Depleted Courts

The administration of justice should not be held hostage to partisan politics. But that's what's happening in the US Senate.

This tendency was decried, most recently, by Supreme Court Chief Justice William Rehnquist in his year-end report on the federal judiciary. He noted that nearly 1 in 10 judgeships is unfilled. The Ninth Circuit, out West, has a vacancy rate of more than one-third.

The small core of conservative senators holding up nominees to the federal bench contend that Clinton's picks will deepen a dangerous trend toward judicial activism.

That position doesn't stand up to examination. Judicial activism can reasonably be defined as decisions that break new legal ground, overturning historic precedents. The classic examples are the Supreme Court decisions of the 1950s and '60s that revolutionized civil rights and the rights of the accused. Such rulings certainly do unleash floods of new lawsuits. But they are rare.

More likely, court critics have in mind the occasional - but highly publicized - instances where a federal judge overturns a criminal conviction by state courts. Such reversals disturb law-and-order crusaders, but they, too, are rare, and usually spring from overwhelming evidence of innocence or of mishandling of the earlier trial. Some judges recently under fire for such decisions were, ironically, Bush and Reagan appointees.

Some Republicans who support a slowdown on confirmations view the judicial nominating process as a place to plant the ideological standard - and perhaps retaliate for earlier rebuffs from Democrats. But, as the chief justice, a Republican appointee with strong conservative credentials, implied in his report, such motives don't justify undermining the quality of justice by increasing the burden on already overworked courts.

The chief justice also suggested something positive for the lawmakers to do: continue redefining federal jurisdiction so that fewer cases flow into the system. That, he said, would at least offset the refusal to fill federal judgeships.

That's well worth pursuing. But it can't substitute for allowing the nomination process to function normally, with nominees getting their due: an up or down vote. That process itself can weed out unsuitable candidates. But stymieing hearings and votes altogether merely leaves benches empty and speedy justice caught in a lengthening waiting line.