PHIL PONCE: In his annual report on the Federal Judiciary Chief Justice William Rehnquist warned that there is too much work and too few judges. He pointed out that 82 of 846 federal judicial posts are vacant, almost one in ten. Twenty-six of those posts have been vacant for eighteen months or longer.
The Senate confirmed 101 judges in 1994 but only 17 in 1996 and 36 last year. The chief justice said vacancies cannot remain at such high levels without eroding the quality of justice that traditionally has been associated with the federal judiciary. Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote.
The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. Joining us now to react to the chief justice's report is Republican Senator Orrin Hatch of Utah, chairman of the Judiciary Committee, and Senator Patrick Leahy of Vermont, the committee's ranking Democrat. Gentlemen, welcome to you both. Sen. Hatch, your reaction to the chief justice's report.
SEN. ORRIN HATCH, (R) Utah: Well, you know, I think that when you stop and think about it, we have 82 vacancies. Forty of them don't even have nominees. Now, we're good on that Judiciary Committee but we've never been able to confirm somebody who hasn't yet been nominated.
I think we can do a better job. I think the President, if he sends up qualified, non-controversial nominees, they go through very quickly. If they have problems and they're not qualified, then it's a problem. With regard to the judiciary, if all judges were like Chief Justice Rehnquist, who were not activist in nature, I think we'd have a lot better time on the committee as well because some of the committee members do get upset at some of the activist nature of some of the judges. But, you know, there are those 82 vacancies and 42 nominations that are sitting there.
PHIL PONCE: Sen. Leahy, your reaction to what Chief Justice Rehnquist said.
SEN. PATRICK LEAHY, (D) Vermont: I'm sitting here in Vermont, and I can't see Sen. Hatch's face. And I don't know if he was saying that with a smile or not, but the fact of the matter is it's been an outrageous stall on the part of the Republican majority in the Senate. In 1994, we confirmed 100 judges, 101 actually.
We had a handful a year ago, and then last year half of the judges that were sent up there. It's not the President's fault he sends people up and they stay there forever. Magaret Worrell has been voted in two different years out of the Senate Judiciary Committee.
She still hasn't been confirmed, and it's now the third year. In fact, the President is having a difficulty getting people to accept being named to the federal bench because they find themselves treated like--I don't know exactly how to describe it--but just treated miserably by the U.S. Senate--they sit there and wait year after year, and they can't even get their names--can't even get voted on.
PHIL PONCE: Sen. Hatch, how do you react to it, to the delays on the nominees who have been nominated and who have come out of committee?
SEN. ORRIN HATCH: In 1991, when the Democrats controlled the committee and George Bush was President, there were 148 vacancies. Nobody complained then. In 1992, there were 118 vacancies. Nobody was complaining. In fact, Chief Justice Rehnquist in 1992, when Bush was President and the Democrats controlled the Senate Judiciary Committee, he basically issued the same report condemning the fact that--well, not condemning anybody but basically saying that we need to get more judges. At that time there were 120 vacancies compared to the 82 today.
I might add that we did a computer check of the articles written about those vacancies at that time--and about his criticism of the vacancies--and requested we get those filled. There were two in the whole country. I don't think there was any report even by the NewsHour at that time. So what I'm saying is, is that it's nice to complain, but we can't confirm people who aren't there, who aren't nominated. And I have to say it's difficult to confirm people who are controversial.
SEN. PATRICK LEAHY: There's a whole lot of people sitting now--there's a whole lot of people sitting now who can't even get a hearing, can't even get a vote. Now, if you have somebody you don't want, then vote them down. But what happens, they're not even allowed to come to a vote.
I'm told that you can't bring somebody to the floor because, well, there's a whole lot of judges have problems, when they come to a vote, we have a roll call vote on them, all 100 Senators vote for them. It's an obvious stall. You've mentioned President Bush. In the last year of any President's term we have what we call the Strom Thurmond rule which slows down after about partway into the year. They don't have any more federal judges going through.
And yet, President Bush in the last year of his term had the Democrats confirm almost twice as many judges as Republicans allowed to be confirmed in the first year of President Clinton's second term. Now, that is an outrageous partisanship. When we do twice as much--when the Democrats did twice as much for President Bush in the last year of his term than the Republicans are willing to do for President Clinton in the first year of a second term, I think something is wrong.
PHIL PONCE: Obvious partisanship, Sen. Hatch?
SEN. ORRIN HATCH: No, I don't think so. Actually there are 762 sitting active federal judges today. When President Bush was president, there were 720 at the same time as we have right now. In other words, there are 42 more judges on the bench today than there were when President Bush was sitting there.
PHIL PONCE: Even when the chief justice says there's one out of ten vacant.
SEN. ORRIN HATCH: That's right.
SEN. PATRICK LEAHY: --substantially new cases--
SEN. ORRIN HATCH: Let me finish. There aren't that many more cases, and I know federal judges who tell me that they're not overworked. In some areas there are some problems, and we have to solve those problems, and Pat is right. We have to do a better job on the Judiciary Committee and in the Senate.
But the fact of the matter is, is that there are 762 active federal judges today compared to 720 at the same time during the Bush administration. And there are 345 senior judges who have taken senior status, who are hearing cases, and who are alleviating the caseload.
SEN. PATRICK LEAHY: So you do not feel they are overworked as a group, as the chief justice--
SEN. ORRIN HATCH: I've had lots of judges on the federal bench tell me we're not overworked. Now, in some areas they may be. For instance, the 9th Circuit Court of Appeals--there's no question that there's a lot of vacancies on that court.
PHIL PONCE: One third of the seats are vacant.
SEN. ORRIN HATCH: Well, it's aggravated by two things. We've only had three nominees.
SEN. PATRICK LEAHY: And--600 forestalled hearings--these are taxpayers that come--want to have matters heard before that court; 600 of them have to be forestalled because judges aren't there. 80 percent of the panels in the 2nd Circuit have to bring a retired judge who could be very, very elderly, could not want to come--they have to come in to hear the cases. That's wrong. That is a breakdown in the justice system. And Chief Justice Rehnquist is absolutely right.
SEN. ORRIN HATCH: Well, but the point is, is that they have the judges to hear it. They're not doing it. In the 9th circuit one of the problems was, was that there was a desire to split the circuit on the part of some. We had to work with that finally. There's a commission set up because there was a desire to split.
There were Senators who felt like you couldn't go ahead with judges. Then we didn't have nominations. One judge had to withdraw after some difficulties unrelated to the committee. You know, there are lots of problems, and I don't think it should all be laid at the feet of the Republicans or of the committee, especially when we can show that we're doing a pretty darned incredible job in comparison to past Democrat--
PHIL PONCE: Sen. Leahy, let me ask you--
SEN. PATRICK LEAHY: I might accept that if I didn't see fund-raising letters going out on behalf of Republicans saying help us keep judges from going on the bench; help us continue this stall. And when you find Republican-oriented groups having fund-raising letters extolling and helping to support a stall in the Republican-controlled Senate, you know, you can't accept that.
This is a democracy, and it's a democracy that stays that way because we have an independent judiciary. We've had a Republican leader in the House and a Republican leader in the Senate say we have to intimidate federal judges. That's wrong. That's unprecedented. I don't know of any time--certainly in my lifetime--when anybody--Democrat or Republican--has ever taken that position. This is something new, it's partisan, and it's damaging the federal court.
PHIL PONCE: Sen. Leahy, how do you react to Sen. Hatch's earlier statement that the President is sending up "activist nominees?"
SEN. PATRICK LEAHY: Oh, baloney. These so-called activist judges get held up forever and ever. And then when they come to the floor, they get 100 Senators vote for them. To look at one decision somewhere and say, oh, somebody is an activist is like saying that Warren Hatch is a liberal because he joins periodically with Ted Kennedy on legislation. It doesn't make Ted Kennedy a conservative; it doesn't make Orrin Hatch a liberal.
SEN. ORRIN HATCH: Well, that's what some of the conservatives think anyway. That's how they get upset at me. Let me just say this. Pat makes a good point. There's no excuse for some of the fund-raising letters. They haven't been sent out, as far as I know, by Republican candidates.
But there was a group on the outside that was sending out fund-raising letters that I felt were reprehensible. And one of them actually had false facts in the letter. And that shouldn't be done. And I agree with Pat on that. And we should not politicize a judiciary. But, like I say, where was the screaming when there were 148 vacancies during the Bush administration, 120 vacancies during the Bush administration? Here we have 82, and a lot of the nominees that we have came in the last few weeks of this last session, so--this isn't a numbers game. We have to be able to look at these people fairly--
SEN. PATRICK LEAHY: The fact of the matter is moved them a lot faster.
PHIL PONCE: Sen. Leahy.
SEN. PATRICK LEAHY: The Democrats confirmed judges for President Bush one heck of a lot of faster than the Republicans--
SEN. ORRIN HATCH: I can give you five years where you confirmed less than 36, which is what we confirmed last year. I can give you five years in the last ten years. PHIL PONCE: Senator, what impact do you think the chief justice's remarks are going to have, Sen. Leahy? Will this light a fire under the Senate?
SEN. PATRICK LEAHY: I sincerely hope it will because we should--the one area we should not be partisan is in federal judges. And it hurts--damages the court and damages the integrity of the court, and it damages the confidence people have in the courts if we allow it to become partisan. This is something Republicans and Democrats ought to sit down and say, we'll be partisan and other things, but not in judges.
PHIL PONCE: Sen. Hatch, what impact do you think it will have?
SEN. ORRIN HATCH: I think if Pat were the sole say in the Democratic side, that would be all right. But just go back and look at the Rehnquist nomination, the Bork nomination, the Thomas nomination, the Souter nomination. Those are Supreme Court nominations. You should have seen what they did to district and circuit court nominees. So to come in here and say the Republicans are playing politics, after what we went through for all those years I think sounds just a little bit like sour grapes because I got to tell you, there are those who want to play politics with judges on both sides, but I never saw anything like I saw during those years of Reagan and Bush.
PHIL PONCE: And, Senators, I'm afraid we'll have to leave it there. Thank you both very much for joining us.
SEN. ORRIN HATCH: Nice to be with you.