Paul Sarbanes

Mr. SARBANES

Mr. SARBANES. If the Senator can yield me 5 minutes, I would appreciate it.

Mr. SARBANES. In the previous Congress, the 104th Congress, 75 judges were confirmed?

Mr. SARBANES. The previous Congress, the 103d, 129, and the one before that, the 102d, 124; is that correct?

Mr. SARBANES. There is a significant falloff in the number of judges being confirmed.

Mr. SARBANES. I am quite concerned with these developments. The Congress has become much more political and partisan by any judgment. I think that is regrettable, but it has happened, and we have to try to contend with it here as best we can. But I think it is a dire mistake if this attitude carries over into our decisions regarding the judiciary, the third, independent branch of our Government and the one that, in order to maintain public confidence in our justice system, ought to have politics removed from it as much as is humanly possible. Would the Senator from Vermont agree with that observation?

Mr. SARBANES. Therefore, I am very interested in this chart you have prepared: The number of judges confirmed during the second Senate session in the Presidential election years. Now, what has happened? What happened in 1996 is dramatic. No appeals court judges were confirmed and only 17 district court judges.

Mr. SARBANES. It is in both these years, not just the contrast of the last year of the Bush Presidency. But in the last year of the second Reagan administration, we confirmed 7 appeals judges, then 11 for the last year of the Bush administration, and last year the number was zero. For district court judges in those years it was 35, 55 and 17. That is a dramatic difference. An element has intruded itself in this confirmation process that was not heretofore present.

Mr. SARBANES. Exactly. Let me say I am very deeply concerned about this development. I want to commend the Senator from Vermont because he has been speaking out on this very important matter for some time now. Moving to the pending nomination, I want to speak first to Merrick Garland's merits, although let me say that I do not understand any of my colleagues to be questioning his capabilities and qualifications to serve on the bench. In fact, Members on both sides have spoken very highly of Merrick Garland and noted his outstanding character. I was privileged, since he is a resident of my State, to have the honor to introduce him at his confirmation hearing before the Senate Judiciary Committee. That was on November 30, 1995, almost 18 months ago. I believed then and continue to believe now that he will make an outstanding addition to the D.C. circuit. His career exemplifies his strong commitment to the law and to public service. He is a magna cum laude graduate from Harvard Law School. He clerked for Judge Henry Friendly on the second circuit and for Justice William Brennan at the Supreme Court. He has had a long association with the Justice Department, first as a special assistant to then Att. Gen. Benjamin Civiletti. He then became a partner at Arnold & Porter when he left the Justice Department to go into private practice. Upon returning to public service, he has served as an assistant U.S. attorney for the District of Columbia, dealing with public corruption and Government fraud cases. He has also served as Deputy Assistant Attorney General in the Justice Department's Criminal Division and as Principal Associate Deputy Attorney General, both very high ranking positions within the Department. In all of these positions he has served our country with great distinction. He has published extensively in several areas of the law and has remained active in bar association activities. In every respect, in his intellect, his character, and his experience, he would make an outstanding addition to the bench. Let me now just briefly talk about this new line of attack, so to speak, that has arisen about whether vacancies on the D.C. circuit should be filled. First of all, I think any analysis of the courts' need to fill vacancies cannot be based simply on caseload statistics--this is a benchmark that one needs to analyze carefully in order to determine what lies behind the cases. In fact, the D.C. circuit's situation in particular makes clear that mere case filing numbers do not tell the whole story with respect to the burdens that the court faces. The D.C. circuit receives, in complexity and importance, cases that do not come as a general rule before the other circuits across the country. It has had major, major cases that it has had to deal with as a routine matter, cases of great weight and importance to the nation. The D.C. circuit also handles numerous appeals from administrative agency decisions that are characterized by voluminous records and complex fact patterns. In fact, almost half of the D.C. circuit's cases are these kinds of administrative appeals--46 percent. The next highest circuit in this respect is the ninth circuit with 9.6 percent of their cases being of this kind. The D.C. circuit also handles fewer of the least complex and time- consuming cases, criminal and diversity cases, than any of its sister circuits. Only 11 percent of its cases are diversity cases. No other circuit has less than 24 percent. In testimony before the Judiciary Committee's Courts Subcommittee, D.C. Circuit Judge Harry Edwards--the Chief Judge of the circuit--gave one example of the kind of complex administrative cases that are a routine part of the D.C. circuit's caseload. He talked about a case to review a FERC order, an order of the Federal Energy Regulatory Commission. This order produced, at the time of appeal, 287 separate petitions for review by 163 separate parties, and a briefing schedule that provided for the filing of 27 briefs, totaling over 900 pages. I am simply making the point that they get very complex matters to deal with in the D.C. circuit, and that the case filing numbers relied on by other side do not tell the whole story. Recall also that the vacancy we are talking about filling here is the 11th out of 12 slots on the D.C. circuit. Originally, Merrick Garland was being opposed on the basis that the 12th spot on the circuit court ought not to be filled. Now, with the taking of senior status by one of the D.C. circuit's judges, we are talking about filling the 11th spot, not the 12th spot, on that court and yet Members have come forward opposing the Garland nomination, a fact which I very much regret. Now I want to address just very briefly the fact that the fourth circuit was raised earlier by one of my colleagues in this debate. He cited the view of Fourth Circuit Chief Judge Wilkinson, presented at a February 1997 Judiciary Subcommittee hearing, that the President and Senate do not need to fill the two vacancies that exist on that court. It is interesting that at that same hearing, testimony that I do not think has been cited, by Judge Sam Ervin, the very able and distinguished circuit judge of the Court of Appeals for the Fourth Circuit, and the son of our former distinguished colleague, was presented before the panel in support of filling the vacancies. Mr. President, I ask unanimous consent that the very thoughtful statement by Judge Ervin be printed in the Record at the conclusion of my remarks.

Mr. SARBANES. It is very important to note that with respect to the fourth circuit, there is a nominee pending before the Judiciary Committee, whose nomination was submitted in the last Congress--two nominations, as a matter of fact, were submitted to the Committee last year--and one has been resubmitted by the administration right at the beginning of this session.

Mr. SARBANES. Would the Senator give me 2 minutes to close up?

Mr. SARBANES. There is no way with a nominee having been sent to the Senate by the President, that an argument for not approving the nominee based on not needing the judgeship can be made without it carrying with it an ad hominem argument against the nominee. If people are really serious about reducing vacancies on the courts, they need to scrub down the number of places before the nominees are submitted, by legislation. Once the nominees come here, you cannot divorce the attack on the individual from the attack on the need for the seat on the bench. We have the chief judge of the fourth circuit coming in against filling spots when nominees are pending. Now, how can that position be taken and considered separate from opposition to the nominee? They say, ``Well, I am not against this nominee, but I just do not think this spot ought to be filled.'' Of course, that is small comfort to the nominee whose nomination is pending and has been put forward in order to fill the vacancy. Now, Judge Ervin, in his testimony, sets forth, I think, a very persuasive case why the fourth circuit needs to have those vacancies filled. I commend that statement to my colleagues. I will not go through it in detail here, given the fact that this debate is coming to a close. I do encourage my colleagues to consider carefully the political cloud with which we are now surrounding the judgeships. I say to my colleagues on the other side, we did not behave this way at a time when the Senate Democrats were in control of the Senate and we were dealing with the nominations of Republican Presidents. I will be very frank. I think the judiciary deserves better than that from us. I hope that game will come to an end and we will be able to move ahead with the confirmation of judges in an orderly fashion. In closing, let me again state that I am very supportive of the judicial nominee who is before the Senate today. I think he is a person of outstanding merit who will make an outstanding judge, and I urge his confirmation. Exhibit 1 Statement of the Honorable Sam J. Ervin III Mr. Chairman and members of the Subcommittee, my name is Sam J. Ervin, III, of Morganton, North Carolina. I am an active United States Circuit Judge for the Fourth Circuit, having been appointed in May, 1980. I had the honor of serving as the Chief Judge of that Circuit from February, 1989 until February, 1996. I appreciate the Subcommittee's willingness to hear my views. I support the actions of the Judicial Conference of the United States in its efforts to address the important issue of judgeship needs. I commend Chief Judge Julia Gibbons and the other members of the Judicial Resources Committee for establishing a principled method for evaluating these needs. I am in agreement with my good friend and colleague, Chief Judge J. Harvie Wilkinson, III, that the federal judiciary should remain of limited size and jurisdiction. Should anyone present doubt my commitment to those principles, I quote from a resolution that I introduced on June 24, 1993: (which was unanimously adopted by the Article III Judges of the Fourth Circuit) ``Chief Judge Ervin. If I may, I would like to submit for consideration a resolution reading as follows: `` `Resolved that the future role of the federal courts should remain complementary to the role of the state courts in our society. They should not usurp the role of state courts. `` `To achieve that goal, it is the consensus of the Conference that the Congress might consider such issues as the federal courts remaining an institution of limited size and jurisdiction. The ability of the federal courts to fulfill their historical limited and specialized role is dependent on the willingness of Congress to maintain jurisdictional balance and curtail the federalization of traditional state crimes and causes of action.' '' My appearance here today, however, is necessitated by Chief Judge Wilkinson's proposal that we do not need to fill the two judicial vacancies that presently exist in our circuit. It is my conviction that our failure to do so would be a serious mistake. First, a brief history leading up to the subject of whether these two existing vacancies should or should not be filled; On October 9, 1985, when the late Harrison Winter was our Chief Judge, the circuit judges, with a single dissent, voted to ask for four additional active judges for the Fourth Circuit. On October 4, 1989, we again indicated by another formal action that while we did not desire a court of more than 15 active judges, we unanimously reaffirmed our earlier request for four additional judges. Legislation was passed in 1990 authorizing a number of additional judgeships, including four new circuit court judges for the Fourth Circuit. Thereafter, three of these so- called Omnibus Bill judges were nominated and subsequently confirmed: Judge Hamilton (S.C.) in July, 1991; Judge Luttig (V.A.) in August, 1991; and Judge Motz (M.D.) in June, 1994. The fourth (and final) Omnibus Bill judgeship has remained unfilled since it was created in December, 1990. As of this date, there is no pending nomination for this vacancy, and I believe that this is the only 1990 circuit judgeship that remains unfilled. The second Fourth Circuit vacancy was created when Judge J. Dickson Phillips, Jr., of North Carolina, took senior status, effective July 31, 1994. More than two and one-half years later, the Honorable James M. Beaty, Jr., a District Court Judge in the Middle District of North Carolina, was nominated to succeed Judge Phillips, but no action has been taken on that nomination by the Senate Judiciary Committee. To my knowledge, the judges of the Fourth Circuit have never taken any formal action to indicate an unwillingness to stand by our requests that these two vacancies be filled. In order to evaluate the Circuit's needs for these two judgeships, I suggest that we must realistically assess our present situation: Present Active Judges: At this time, the Fourth Circuit has 13 active judges. Five of these judges are 70 years of age or older. Their present ages are: 90, 78, 76, 73, and 70. Is it realistic to expect that all of these judges will be able to continue to serve indefinitely? Present Senior Judges: The last printed report from the Administrative Office is outdated in reflecting that we have 4 senior judges. One of the four retired on July 31, 1995, and is no longer eligible to sit. Another has indicated that he does not plan to sit any more. The remaining two, whose current ages are 79 and 74, have each been sitting 2 days per court week, thereby constituting 4/5 of one judge. Necessary Panels: For the past several years, we have been averaging 5 panels of judges each court week. With our present complement of active and senior judges, we lack a sufficient number of judges to fill 5 panels without bringing in district judges from our own circuit or senior judges from other circuits. Current Statistics: Rather than burden you with more numbers, I will simply refer to the latest figures published by the Administrative Office. I am confident that those statistics fully justify the filling of the two existing vacancies. In fact, as I understand it, if the numerical portion of the existing formula were applied (the 500 filings per panel with pro se appeals weighted as one-third of the cases) the Fourth Circuit would be eligible to receive 20 judgeships. We have never requested more than 15. North Carolina: I note that Judge Gibbon's Judicial Resource Committee has listed as a factor to be considered in allocating judgeships, geographical considerations within a circuit. At the risk of being thought provincial, I emphasize the special impact that a failure to fill the two presently unfilled seats on the Fourth Circuit will have on North Carolina. The expectation has been that these seats would be assigned to that state. I, of course, recognize that there is no law which requires that this allocation be made--actually this is a matter for the executive and legislative branches to determine--but it seems to be the fair thing to do for the following reasons: a. North Carolina is the most populous state in the circuit. b. North Carolina has one of the highest numbers of filings in the district courts in the circuit. c. North Carolina, like West Virginia, has had only two seats, while both Virginia and Maryland have three each, and South Carolina has four. Filling the two existing vacancies from North Carolina would do no more than to restore that state to parity with our sister states. I point out that should I decide to take senior status--as I am eligible to do--North Carolina would have no active judge. That situation would create some insurmountable problems for both the bar and litigants of that state. d. While it has been suggested to me that this imbalance could be remedied by assigning seats now held by judges from other states to North Carolina as they are opened by death or retirement, that seems an unpredictable solution--especially in the present political climate. Above all else, I seek to be as sure as it is humanly possible to be that our circuit has a sufficient number of judges to enable us to render swift and certain justice in all of the cases that come before us. Some recent legislation and our adoption of new internal operating procedures may well reduce our caseload to some degree but countervailing circumstances, including the continuation of the federalization of numerous state crimes, the creation of new private rights of action, the rapid population growth of the region, and the increased complexity of both the criminal and civil cases now coming to the federal courts (to mention only a few of the relevant factors) will, I fear, more than offset any decreases in our workloads. I do believe that we would have sufficient personnel to enable us to do the work that is assigned to us in a fashion acceptable to all if these two vacancies are filled--at least for the foreseeable future. Mr. Chairman, in the Questionnaire which you sent to the members of the judiciary some time ago, you raised the legitimate question of whether we as judges were being required by our respective workloads to delegate more of our judicial functions than was ideal--or even healthy--to elbow law clerks, staff law clerks or other non-judicial employees. I was not privy to the answers my colleagues returned to those questions, but I strongly suspect that many of us would admit that the degree of delegation required in the courts of appeals is greater than is ideal. Speaking only for myself, I would like to be able to devote greater personal attention to every matter that comes before me than I am now able to do. I sincerely believe that our present ability to carry out our duties in a manner pleasing to this Subcommittee, to the public, and to ourselves would be enhanced by the filling of these two long vacant positions.

Mr. SARBANES

Mr. SARBANES. That was the system.

Mr. SARBANES. With President Reagan, a Republican President--again, in an election year--we confirmed 7 court of appeals judges and 35 district court judges. Actually, the 35 that we confirmed in that election year was better than the Republican Senate did for President Reagan in 1984 when they only confirmed 33 judges. In any event, clearly this performance in these years is in marked contrast to what happened in 1996 and what apparently is continuing now in 1997. Merrick Garland was the first judge approved this year.

Mr. SARBANES. I am suggesting the Senator is able. I am prepared to make that statement. We confirmed 11 court of appeals judges and 55--I repeat, 55--district judges in an election year. Now, that gives you some sense of how the Democratic majority in the Senate, led at the time by the able Judiciary Committee chairman, was dealing with this matter, essentially in a nonpolitical way. In 1988, when I think, again, the Senator from Delaware was still the chairman of the Committee----

Mr. SARBANES. And if I am not mistaken, the distinguished Senator from Delaware was the very able chairman of the Judiciary Committee.

Mr. SARBANES. Now, in 1996, with a Democratic President, President Clinton, and a Republican Senate, the Senate confirmed no judges for the court of appeals, none whatsoever, and 17 judges for the district court. Now, in 1992, the previous election year--that was when Mr. Bush was President----

Mr. SARBANES. And that is what we heard on Merrick Garland. In fact, when he first came up here, he was nominated for the 12th position on the D.C. circuit. They said, ``We don't need that position. We have nothing against Merrick. He is a wonderful fellow, of course. We just don't think we need that 12th position.'' Of course, that does a lot for Merrick Garland. He's sitting, waiting to join the court. Then someone already on the court took senior status, and then they had two vacant positions, the 11th and 12th. Merrick Garland is nominated. He's now up for the 11th position; not the 12th position, the 11th position. The majority is right back here on the floor and it says, ``We don't need this position.'' This is the 11th position. They never made that argument last year when he was going for the 12th position. Then they said we need the 11th, we don't need the 12th. Now they are back, some, today--fortunately, they did not prevail--saying we do not need either the 11th or the 12th position.

Mr. SARBANES. That process, I repeat, is now breaking down. The other thing that is happening, as he says, instead of disagreeing with the qualifications of a nominee, the other side says, ``We don't really need the position.''

Mr. SARBANES. If the Senator will yield, in effect what is happening is the court system is being held hostage, so it is not able to function properly as a court system should. I submit that is an irresponsible tactic to use. As Members of the Congress, the first branch of Government, we have a responsibility to see that the court system can function in a proper fashion. The Senator from Delaware, when he was chairman of the committee, always measured up to that responsibility, I think often taking a lot of political heat for doing it. But he was out to make sure the system could function. He had Republican Presidents nominating judges. He processed their nominations. He brought them to the floor of the Senate. He gave the Senate a chance to vote on them up or down for those people to get confirmed. That process is breaking down.

Mr. SARBANES. But at least let the process work so the nominees have an opportunity and the judiciary has an opportunity to have these vacant positions filled so the court system does not begin to break down because of the failure to confirm new judges.

Mr. SARBANES. Will the Senator yield. It is worse than that. It is not whether you let the President have his nominees confirmed. You will not even let them be considered by the Senate for an up-or-down vote. That is the problem today. In other words, the other side will not let the process work so these nominees can come before the Senate for judgment. Some may come before the Senate for judgment and be rejected by the Senate. That is OK.

Mr. SARBANES. Yes, Republican judges. And there were some Members on the Democratic side who said, why are you doing this? We are about to have an election and the result may give us control of the White House. And the Senator from Delaware said, look, we ought not to have politics play a heavy hand in the judicial confirmation process. One of the worst things that is happening in the Senate is what amounts to a heavy politicizing of the judicial confirmation process that is taking place in this body, and that was reflected in the performance in 1996 as compared with the performance in 1992 when the Senator from Delaware did his very best to keep politics out of the process, to fill judicial posts and to let the judiciary function as an independent branch of our Government. What is happening here is extremely serious. And of course, the Senator, with his candor, came to the floor and sort of stripped away the veneer and laid out what is going on behind the scenes, which is a complete departure from past practices. When there were Republican Presidents, I did not play a role in whom the Presidents sent up to the Senate to be nominated and confirmed in the job----

Mr. SARBANES. If the Senator will yield, I can recall the Senator was holding hearings right up into the fall of the election year and judges were being brought to the floor of the Senate and being confirmed. And he is absolutely correct; there were some----

Mr. SARBANES. Will the Senator yield for a question.

Mr. SARBANES. I want to ask the Senator a couple questions when he finishes his statement.