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Judicial Vacancies: The Causes
September 22, 1997 -- As America gets tougher on crime and turns
more frequently to the courts, a severe problem becomes more apparent:
There aren't enough federal judges. For nearly a year, the number of
vacancies has hovered around 100...one eighth of the federal judiciary.
Courtrooms are empty and people are waiting years to have their cases
heard.
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Read the Transcript
BOB EDWARDS, HOST: This is MORNING EDITION. I'm Bob Edwards. Americans depend on the law to protect them. They depend on courts to punish the guilty, protect the innocent, and to adjudicate rights. But there's a problem in the federal courts: there are not enough judges. President Clinton has been slow to nominate them, and the Republican-controlled Senate has been even slower to confirm them.
For nearly a year, the number of vacancies has hovered around 100, one-eighth of the federal judiciary. Courtrooms are empty and people are waiting years to have their cases heard. This week, a five-part series on the judicial vacancy crisis.
NPR Legal Affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, NPR REPORTER: The judicial branch of government has always had its tensions with the other two branches. In the early days of the republic, some members of Congress were outraged by Marbury v. Madison, the landmark opinion holding for the first time that the court had the power to invalidate acts of Congress. Some members were so outraged that they suggested federal troops be sent to force the court to recant. And in this century, President Franklin Roosevelt became so frustrated with the high court that he proposed his infamous court packing plan to expand the number of justices to 15.
FRANKLIN ROOSEVELT, FORMER PRESIDENT OF THE UNITED STATES: The court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and by state legislatures. The court has been acting not as a judicial body but as a policymaking body.
TOTENBERG: Just as Supreme Court decisions have been controversial, so, too, have been some nominees to the court. In recent decades there have been fights over nominees like Abe Fortas and G. Harold Carswell. But the fight over the nomination of conservative Robert Bork broke the mold, at least in this century, in that it focused almost exclusively on the nominee's ideology. Senator Edward Kennedy sounded the battle cry of the opposition.
U.S. SENATOR EDWARD KENNEDY (D-MA): In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women. And in our America, there should be no seat on the Supreme Court for Robert Bork.
TOTENBERG: As long as the Democrats kept control of the Senate, they continued to focus their fire on Supreme Court nominees. As for nominations to the lower courts, they mounted an organized opposition to just a handful of Reagan or Bush appointees, and managed to defeat only three in 12 years. Indeed, when Robert Bork was appointed to the appeals court five years before his nomination to the Supreme Court, the appointment went through the Democratic Senate with no fuss or muss, and no votes against him. And Clarence Thomas was likewise quickly confirmed to the appeals court with only two votes against him. It was only when these controversial conservatives were nominated to the Supreme Court that the Democrats took them on. Now, however, with Democrats in the White House and the GOP controlling the Senate, the full-blast ideological and partisan scrutiny by the opposition party has spread to the lower courts, where there are now roughly 100 vacancies. Yale Professor Robert Gordon is a historian of the legal profession.
ROBERT GORDON, YALE PROFESSOR: Part of this is continuing payback for the Democratic defeat of the Bork nomination to the Supreme Court. I think in the Reagan years, the pattern was established in which the conservative movement identified the judiciary as one of the places where it was likely to be able to carry out its program. I think cultural conservatives in particular blamed the liberal Warren court for many of the problems that they saw with society. And they really vowed that they would try to retake the judiciary. And so, even with a Democratic president in the White House, they are still fighting over the composition of the judges.
TOTENBERG: The pressure from conservative Republicans is not just aimed at the White House. Orrin Hatch, the respected Republican chairman of the Senate Judiciary Committee, has weathered stiff behind-the-scenes criticism from fellow conservatives for not being aggressive enough in his criticism of the president's nominees. And Hatch is no shrinking violet.
U.S. SENATOR ORRIN HATCH (R-UT): This president has put up more activist judges than any president in the last 18 years. And we're finding them all over the courts, and that's causing a lot of problems. We have liberal activists who ignore what the law is, don't care what the law is. They're going to do whatever they feel in their souls is right, regardless of what the law says.
TOTENBERG: Every major independent study of President Clinton's judicial nominees, however, has concluded that they are rather centrist: to the left of the Reagan-Bush nominees, and to the right of the Carter nominees. Professor Sheldon Goldman (ph) has studied the judicial appointment process from the 1930s on.
PROFESSOR SHELDON GOLDMAN, JUDICIAL APPOINTMENT EXPERT: The large majority of the Clinton nominees are very solid, mainstream people. None of them have been identified as liberal activists in terms of, you know, public persona or in terms of writings.
TOTENBERG: Indeed, even some conservatives who don't agree with Mr. Clinton's appointees on many issues say the judicial activist label is a ruse. Conservative scholar Bruce Fein was one of the top judge screeners in the Reagan Justice Department.
BRUCE FEIN, FORMER REAGAN ADMINISTRATION APPOINTEE, U.S. DEPARTMENT OF JUSTICE: It's transparent that this is partisanship when you just look at all the cases they cite that arouse their ire. They all happen to be cases they disagree with. And the cases that are equally activist that they agree with, they say nothing about.
TOTENBERG: Nominations to the lower federal courts don't attract much publicity as a rule. This is a political game in Washington that for decades has been played out behind the scenes. But passions run high in every camp. Even though Republican appointees outnumber Democratic appointees by a margin of two to one on the federal courts, many conservatives, especially cultural conservatives, view the federal courts as the enemy. Tom Jipping is director of the conservative Judicial Selection Monitoring Foundation.
TOM JIPPING, DIRECTOR, JUDICIAL SELECTION MONITORING FOUNDATION: I believe that that system is out of balance. It's the judiciary that's been virtually unchecked for most of this century. The people have everything at stake. I mean, literally, democracy and liberty are what's at stake.
TOTENBERG: On the Democratic side, there is passion too. Senator Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee charges that Republicans, having failed to shut down the entire government two years ago, now are quietly setting their sights on the judiciary.
U.S. SENATOR PATRICK LEAHY (D-VT): They're trying to do it behind the scenes, but they are trying to interfere with the most independent judiciary in the world, the envy of the rest of the world. No Democrat or Republican leader of the Senate before this would ever countenance this kind of irresponsible activity.
TOTENBERG: At the White House, aides to the president point out that 14 judicial nominees have been before the Senate for at least 18 months, and many of them more than two years, without being brought to a vote. White House Counsel Charles Ruff observes that more of President Clinton's nominees have been rated well-qualified by the American Bar Association than any other president's.
CHARLES RUFF, WHITE HOUSE COUNSEL: If we've got candidates who have views with which the Senators disagree, then I think the way to deal with that is have a hearing, let them be heard, let the Senators question them, put them up for a vote, and we'll count on the merits of our candidates to make it through the system.
TOTENBERG: But the White House cannot escape blame for the increasingly empty federal bench and the accompanying chaos in some jurisdictions. Until this summer, the president was woefully behind in naming people to fill those vacancies. As late as July, he'd submitted names for only a third of the vacancies and only now has gotten up to submitting two-thirds. Moreover, he stayed strangely silent on the issue, leaving the field to conservatives in the House and Senate. And for some conservatives, the stall on judicial nominations is part of a broad attack on what conservatives call "judicial activism." They're employing an array of new tools to stamp it out. They have proposed impeachment for some judges, eliminating life tenure for all federal judges, and a bill that would allow lawyers to eliminate a judge from a case in much the way lawyers now can eliminate potential jurors for no stated reason at all. So far, no judge has been impeached and no restriction of the federal judiciary has been adopted. But with one out of eight federal judgeships across the country unfilled, and the federal judiciary asking for an additional 55 new judgeships to be created to deal with new and stiffened drug and immigration laws, judges of all political stripes say there is a crisis on the horizon. Nina Totenberg, NPR News, Washington.
EDWARDS: Tomorrow, two courts where the judges are swamped with work.
