed ical and partisan by any judgment. I Mr. CHAFEE. I wonder if there ap- then and continue to believe now that think that is regrettable, but it has peared to be much of a chance that he will make an outstanding addition happened, and we have to try to con- some time might be yielded back? It to the D.C. circuit. tend with it here as best we can. But I would be very helpful to me, but I do His career exemplifies his strong think it is a dire mistake if this atti- not want to stop any pearls of wisdom. commitment to the law and to public tude carries over into our decisions re- Mr. LEAHY. I have a member of the service. garding the judiciary, the third, inde- Leahy family to whom I have had the He is a magna cum laude graduate pendent branch of our Government and privilege of being married nearly 35 from Harvard Law School. He clerked the one that, in order to maintain pub- years who hopes time will be yielded for Judge Henry Friendly on the second lic confidence in our justice system, back. As her husband, I hope time will circuit and for Justice William Bren- ought to have politics removed from it be yielded back. I am about to just give nan at the Supreme Court. as much as is humanly possible. the floor back to the Senator from He has had a long association with Would the Senator from Vermont Maryland. I do not know how much the Justice Department, first as a spe- agree with that observation? more time is going to be taken in oppo- cial assistant to then Att. Gen. Ben- Mr. LEAHY. I absolutely agree. It sition to Mr. Garland. I know of very jamin Civiletti. He then became a part- has been my experience in the past little time that is going to be taken ner at Arnold & Porter when he left the that Republicans and Democrats have further here. Justice Department to go into private worked closely together with both Re- So the long way around, to answer practice. publican and Democratic Presidents to my good friend from Rhode Island, I Upon returning to public service, he keep the judiciary out of politics, hope time will be yielded back fairly has served as an assistant U.S. attor- knowing that all Americans would go soon. ney for the District of Columbia, deal- to court not asking whether a judge is Mr. CHAFEE. Put me down as a firm ing with public corruption and Govern- Republican or Democrat, but asking supporter of Mrs. Leahy. ment fraud cases. He has also served as whether this is a place they will get Mr. LEAHY. I am sure she would be Deputy Assistant Attorney General in justice. If we politicize it, they may delighted to know that. the Justice Department’s Criminal Di- not be able to answer that question the Mr. SARBANES. If the Senator vision and as Principal Associate Dep- way they have in the past. would yield for one further question, uty Attorney General, both very high Mr. SARBANES. Therefore, I am just to take your analysis a step fur- ranking positions within the Depart- very interested in this chart you have ther, in 1992 and 1988, in each of those ment.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2527 In all of these positions he has served court and yet Members have come for- that statement to my colleagues. I will our country with great distinction. ward opposing the Garland nomination, not go through it in detail here, given He has published extensively in sev- a fact which I very much regret. the fact that this debate is coming to a eral areas of the law and has remained Now I want to address just very brief- close. active in bar association activities. ly the fact that the fourth circuit was I do encourage my colleagues to con- In every respect, in his intellect, his raised earlier by one of my colleagues sider carefully the political cloud with character, and his experience, he would in this debate. He cited the view of which we are now surrounding the make an outstanding addition to the Fourth Circuit Chief Judge Wilkinson, judgeships. bench. presented at a February 1997 Judiciary I say to my colleagues on the other Let me now just briefly talk about Subcommittee hearing, that the Presi- side, we did not behave this way at a this new line of attack, so to speak, dent and Senate do not need to fill the time when the Senate Democrats were that has arisen about whether vacan- two vacancies that exist on that court. in control of the Senate and we were cies on the D.C. circuit should be filled. It is interesting that at that same dealing with the nominations of Repub- First of all, I think any analysis of hearing, testimony that I do not think lican Presidents. I will be very frank. I the courts’ need to fill vacancies can- has been cited, by Judge Sam Ervin, think the judiciary deserves better not be based simply on caseload statis- the very able and distinguished circuit than that from us. I hope that game tics—this is a benchmark that one judge of the Court of Appeals for the will come to an end and we will be able needs to analyze carefully in order to Fourth Circuit, and the son of our to move ahead with the confirmation determine what lies behind the cases. former distinguished colleague, was of judges in an orderly fashion. In fact, the D.C. circuit’s situation in presented before the panel in support of In closing, let me again state that I particular makes clear that mere case filling the vacancies. am very supportive of the judicial filing numbers do not tell the whole Mr. President, I ask unanimous con- nominee who is before the Senate story with respect to the burdens that sent that the very thoughtful state- today. I think he is a person of out- the court faces. The D.C. circuit re- ment by Judge Ervin be printed in the standing merit who will make an out- ceives, in complexity and importance, RECORD at the conclusion of my re- standing judge, and I urge his con- cases that do not come as a general marks. firmation. rule before the other circuits across The PRESIDING OFFICER. Without EXHIBIT 1 the country. It has had major, major objection, it is so ordered. STATEMENT OF THE HONORABLE SAM J. ERVIN cases that it has had to deal with as a (See exhibit 1.) III routine matter, cases of great weight Mr. SARBANES. It is very important Mr. Chairman and members of the Sub- and importance to the nation. to note that with respect to the fourth committee, my name is Sam J. Ervin, III, of The D.C. circuit also handles numer- circuit, there is a nominee pending be- Morganton, North Carolina. I am an active ous appeals from administrative agen- fore the Judiciary Committee, whose United States Circuit Judge for the Fourth cy decisions that are characterized by nomination was submitted in the last Circuit, having been appointed in May, 1980. voluminous records and complex fact Congress—two nominations, as a mat- I had the honor of serving as the Chief Judge of that Circuit from February, 1989 until patterns. In fact, almost half of the ter of fact, were submitted to the Com- February, 1996. I appreciate the Subcommit- D.C. circuit’s cases are these kinds of mittee last year—and one has been re- tee’s willingness to hear my views. administrative appeals—46 percent. submitted by the administration right I support the actions of the Judicial Con- The next highest circuit in this respect at the beginning of this session. ference of the United States in its efforts to is the ninth circuit with 9.6 percent of The PRESIDING OFFICER. The Sen- address the important issue of judgeship their cases being of this kind. ator from Maryland has spoken for needs. I commend Chief Judge Julia Gibbons The D.C. circuit also handles fewer of considerably more than 5 minutes. and the other members of the Judicial Re- the least complex and time-consuming Mr. SARBANES. Would the Senator sources Committee for establishing a prin- cipled method for evaluating these needs. cases, criminal and diversity cases, give me 2 minutes to close up? I am in agreement with my good friend and than any of its sister circuits. Only 11 Mr. LEAHY. I yield 2 additional min- colleague, Chief Judge J. Harvie Wilkinson, percent of its cases are diversity cases. utes. III, that the federal judiciary should remain No other circuit has less than 24 per- Mr. SARBANES. There is no way of limited size and jurisdiction. Should any- cent. with a nominee having been sent to the one present doubt my commitment to those In testimony before the Judiciary Senate by the President, that an argu- principles, I quote from a resolution that I Committee’s Courts Subcommittee, ment for not approving the nominee introduced on June 24, 1993: (which was D.C. Circuit Judge Harry Edwards—the based on not needing the judgeship can unanimously adopted by the Article III Judges of the Fourth Circuit) Chief Judge of the circuit—gave one be made without it carrying with it an ‘‘Chief Judge ERVIN. If I may, I would like example of the kind of complex admin- ad hominem argument against the to submit for consideration a resolution istrative cases that are a routine part nominee. reading as follows: of the D.C. circuit’s caseload. He talked If people are really serious about re- ‘‘ ‘Resolved that the future role of the fed- about a case to review a FERC order, ducing vacancies on the courts, they eral courts should remain complementary to an order of the Federal Energy Regu- need to scrub down the number of the role of the state courts in our society. latory Commission. This order pro- places before the nominees are sub- They should not usurp the role of state courts. duced, at the time of appeal, 287 sepa- mitted, by legislation. Once the nomi- ‘‘ ‘To achieve that goal, it is the consensus rate petitions for review by 163 sepa- nees come here, you cannot divorce the of the Conference that the Congress might rate parties, and a briefing schedule attack on the individual from the at- consider such issues as the federal courts re- that provided for the filing of 27 briefs, tack on the need for the seat on the maining an institution of limited size and ju- totaling over 900 pages. bench. We have the chief judge of the risdiction. The ability of the federal courts I am simply making the point that fourth circuit coming in against filling to fulfill their historical limited and special- they get very complex matters to deal spots when nominees are pending. ized role is dependent on the willingness of with in the D.C. circuit, and that the Now, how can that position be taken Congress to maintain jurisdictional balance case filing numbers relied on by other and considered separate from opposi- and curtail the federalization of traditional state crimes and causes of action.’ ’’ side do not tell the whole story. tion to the nominee? They say, ‘‘Well, My appearance here today, however, is ne- Recall also that the vacancy we are I am not against this nominee, but I cessitated by Chief Judge Wilkinson’s pro- talking about filling here is the 11th just do not think this spot ought to be posal that we do not need to fill the two judi- out of 12 slots on the D.C. circuit. filled.’’ Of course, that is small comfort cial vacancies that presently exist in our cir- Originally, Merrick Garland was being to the nominee whose nomination is cuit. It is my conviction that our failure to opposed on the basis that the 12th spot pending and has been put forward in do so would be a serious mistake. on the circuit court ought not to be order to fill the vacancy. First, a brief history leading up to the sub- ject of whether these two existing vacancies filled. Now, with the taking of senior Now, Judge Ervin, in his testimony, should or should not be filled; status by one of the D.C. circuit’s sets forth, I think, a very persuasive On October 9, 1985, when the late Harrison judges, we are talking about filling the case why the fourth circuit needs to Winter was our Chief Judge, the circuit 11th spot, not the 12th spot, on that have those vacancies filled. I commend judges, with a single dissent, voted to ask for

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2528 CONGRESSIONAL RECORD — SENATE March 19, 1997 four additional active judges for the Fourth made—actually this is a matter for the exec- normally follow in addressing judge- Circuit. utive and legislative branches to deter- ship needs, jeopardizes the impartiality On October 4, 1989, we again indicated by mine—but it seems to be the fair thing to do and independence of the judiciary. another formal action that while we did not for the following reasons: Merrick Garland’s nomination was a. North Carolina is the most populous desire a court of more than 15 active judges, first delivered to the Senate on Sep- we unanimously reaffirmed our earlier re- state in the circuit. quest for four additional judges. b. North Carolina has one of the highest tember 6, 1995—more than 18 months Legislation was passed in 1990 authorizing numbers of filings in the district courts in ago. The Judiciary Committee held a a number of additional judgeships, including the circuit. confirmation hearing on the nomina- four new circuit court judges for the Fourth c. North Carolina, like West Virginia, has tion on November 30, 1995, and for- Circuit. Thereafter, three of these so-called had only two seats, while both Virginia and warded the nomination for consider- Omnibus Bill judges were nominated and Maryland have three each, and South Caro- ation by the full Senate 2 weeks later. subsequently confirmed: Judge Hamilton lina has four. Filling the two existing vacan- The full Senate failed to act on Gar- (S.C.) in July, 1991; Judge Luttig (V.A.) in cies from North Carolina would do no more land’s nomination for 91⁄2 more months, August, 1991; and Judge Motz (M.D.) in June, than to restore that state to parity with our 1994. sister states. I point out that should I decide however, returning it to the President The fourth (and final) Omnibus Bill judge- to take senior status—as I am eligible to at the close of the 104th Congress. ship has remained unfilled since it was cre- do—North Carolina would have no active In fact, the Senate refused to confirm ated in December, 1990. As of this date, there judge. That situation would create some in- a single circuit court judge during the is no pending nomination for this vacancy, surmountable problems for both the bar and entire second session of the last Con- and I believe that this is the only 1990 circuit litigants of that state. gress. This was the first time in more judgeship that remains unfilled. d. While it has been suggested to me that than 20 years that an entire session of The second Fourth Circuit vacancy was this imbalance could be remedied by assign- Congress had passed without a single ing seats now held by judges from other created when Judge J. Dickson Phillips, Jr., circuit court confirmation. Nonethe- of North Carolina, took senior status, effec- states to North Carolina as they are opened tive July 31, 1994. More than two and one- by death or retirement, that seems an unpre- less, some argued that shutting down half years later, the Honorable James M. dictable solution—especially in the present the confirmation process is par for the Beaty, Jr., a District Court Judge in the political climate. course in an election year. They are Middle District of North Carolina, was nomi- Above all else, I seek to be as sure as it is wrong. And let me set the record nated to succeed Judge Phillips, but no ac- humanly possible to be that our circuit has straight. tion has been taken on that nomination by a sufficient number of judges to enable us to George Bush made nearly one-third the Senate Judiciary Committee. render swift and certain justice in all of the of his 253 judicial nominations in 1992, To my knowledge, the judges of the Fourth cases that come before us. Some recent legis- a Presidential election year. As chair- lation and our adoption of new internal oper- Circuit have never taken any formal action man of the Judiciary Committee, I held to indicate an unwillingness to stand by our ating procedures may well reduce our case- requests that these two vacancies be filled. load to some degree but countervailing cir- 15 nomination hearings that year, in- In order to evaluate the Circuit’s needs for cumstances, including the continuation of cluding 3 in July, 2 in August, and 1 in these two judgeships, I suggest that we must the federalization of numerous state crimes, September. In 1992—the last Presi- realistically assess our present situation: the creation of new private rights of action, dential election year—the Senate con- Present Active Judges: At this time, the the rapid population growth of the region, tinued to confirm judges through the Fourth Circuit has 13 active judges. Five of and the increased complexity of both the waning days of the 102d Congress. We these judges are 70 years of age or older. criminal and civil cases now coming to the even confirmed 7 judges on October 8— Their present ages are: 90, 78, 76, 73, and 70. federal courts (to mention only a few of the Is it realistic to expect that all of these relevant factors) will, I fear, more than off- the last day of the second session. As a judges will be able to continue to serve in- set any decreases in our workloads. I do be- result, the Senate confirmed all 66 definitely? lieve that we would have sufficient personnel nominees the Judiciary Committee re- Present Senior Judges: The last printed re- to enable us to do the work that is assigned ported out that year—55 for the dis- port from the Administrative Office is out- to us in a fashion acceptable to all if these trict courts and 11 for the circuit dated in reflecting that we have 4 senior two vacancies are filled—at least for the courts. Let me repeat: last session, judges. One of the four retired on July 31, foreseeable future. only 17 district judges were confirmed 1995, and is no longer eligible to sit. Mr. Chairman, in the Questionnaire which and no circuit judges were confirmed. Another has indicated that he does not you sent to the members of the judiciary Now that the election is over and plan to sit any more. The remaining two, some time ago, you raised the legitimate whose current ages are 79 and 74, have each question of whether we as judges were being Merrick Garland has been renomi- been sitting 2 days per court week, thereby required by our respective workloads to dele- nated, Republicans argue that we constituting 4/5 of one judge. gate more of our judicial functions than was should not vote to confirm him because Necessary Panels: For the past several ideal—or even healthy—to elbow law clerks, the District of Columbia circuit needs years, we have been averaging 5 panels of staff law clerks or other non-judicial em- only 10 judges. They are wrong. And let judges each court week. With our present ployees. I was not privy to the answers my me set the record straight. complement of active and senior judges, we colleagues returned to those questions, but I Congress has previously recognized lack a sufficient number of judges to fill 5 strongly suspect that many of us would the need for 12 judges. Twelve years panels without bringing in district judges admit that the degree of delegation required ago, based on the recommendation of from our own circuit or senior judges from in the courts of appeals is greater than is the Judicial Conference of the United other circuits. ideal. Speaking only for myself, I would like Current Statistics: Rather than burden you to be able to devote greater personal atten- States, Congress concluded that the with more numbers, I will simply refer to the tion to every matter that comes before me D.C. circuit’s caseload warranted 12 latest figures published by the Administra- than I am now able to do. judgeships. The Senate report to the tive Office. I am confident that those statis- I sincerely believe that our present ability 1984 legislation creating an additional tics fully justify the filling of the two exist- to carry out our duties in a manner pleasing judgeship states: ing vacancies. In fact, as I understand it, if to this Subcommittee, to the public, and to Located at the seat of the Federal govern- the numerical portion of the existing for- ourselves would be enhanced by the filling of ment, the Court of Appeals for the District mula were applied (the 500 filings per panel these two long vacant positions. of Columbia inevitably receives a significant with pro se appeals weighted as one-third of Mr. BIDEN. Mr. President, 2 of the 12 amount of its caseload from federal adminis- the cases) the Fourth Circuit would be eligi- seats on the District of Columbia Court trative agencies headquartered in that area. ble to receive 20 judgeships. We have never Administrative appeals filed in this court requested more than 15. of Appeals are currently vacant. Some have argued that the vacancy to which numbered 504 in 1982 and represented 34.8 North Carolina: I note that Judge Gibbon’s percent of the incoming caseload. Due to the Judicial Resource Committee has listed as a Merrick Garland has been nominated nature of the caseload which includes many factor to be considered in allocating judge- should not be filled because the D.C. unique cases involving complex legal, eco- ships, geographical considerations within a circuit is overstaffed. But the reasons nomic and social issues of national impor- circuit. At the risk of being thought provin- Congress gave for approving 12 seats tance and a large backlog of pending appeals, cial, I emphasize the special impact that a for the D.C. circuit remain compelling this court requires one additional judgeship. failure to fill the two presently unfilled seats on the Fourth Circuit will have on North today and justify filling this vacancy. The D.C. circuit needs 12 judges to Carolina. The expectation has been that Further, to propose eliminating a cir- handle its complex caseload. A large these seats would be assigned to that state. cuit court judgeship within the context portion of the D.C. Circuit caseload I, of course, recognize that there is no law of a particular nomination, rather than consists of complex administrative ap- which requires that this allocation be through the deliberative process we peals which generally consume a larger

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2529 amount of judicial resources than this nomination. If ad hoc analysis be- cial temperament; whether the nomi- other appellate cases. Therefore, com- comes our mode of operation, we will nee possesses the highest personal and parison of raw caseload data between give the appearance of a politicized ju- professional integrity, and whether the the D.C. circuit, with its high percent- diciary. nominee will protect our core constitu- age of complex administrative cases, I congratulate Merrick Garland for tional values. and the other circuits is misleading. his distinguished career and commend I believe that Mr. Garland possesses According to the statistics provided by President Clinton for making this nom- all of these qualifications. His legal the Administrative Office of U.S. ination. I hope that the Senate will act and academic record are exemplary. I Courts for the period from September to confirm him as expeditiously as pos- am impressed that he has devoted part 30, 1995 to September 30, 1996, 1,347 sible. of his career to public service. He cases were filed in the D.C. circuit, 474 Mr. BURNS. Mr. President, I rise served as the Principal Associate Dep- of which—or 35.2 percent—were admin- today to express my opposition to the uty Attorney General in the Depart- istrative appeals. In contrast, in the re- confirmation of Merrick Garland to the ment of Justice. And he clerked after maining 11 circuits, of the 51,991 cases D.C. circuit. law school for one of the most distin- filed, only 2,827—or 5.4 percent—were Even though the nominee has the guished Supreme Court Justices, Jus- administrative appeals. character and is highly qualified for tice William J. Brennan, Jr. The D.C. circuit has a long time in- the position, there is a larger question He’s also done extensive pro-bono terval between filing a notice of appeal that must be examined. Does this seat legal work on behalf of disadvantaged and final disposition. Because the D.C. really need to be filled? Especially individuals. He has represented an Afri- circuit has this incredibly high per- since it has remained empty for 11⁄2 can-American employee in a claim of centage of administrative appeals rel- years? racial discrimination, a mother in a ative to the other circuits and because The answer is that the D.C. circuit custody dispute, and court-requested these types of cases require tremen- does not need another seat, especially representation of a prisoner. dous amounts of judicial resources, when there are many other problems in I urge my colleagues to support Mr. Garland’s nomination to the U.S. Court litigants in the D.C. circuit must wait the other district circuits that have of Appeals D.C. Circuit. I hope that an average of 12 months between the not been focused on yet. I base my once Mr. Garland is confirmed, we can filing of the notice of appeal and final opinion on the fact that the D.C. cir- move forward to a vote on the other disposition. Only 3 of the 12 circuits cuit had 4,359 cases as of October 1996. The ninth circuit, the circuit in which pending Federal judicial nominees. have a longer average for this time Mr. FAIRCLOTH. Mr. President, I Montana is housed, had 71,462 cases. frame. rise today to vote ‘‘no’’ on the nomina- The fact that the D.C. circuit has a That is almost 20 times the number of tion of Merrick Garland to the U.S. long time interval between filing and cases. The D.C. circuit ranked last in Court of Appeals for the District of Co- disposition is indicative of the complex the total number of cases as compared lumbia Circuit. cases that the circuit handles. Other to each of the other district circuits in In so voting, I take no position on circuits have more criminal appeals the Nation. If we examine these num- the personal qualifications of Mr. Gar- and garden-variety diversity cases that bers, it does not seem as if the D.C. land to be a Federal appeals court often are amenable to summary dis- judges are handling any cases at all. judge. What I do take a position on is position without oral argument. This is also a very expensive seat. It that the vacant 12th seat on the U.S. The D.C. circuit has fewer pro se ap- will cost the American taxpayers an Court of Appeals for the District of Co- peals than other circuits. In addition extra $1 million to fill this seat. This lumbia Circuit does not need to be to having fewer criminal appeals and will not be money well spent. filled. Senator CHUCK GRASSLEY, Chair- diversity cases, the D.C. circuit has a There are adequate numbers of man of the Senate Judiciary Commit- lower percentage of pro se mandamus judges on the circuit, why are we con- tee’s Subcommittee on Administrative cases than all other circuits. Chief firming this seat? I urge my colleagues Oversight and the Courts, has exam- Judge Edwards has noted that pro se to examine the numbers and vote ined this issue thoroughly, and has de- appeals are often frivolous, easily iden- against the filling of this unneeded termined that the court’s workload tified as lacking merit, or otherwise seat. does not justify the existence of the amenable to disposition without sig- Ms. MIKULSKI. Mr. President, I rise 12th seat. Last Congress, Senator nificant expenditure of judicial re- today in support of the nomination of GRASSLEY introduced legislation to sources. Merrick Garland to the U.S. Court of abolish this unneeded seat. By pro- The D.C. circuit has more cases of Appeals for the D.C. circuit. Mr. Gar- ceeding to renominate Mr. Garland, national importance than other cir- land is a resident of my State of Mary- President Clinton has flatly ignored cuits. Not only are complex adminis- land. this uncontradicted factual record. trative appeals commonly heard in the I am pleased that his nomination is I commend Senator GRASSLEY for his D.C. circuit, but as a result of its loca- finally on the Senate floor for a vote. important work on this matter, as well tion at the seat of the Federal Govern- It is critical that vacancies on the Fed- as Senator JEFF SESSIONS, who has also ment, the D.C. circuit also hears a dis- eral bench are filled, especially at the emphasized the importance of this proportionate number of the high-pro- appellate level. matter. With the Federal deficit at an file cases of national importance that Mr. Garland has a distinguished legal all time high, we should always be vigi- reach the U.S. Courts of Appeals. The record in the public and private sec- lant in looking for all opportunities to D.C. circuit decided in 1996 alone Na- tors. He has specialized in criminal, cut wasteful Government spending; tional Treasury Employees Union civil, and appellate litigation, as well this is one such opportunity. After all, versus United States of America, a as administrative and antitrust law. I each unnecessary circuit judge and his challenge to the constitutionality of believe his experience will serve him or her staff cost the taxpayer at least the Line-Item Veto Act, as well as well on the Federal bench once he is $1 million a year. Perot versus Federal Election Commis- confirmed. Lastly, our vote today is an impor- sion, an appeal from a district court’s Mr. Garland is a magna cum laude tant precedent, since it marks the be- rejection of Ross Perot’s attempt to graduate of Harvard Law School and a ginning of the Senate’s new commit- participate in last year’s Presidential summa cum laude graduate of Harvard ment to hold rollcall votes on all judi- debates. College. While at Harvard Law School, cial nominees. This is a policy change The same reasons that supported the he was the articles editor of the Har- which I had urged on my Republican creation of a 12 judgeship for the D.C. vard Law Review and a member of the colleagues by letter of January 8, 1997, circuit in 1984 justify its existence now. prestigious Phi Beta Kappa, while he to the Republican Conference. Voting If reasoned deliberation and study of attended Harvard College. on Federal judges, who serve for life this circuit leads to the conclusion When I decide whether to support a and who exert dramatic—mostly un- that a future vacancy should not be judicial nominee, I look at whether the checked—influence over society, filled, then we should address that nominee is competent; whether the should be one of the most important issue, but not within the context of nominee possesses the appropriate judi- aspects of serving as a U.S. Senator.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2530 CONGRESSIONAL RECORD — SENATE March 19, 1997 Rollcall votes will, I believe, impress on the Harvard Law Review and was the kind of record that Merrick Gar- upon the individual judge, the indi- the Articles Editor there. He has an ex- land has. Those writings are just ex- vidual Senator, and the public the im- traordinary record of publications, on traordinary. It takes long hours and portance of just what we are voting on. the issue of Antitrust, in the Yale Law extraordinary study to turn one of I hope that my colleagues will regard Journal. And I might say, Mr. Presi- those articles out, and there is a wide this vote, and every vote they take on dent, that this nominee exhibited per- array of issues that he has written on. a Federal judge, as being among the haps his best judgment in associating He could be making a lot of money. He most important votes they will ever himself with Yale Law School on the is currently in public service and he is take. article, then going on into FTC inves- prepared to go to the court of appeals The PRESIDING OFFICER. The tigations, the controversial veto issue, at the age of 45. We need judges in Chair recognizes the distinguished Sen- professional responsibility and com- America with real intellectual abili- ator from Utah. mercial speech. It is really an extraor- ties. We need judges like Holmes and Mr. HATCH. Mr. President, we should dinary, extraordinary record. This Brandeis and Cardozo on the courts of inform the Senate that our intent is to man, at the age of 45, coming into the the United States. We need them on yield back the time if we can by 5:15 so court of appeals, may well be a distin- the Supreme Court of the United people can vote at that time. It could guished prospect for the Supreme States. This is a real prospect. We be just a wee bit longer than that. That Court of the United States. ought to get him up and out. is our intention. Those who want to Beyond his record in school and his I yield the floor. come over and use the time need to writings, he was law clerk to a very Mr. KENNEDY addressed the Chair. come now. distinguished circuit judge, Judge The PRESIDING OFFICER. The I yield 10 minutes to the distin- Harry Jay Friendly, and he served as Chair recognizes the distinguished Sen- guished Senator from Pennsylvania, law clerk to Supreme Court Justice ator from Massachusetts. who is a distinguished member of the William Brennan, Jr., and was a part- Mr. KENNEDY. Will the Senator Judiciary Committee. ner of distinguished law firms, and yield me 5 minutes? Mr. LEAHY. Yes. Mr. LEAHY. Will the Senator yield worked as a prosecuting attorney. He for a moment? Mr. KENNEDY. Mr. President, I sup- now serves as Deputy Assistant Attor- port the nomination of Merrick Gar- Mr. HATCH. I yield. ney General of the United States in the PRIVILEGE OF THE FLOOR land for the vacancy on the D.C. cir- U.S. Department of Justice, in the cuit, and I am concerned that it has Mr. LEAHY. Mr. President, I ask Criminal Law Division, where I have taken more than 18 months for the unanimous consent that Victoria had occasion to work with him on a nomination to reach the Senate floor. Bassetti of Senator DURBIN’s staff be professional basis. He just is an ex- No one can question Mr. Garland’s allowed the privilege of the floor dur- traordinary prospect for the court of qualifications and fitness to serve on ing this debate. appeals. the D.C. circuit. He is a respected law- The PRESIDING OFFICER. Without He has not been treated very gently yer, a former Supreme Court law clerk, objection, it is so ordered. in the confirmation process, having a partner at a prestigious law firm, and The Senator from Pennsylvania. been nominated in September 1995. He since 1989, has served with distinction Mr. SPECTER. Mr. President, I passed through the Judiciary Com- in the Department of Justice under thank my colleague, the distinguished mittee in the 104th Congress and was both Republican and Democratic ad- chairman of the Judiciary Committee, kept off the agenda by a single hold. ministrations. for yielding me time. That is when a Senator voices an objec- Support for him is bipartisan. We I have sought recognition to voice tion without stating a reason, or per- have received letters of support from my very strong support for the nomi- haps multiple holds, but I know a sin- numerous Reagan and Bush Justice De- nation of Merrick Garland for the gle hold stood in his way. partment officials, including former Court of Appeals for the District of Co- I compliment the majority leader, Deputy Attorneys General George lumbia. Mr. President, a great deal has Senator LOTT, for bringing his nomina- Terwilliger and Donald Ayers, former been said today on this floor which is tion to the floor at this time so that he Office of Legal Counsel Chief Charles of great importance but not really tre- may be acted upon, yes or no. He really Cooper and former U.S. Attorneys Jay mendously related to Merrick Gar- is extraordinary, and I think he has a Stephens, Joe Whitley, and Dan Webb. land’s nomination. I hope we have a remarkable career ahead. I am de- Jay Stephens, who was U.S. attorney chance to analyze the entire process of lighted to offer my voice of strong sup- when Garland served at that office in confirmation of judges and the respec- port for his confirmation. the District of Columbia, called Gar- tive roles of the President and the Sen- I thank the Chair. I thank my col- land a person of ‘‘dedication, sound ate, because the President has the league from Utah. I yield the floor. judgment, excellent legal ability, a bal- nominating authority and the Senate The PRESIDING OFFICER. The Sen- anced temperament, and the highest has the constitutional authority for ator from Vermont. ethical and professional standards.’’ confirmation. There are a great many Mr. LEAHY. I also want to thank the The National District Attorney’s Office things that ought to be done on both distinguished senior Senator from supports his nomination, calling Gar- sides to expedite the nomination and Pennsylvania because he was also the land an excellent lawyer, brilliant confirmation of judges. decisive Senator who came in and scholar, and a man of high integrity.’’ In my own State, Pennsylvania has made the quorum at the time we voted There can be no serious doubt about quite a number of vacancies now, and I Mr. Garland out of committee. Some- his ability to serve as a fair and impar- have been in discussions with the times we forget those little procedural tial judge on the D.C. circuit. President’s representatives at the things we have to do just to get here on Why then, has it taken 18 months to White House about trying to get these the floor. bring this nomination before the U.S. nominations filled. There is something Mr. SPECTER. I thank my colleague Senate? And why is it that no other ju- to be said on many sides of this issue. from Vermont for making that com- dicial nominees have been brought be- The matter confronting the Senate ment. I had presided over Merrick Gar- fore the Senate? now is, what are we going to do with land’s confirmation proceedings in the In fact, only 17 judges—all for dis- Merrick Garland? His record is extraor- 104th Congress. It was hard to find a trict court appointments—were con- dinary. I have been on the Judiciary Senator when I came in that afternoon. firmed during all of 1996. Obviously, Committee going into my 17th year I found out Merrick Garland was there that was a Presidential election year. and I do not believe I have seen a nomi- and five other people. It was an inter- But the slow-down in acting on judicial nee with the qualifications that this esting afternoon. We had a great many nominations was unprecedented. In man has. responsibilities. 1992, when President Bush was seeking He graduated from Harvard College, I went to law school not too long ago reelection, the Senate, under control of summa cum laude, was Phi Beta and I know what it is like to be on the the Democratic Party, still confirmed Kappa, and graduated from Harvard law review. They call it the Law Jour- 66 district court and appellate court Law School, magna cum laude. He was nal at Yale. It is remarkable to have judges.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2531 Justice delayed is justice denied. The court’s backlog is also growing. D.C. Circuit Court of Appeals. It is in- Thousands of Americans with legiti- In 1984, when the 12th seat was added, teresting today in this debate that mate grievances cannot get their day the court had a backlog of 1,200 cases. many people have spoken and no one in court, because judicial vacancies are Today, that backlog exceeds 2,000 has questioned his integrity nor his not being filled and current Federal cases, despite a bench that is highly re- ability. He was born in Chicago, grad- judges don’t have the time to hear spected for its intellect and dedication. uated from Harvard College magna their cases. It’s hard to crack down on As former Republican Senator Charles cum laude, Harvard Law School and, as crime when there are not enough Mathias stated on behalf of the non- has been said by other speakers, had a judges to enforce the laws that Con- partisan Council for Court Excellence, distinguished career both as a lecturer gress passes. ‘‘It is in the public interest for the D.C. at Harvard Law School and partner in Many of us are concerned about the Circuit to have its full complement of a prestigious firm, and then pros- harsh partisanship that is being ap- twelve active judges.’’ ecuting cases in the District of Colum- plied to the judicial nomination proc- It is time to end the excessive par- bia during the past few years, served as ess. Republicans in the Senate have or- tisanship over judicial nominations. I well in the Department of Justice. ganized an ad hoc Republican task hope very much that our action on Despite Mr. Garland’s obvious and force to develop procedures for screen- Merrick Garland is a sign that the un- many qualifications for this job, we ing judges. They have rejected a formal acceptable log jam is breaking and must vote on whether he will serve on role for the American Bar Association that the Senate is now returning to its the D.C. Circuit Court of Appeals. in assessing candidates. Republicans proper role of advise and consent, not Frankly, we should leap at the oppor- are seeking to force the President to partisan obstruction, in the consider- tunity to have him on that court. But conduct the real debate with them be- ation of judicial nominations. we are not here today to consider the significant contribution Mr. Garland’s hind closed doors—nominee by nomi- So, again, Mr. President, I join with appointment could have to the D.C. cir- nee—to make sure each person the those that are urging the Senate’s fa- cuit. Rather, we are focusing on wheth- President names meets an ideological vorable consideration of this extraor- er the D.C. circuit needs 11 judges rath- litmus test. In fact, some have sug- dinary nominee. This is an individual er than 10 judges. gested a quota system, in which half of who has been willing to be put forward I submit that this debate is not just all judicial nominations come from Re- now for over some 18 months. He has about numbers. It is about the admin- publicans in Congress and half from appeared before the committee and, as istration of justice; the fair, prompt, President Clinton. has been pointed out, his record is one equitable, and thorough administration If the Federal courts were a business, of special recognition, a brilliant aca- of justice is at stake. In all fairness, I they would be in bankruptcy. There are demic record, a strong commitment to must confess that I would rather err on over 90 vacancies in judgeships today. public service. He has served under the side of too many judges than too In his 1996 annual report, Chief Justice both Democrats and Republicans. He few. I would rather have too many Rehnquist criticized Congress failure has been an extraordinary success in judges doing too thorough and too last year to create additional Federal the private sector, as well. thoughtful a job than too few judges judgeships and called it a shortcoming. I don’t think I have seen, in recent rushed and careless in frantic efforts to The Administrative Office of the U.S. times, the range of different support handle their caseload. No one but the Courts has requested an additional 20 that this nominee has for this position. most shortsighted argues that the D.C. temporary positions on the courts of It is breathtaking in its scope. And the circuit does not need this 11th judge. appeals and 21 permanent and 12 tem- background of this individual has Indeed, last year when the debate porary positions in the district courts urged us to move forward with this turned on whether a 12th judge was to address the heavy backlogs that are nomination. We are extremely fortu- needed, the Reagan-appointed Judge piling up. nate in the district circuit court to be Silberman was often cited in support of In the case of Merrick Garland, some able to have someone of this quality. the effort to cut that 12th seat. How- Republicans argue that we do not need As has been pointed out, it is a special ever, he recently wrote to the Judici- to fill either of the two current vacan- court, really second in special recogni- ary Committee and said, ‘‘I still be- cies in the D.C. circuit, because the tion to the Supreme Court of the lieve we should have 11 active judges.’’ caseload is too light. Many nonpartisan United States, in terms of the com- So why are we arguing about this 11th observers regard the D.C. circuit as the plexity of the cases that we require seat today? second most important court in the this court to resolve. Some argue that D.C. circuit judges United States, after the Supreme So, Mr. President, I join with all of handle fewer cases per judge than any Court. There currently is only one sen- those and urge a positive vote in favor other circuit. I won’t make an analogy ior judge to assist the other 10 mem- of this extraordinary nominee. Merrick to the Supreme Court in the number of bers of the Court. Garland will be an outstanding jurist, cases that they handle. We know they In terms of both quantity and quality as everything in his life has reflected. are cases of great moment, and they of its caseload, the D.C. circuit ranks He has been an outstanding individual. should have the time to deliberate among the Nation’s busiest. It handles I remember very clearly the quote of them in an appropriate manner. But a disproportionately high proportion of Senator Mathias, who was a very the smaller number of cases per judge cases of national significance involving prominent, significant member of the is an inaccurate way of measuring the intricate legal issues. Complex admin- Judiciary Committee, who took great work of the D.C. circuit judges. Let me istrative appeals were 38 percent of the interest in the quality of justice in this say, at the outset, that we cannot over- caseload of the D.C. circuit during fis- country and the quality of individuals. look the fact that this circuit, more cal year 1995, as compared with only 5.5 He has joined in urging that we move than most—probably more than any— percent in other circuits. forward with this nominee and put him has many administrative appeals to By contrast, pro se appeals, which on the court, where he will serve this consider. As the Federal appeals court are generally the easiest to resolve, country with great distinction. I join sitting in the Capital, the D.C. circuit constituted only 11.8 percent of the my other colleagues in hoping that the handles the lion’s share of administra- D.C. circuit’s caseload in 1995, by far vote for him will be overwhelming. It tive appeals. the lowest percentage of any circuit in deserves to be. I think we will all be This chart that was prepared gives an the country. well served with his continued dedica- idea of the administrative agency ap- Diversity cases, which less often tion of public service on the court. peals filed per judge in all the Federal raise complex and time-consuming I yield the floor. circuits across the United States. If issues, constituted only 13.6 percent of Mr. LEAHY. Mr. President, I yield 10 you will note, D.C. circuit has 56 ap- the D.C. circuit’s caseload in 1995, com- minutes to the distinguished Senator peals filed per judge. Most other cir- pared with 30 percent in the other cir- from Illinois. cuits are in the teens—the eighth cir- cuits. So the charts and graphs that Mr. DURBIN. Mr. President, I rise cuit, only 8; the ninth circuit is 37. But some of our Republican colleagues are today to support the nomination of it is a significantly different caseload using do not tell the whole story. Merrick Garland to be judge on the that faces the judges in these circuits.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2532 CONGRESSIONAL RECORD — SENATE March 19, 1997 For those who are not familiar with treated fairly. If those vacancies are Garland’s current boss also lauds him. ‘‘He these administrative cases, I suggest not filled with honest and competent has enormous personal and intellectual in- that you not dismiss them because of individuals in a timely manner, it is a tegrity, impeccable legal credentials, a great disservice to this country. breadth of experience in both public and pri- the word ‘‘administrative.’’ Let me vate sectors, and the personality and de- show you what I mean. This is a file for I think we should move and move meanor that you’d expect in a judge,’’ says one administrative law case that a quickly to approve this nomination of Gorelick, who acknowledges that she is a judge must pore through to come to a Merrick Garland. I hope that his pa- strong backer of Garland’s but declines to good conclusion. tience will be rewarded today, as it discuss whether he is definitely the adminis- Let me show you another thing. This should be. I am certain, based on his tration’s nominee. ‘‘He is very thoughtful, is is a pro se petition from a prisoner in background and all that I have come to good at listening to all points of view, and jail. There are many of these that are know of him and my personal meeting makes decisions on the merits.’’ Attorney filed across the country. But consider with him, that he will make an ex- General Janet Reno also thinks highly of Garland, Gorelick says. the gravity and the challenge of this traordinary contribution. The widespread praise Garland garnered administrative appeal, as opposed to We need the 11th judge in the D.C. for his thorough and evenhanded leadership this rather smaller appeal in terms of circuit to handle this mountain of ad- during the critical initial investigation into volume. So these judges who serve in ministrative appeals. How many people the Oklahoma City bombing also hasn’t hurt this circuit really bear an unusually will come to us and complain, ‘‘Oh, the his chances for a nomination to the federal large responsibility in extremely tech- case is in court, and it is going to take bench. A Republican staffer on the Senate Judici- nical cases. Over the last 3 years, for forever. What is going on, Senator? What is going on, Congressman? Why ary Committee declines to discuss Garland’s which data is available, 45.3 percent of chances for confirmation, other than to say the cases filed in the D.C. circuit were aren’t the courts more responsive?’’ that the committee has received no opposi- administrative appeals of the size and Part of the problem is that the bench is tion in anticipation of a Garland nomina- complexity that I have just noted, vacant, the judges aren’t appointed, tion. compared with an average of 5.9 per- and the caseload that has been imposed Garland, a 1977 magna cum laude graduate cent outside the D.C. circuit. on these judges is overwhelming. of Harvard Law School who clerked for Let me also add here that I could go We can take care of one circuit today famed 2nd Circuit Judge Henry Friendly in addition to Brennan, declines comment. into detail, but I will not because I by the appointment of this fine man to fill this seat. Mikva was out of town and could not be know it is the intent of the Chair to reached for comment. move this matter to a vote very quick- Thank you, Mr. President. Garland’s reputation as a nonideological ly. I also want to comment for a mo- Mr. LEAHY addressed the Chair. thinker may have helped him win the nomi- ment on the period of time that this The PRESIDING OFFICER. The Sen- nation over Peter Edelman, who last fall was very able nominee has waited for con- ator from Vermont. reportedly the White House’s top pick for the Mr. LEAHY. Mr. President, I ask firmation. It is unfortunate. In fact, it D.C. Circuit vacancy. Edelman, who is cur- unanimous consent that an article is sad, and it borders on tragic, that rently counselor to Health and Human Serv- from the Legal Times of August 1995 ices Secretary Donna Shalala, was a favorite men and women who are prepared to regarding Mr. Garland be printed in the of the more liberal ranks in the Democratic give their lives to public service, who RECORD. Party, but he immediately drew opposition have gone through a withering process There being no objection, the mate- from conservatives—including Sen. Orrin of investigation, by the FBI, by the Ju- rial was ordered to be printed in the Hatch (R–Utah), chairman of the Senate Ju- diciary Committee, by the White diciary Committee, who believed Edelman to RECORD, as follows: House, by the American Bar Associa- be too radical and too activist in his ap- [From the Legal Times, Aug. 7, 1995] tion, and so many others, still must proach to the law. Opposition to Edelman GARLAND: A CENTRIST CHOICE wait over a year, in many cases, for only intensified after the GOP’s sweeping (By Eva M. Rodriquez) victory in last fall’s midterm election. their nominations to be considered by He was schooled at Harvard in administra- Edelman, according to two lawyers in- the Judiciary Committee and by this tive law by moderate professor-turned-Jus- volved in the judicial-selections process, is Chamber. tice Stephen Breyer, and took his antitrust likely to be nominated for one of the two va- I will tell you, a few days ago it was training from conservative Philip Areeda. cancies on the U.S. District Court here. But my good fortune to speak to a group of He earned his prosecutorial stripes under D.C. Del. Eleanor Holmes Norton, whose ju- judges at the Supreme Court Building. Jay Stephens, the hard-charging Republican dicial nominating commission has forwarded As I walked through that building and U.S. attorney in the District and former dep- names to Clinton for previous D.C. federal saw the busts of great jurists who have uty counsel to President Ronald Reagan. court vacancies, may have candidates of her own. The commission will accept applica- served this country, I wondered how And he cut his teeth in the private sector as a partner at Arnold & Porter, one of the tions for the two vacancies until August 11. many of them could pass the test that city’s wealthiest and most influential firms. The two sources say Clinton is likely to we now impose on nominees today, how At first blush, Merrick Garland may seem nominate Garland before Congress breaks for many of them would be willing to en- like a solid-judicial pick for a Republican the August recess. The two sources also say dure that test and to say that their president. But according to two administra- that the president may decide to submit a family, friends, colleagues, and others tion sources, the 42-year-old top aide to Dep- package of D.C. nominees, including one for that their lives will be on hold waiting uty Attorney General Jamie Gorelick is al- the appeals court vacancy and another for most certain to be President Bill Clinton’s one of the two open seats on the District for some decision from Capitol Hill. It Court. One trial court vacancy was created does a great disservice to this country third nominee to be the prestigious U.S. Court of Appeals for the D.C. Circuit. in June when Judge Joyce Hens Green took and to the judiciary for us to create a Although Garland has his share of liberal senior status; the other came open when process that is so demanding that ordi- credentials—including a coveted clerkship Judge Harold Greene followed suit earlier nary people would be discouraged from with retired Supreme Court Justice William this month. trying. Brennan Jr.—he is almost sure to be a much Others mentioned as possible contenders We have, in this case, an extraor- more middle-of-the-road jurist than the man for a District Court seat include Brooksley dinary individual, Merrick Garland, he would replace, former Chief Judge Abner Born, a partner at D.C.’s Arnold & Porter who is said to have very strong support who has waited patiently now for over Mikva, who retired from the D.C. Circuit last fall to take the job of White House counsel. among women’s groups, and U.S. Attorney a year to be considered by this Judici- News of Garland’s near-lock on the nomi- Eric Holder, Jr., who is a former D.C. Supe- ary Committee and by this U.S. Sen- nation has left a smattering of liberals pri- rior Court judge and at one time was men- ate. vately grumbling that he is too conservative. tioned as a possible appeals court nominee. I hope those on the other side will But his nonideological approach and his easy Mr. LEAHY. Mr. President, I thank make an effort to overcome the prob- rapport with both liberals and conservatives the distinguished Senator from Illinois. lems that we have seen over the past has earned Garland high praise from people His dramatic showing of the difference year. We really have to address the fact on both sides of the aisle. between the pro se appeals that many that there are so many vacancies on ‘‘I think he is a very talented lawyer,’’ courts handle and the complexity of says Garland’s former boss Stephens, now a Federal benches across this country— partner at the D.C. office of San Francisco’s the administrative issues that the Dis- not just in the District of Columbia but Pillsbury, Madison & Sutro. ‘‘He’s bright, en- trict of Columbia Circuit Court of Ap- almost 100 nationwide—vacancies that ergetic, and he has a very balanced de- peals handles is very instructive for us. need to be filled so that people will be meanor.’’ Everybody talks about caseloads. Some

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2533 cases are handled in a matter of min- the circuit is a little different. I grant Court of Appeals. He said that they utes. Others take months. They each that. have 575 cases per judge, and that they count for one case. He has dem- I agree with the point made in a cannot handle any more cases. I was onstrated that in the District of Co- hearing I held on the District of Co- involved in a 7-week trial of a criminal lumbia circuit, because of its unique lumbia circuit in my subcommittee. case that I personally prosecuted. In nature, many of them count for a The point is that other circuits—the the course of that trial 18,000 pages of month. second circuit in particular—have a transcript were generated, and when Mr. President, I withhold the remain- large percentage of complicated cases. the case was heard on appeal, there der of my time. In the second circuit, those cases are were 20 or more issues involving 5 or Mr. GRASSLEY addressed the Chair. complex, commercial litigations com- more defendants. Many of these crimi- The PRESIDING OFFICER. The Sen- ing out of New York City. But you do nal cases are extremely difficult. ator from Iowa. not hear people complaining that the I will also point out that the elev- Mr. GRASSLEY. Mr. President, my total staffing level of the second cir- enth circuit includes the southern dis- good friend from Illinois, the distin- cuit should not be determined accord- trict of Florida which probably has, guished Senator, has just spoken. I ing to those statistics. outside of New York and California, would just observe that more govern- So I believe that complexity of cases the largest number of complex crimi- ment isn’t necessarily better govern- in the D.C. circuit is overstated. It nal cases, in particular international ment, and, also, in the sense of justice really is a nonargument when the num- drug smuggling cases, of any circuit in more judges do not automatically ber of agency cases has declined by 23 America. Those cases are sent to the guarantee better justice. I can remember from my service, percent in the last year. Moreover, now eleventh circuit and yet they can man- being appointed by the Chief Justice in the District of Columbia circuit has a age their caseload in this fashion. I 1989, I believe it was, to a 2-year study, senior judge. That happens to be a think it is a remarkable accomplish- the only study we have ever had, of the former member of this body, Judge ment. The fourth circuit, with 378 cases per Federal judiciary that we were looking Buckley. Since senior judges must and projecting what number of cases carry at least a one-third caseload, and judge, has the fastest turnaround of were going to have to be filed over the they typically carry a one-half case- any circuit in America. We talk about the need to move cases next couple of decades. The only con- load, it is fair to consider the District 1 rapidly, and it is argued that we need clusion you could come to, if those fig- of Columbia circuit as having 10 ⁄2 more judges to move cases rapidly. ures were accurate—and, so far, they judges right now when the ratio says 1 How is it that the fourth circuit, with have been proven to be accurate—is 9 ⁄2 judges. 378 cases per judge, has the fastest dis- that you could never appoint enough So let’s see if what we have works be- judges to take care of the problems cause what we have right now won’t position rate of any circuit in Amer- that we are having with the explosion cost the taxpayers any more money. ica? It is because they are managing of cases; that you have to look at a lot I yield the floor. their caseload well and because they do of other ways. How do you dispense jus- The PRESIDING OFFICER. Who not have more judges than are nec- tice in the less-adversarial environ- yields time? essary. As Judge Tjoflat testified be- ment of a courtroom and in the less- Mr. SESSIONS addressed the Chair. fore our committee, too many judges costly environment of the courtroom? The PRESIDING OFFICER. The Sen- actually slows down the process and For instance, what can you do for al- ator from Alabama. makes good judging more difficult. I ternate dispute resolutions? There are Mr. SESSIONS. Thank you, Mr. think that is a matter that we should a lot of other ways that I as a non- President. address. lawyer am not qualified to speak to. I am pleased to be able to comment I would like to note that we have not But I can tell you that more judges is on this judicial vacancy. I certainly re- delayed this matter. We are prepared never going to solve the problem of spect Senator GRASSLEY and his com- to have this matter come to a vote. more cases. ments. I agree with him very, very More delays would have been possible Another area we have to do some- much. if we had wanted simply to delay this thing about is tort reform, as an exam- I think it is an important point to process. I feel it is time to vote on this ple of something that we have to do note that people say that administra- issue. I respect the legal ability of Mr. about the number of cases piling up. tive cases are difficult to administer, Garland. He was on the Harvard Law So I just ask my good friend from Il- and that they may have a file that is Review. It does not bother me if he was linois to think about those things as fairly thick. Well, judges have law editor in chief of the Harvard Law Re- well. clerks. They go through the files. Even view. It would not bother me if he had I want to respond to some of the if the file is thick, the issue coming up been editor in chief of the law review comments raised by those who feel on an administrative appeal may be at the University of Alabama School of that the caseload statistics indicate very simple and may involve nothing Law. The fact remains that the tax- that filling the 11th seat is necessary. more than a simple interpretation of payers should not be required to pay In my view, this is not a fair reading of law. Many of those can be disposed of for a judge we do not need. The tax- the caseload numbers. very easily. payers should not have to pay $1 mil- I point my colleagues’ attention to a Based on my 12 years of experience as lion per year for a judge that is not Washington Times editorial which ap- a U.S. attorney practicing in Federal needed. peared on October 30, 1995. That edi- court in cases involving all kinds of Mischief sometimes gets started. I torial considered the question of Federal litigation, I don’t at all con- recall the old saying my mother used whether or not the administrative type cede the point that every administra- to use: an idle mind is the devil’s work- of cases in the D.C. circuit are really as tive law case is substantially more dif- shop. We need judges with full case- complicated and so complicated that ficult than others. As a matter of fact, loads, with plenty of work to do, im- caseload statistics can be misleading. I Judge Silberman testified in 1995 that portant work to do. would like to quote from that editorial. it is true that the administrative law This circuit is showing a serious de- Per panel the District of Columbia circuit cases are generally more complicated, cline in caseload. In fact, caseload in averages at best half the dispositions of and other judges in other circuits, like this circuit declined 15 percent last other circuits. To make a perfectly reason- the second circuit, will tell you that year. That decline continues. I think it able comparison that takes account of the some of their commercial litigation would be very unwise for us to fill a va- greater complexity of the cases in the D.C. circuit, then we should be asking, Is each coming out of the Federal district cancy if there is any possibility that case in the D.C. circuit on average twice as court is terribly complicated, too. I am the caseload will continue to decline. complicated as the average case in the other not in a position to compare the two. We do not need to fill it now, and we circuits? That seems unlikely in the ex- Let me just say this from personal certainly do not need to fill it in the treme. experience. I talked earlier today face of this declining caseload, because It seems to me that this point is ex- about the testimony of Chief Judge once it is filled, the judge holds that actly correct. Granted, the caseload of Tjoflat from the Eleventh Circuit position for life and the taxpayers are

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2534 CONGRESSIONAL RECORD — SENATE March 19, 1997 obligated to pay that judge’s salary for Merrick Garland. The workload for the D.C. opposition to Mr. Garland himself. I life. That is an unjust burden on the Circuit does not warrant filling either the think he is qualified. I think he has ex- taxpayers of America. 11th or 12th seats on the D.C. Circuit. When perience that would be helpful. And I Fundamentally, this is a question of one considers that approximately 1 million think his disposition is acceptable, too. efficiency and productivity. There are dollars worth of taxpayer dollars is involved for each judgeship, it is important for the In fact, based on all the reports that courts in this Nation that are over- Senate to eliminate unnecessary seats when- I have heard about him, I think he worked, particularly many of the trial ever possible. Please vote against confirming more than likely would be a much courts. We may not have enough Merrick Garland. Thank you for your consid- more acceptable nominee to this court money to fill those vacancies. Let us eration of our views. as compared to many of the other take the money from this Washington, Sincerely, nominees we have considered or may be DC circuit court and use it to fund BRIAN LOPINA, considering in the future. judges and prosecutors and public de- Director, Governmental Affairs Office. It is my belief that this court of ap- fenders in circuits and district courts The PRESIDING OFFICER. Who peals is more than adequately staffed all over America that are overcrowded yields time? based on the number of cases pending and are overworked. Mr. LEAHY addressed the Chair. on the court’s docket, the filings per Those are my comments. We have The PRESIDING OFFICER. The Sen- judge at this court as it is currently studied the numbers carefully. We are ator from Vermont. staffed for the year ending September, not here to delay. We are not here in Mr. LEAHY. Mr. President, I am glad 1996, with the trend of such filings over any way to impugn the integrity of Mr. to hear that nobody wants to delay the last several years, and in compari- Garland. By all accounts, he is a fine Merrick Garland. I would only point son to other workloads of circuit person and an able lawyer. He does out that his nomination first came be- courts of appeal around the country. It have a very good job with the U.S. De- fore us in 1995, and he was voted out of is very small. I think as compared to partment of Justice. We probably need committee, I believe unanimously, by others certainly they have more judges some trial judges here in Washington, Republicans and Democrats alike, in than they need. DC, and if the President nominated 1995. We are going to vote, I hope, very I am looking at this chart over here. him to be one of those trial judges, I soon to confirm him. But if that is not The District of Columbia Court of Ap- would be pleased to support him for delay, I would hate like heck to see peals is at the bottom end of the case- that. what delay would be around here. He load, and yet you have other circuit That will conclude my remarks at was nominated in 1995, got through the courts across the country—my own cir- this time. committee in 1995 and will finally get cuit, the fifth, is about in the middle. I ask unanimous consent to have confirmed in 1997. The eleventh circuit obviously has a printed in the RECORD a letter from I understand other members say they high caseload as compared to this par- Judge Silberman dated March 4, 1997, would be perfectly willing to help out ticular court. in which he said that the filling of the on the district court; we need help. We So I really do not think this con- 12th seat would be frivolous and in have Judge Colleen Killar-Kotelly who firmation is needed. Even if it does get which he noted the continuing decline is still waiting, nominated very early through, I want to say right now that in caseload. in 1996, has yet to come through, even regardless of the next nominee, unless I also ask unanimous consent to have though in 1996 alone the criminal case this caseload is dramatically turned printed in the RECORD a letter from the backlog increased by 37 percent. We around, I hope it would never even be Director of Governmental Affairs for talk about getting tough on criminals. considered regardless of how qualified the Christian Coalition written in op- We certainly will not send the judges the nominee may be, he or she, in a position to the filling of this vacancy, that might do it. Democratic administration. noting that it is not warranted. I withhold the remainder of my time. I recognize that some circuits do There being no objection, the mate- The PRESIDING OFFICER. Who have tremendous caseloads, but this is rial was ordered to be printed in the yields time? certainly not the case in this circuit, RECORD, as follows: Mr. LOTT addressed the Chair. and therefore I will vote against the U.S. COURT OF APPEALS, The PRESIDING OFFICER. The ma- nomination based on that. In fact, I DISTRICT OF COLUMBIA CIRCUIT, jority leader. just do not think an additional judge is Washington, DC, March 4, 1997. Mr. LOTT. Mr. President, I would needed in this district court of appeals. Hon. ORRIN G. HATCH, like to make a brief statement to ex- I ask unanimous consent to print in Dirksen Senate Office Building, plain my vote that I will cast later on Washington, DC the RECORD a list of the filings per DEAR CHAIRMAN HATCH: Your asked me today. I know we are having inter- judge in 1996 and the total appeals yesterday for my view as to whether this esting discussion, and this is one that docket in 1995 per judge that shows as court needs 11 active judges and whether I has been a long time coming, getting compared to other circuits this judge is would be willing to communicate that view this judgeship to the floor of the Sen- not needed. to other senators of your committee. As I ate for a vote. There being no objection, the mate- told you, my opinion on this matter has not Obviously, there has been support for rial was ordered to be printed in the changed since I testified before Senator this nominee by Senator HATCH and by Grassley’s subcommittee in 1995. I said then, RECORD, as follows: Senator SPECTER and others. Senator and I still believe, that we should have 11 ac- Appeals filed per judge in 1996: tive judges. LEAHY has been pushing to get these judges voted on. This is the first one of D.C. Cir., 123 6th Cir., 341 On the other hand, I then testified and still 10th Cir., 216 9th Cir., 360 believe we do not need and should not have the year. I presume this is a 1st Cir., 227 2nd Cir., 372 12 judges. Indeed, given the continued de- celebratory event. 3rd Cir., 280 4th Cir., 378 cline in our caseload since I testified, I be- Mr. LEAHY. It is showing, if my 7th Cir., 295 5th Cir., 443 lieve that the case for a 12th judge at any friend from Mississippi will yield, re- 8th Cir., 307 11th Cir., 575 time in the foreseeable future is almost friv- markable speed. As I said, he was nom- olous. As you know, since I testified, Judge inated in 1995, first got through the Total appeals on docket for year ending Buckley has taken senior status and sits 1995/per judge: committee unanimously, Republicans part-time, and I will be eligible to take sen- 1st Cir., 1339 (4 judges=335) ior status in only three years. That is why I and Democrats, in 1995. We are now 2nd Cir., 3987 (12 judges=332) continue to advocate the elimination of the just before our second vacation of the 3rd Cir., 3485 (13 judges=268) 12th judgeship. year in 1997. I am glad, whenever it is, 4th Cir., 3542 (12 judges=295) Sincerely, to get him through. 5th Cir., 5696 (15 judges=380) LAURENCE H. SILBERMAN, Mr. LOTT. But now maybe I can 6th Cir., 3343 (13 judges=257) U.S. Circuit Judge. comment just briefly on why it has 7th Cir., 2200 (8 judges=275) taken so long. There were a lot of fac- 8th Cir., 3176 (10 judges=318) CHRISTIAN COALITION, 9th Cir., ? Washington, DC, March 19, 1997. tors involved. I will vote not to con- 10th Cir., 2104 (8 judges=263) DEAR SENATOR: I am writing to urge you to firm Merrick Garland to be a D.C. Cir- 11th Cir., 6057 (10 judges=606) vote against confirming judicial candidate cuit Court of Appeals judge. I have no D.C. Cir., 2065 (10 judges=206)

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2535 Mr. LOTT. I yield the floor. ditional capacity of that court to han- complicated. But if you look at the second The PRESIDING OFFICER. Who dle work for which it is already circuit, the caseload of which is more than yields time? The Senator from Mis- overstaffed. twice as much as the D.C. circuit, in the sec- souri. While appeals filings for all of the ond circuit their caseload is complicated as Mr. ASHCROFT. I yield myself such Nation’s U.S. courts of appeals in- well. time from the opposition time as is creased to an all-time high of 4 per- The fact of the matter is, it is time necessary for me to make a statement. cent, the number of filings filed in the for the U.S. Senate, which called the Mr. President, I rise today to speak, D.C. circuit actually dropped last year; circuit courts into creation, which not in opposition to Merrick Garland it dropped 15 percent. So you have an called district courts into creation, to for filling the seat on the U.S. court of increase of appeals in the system gen- begin to exercise a responsible ap- appeals, but in opposition to filling the erally of 4 percent, you have a decline proach toward staffing those courts seat at all. The U.S. Court of Appeals in the D.C. circuit of 15 percent, of the and not to staff them when the work- for the District of Columbia Circuit is 12 additional circuits, the District of load does not justify it. Even if the na- a judicial circuit which has the lowest Colombia had the largest decline in ap- ture of the cases coming before the caseload of any of the judicial circuits peals last year. D.C. circuit is unique, those cases are in the country, and I think this is a Mr. President, ending the era of big not so difficult, or different from the time when we ought to ask ourselves Government includes all three other cases which have their own some serious questions about whether branches of government. But if we can- uniqueness and have their own dif- or not we intend to staff circuits in not end big government where we have ficulty, whether they be commercial spite of the fact that there are ade- had declining demand for services, and instead of administrative, so as to quate judges in the circuits to handle where we are already overstaffed, mean that we should populate the the caseload which is currently re- where can we end big government? To court with staffing which is not re- quired of the circuit. believe that the judicial branch should quired by the caseload. First, the amount of judicial work in be excluded from the exercise of re- Mr. President, I plan to vote against the circuit raises questions about the sponsibility or should be overstaffed or Mr. Garland, not for any reason to im- necessity of confirming another appel- should ignore the trends in terms of pair his standing or his credentials. I late judge for the D.C. circuit. It ap- case filings and should be over- do not think this is a question about pears that filling this vacancy would be populated with individuals because the qualifications of the judge. But it an inefficient use of judicial resources. there are slots available, in spite of the is a question about the deployment of Before filling any vacancy for an appel- fact that the work or the caseload is the public’s resource and about the late judgeship, the U.S. Senate should not there to justify those slots, would staffing level for courts which do not look at the filings per judgeship com- be for us to deny a responsible position have caseload to justify it. pared with other jurisdictions. Of the in this matter. Mr. President, I yield the floor. 12 courts of appeals, the D.C. circuit Let me just indicate that there are The PRESIDING OFFICER. Who has the lowest filings per judge of any two vacancies and virtually everyone yields time? The Senator from of the 12 courts of appeals. While the will confess that at least one of them Vermont. D.C. circuit has had only 123 cases filed should not be filled. This is not a mat- Mr. LEAHY. Mr. President, there has per judge, the eighth circuit, the cir- ter of saying some people think all the been a lot of discussion, just now cuit in which I live, handled nearly vacancies ought to be filled; others again, quoting Judge Silberman. What three times the D.C. circuit’s total of think that neither of the two should be is needed—I would note, he wrote to appeal filings, with 307 appeals filed per filled. There is a general consensus the distinguished chairman, Senator judge. The eleventh circuit court of ap- that filling the second of the two would HATCH, and said that we should have 11 peals, in comparison, had 575 appeals certainly be a waste and surplus. I active judges. We talk about this as filed per judge. think if you look carefully and you though the nominee was going to be The D.C. Circuit Court of Appeals measure the caseload by what the Judi- the 12th judge. In fact, the nominee is now has two open seats. But Judge cial Conference had previously stated the 11th judge. James Buckley, who took senior status was an appropriate caseload, and you I ask unanimous consent that a let- last year, which means he is still obli- look at the potential for work by the ter dated March 4, 1997, by Judge Sil- gated to handle a caseload equivalent senior active judges who have taken berman, in which he said, ‘‘. . . I still to that of an average judge in active senior status, you can come but to one believe that we should have 11 active service who would handle a 3-month conclusion, that it is not an appro- judges,’’ be printed in the RECORD at caseload, is still there. So you have a priate deployment of the tax dollars of this point. senior status judge who is handling the the citizens of this great Nation to add There being no objection, the letter equivalent of a quarter of the load that a judge to a court where the workload was ordered to be printed in the a normal judge in the circuit would does not justify it. RECORD, as follows: handle. So you do not have the loss Good government is not to fill a va- U.S. COURT OF APPEALS, completely of the second judge in those cancy simply because it exists. To fill DISTRICT OF COLUMBIA CIRCUIT, two vacancies; you have the loss of one this vacancy without taking into ac- Washington, DC, March 4, 1997. count the lack of caseload is fiscally ir- Hon. ORRIN G. HATCH, judge, and then you have one-quarter Dirksen Senate Office Building, judge in the senior status making up responsible. Before I yield the floor, I would like Washington DC. for any slack. DEAR CHAIRMAN HATCH: You asked me yes- Still, the D.C. circuit is the least to address the argument that the D.C. terday for my view as to whether this court populated with work. And it is the cir- court of appeals might be considered to needs 11 active judges and whether I would cuit that does not merit additional be a different court, unique, one of a be willing to communicate that view to judges to conduct the work which sim- kind, because it has a lot of cases that other senators of your committee. As I told ply is not there. If we were to use the are administrative in nature and they you, my opinion on this matter has not changed since I testified before Senator formula expressed by the Judicial Con- have a certain level of complexity. I think in this regard it is important to Grassley’s subcommittee in 1995. I said then, ference, between 1986 and 1994 the D.C. and I still believe, that we should have 11 ac- circuit court would rate just in the cite Judge Silberman, who sits on the tive judges. order of nine judges to handle its cur- D.C. court of appeals. On this point, in On the other hand, I then testified and still rent caseload. So, in terms of the Judi- 1995, he testified as follows: believe we do not need and should not have cial Conference’s own assessment of It is true that the administrative law cases 12 judges. Indeed, given the continued de- how many judges would be needed, the are generally more complicated. But other cline in our caseload since I testified, I be- caseload of the D.C. circuit would rate judges in other circuits, like the second cir- lieve that the case for a 12th judge at any cuit, will tell you that some of their com- time in the foreseeable future is almost friv- nine judges. It has 10 judges now, and if mercial litigation coming out of the Federal olous. As you know, since I testified, Judge you start to add the additional case- District Court is terribly complicated, too. Buckley has taken senior status and sits load that can be handled by senior The truth of the matter is, some of the ad- part-time, and I will be eligible to take sen- judges, it seems to me that adds an ad- ministrative law cases in the D.C. circuit are ior status in only three years. That is why I

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2536 CONGRESSIONAL RECORD — SENATE March 19, 1997 continue to advocate the elimination of the Edwards and Judge Silberman, a re- The yeas and nays were ordered. 12th judgeship. spected conservative, agree that, in The PRESIDING OFFICER. The Sincerely, Judge Silberman’s words ‘‘it would be a question is, Will the Senate advise and LAURENCE H. SILBERMAN, mistake, a serious mistake for Con- consent to the nomination of Merrick U.S. Circuit Judge. gress to reduce the D.C. circuit down B. Garland, of Maryland, to be U.S. cir- Mr. HATCH. Mr. President, I have below 11 judges.’’ cuit judge for the District of Columbia been sitting here listening to this. In If I did not believe that, I would not circuit? On this question, the yeas and all honesty, I would like to see one per- have brought this judgeship nomina- nays have been ordered. The clerk will son come to this floor and say one rea- tion to the floor. I have to tell you, if call the roll. son why Merrick Garland does not de- anybody doubts my integrity, I want to The assistant legislative clerk called serve this position. It has been almost see them afterwards. the roll. a year. In the last Congress, I must As for the statistics that have been Mr. FORD. I announce that the Sen- have gone on this issue, trying to get cited, with all due respect, they are not ator from Ohio [Mr. GLENN] is nec- him up, for most of that time. a fair or accurate characterization of essarily absent. First, there was the 12th seat, he was the D.C. circuit’s caseload relative to The PRESIDING OFFICER (Ms. COL- going to get that. Then, when Buckley the other circuits’ caseloads. I made LINS). Are there any other Senators in retired, everybody that I know of, who that case earlier. the Chamber desiring to vote? The result was announced—yeas 76, knows anything about it, other than I am prepared to yield back the time nays 23, as follows: some of our outside groups who do not if the other side is prepared to yield seem to want any judges, said that we back their time. Is there anybody [Rollcall Vote No. 34 Ex.] need the 11th seat. going to want to speak on the other YEAS—76 As I suspected, nobody in this body is side? Abraham Feingold Mikulski Akaka willing to challenge the merit of The PRESIDING OFFICER. Who Feinstein Moseley-Braun Merrick Garland’s nomination. I have Baucus Ford Moynihan yields time? Bennett Gorton Murkowski not heard one challenge to him yet. In Mr. HATCH. I am prepared to yield Biden Graham Murray fact, they openly concede that Mr. Gar- back time. Bingaman Harkin Reed land is highly qualified to be an appel- Bond Hatch Reid The PRESIDING OFFICER. The Sen- Boxer Hollings late judge. Rather, they use arguments Robb ator from Utah has no time to yield Breaux Hutchison Roberts that the D.C. circuit does not need 12 back at this point. The Senator from Bryan Inhofe Rockefeller Bumpers Inouye judges in order to oppose the confirma- Roth Iowa has approximately 17 minutes re- Byrd Jeffords Santorum tion of Mr. Garland for the 11th seat on maining on the opposition side. Campbell Johnson Sarbanes this court. Mr. SESSIONS. I would like to be Chafee Kempthorne Cleland Kennedy Smith, Bob There is not a harder-nosed conserv- recognized. Smith, Gordon ative or more decent conservative that Coats Kerrey The PRESIDING OFFICER. The Sen- Cochran Kerry H. I know than Larry Silberman. I talked ator from Alabama is recognized. Collins Kohl Snowe to him personally. If he said to me they Mr. SESSIONS. Mr. President, there Conrad Landrieu Specter Stevens did not need the 10th seat, I could un- is nobody in this body who has fought D’Amato Lautenberg Daschle Leahy Thomas derstand this argument, and I could harder for a balanced budget amend- DeWine Levin Thompson understand this minirebellion that is ment and for controlling Federal Dodd Lieberman Torricelli occurring. But he said they needed the spending than the distinguished Sen- Domenici Lugar Warner 11th seat. If he had said, ‘‘All we need Dorgan Mack Wellstone ator from Utah, Senator HATCH. His Durbin McCain Wyden are 10 seats, we don’t need the 11th or leadership has been terrific on that. I 12th,’’ I would have been on his side, respect that. I guess we just have a dis- NAYS—23 and it would not be because of partisan agreement. Allard Frist Kyl politics, it would be because I trust Ashcroft Gramm Lott I think it is really unusual that a Brownback Grams McConnell him and I believe in his integrity. But judge would cite a 12th seat as frivo- Burns Grassley Nickles I called him personally and he said, lous and note in his own letter that it Coverdell Gregg Sessions ‘‘Yes, we do need the 11th seat.’’ was frivolous because of a declining Craig Hagel Shelby Enzi Helms Thurmond My colleague from Alabama cir- caseload. Even though Judge Silber- Faircloth Hutchinson culated a letter saying confirming man himself said he felt they ought to NOT VOTING—1 Merrick Garland would be a ‘‘ripoff’’ of go ahead and fill the 11th seat, we, the taxpayers. Having just led the fight after full study of it and in the course Glenn for the balanced budget amendment, I of careful deliberations, had the oppor- The nomination was confirmed. do not think that is quite fair. I am tunity to hear from two other chief Mr. LEAHY. Madam President, I never going to rip off the taxpayers. judges from two other circuits that in- move to reconsider the vote. Mr. HATCH. I move to lay it on the But I will tell you one thing, playing dicated, even though they have much table. politics with judges is unfair, and I am higher caseloads, 575 to 378 cases per The motion to lay on the table was sick of it, and, frankly, we are going to judge, that they did not need a new cir- agreed to. see what happens around here. A ‘‘rip- cuit judgeship. The PRESIDING OFFICER. The Sen- off?’’ Let’s be serious about this, folks. So, therefore, I concluded that a cir- ator from Vermont. This is a serious matter. cuit with 124 cases per judgeship did Mr. LEAHY. Madam President, this My colleague referred to the testi- not need to be filled, and that the $1 is the first judge confirmed in this Con- mony of Chief Judge Wilkinson of the million per year, if it is not justified, gress. I hope it will be the first of fourth circuit. That is a different mat- would be a ripoff of the taxpayers. I many, many. ter. I have challenged the distinguished feel that we can spend that money I remind my colleagues we have close chairman of the Subcommittee on more efficiently on trial judges in cir- to 100 vacancies in the Federal court. Courts to look into that, and I am cuits and districts that are already We have begun with one of the most going to be heavily guided by what overwhelmed with heavy caseloads and outstanding nominations any Presi- Senator GRASSLEY comes up with. not on the D.C. circuit that is dent has sent. The statements of Judge Tjoflat from overstaffed already. I yield the floor, That is the nomination of Merrick the eleventh circuit has also been men- Mr. President. Garland—now Judge Garland. I com- tioned. But what do the judges on the Mr. GRASSLEY. We yield back the pliment him on that. He was nomi- D.C. circuit court say? It is one thing time on our side, and I ask for the yeas nated in 1995; it first passed through for Wilkinson to get up and make a and nays. the Judiciary Committee unanimously comment, it is another thing for The PRESIDING OFFICER. The yeas in 1995, and it is now 1997. We need to Tjoflat, who has problems in that cir- and nays have been requested. Is there move—— cuit, but what do the judges on the a sufficient second? Mrs. BOXER. Madam President, the D.C. circuit say? Both Chief Judge There is a sufficient second. Senate is not in order.

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY March 19, 1997 CONGRESSIONAL RECORD — SENATE S2537 The PRESIDING OFFICER. The Sen- trict of Columbia Circuit. Let us en- up here who will abide by the rule of ate will be in order. The Senator is en- sure that our Federal bench has a full judging and the rule of law and quit titled to be heard. complement of such qualified judges so substituting their own policy pref- The Senator from Vermont. that the business of justice can go for- erences and finding excuses for every Mr. LEAHY. Madam President, I ward. criminal that comes before them, they thank the Chair. I wish also to com- Mr. HATCH addressed the Chair. are going to have support from me. I pliment my friend, the distinguished The PRESIDING OFFICER. The Sen- hope they will have more support from senior Senator from Utah for his help ator from Utah is recognized. the Judiciary Committee in the future. in doing this. I also wish to com- Mr. HATCH. Madam President, I But if they are going to send up more pliment Senators who paid attention to want to thank my colleagues who activists, there is going to be war. his very, very strong statement at the voted for Judge Merrick Garland. I be- I don’t think the judiciary has ever end of this debate on behalf of Judge lieve they did what was right. had a better friend than ORRIN HATCH; Garland. I think that the Senator from With regard to Federal judgeships, I know they haven’t. I will fight for Utah and I are committed to trying to we ought to do what is right. I take them. I think they ought to be getting move, in a bipartisan fashion, to get this job as seriously as anything I have more pay. I think we ought to support these judges here. I hope all Senators ever done in the Senate. I want to them in every way we possibly can. will join us in doing that. The Federal thank my colleagues who voted with us They are tough jobs, they are clois- judiciary should not be held hostage to for supporting the nominee. tered jobs. They are difficult jobs. They partisan, petty, or ideological con- Having said that, there have been a take great intellectual acumen and straints that really reflect only a mi- serious number of nominees whom we ability. nority of views. have confirmed in the past who have Madam President, I am telling you, The Federal judiciary is really a proven to be activist judges once they we have far too many judges on both blessing in our democracy in the fact got on the bench and who told us when the left and the right who disregard that it is so independent. Our Federal they were before the committee they what the rule of judging is and who leg- judiciary is the envy of all the rest of would not be activist and they would islate from the bench as superlegisla- the world. The distinguished Senator not undermine the role of the judiciary tors in black robes who disregard the from Utah and I are committed to by legislating from the bench. Then democratic processes in this country keeping it that way. We will work to- they get to the bench and they start and who do whatever they feel like gether to keep it that way. I thank him legislating from the bench. doing. They are undermining the judi- for his help on this nomination. I want them to know, and I want to ciary, and they are putting the judici- Mr. DASCHLE. Mr. President, I send a warning to the judiciary right ary in this country in jeopardy. I am would like to reiterate what PAT now, if they are going to continue to darn sick of it. My colleagues on our LEAHY has said about how glad we are disregard the law, if they are going to side are sick of it. I don’t care whether that Merrick Garland has finally been continue, in many respects, to bypass it is activism from the right or from considered by the Senate for appoint- the democratic processes of this coun- the left; it is wrong. We ought to stop ment to the U.S. Court of Appeals for try, if they are going to start sub- it, and the judiciary is the only place the District of Columbia Circuit. We stituting their own policy preferences where it can be stopped. wholeheartedly believe that Mr. Gar- for what the law really says, then it is I once had one of the most eminent land is highly qualified for this posi- going to be a tough time around here. legal thinkers in the country say that tion and deserves the strong vote we This vote proves it. he has never seen anybody on the Su- just gave him. I don’t feel good about all those who preme Court move to the right; they Mr. Garland has been awaiting this voted against this nomination, but the have always moved to the left as they day since being nominated by the fact of the matter is that there is some have grown. I would like to not worry President on September 5, 1995—11⁄2 reason for their doing so. Republicans about whether they are moving right years ago. His qualifications are clear. are fed up with these judges who dis- or left, but whether they are doing the The ABA’s standing committee on the regard the role of judging once they get job that judges should do. Federal judiciary found him well quali- to the courts, after having told us and I am serving notice to the Senate, fied to serve on the Federal bench, and promised that they will abide by the too. I am chairman of the Senate Judi- he has received the support of a bipar- role of judging. Now, I am upset—there ciary Committee, and I take this re- tisan and ideologically diverse group of is no question about that—because I sponsibility seriously. I want every- individuals. think the finest nominee that I have body in this body to know I take it se- His credentials cannot be challenged. seen from this administration is riously. It means a lot to me. I have He has worked at the Department of Merrick Garland, and I think he de- tried a lot of cases in Federal courts. I Justice as the Principal Associate Dep- served better. But I also understand have tried a lot of cases in State uty Attorney General, in private prac- my colleagues. courts. I have a lot of respect for the tice and served as a law clerk to Jus- I am sending a warning out right now judiciary. So I take this seriously, and tice Brennan on the Supreme Court that these judges who are sitting on I don’t want politics ever to be played and a law clerk to Judge Friendly on the bench better start thinking about with it. I get a little tired of the other the U.S. Court of Appeals for the Sec- the role of judging and quit trying to side bleating about politics, after the ond Circuit. do our jobs. We have to stand for re- years and years of their mistreatment I am happy that today, after his long election. That is why the buck should of Reagan and Bush judges and the wait, Merrick Garland finally knows stop here—not with some Federal judge glaring, inexcusable examples where that he will serve as a Federal judge. who is doing what he or she thinks is they treated Republican nominees in a It is unfortunate, however, that we better for humanity and mankind. shamefully unfair way. Nobody could have not yet voted on any other judges We have judges on the Ninth Circuit ever forget the Rehnquist nomination, during this session of Congress—at a Court of Appeals who could care less the Bork nomination, and even the time when we have almost 100 vacan- about what the Congress says, or what Souter nomination, where he wasn’t cies on the Federal bench. That is a va- the President says, or what the legisla- treated quite as well as he should have cancy rate of over 10 percent. tive and executive branches say. That been—and above all, the Clarence I hope that voting on Merrick Gar- is why they are reversed so routinely Thomas nomination; it was abysmal. land’s confirmation today signals that by the Supreme Court. It is pathetic. I Those were low points in Senate his- we are going to address this serious don’t mean to single them out, but it is tory. So I don’t think either side has a problem and begin to fill those long the most glaring example of activist right to start bleating about who is empty seats on the Federal bench. judges in this country. righteous on judges. Mr. President, I am extremely Let me just say this. I am sending a I intend to do the best I can here. I pleased that the Senate has confirmed message right now that I intend to want my colleagues to know that. I the nomination of Merrick Garland to move forward with judges, and, if this certainly want to place my colleagues the U.S. Court of Appeals for the Dis- administration will send decent people on my side, and I certainly want to do

VerDate Mar 15 2010 22:17 Oct 24, 2013 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\1997SENATE\S19MR7.REC S19MR7 mmaher on DSK5TPTVN1PROD with SOCIALSECURITY S2538 CONGRESSIONAL RECORD — SENATE March 19, 1997 the right thing for all concerned. This Part of what is going on here is, and I might point out that all the talk is an important nomination. I believe in the Republican caucus there are last election that started off—it all fiz- Merrick Garland will go on to distinc- some who say, No. We want to change zled because it did not go anywhere— tion. Nobody will be more disappointed the rules. We want to make sure, of all about how there is going to be an issue than I if he turns out to be an activist the people nominated for the Federal about activism on the courts, we point- judge in the end. If he does, I think he bench, that the Republican Senators ed out that of all the judges that came will be one of the principal undermin- should be able to nominate half of up in Clinton’s first term, almost all of ers in the Federal judiciary in the his- them, or 40 percent of them, or 30 per- them were voted unanimously out of tory of this country. But he told me he cent of them. That is malarkey. That this body by Democrats and Repub- will not do that, and I trust that he is flat-out malarkey. That is black- licans, including the former majority will not. That doesn’t mean we have to mail. That has nothing to do with ac- leader. He only voted against three of agree on every case that comes before tivist judges. all the nominees, then he argued, by any of these courts; we are going to I do not doubt the sincerity of my the way, that Clinton nominated too have disagreements. And just because friend from Utah. We have worked to- many activist judges. And then it kind you disagree with one judge doesn’t gether for 22 years. But here is my of fizzled when I held a little press con- mean that judge should be impeached challenge. Any judge nominated by the ference, and said, ‘‘By the way. You either. To throw around the issue of President of the United States, if you voted for all of them.’’ It kind of made impeachment because you disagree have a problem with his or her activ- it hard to make this case that they with a judge here and there is wrong. ism, name it. Tell us what it is. Define were so activist. There are some lame-brained deci- it like we did. You disagreed. You dis- So look. Let me say that I will not sions out there, we all know that. agreed with the definition. But we said take any more time, but I will come Some of them are occurring primarily straight up, ‘‘Bang. I do not want Bork back to the floor with all of the num- in California. Frankly, we have to get for the following reasons.’’ People un- bers and the details. But here is the rid of the politics with regard to judges derstand that. But do not try to change deal. and start doing what’s right. With 200 years of precedent and tell us that If the Republican majority in the every fiber of my body, I am going to we are not letting judges up because we Senate says, ‘‘Look, the following 2, 5, try to do right with respect to judges want the Republican Senator to be able 10, 12, 20 judges are activist for the fol- because I respect that branch so much. to name the judge. Don’t do that, or lowing reasons, and we are against To me, our freedoms would not have else do it and do it in the open. Let’s them,’’ we understand that. We will been preserved without that branch. have a little bit of legislating in the fight it. If we disagree, we will fight it. But the way some of these judges are sunshine here. Do it flat in the open. But if they come along and say, ‘‘We acting, our freedoms are being eroded I see my colleagues nodding and are just not letting these judges come by some in that branch. It is time for smiling. I am sort of breaching the up because really what is happening is them to wake up and realize that that unspoken rule here not to talk about they are coming to guys like me and has to end. what is really happening. But that is saying, ‘Hey, I will make you a deal. I yield the floor. what is really happening. I will not You give me 50 percent of judges, and I f name certain Senators. But I have had will let these other judges go SETTING THE RECORD STRAIGHT Senators come up to me and say, JOE, through.’ ’’ Then that isn’t part of the ON JUDICIAL NOMINATIONS here is the deal. We will let the fol- deal. lowing judges through in my State if Mr. BIDEN. Madam President, I have Look, I have a message to the Court. you agree to get the President to say not spoken on judges this year, but I know the Court never reads the CON- that I get to name three of them. Now having worked on it for so many years GRESSIONAL RECORD, and Justice Scalia with my friend from Utah, having ei- folks, that is a change of a deal. That said that we should not consider the ther been the ranking member or is changing precedent. That isn’t how RECORD for legislative history because chairman of that committee. But let it works. The President nominates. We everybody knows that all the CONGRES- me make one point. dispose one way or another of that SIONAL RECORD is is what Senators’ It is one thing to say that we are nomination. And the historical prac- staff say and not what Senators know. going to disagree on judges. We did tice has been—and while I was chair- He is wrong. But that is what he said. that when we were in control. We did man we never once did that—that Maybe they don’t read it. But I want to that. And we said that all the judges never once that I am aware of did we send a message. that have been nominated here by two ever say, ‘‘By the way, we are not let- Madam President, when I was chair- successive Republican Presidents—we ting Judge A through unless you give man of the committee and there was a picked seven out of a total of over 500— me Judges B and C.’’ Republican President named Reagan we said we disagree with these judges. Now, let me set the record totally and a Republican President named The most celebrated case was Judge straight here. There are States where Bush, the Judicial Conference on a Bork, and less celebrated cases were precedents were set years ago. The Re- monthly basis would write to me and people who have gone beyond being publican and Democratic Senator, say, ‘‘Why aren’t you passing more judges. Some are Senators. But the when it was a split delegation, have judges?’’ They have been strangely si- bottom line was that we understand made a deal up front in the open. In lent about the vacancies that exist. that. New York, Senator Javits and Senator Now, I agree that the administration But what I do not understand is this MOYNIHAN said: Look. In the State of has been slow in pulling the trigger notion and all of the talk about activ- New York, the way we are going to do here. They have not sent enough nomi- ist judges without any identification of this is that whomever is the Senator nees up in a timely fashion. And I have who the activist judges are. It is one representing the party of the Presi- been critical of them for the last 2 thing for the Republicans to say that dent—I believe they broke it down to years, Madam President. But that is we are not going to vote for or allow 60—for every two people that Senator not the case now. All I am saying to activist judges. We understand that. gets to name, the Senator in the party you is, as they say in parts of my We are big folks. We understand base- other than the President gets to name State, ‘‘I smell a rat here.’’ What I ball, hardball. We got that part. No one. OK, fine. Jacob Javits did not go think is happening—and I hope I am problem. to PAT MOYNIHAN and demand that he wrong—is that this is not about activ- But what I do not understand is say- was going to do that. MOYNIHAN made ism. ing we are not going to allow activist the offer, as I understand it, to Jacob This is about trying to keep the judges and then not identifying who Javits. That is not a bad way to pro- President of the United States of those activist judges are. This is kind ceed. America from being able to appoint of what is going on here, and no one But now to come along and say, ‘‘By judges, particularly as it relates to the wants to say it. But since I have the the way, in the name of activist judges, courts of appeals. reputation of saying what no one wants we are not going to move judges’’ is Now, what is happening is what hap- to say, I am going to say it. not what this is about. pened today. Merrick Garland was

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