The Judiciary in the Years Ahead

January 23, 1993

In his annual year-end review of the federal judiciary, Chief Justice William Rehnquist allowed a rare bit of politics to intrude. Noting that the judiciary has a relatively small role in presidential inaugurations, Mr. Rehnquist added, "But it would be a rare judge who disavowed any interest in the changes in the executive and legislative branches and what they portend for the future."

He is certainly more than somewhat interested in what changes the new president and Senate will bring about in the judiciary. That there will be change is certain. Bill Clinton will be the first Democrat since Jimmy Carter to get to nominate federal judges -- and, barring extraordinary developments, the first Democrat since Lyndon Johnson to nominate a Supreme Court justice. Some court observers believe as many as four justices, including the chief justice, may retire in the next four years.

Chief Justice Rehnquist noted that the workload for the federal judiciary rose again in 1992. But only by 10 percent at the trial court and circuit appellate court level. Since there is currently more than a 10 percent vacancy rate on those courts, President Clinton and the Senate can take care of that in a hurry. We hope they will get together quickly to deal with the problem in Maryland's district court, where there are three vacancies, and on the Fourth Circuit, which hears appeals from here, where there are two vacancies.

(Mr. Rehnquist also said the number of new filings to the Supreme Court rose by 7 percent in 1992. But in fact the justices have themselves sensibly dealt with that problem by hearing fewer cases than in the past.)

The Senate Judiciary Committee, which is Democratic controlled, will soon be getting its first batch of Democratic nominees in a dozen years. The committee has the same chairman and almost all the same members who became such household words during the Clarence Thomas (Anita Hill) hearings. But in this Congress, for the first time ever, the committee has two women members, one of them black. That is a direct result of those hearings and the perceived inability of some of the male senators to "get it" on the issue of sexual harassment.

Another noteworthy departure when it comes to picking federal judges in the Clinton administration will be that for the first time in nearly 50 years, a Democratic lawyer-president will be sitting in the White House -- and for the first time ever presidential judicial selecting will be done with the advice of a spouse who is a leading member of the bar and knows more lawyer-candidates for judgeships, and more about them, than the president.

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