No Nominees, No Judges, No Justice

One of the golden virtues of our form of government is the means, through our judiciary, to obtain a prompt and fair resolution of disputes.

This virtue is in jeopardy.

It has been more than four years since the Clinton administration was elected, promising to end the gridlock in Washington. It has been more than two years since the Gingrich revolution pledged to restore government to the people. It has been more than six months since leaders of both parties, chastened by the election results of 1996, promised to cooperate.

But if you have a matter pending before the federal judiciary--a business dispute or an environmental claim, for example--you might as well worry about something else. In the 9th Circuit Court of Appeals in one month alone, more than 600 hearings on such cases were canceled.

There were no judges available to consider them.

In California, more than 20% of the federal trial judgeships are vacant. In the 9th Circuit, almost 33% of the judicial chairs are empty. Nationwide, there were 103 federal judicial vacancies on election day last year. Now, seven months after inauguration day, there are 97 vacancies.

But this abdication of responsibility didn’t start with President Clinton. Seven years ago, with a Republican in the White House and the Democrats in the majority in Congress, there were 48 judicial chairs vacant, 25% of them for more than 18 months.

Not only do legal issues remain tangled, but the delay in filling vacancies makes for heavier workloads for the sitting judges, less time in which to render thoughtful decisions on pending matters and virtual hopelessness in finding a resolution to civil litigation.

The explanations are not hard to find.

Many qualified people no longer view nomination to the federal bench as attractive. The Clinton administration has been slow to send candidates’ names to the Senate for approval. And the Republican Senate has picked clean the bones of many of those they’ve been asked to confirm.

The nomination/confirmation process itself has become something like an inquisition. Before the White House actually nominates anyone, a person under consideration for appointment must fill out a 600-page form that probes every decision ever rendered, every action ever taken.

If candidates pass through that gauntlet successfully, the administration sends their names to the Senate, where they face additional grilling. Just as often, they face weeks and months of inaction as senators look for their own reasons to block the nomination.

How bad is it?

In the past 18 months, only one federal appeals court judge has been confirmed by the Senate.

Clinton has become so wary of charges that his nominees are “liberal judges” that his spokespersons even chastised one of the administration’s own appointees during the election campaign, days after the Dole campaign accused the judge of being soft on crime.

For the 103 judicial vacancies that existed on election day, the White House has named 39 candidates. Atty. Gen. Janet Reno told the American Bar Assn. earlier this month that she had submitted the names of 62 people for consideration by the Senate. Still, there are far too many vacancies.

The former president of the Los Angeles County Bar Assn., Margaret Morrow, was nominated by President Clinton to a federal district judgeship in Los Angeles. The Senate Judiciary Committee approved her by a vote of 13 to 5. A full vote in the Senate has not been scheduled.

A law professor at UC Berkeley, William Fletcher, was nominated for the 9th Circuit more than two years ago. Last year, the Judiciary Committee approved him, 12 to 6. The nomination was not brought to the Senate floor and now appears dead.

Change in this process is desperately needed:

* Federal judicial leadership should strongly encourage judges to give advance notice of their decisions to retire, resign or take senior status so that the process of filling an anticipated vacancy can begin before the vacancy occurs.

* The White House should instruct its staff and the Department of Justice that all investigations should be completed two to four months after a vacancy occurs. The White House should send a nominee’s name to the Senate no later than four months after a judge leaves the bench.

* The Senate should establish and observe deadlines of no more than three months to consider nominees.

An editorial in Judicature, the journal of the American Judicature Society, concluded: “The problem of vacancies in the federal judiciary demands immediate and serious attention.”

That was in 1990. It’s seven years later, and nothing has changed.