Politicians to blame for judicial vacancies

Nominees: Partisan gamesmanship has led to an alarming number of empty seats on federal courts.

March 31, 2002|By Michael Hill | Michael Hill,SUN STAFF

Imagine that because of political maneuvers and bureaucratic bungles, more than 10 percent of the seats in the U.S. Congress were vacant. Such a crisis would cause a national uproar.

Yet that is the state of one of the triad that makes up the national government - the judicial branch. Of the 862 authorized federal judge positions, 95 are vacant. But few, outside the small circle of legal eagles, seem to care.

The reason for the vacancies? Politics. Congress used to confine its fights to Supreme Court nominees. But now points are scored in the political game over nominees for all levels of federal courts.

The biggest recent brouhaha involved Charles W. Pickering Sr., a District Court judge in Mississippi whom President Bush proposed for the Fifth Circuit appellate court. He was rejected by the Senate Judiciary Committee on a party-line vote. But at least he got a vote. That's more than many nominees get.

Figures from the Constitution Project, a nonpartisan Washington-based group, show that for the first two years of President Jimmy Carter's term, the Senate took an average of 38 days to act on a nomination. During the last two years of President Bill Clinton's term, the senators took an average of 226 days

"It is not the result of either Congress or the president," says Thomas Sargentich, a law professor at American University who was involved in the study. "Both are to blame."

Bush has proposed nominees for only 50 of the 95 current vacancies. That's in part because the contentiousness of the confirmation process in a divided government - when one party controls the White House and the other the Senate - makes it more difficult to find nominees who would pass muster with the other party, and who would put up with the process. Bush was handicapped because he made his early nominees for a Republican-controlled Senate. When Sen. James M. Jeffords of Vermont left the Republican Party last year, the Democrats took control. It's too early for the statistics crunchers to judge how much they are delaying Bush's nominees.

But the courts need the vacancies filled because to a certain extent Congress has heaped more work on the federal judiciary during the past few decades.

"Don't make a federal case out of it" implies that anything reaching that level is a serious matter. Well, for some time now, you could make a federal case out of a used-car dealer's turning back an odometer. The same goes for work safety rules. Baltimore Mayor Martin O'Malley says that more of the city's street crimes should end up in federal court under congressionally-mandated drug and gun laws.

"There is a tremendous federalization of matters that previously were taken care of at the state level," says Erwin Chemerinsky, a professor at the University of Southern California law school. "Drug enforcement, child support enforcement, you can go on and on, it's a long list."

The politics behind this situation? Some congressman sees a problem - say, with drugs - and proposes a law to do something about it. That congressman can then go before voters and boast about taking on the drug problem. Those who vote against his proposal do so at their peril because it looks as if they don't care about drug issues. What gets passed is a federal law, so those charged end up in federal courts whether or not that is the appropriate place to decide such matters.

"Every time you turn around, somebody wants something in the federal court system," says Richard D. Freer, a law professor at Emory University. "All they are doing is scratching a political itch."

For instance, there was a recent move to get most class-action suits out of state courts and into federal courts, mainly because corporations don't like the big verdicts that state juries have handed plaintiffs.

Chemerinsky says he recently heard from a congressman concerned about the renting of violent video games to minors, who proposed introducing a bill that could, presumably, bring a Blockbuster clerk up on federal charges. "It may very well get through Congress, because who wants to stand for their next election in favor of violent video games?" the professor says.

The growth in federal jurisdiction has its defenders.

"The tremendous expansion of federal criminal jurisdiction does not displace the states' role, it supplements it," says Joel Grossman, a political scientist at the Johns Hopkins University.

Daniel Lungren, who served as California's attorney general from 1991 to 1999, says that such laws can help. "When you have the very best coordinated effort involving all three levels of government - federal, state and local - it can be a very effective means of dealing with problems everyone recognizes," he says.

But Lungren, a lawyer with Venable Baetjer & Howard's Washington office, says that as a member of the U.S. House of Representatives from 1979 to 1989, he found it difficult to resist passing federal laws though he came to Washington as a shrink-the-government conservative.

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