Nearly 100 U.S. judgeships waiting for next president

October 28, 1992|By San Francisco Chronicle

The Democratic-controlled U.S. Senate adjourned two weeks ago without acting on 51 of President Bush's nominations for federal judgeships.

The White House, meanwhile, never got around to submitting candidates for 48 other vacancies on the federal bench.

As a result, the winner of next week's presidential election will have an immediate opportunity to fill one out of every eight federal judgeships. And an average of five vacancies a month occur in the 825-judge federal courts. Many Democrats are eager for Bill Clinton, now leading in the polls, to make more moderate a judiciary that has taken a sharp rightward turn during 12 years of Reagan and Bush presidencies.

Clint Bolick, co-founder of the Institute for Justice in Washington, a conservative public interest law firm, says that the delay in filling vacancies for the lifetime appointments could result in "a huge inauguration present for President-elect Clinton, if there is such a president-elect."

Some Republicans have suggested that Senate Democrats dragged their feet for political purposes. Democrats on the Senate Judiciary Committee, which reviews the nominations, contend that the White House created a logjam by waiting an average of 13 months to nominate candidates for judicial vacancies.

"Given the backlog in the courts, I think it' pure partisanship by the Democrats in holding these nominations back," Mr. Bolick says. "But the first blame goes to the White House."

Mr. Bush has said his philosophy calls for judges to stay within their role of interpreting law rather than "rewriting it to suit their personal political agendas."

Critics of the Reagan-Bush appointees say the judges have taken a conservative line on everything from environmental claims to affirmative action to the rights of the accused and immigrants.

It may, however, take years to bring partisan balance to the federal bench. Nearly four out of five federal judges are Republicans -- the biggest partisan disparity since 1952, when the courts were stacked with Democrats after 20 years of rule under Franklin Roosevelt and Harry Truman.

During the campaign, much of the media attention on the judiciary has focused on the U.S. Supreme Court and its attitude toward abortion. Mr. Clinton has vowed to appoint high-court justices who would protect a woman's right to an abortion.

But a president also can have a sweeping effect on a wide variety of matters through appointments of federal trial judges, who get the first crack at cases with constitutional issues, and through appointments to the increasingly powerful appellate courts.

Mr. Bush paid special attention to those 13 appellate courts. Because the U.S. Supreme Court hears only about 100 cases a year, the circuit courts essentially serve as regional supreme courts: the court of last resort for most citizens.

In general, Mr. Clinton has said he would appoint more women and minorities to the federal bench.

Nan Aron, director of Alliance for Justice, a liberal coalition of public interest law firms, says: "His [Mr. Bush's] choices mirror those of Ronald Reagan, in terms of being predominantly white, conservative, male and young."

If re-elected, Mr. Bush would need to resubmit candidates for the nominations never acted upon by the Senate Judiciary Committee. As with most presidents, Mr. Bush has relied heavily on his chief White House counsel, C. Boyden Gray, along with the recommendations of Republican senators, for the 180 judgeships he filled since his January 1989 inauguration.

A study by Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst, compared Mr. Bush's appointments with those of former Presidents Carter and Reagan:

* Mr. Bush's judges received higher ratings from the American Bar Association for their legal skills and experience than those selected by Mr. Reagan or Mr. Carter.

* Some 19 percent of Mr. Bush's appointments to the federal bench were women, surpassing the percentages for Carter and Reagan nominees. Only 10 percent of Mr. Bush's selections were ethnic minorities, exceeding Mr. Reagan's record of 6.7 percent, but below Mr. Carter's mark of 21.3 percent.

* With an average age of 48, Mr. Bush's judges were slightly younger than those selected by Presidents Reagan and Carter.

Once judges are given lifetime appointments, they are remarkably free to exercise their discretion -- sometimes to the chagrin of the politicians who selected them.

"Judges tend to be apolitical," says David Sellers, spokesman for the Administrative Office of the U.S. Courts in Washington. "Judges tell us that's one thing they like about their jobs. It takes them out of the political arena, so they can spend their workdays in the law, free of political pressures."

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