Washington Power Plays Leave Federal Judges Short-Handed

The Ninth Circuit Court of Appeals covers nine Western states and has some of the most colorful and contentious judges in the US. Roughly divided between GOP and Democratic appointments, Ninth Circuit judges disagree on everything from the death penalty to spotted owls.

Judge Alex Kozinski, for example, a leading conservative voice who is also an expert on videogames and does magic tricks, often clashes with Stephen Reinhardt, a leading liberal jurist and grandson of the Austrian music impresario who discovered the Von Trapp family portrayed in "The Sound of Music."

While the judges are at loggerheads on legal issues, they do agree on one thing: Washington must fill the growing number of vacancies on its court.

It's a complaint being echoed throughout the federal judiciary.

As Republicans fight with the White House over appointments to the federal bench, the backlog of vacancies is growing.

One third of the Ninth Circuit's judgeships are vacant, for instance, despite a burgeoning caseload. And with Senate Judiciary Committee hearings not set yet, the federal judiciary out West is getting a bit riled. The federal judges who normally keep their counsel, are speaking out - calling the situation a "crisis."

"We all work six days a week, and many of us work seven days," says Judge Procter Hug, who recently took over as chief of the Ninth. "That's just not a healthy thing, especially since many of us feel we need time to read and be able to reevaluate these cases."

By law, the Ninth Circuit has 28 seats. Today - with retirements and a federal process that nearly halted during last year's election season - the actual number is 20. Two judges retire this spring, leaving 18 to decide some 4,600 cases a year. Both liberal and conservative judges here say neither justice nor the public is served when federal circuit courts - the last stop before the Supreme Court and typically more deliberative than state and district courts - are swamped. Ninth Circuit judges who author 30 to 35 decisions a month now decide 40 to 50.

When Judge Hug donned his robes in 1978, the Ninth Circuit numbered 23 judges handling 3,100 total cases. Today 20 judges weigh about 8,600 appeals (of which about half are heard).

NOR is the Ninth Circuit alone. The Second Circuit, covering New York, Connecticut, and Vermont, will soon shrink from 14 to 10 judges - at a time when appeals are rising 14 percent, to 4,500 a year.

The antidote to the situation lies in Washington, experts say. Conservative Republicans on Capitol Hill, for whom the judiciary has always been a central concern, are not anxious to speed along appointments that could allow President Clinton to nominate the majority of federal judges. Sen. Orrin Hatch (R) of Utah, chairman of the Senate Judiciary Committee that approves judges nominated by the White House, has not yet scheduled hearings for new judges this session, and in recent weeks has described new tests ensuring that no "activist" judges are confirmed. Last week Mr. Hatch told a group of Utah lawyers he may end the American Bar Association's longstanding role in advising his committee on the suitability of nominees, implying the ABA is captive to left-leaning political forces.

Sources close to Hatch say he is still stinging from a conservative attack on him last election season for allowing "liberal" Clinton judges through his committee.

A White House source says President Clinton has a record of "moderate" judicial appointments and that "we are going to continue to do exactly what we have been doing. The president believes judges should be judges, not legislators."

For Ninth Circuit judges, the squabble seems a luxury. Hug last month traveled to Washington to impress the White House and Hatch "with the urgency of our situation." Hug says Hatch told him the next Congress would confirm only one circuit court judge a month for all federal circuits. Considering the vacancies in the Ninth alone, Hug says "that would be a disaster for US courts."

"I am sitting on 35 cases in Pasadena next week," says Judge James Browning, appointed in 1961 by President John F. Kennedy, and the third most senior member of the federal judiciary. "Does anyone realize that it takes at least a week to prepare a case and write an opinion? We're not asking for new judges. We just want the number Congress itself has mandated."

One Ninth Circuit law clerk says he is working "crazy hours," with "boxes and boxes of material" to review for each case. "You just don't take time to look at these cases as carefully as you should," the clerk says. "I'm not sure we are doing justice when two judges do the work of three."

Currently, there are 24 vacancies on the 10 various federal circuit courts of appeal. Last year Congress confirmed no Clinton court of appeals judges, and only 17 district judges. However, in the years prior to 1996, Congress did appoint 204 federal judges, most of them at the lower district court level. It is conceivable that Clinton could appoint another 200 to 250, shifting the balance to Democratic judges.

GOP officials worry about the influential Ninth Circuit in particular, given the current split makeup of the bench. Ten new White House judges would shift the balance. So Senate GOP leaders plan tougher scrutiny, and have put forth plans to change the rules, allowing them - and not just the White House - to nominate new judges.

Meanwhile, the system is straining. Federal cases average 10.4 months from appeal to decision. In the Ninth Circuit, according to an internal study, the average is 14.3 months.

One effect of the delay is that cases become "stale," says a court insider. There is often a year between the time a brief is filed and the oral argument. Judges become familiar with cases only six weeks before they are argued. In the interim, laws can change or circumstances shift. New research or even new briefs are sometimes needed.

Also, the Ninth Circuit has the largest number of death-penalty appeals, and nearly half its cases are criminal. One clerk noted that overcrowding compromises review of criminal appeals in particular. "Unless there are obvious and glaring errors in the case, it is much easier for us just to let the lower court decision stand. We don't have time to really look at too much."

Ninth Circuit appointments are also slowed due to a strong lobby from Western senators who want the circuit split into two. Attempts to do so so far have failed.