U.S. Judges and Austerity

January 17, 1994

In his annual "state of the judiciary" remarks, Chief Justice William Rehnquist warned that things must change in what he foresees as an era of "austerity." He believes future federal budgets are going to be less generous to his branch of government than has been true in the past.

Given that many federal courts have overloaded dockets, this is not a promising prospect. Justice delayed is justice denied, as the saying goes, and if resources for the judiciary shrink or remain the same, there are likely to be even greater delays.

That is especially true if the Clinton administration and Congress don't get their acts together. The president has been guilty of the sin of omission in this regard, and Congress seems on the verge of a big sin of commission.

The president has had a great opportunity to change the perspective of the federal judiciary -- and its appearance. He is the first Democratic president in 12 years. Presidents Reagan and Bush loaded up the federal bench with mostly very conservative, relatively young Republicans. Two-thirds of the sitting judges are their appointees.

Mr. Clinton has so far nominated only 48 men and women for the 113 vacancies that exist. His choices have been good ones, well qualified professionally and more diverse than the nominees of any previous president, but his slowness is lamentable. Only 28 nominations were made early enough in 1993 to finish the confirmation process. And 21 Jimmy Carter judges retired last year. Mr. Clinton has barely dented the Republican overload.

As for Congress, its sin is that in response to the crime fever heating up the body politic, it is proposing federalizing practically every criminal act from murder to spitting on the sidewalk. Such crimes are better left to state prosecutors and state courts.

This may be what Chief Justice Rehnquist had in mind, at least in part, when he declared: "Austerity necessarily requires a close examination of the mission of federal courts and how they fit into the entire system of administering justice in this country. This examination will require recognition of the interdependence of the federal and state systems, and will underscore the fact that we can no longer afford the luxury of state and federal courts that work at cross-purposes or irrationally duplicate one another."

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