Clinton renews bid to fill empty bench

Legal analysts see partisan politics in Senate's foot-dragging on federal judges.

Judge Alfred Goodwin could have left the federal bench when he reached retirement age 11 years ago.

He could have spent more time at his Oregon summer home, contemplating a stunning view of the Three Sisters Wilderness. He could have gone horseback riding more often with his cowboy friends. If he wanted supplemental income, he could have taught.

But Judge Goodwin loves his work too much to leave it, and it's a good thing. He is one in a small army of senior judges who, rather than retiring, are helping to fill vacancies in America's stretched federal judiciary.

President Clinton addressed the judge shortage this week, when he complained that Senate Republicans are holding up confirmation of his judicial nominees. So far this year, the Clinton administration has submitted 61 names, but the Senate has approved only 11. Another 13 nominees have cleared the Judiciary Committee and await a full Senate vote.

It's partisan politics, the president complained, that has caused "a mounting vacancy crisis in the courts."

Degree of foot-dragging

Indeed, some analysts characterize the Senate delay as "unprecedented." Elliot Slotnick, co-author of a recent study on the president's judicial nominees, notes that the Senate last year took far longer to hold a hearing on a Clinton nominee for district judge (160 days on average) than the 1992 Senate did to hold its first hearing on a Bush nominee (92 days).

Of the 846 federal judgeships, 67 (about 8 percent) are currently vacant. This is an improvement from the 82 vacancies of 1997, which prompted Supreme Court Chief Justice William Rehnquist to complain that "vacancies cannot remain at such high levels indefinitely without eroding the quality of justice."

Recent progress notwithstanding, the Senate confirmation process remains highly politicized and is moving at a glacial pace, say analysts.

"The presumption about a president being able to nominate judges is being challenged here. The Senate Judiciary Committee ... has created unprecedented roadblocks" in the nomination process, says Mr. Slotnick, a political scientist at Ohio State University.

He is especially perplexed because, generally, the Clinton administration has submitted mostly moderate judges for confirmation. The proportion of Clinton nominees getting top ratings by the American Bar Association is greater than in any of the three previous administrations.

"It's clear that [Mr. Clinton] is not fighting some ideological jihad, yet he's suffering the same consequences as if he were pressing a liberal judicial agenda," says Slotnick.

A rush to justice?

The impact of the delays is not felt evenly around the country. For instance, only three of 28 positions are vacant in the southern district court in New York. But at the nation's largest court of appeals, the Ninth Circuit Court covering nine Western states seven of 28 judgeships are open, a vacancy rate of 25 percent.

Some of the Ninth Circuit's vacancies have been open for three years, and the shortage has resulted in a backlog of cases. According to Mark Mendenhall, the Ninth Circuit's spokesman, the court is delaying about 500 to 700 cases annually, pushing them onto the next year's calendar.

Meanwhile, problems stemming from the judge shortage are compounded by an increase in lawsuits being filed in federal court, in part because Congress has classified more offenses as federal crimes.

Coping with the shortage

To cope with the work overload, the Ninth Circuit Court is hearing fewer oral arguments, relying instead on short presentations by the court's staff lawyers. This allows its three-judge panels to hear as many as 100 cases a day, instead of six or seven. While many of these are "open and shut" cases dealing with sentencing guidelines, "our court is not entirely comfortable" with the pace, says Mr. Mendenhall.

Another solution has been to rely on "senior" judges such as Goodwin. Because these judges earn no more when they work past retirement age, they have no financial incentive to serve longer. Like Goodwin, they do it for the love of the work, though often at a reduced schedule.

It's only because of the Ninth Circuit's 19 senior judges, who each do anywhere from 25 to 75 percent of an active judge's work, that the court "can stay ... afloat," says Mendenhall.

The court is grateful for their contribution, he says, but notes that court schedulers never know when a senior judge will decide to reduce his or her schedule, or move into permanent retirement.

In an Aug. 8 letter to Clinton, Senate Judiciary Chairman Orrin Hatch (R) of Utah defended his committee's work as "balanced and thorough." He noted that since Clinton took office in 1993, the Senate has confirmed 315 nominees to the federal bench, accounting for 37 percent of active judges on the US bench.

Aware of the acute shortage in the Ninth Circuit, he reported that his committee had processed three appellate judges and several district judges for that circuit, though they have yet to be confirmed by the full Senate.

Still, the administration is not happy. "What ultimately counts is the number of confirmations," says White House spokesman Jim Kennedy. "We've had a little movement recently in terms of [committee] hearings, but the problem ... remains acute."

(c) Copyright 1999. The Christian Science Publishing Society