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FOIA Number: 2013-0306-F FOIA MARKER This is not a textual record. This is used as an administrative marker by the William J. Clinton Presidential Library Staff. Collection/Record Group: Clinton Presidential Records Subgroup/Office of Origin: Counsel Office Series/Staff Member: Sarah Wilson Subseries: OA/ID Number: 24526 FolderID: Folder Title: Judicial Vacancy Crisis - 09/09/1997 - AFL-CIO Action Packet on Judicial Vacancies Stack: Row: Section: Shelf: Position: S 114 6 11 2 MERICAN NATION OF LABOR * & Jon Hiatt CONGRESS AFL OF INDUSTRIAL ARE ® General Counsel September 18, 1997 We thought you would be interested in the enclosed packet of information, which we recently mailed to our network of judicial contacts, urging them to contact Senators and otherwise publicize the need for action on judicial nominations. Jon Hiatt 202/637-5053 TEL. 202/637-5323 FAX American Federation of Labor and Congress of Industrial Organizations EXECUTIVE COUNCIL AMERICAN FEDERATION OF LABOR 815 Sixteenth Street, N.W. JOHN J. SWEENEY RICHARD L. TRUMKA LINDA CHAVEZ-THOMPSON Washington, D.C. 20006 PRESIDENT SECRETARY-TREASURER EXECUTIVE VICE PRESIDENT (202) 637-5000 Edward T. Hanley Wayne E. Glenn Vincent R. Sombrotto Gerald W. McEntee CONGRESS AFL OF INDUSTRIAL John T. Joyce Morton Bahr Robert A. Georgine Gene Upshaw Jay Mazur Lenore Miller John J. Barry Moe Biller George J. Kourpias John N. Sturdivant Frank Hanley James J. Norton Michael Sacco Ron Carey Arthur A. Coia Frank Hurt Gloria T. Johnson Douglas H. Dority George F. Becker Stephen P. Yokich J. Randolph Babbitt Clayola Brown M.A. "Mac" Fleming Carolyn Forrest Pat Friend Michael Goodwin Joe L. Greene Sonny Hall Sumi Haru Carroll Haynes James LaSala William Lucy Leon Lynch Doug McCarron Andrew McKenzie A.L. "Mike" Monroe Arthur Moore Arturo S. Rodriguez Robert A. Scardelletti Robert E. Wages Jake West Alfred K. Whitehead Andrew L. Stern Edward L. Fire Martin J. Maddaloni John M. Bowers Sandra Feldman MEMO To: Judicial Contacts From: Jon Hiatt and Lynn Rhinehart iR Subject: Letters to Senate on Judicial Vacancies Date: September 9, 1997 Following up on our recent communications regarding judicial vacancies, the purpose of this memo is to ask your assistance in communicating with the Senate about the need to move on judicial nominations, and in publicizing the need for the Senate to act. We have compiled the enclosed packet of information to assist you in preparing and sending letters to the Senate, as well as in preparing resolutions, op ed pieces, or letters to the editor about this issue. Our hope is that each of you will (1) send a letter from yourself and/or your firm, (2) encourage other LCC members in your area to do the same, and (3) pursue available contacts with other appropriate organizations (e.g., state or local bar associations, other professional organizations, union clients) to explore the possibility of those groups passing resolutions and/or sending letters as well. The enclosed materials should also be helpful in preparing letters to the editor or editorial pieces on the need for action on judicial nominations. Specifically, we have enclosed the following: 1. Sample letter to Senators, to be tailored as appropriate; 2. Current list of judicial vacancies and pending nominees; 3. List of members of Senate Judiciary Committee; 4. Letter sent to President Clinton and Majority Leader Trent Lott from major bar associations seeking action on judicial nominations; 3 Judicial Contacts Page 2 September 9, 1997 5. Letter sent by the national American Bar Association to all state and local chapters, seeking letters to the Senate on judicial nominations; 6. Press clippings on judicial vacancies. 7. Speech by Attorney General Janet Reno to the ABA regarding judicial vacancies. To maximize impact, letters should be sent under the auspices of individuals or firms, not the AFL-CIO or the LCC. Please send Jon or Lynn a copy of any letters you or groups with which you are affiliated send to the Senate, and any letters or op eds that are published. Finally, we are trying to gather anecdotes that illustrate the impact of judicial vacancies on litigants, to help personalize and dramatize the problem. If you have such an example, we would greatly appreciate your sharing it with us. Thanks for your continued interest in this issue. Please feel free to contact either your regional contact or Jon or Lynn for further assistance in developing letters or editorials, or if you have other questions or comments. Sample letter to home-state United States Senators regarding judicial vacancies (Copies should be sent to Senator Orrin Hatch and Senator Patrick Leahy, as Chairman and Ranking Minority Member of the Senate Judiciary Committee. Blind copies should also be sent to Jon Hiatt, General Counsel, AFL-CIO) Dear Senator : As an attorney in your state who regularly practices in the federal courts, I am writing to express my serious concern over the extraordinary number of judicial vacancies and the Senate's failure to act on pending nominations to the federal courts. More than 100 seats on the federal district courts and courts of appeals are now vacant -- more than one out of every 10 seats -- with the number increasing each week as additional judges retire or take senior status. Certain geographic areas and courts have been particularly hard-hit by vacancies. For example, there are currently 10 vacancies on the Ninth Circuit, four on the Second Circuit, and nine vacancies on the three district courts in Pennsylvania. [Add details about your area from information provided on the enclosed vacancy list]. Nearly one third of the present vacancies qualify as "judicial emergencies," meaning that the seat has been vacant for 18 months or longer. The impact of these vacancies is being felt, and will continue to be felt, by litigants who depend upon the federal courts to hear and resolve their cases on a timely basis, as well as by the attorneys who represent them. [If you have an anecdote that illustrates the real-world impact of current vacancies, consider highlighting it here]. The disillusionment caused by excessive delays and overburdened judges undermines faith in our judicial system and our system of government as a whole. In addition, the men and women who have been nominated by the President for federal judgeships deserve to have their nominations considered and voted upon by the Senate in a timely manner. The nominations of dozens of highly qualified individuals have been pending before the Senate for months, and several of these nominees had to be renominated this year because their nominations expired last year without Senate action. As of early September, the Senate had confirmed only 11 judges in all of 1997. The Senate has a responsibility to keep the nominations process moving and to give timely consideration to the President's judicial nominees. As a constituent and and as practicing attorney in your state, I ask that you do your part in giving prompt consideration to the President's judicial nominees, and that you encourage your colleagues in the Senate to do the same. Thank you for your consideration. cc: Senator Orrin Hatch Senator Patrick Leahy 9/8/97 CURRENT JUDICIAL VACANCIES AND NOMINEES COURT VACATING JUDGE NOMINEE FIRST CIRCUIT Ct. Appeals (ME) Cyr, Conrad K. D Puerto Rico Acosta, Raymond L. Anabelle Rodriguez SECOND CIRCUIT Ct. Appeals (NY) Altimari, Frank X. Sonia Sotomayor Ct. Appeals (NY) Mahoney, J. Daniel Ct. Appeals (NY) Miner, Roger J. Ct. Appeals Newman (CT) NDNY Cholakis, Con. G. Clarence Sundram SDNY Haight, Charles S. Jr. Richard Casey nominated for one of the SDNY vacancies - unclear which one. SDNY Stanton, Louis L. SDNY Keenan, John F. SDNY Leisure, Peter K. WDNY Telesca, Michael A. Charles Siragusa DCT Daly, T.F. Gilroy Chris Droney DCT Nevas, Alan H. Janet Hall THIRD CIRCUIT Ct. Appeals (PA) Hutchinson, William D. Marjorie Rendell Ct. Appeals (NJ) Sarokin, H. Lee DNJ Sarokin, H. Lee Katherine Sweeney- Hayden EDPA Kelly, James McGirr Frederica A. Massiah- Jackson EDPA O'Neill, Thomas N. Jr. Bruce Kauffman EDPA Ludwig, Edmund V. EDPA Katz MDPA Caldwell, William W. A. Richard Caputo MDPA Conaboy, Richard P. MDPA Kosik, Edwin M. WDPA Cohill, Maurice B. Jr. John Bingler WDPA Bloch, Alan N. Delaware Longobardi, Joseph FOURTH CIRCUIT Ct. Appeals (NC) New position Ct. Appeals (NC) Phillips, J. Dickson James A. Beaty, Jr. EDVA Doumar, Robert G. Jerome Friedman WDVA Kiser, Jackson L. SDWV Hallanan, Elizabeth V. Robert Charles Chambers EDNC - future vacancy Britt, W. Earl (12/7/97) FIFTH CIRCUIT Ct. Appeals (TX) Garwood, William L. Jorge Rangel EDLA Jones, Okla II EDLA Wicker, Veronica Ivan L.R. Lemelle EDLA Livaudais, Marcel WDLA Shaw, John M. NDTX New position NDTX Sanders, Barefoot Michael Schattman SDTX New position Hilda G. Tagle SDTX Black, Norman W. SIXTH CIRCUIT Ct. Appeals (MI) Keith, Damon Helene White Ct. Appeals (TN) Milburn, H. Theodore Ronald Gilman EDMI La Plata, George Victoria Roberts EDMI Cook, Julian Abele Jr. EDMI Hackett, Barbara K. NDOH Bell, Sam H. James S. Gwin NDOH Dowd, David D. Dan A. Polster SDOH Holschuh, John D. Algenon L. Marbley SEVENTH CIRCUIT NDIL Hart, William Jeffrey Colman NDIL Duff, Brian B. Rebecca R. Pallmeyer CDIL Baker, Harold Albert SDIL Beatty, William L. G. Patrick Murphy SDIL Stiehl, William D. Michael P. McCuskey SDIN Brooks, Gene Richard Young EDWI Curran, Thomas J. EIGHTH CIRCUIT Ct. Appeals (ND) Magill, Frank EDMO Gunn, George F. Ronnie White EDMO Limbaugh, Stephen Rodney W. Sippel D.NE Strom, Lyle E. Joseph F. Bataillon WDAR Waters, H. Franklin NINTH CIRCUIT Ct. Appeals (WA) Beezer, Robert Ct. Appeals (AZ) Canby, William C. Ct. Appeals (WA) Farris, Jerome Margaret M. McKeown Ct. Appeals (CA) Norris, William A. William A. Fletcher Ct. Appeals (CA) Poole, Cecil F. Richard A. Paez Ct. Appeals (CA) Wallace, J. Clifford James Ware has been nominated for one of the California seats - not clear which one Ct. Appeals (CA) Noonan, John Ct. Appeals (CA) Wiggins, Charles Ct. Appeals (CA) Hall, Cynthia Ct. Appeals (OR) Leavy, Edward Susan Graber NDCA Aguilar, Robert P. NDCA Lynch, Eugene F. Martin Jenkins NDCA Jensen Charles Breyer EDCA Coyle, Robert E. Anthony W. Ishii EDCA Garcia, Edward J. Frank Damrell CDCA Gadbois, Richard A. Margaret M. Morrow CDCA Rafeedie, Edward Christina Snyder CDCA Takasugi, Robert M. Carlos Moreno CDCA Hupp, Harry L. SDCA Thompson, Gordon Lynne R. Lasry SDCA Rhoades, John D.HI Fong, Harold M. Susan Oki Mollway D.OR Frye, Helen D.OR Redden, James A. Ann L. Aiken EDWA McDonald, Alan WDWA - future vacancy Dimmick (11/1/97) TENTH CIRCUIT D.KS Crow, Sam A. NDOK Brett, Thomas R. D. Utah Winder, David K. ELEVENTH CIRCUIT Ct. Appeals (FL) Kravitch, Phyllis A. NDAL Hancock, James H. NDAL Propst, Robert B. SDAL Howard, Alex MDFL Moore, John H. II Richard A. Lazzara NDGA O'Kelly, William C. D.C. CIRCUIT Ct. Appeals Buckley, James L. DCDC Harris, Stanley S. DCDC Richey, Charles FEDERAL CIRCUIT CT. OF INT'L TRADE Tsoucalas, Nicholas DiCarlo, Dominick Ct. Of Fed'l Claims Gibson, Reginald Lawrence Baskir Judicial Emergencies (vacancies in existence for 18 months or longer) August 1, 1997 Court Vacancy Created By Reason Vacancy Date Days Pending 01 PR Acosta, Raymond L. Senior 6/1/94 1161 02 CCA Altimari, Frank X. Senior 1/1/96 582 02 NY-N Cholakis, Con. G. Disabled 10/23/92 1747 02 NY-S Haight, Charles S. Jr. Senior 9/23/95 682 03 CCA Hutchinson, William Deceased 10/8/95 667 03 NJ Sarokin, H. Lee Elevated 10/4/94 1036 03 PA-M Caldwell, William W. Senior 5/31/94 1162 Conaboy, Richard P. Senior 9/1/92 1799 03 PA-W Cohill, Maurice B. Jr. Senior 11/28/94 981 Court Vacancy Created By Reason Vacancy Date Days Pending 04 CCA Phillips, J. Dickson Jr. Senior 7/31/94 1101 PL 101-650 New Position 12/1/90 2439 05 TX-N PL 101-650 New Position 12/1/90 2439 Sanders, Barefoot Senior 1/1/96 582 05 TX-S PL 101-650 New Position 12/1/90 2439 - 06 CCA Keith, Damon Senior 5/1/95 827 07 IL-C Baker, Harold Albert Senior 10/4/94 1036 07 IL-S Beatty, William L. Senior 11/9/92 1730 08 NE Strom, Lyle E. Senior 11/2/95 642 Court Vacancy Created By Reason Vacancy Date Days Pending 09 CA-C Gadbois, Richard A. J Disabled 1/24/96 559 Rafeedie, Edward Senior 1/6/96 577 09 CA-S Rhoades, John S. Sr. Senior 11/4/95 640 09 CCA Farris, Jerome Senior 3/4/95 885 Norris, William A. Senior 7/7/94 1125 Poole, Cecil F. Senior 1/15/96 568 09 HI Fong, Harold M. Deceased 4/20/95 838 09 OR Frye, Helen Senior 12/10/95 604 Redden, James Senior 3/13/95 876 11 CCA Fay, Peter T. Senior 1/18/94 1295 11 FL-M Moore, John H. II Senior 12/31/95 583 DC DC Green. Joyce Hens Senior 7/1/95 766 Harris, Stanley S. Senior 2/1/96 551 Total Judicial Emergencies: 31 Committee on the Judiciary SD-224 Dirksen Senate Office Building, Washington, DC 20510-6275 (202) 224-5225 Fax: (202) 224-9102 Internet Home Page: http://www.senate.gov/committe/judiciary.html Jurisdiction: All areas not delegated to the subcommittees, including but not limit- ed to: (1) Nominations; (2) Holidays, commemorations, Federal charters and cele- brations; (3) Department of Justice oversight, authorization and budget; (4) Revi- sion and codification of the statutes of the United States; (5) Criminal justice, in- cluding (a) criminal laws, (b) criminal judicial proceedings, (c) Rules of Criminal Procedure, (d) national penitentiaries, (e) Bureau of Prisons, (f) U.S. Parole Com- mission, (g) oversight of the Criminal Division of the U.S. Department of Justice, (h) juvenile justice, (i) Youthful Offenders Act, (j) oversight of the Office of Jus- tice Programs. Excluded from (5) above is criminal legislation, which is delegated to the Subcommittee on the Constitution. Ratio: 10/8 MAJORITY MEMBERS MINORITY MEMBERS Orrin G. Hatch, Utah, Patrick J. Leahy, Vt., Chairman Ranking Minority Member Strom Thurmond, S.C. Edward M. Kennedy, Mass. Charles E. Grassley, Iowa Joseph R. Biden, Jr., Del. Arlen Specter, Pa. Herb Kohl, Wis. Fred Thompson, Tenn. Dianne Feinstein, Calif. Jon Kyl, Ariz. Russell D. Feingold, Wis. Mike DeWine, Ohio Richard J. Durbin, Ill. John Ashcroft, Mo. Robert G. Torricelli, N.J. Spencer Abraham, Mich. Jeff Sessions, Ala. July 14, 1997 The Honorable William J. Clinton The Honorable Trent Lott The President The Majority Leader The White House United States Senate Washington, DC 20500 Washington, DC 20510 Dear Mr. President and Mr. Majority Leader: Among the constitutional responsibilities entrusted to the President and the Senate, none is more essential to the foundation upon which our democracy rests than the appointment of justices and judges to serve at all levels of the federal bench. Notwithstanding the intensely political nature of the process, historically this critical duty has been carried out with bipartisan cooperation to ensure a highly qualified and effective federal judiciary. There is a looming crisis in the Nation brought on by the extraordinary number of vacant federal judicial positions and the resulting problems that are associated with delayed judicial appointments. There are 102 pending judicial vacancies, or 11% of the number of authorized judicial positions. A record 24 of these Article III positions have been vacant for more than 18 months. Those courts hardest hit are among the nation's busiest; for example, the Ninth Circuit Court of Appeals has 9 of its 28 positions vacant. At the district court level, six states have unusually high vacancy rates: 10 in California, 8 in Pennsylvania, 6 in New York, 5 in Illinois, and 4 each in Texas and Louisiana. The injustice of this situation for all of society cannot be overstated. Dangerously crowded dockets, suspended civil case dockets, burgeoning criminal caseloads, overburdened judges, and chronically undermanned courts undermine our democracy and respect for the supremacy of law. We, the undersigned representatives of national legal organizations, call upon the President and the Senate to devote the time and resources necessary to expedite the selection and confirmation process for federal July 14, 1997 Page 2 judicial nominees. We respectfully urge all participants in the process to move quickly to resolve the issues that have resulted in these numerous and longstanding vacancies in order to preserve the integrity of our justice system. nu Cogar N. Lee Cooper, President Howard Tunings American Bar Association Association of Trial Lawyers of America U. Lawrence Boze, Presid Sally Lee Foley, President National Bar Association National Association of Women Lawyers Hugo Chavaino, President Hispanic National Bar Association Juliet Gee, President National Conference of Women's Bar Associations Paul Chan, President National Asian Pacific American Bar Association ABA N. LEE COOPER AMERICAN BAR ASSOCIATION 750 North Lake Shore Drive President Chicago, Illinois 60611 (312) 988-5109 July 25, 1997 FAX: (312) 988-5100 Internet: [email protected] I write on behalf of the American Bar Association to ask you and your bar association to assist in a national bipartisan effort to urge all participants in the judicial selection and confirmation process to devote the time and resources necessary to fill the extraordinary number of vacant federal judicial positions. Attached is a copy of an "Open Letter" that was recently sent to President Clinton and Majority Leader Trent Lott, singed by the ABA and six other national legal organizations. We believe this effort is necessary to avert a looming crisis in our Nation's justice system. At present there are over 100 pending judicial vacancies, or 12 per cent of the number of authorized judicial positions. A record 25 of these vacancies fall into the "judicial emergency" category, having been vacant for more than 18 months. This is all occurring at a time when the federal judiciary is facing record caseloads across the board and across the country: For FY 1996, appeals were up four percent to 51,991, and district court civil filings rose eight percent to 269,132 with criminal filings up five percent to 47,889. Since no new judgeships have been created since December 1990, each of the 179 federal appellate judges and 649 district court judges are handling unprecedented levels of work. Your participation in this effort is particularly important in showing the universal concern of all segments of the organized bar. It would be most helpful if you would inform your congressional delegation, particularly your Senators, of any adverse impact unfilled vacancies are having in your circuit and district courts, and urge that judicial vacancies be filled expeditiously. Please forward copies of your correspondence to Robert Evans at the American Bar Association Washington Office, 740 15th Street, N.W., Washington, DC 20005. Sincerely, N. Lee Cooper Cogar CC: Executive Director Attachment as stated Empty Judicial Benches Hurt Us All In his Aug. 13 Rule of Law column for individual citizens and businesses wall Street 'There's No Vacancy Crisis in the Federal alike. With district court filings climbing Courts," Sen. Orrin Hatch, chairman of 8% nationally last year alone, and by the Judiciary Committee, protested that 60,000 cases over the past five years, the Journal the vacancy crisis in the federal judiciary outlook in the short term is not reassuring. is only illusory and that the "numbers" Inexplicably. many of the same voices who surrounding the judicial confirmation have decried the delays in the civil justice 9/10/97 process-vacancies, nominations and con- system and who clamor for reform have firmations-are not SO different from those failed thus far to draw a connection be- in recent periods when the Senate and the tween filling judicial vacancies and im- presidency were controlled by different proving the efficiency of the system. parties. We may be approaching a point where There are now 103 vacant seats in the rhetoric about judges becomes an end in it- federal judiciary of the total number self, blocking the movement of nominees of judges and more than twice the number and subverting the principle of judicial in- at the beginning of 1996, a year in which dependence that makes our system work. the Senate confirmed only 17 district court In the past two decades, Senate confirma- judges-and no court of appeals judges (a tion of judicial nominees has, by and record without parallel in the past 40 large, proceeded in "regular order," only years). Thus far in 1997, with perhaps only to roil up on rare occasions for certain con- 45 days left in this session of Congress, the troversial nominations and then return to Senate is operating at an even slower the more deliberate process of assessing pace, with only nine judges confirmed. At the merits of particular nominees. There is this rate of about one judge a month, by now, however, a danger that inquiry into the end of 1998 normal attrition will leave the experience and qualifications of the in- the judiciary with at least 150 vacancies. dividual candidate is being submerged by Sen. Hatch argues that the Senate has broad-ranging, amorphous charges of "ju- been prevented from confirming more dicial activism" (abetted by threats of im- judges in 1997 because the president has peachment of sitting judges). While the not nominated enough candidates. But, Founding Fathers themselves considered with all respect, that argument is odd at every manner of test and procedure for best. By February. the president had sent evaluating and predicting future judicial 26 nominees to the Senate-enough to performance, they in the end rejected all keep the Judiciary Committee well occu- save two: that judges be competent indi- pied, even if there had not been a single viduals of sound character who will honor additional nomination (in fact, there have their oath to support the Constitution. been 36 more). Yet the committee has We neither seek nor expect immunity held hearings on only 18 nominees and the for our nominees from the rough-and-tum- Senate has confirmed only nine. In any ble of the political process. For all our event, since there will be 53 nominations sakes, however, that process ultimately pending when the Senate returns from its must work toward the constitutionally August recess, there should be no similar mandated goal of ensuring the fair and ef- barriers to progress for the remainder of ficient administration of justice. If we in this session. both branches follow that simple rule, as This year began with Chief Justice have generations in government before William Rehnquist warning that all was us, the numbers will take care of them- not well with the federal judiciary-that selves. more judges were needed to ensure "the CHARLES F.C. RUFF fair and effective administration of jus- Counsel to the President tice." His report on the state of the judi- Washington ciary in 1996 was the final word on a dis- tressing year in which, as I have noted, the Senate confirmed only 17 district judges- compared with the 66 district court and court of appeals judges confirmed in the last year of President Bush's term, when the Democrats controlled the Senate. And only recently, Chief Judge Proctor Hog of the Ninth Circuit Court of Appeals, reported that he was forced to cancel oral arguments in upward of 600 civil cases be- cause of the shortage of judges on the Ninth Circuit, where nine of 2S seats are vacant. Although the president has nomi- nated candidates for five of those vacan- cies, in the first seven months of this Con- gress the Judiciary Committee has not even held a hearing on any of those nomi- nations, three of which were actually first submitted to the 104th Congress more than a year ago. The question raised is not one of "mere numbers," but rather of the real-world consequences of a strained justice system Reno Blames Senate for Judicial Vacancies Wash Post A-1 8/6/97 By Saundra Torry that the pace of confirmations is the gloves off both with the tone of Washington Post Writer causing a dangerous backlog of cas- her remarks and pairing the issue es around the country and thus with her concern over unfair criti- SAN FRANCISCO, Aug. 5-Attor- denying people swift access to the cism of judges. ney General Janet Reno today de- courts. According to Reno. only nine fed- nounced the Republican-controlled Reno's uncharacteristically blunt eral judges have been confirmed this Senate for causing "an unprecedent- remarks represented a pointed de- year-less than 15 percent of those ed slowdown" in confirming Clinton parture from her normally soft- nominated by President Clinton. Yet administration nominees to the fed- spoken approach to dealing with around the country there are 101 eral bench and asserted that moves Congress. For several months she vacancies on the federal bench. to impeach judges for controversial has voiced concern over the backlog "At this rate, it would take almost decisions is "chilling judicial inde- in judicial confirmations but has ex- seven years just to fill the existing pendence." pressed confidence the Senate would vacancies," Reno said. In a speech to the American Bar come around. The attorney general also berated Association here, Reno complained Today she clearly intended to take See RENO, A8, Col. 1 3 WEDNESDAY. AUGUST 6. 1997 8 THE WASHINGTON POST Reno Blames Senate for Judicial Vacancies, Complains About Backlog "There are many who are trying to find legitimate limited constitutions al solutions to balance judicial in- dependence and judicial account- RENO, From A1 nominees "should not be reduced tration, the Senate confirmed near- current 62 nominees, 32 had ar- that likes to experiment with shut- ability." to a mere numbers game," adding ly 80 percent of Clinton's nomi- me critics who have questioned rived at the Senate by the end of ting down government." A spokesman for House Majori- that confirmations for life-tenured nees, but in the 1996 presidential May. ilings of judges and argued for Monday, Shestack called some ty Whip Tom DeLay (R-Tex.), positions are "a serious matter." election year "that progress eir removal for making unpopu- While apparently agreeing on attacks on judicial independence reached in Washington, defended Reno's remarks fired up a politi- was derailed." r decisions in the name of "judi- the figures, Republicans differed by congressmen and columnists DeLay's call to impeach several cal battle that began last year when Altogether, 46 individuals had al activism." on how to interpret them. "We have "un-American." Shestack, who did federal judges, including one in Republican presidential nominee nominations pending for trial or not even had a nominee for over "When you peel away this slo- not name any of those critics, said San Francisco who barred imple Robert J. Dole charged Clinton's appellate judgeships during the two-thirds of those vacancies until later he was referring to those mentation of a California referen'- an, you find more drastic propos- judicial appointees are liberal activ- 1996 Senate session. Of those, only the past few weeks," Hatch said in .S beneath the surface," she said. calling for impeachment of judges dum to roll back affirmative action ists more interested in pushing 17 were confirmed, all for the trial While Reno did not identify her the statement, released by his of- "for their opinions." Judges, he programs. The new law has since their agenda than in following the courts. "For the first time in 40 fice. said, can be impeached only for been revived by a federal appeals rgets, she cited moves to im- law as written. years not even one" appellate Reno's speech came on the heels "high crimes and misdemeanors," court. each federal judges and do away Since then, congressional con- judge was approved, Reno said. of harsh critiques at the convention ith their life tenure. Both ideas while their decisions can be ap- "When you strip away her (Re servatives have taken up the at- The appeals courts are consid- by incoming ABA president Je- pealed. ave been proposed by conserva- no's] language, she is advocating tack, which has coincided with ered the most powerful and high- rome Shestack and another admin- re Republicans in Congress. Conservatives attending the unchecked power by the judicial what Democrats see as the Sen- profile in the federal system be- istration official. Senate Judiciary Committee convention bristled at the strong branch," DeLay press secretary ate's laggard pace in approving cause they are the last stop for the Decrying the Senate's confirma- hairman Orrin G. Hatch (R-Utah) language. "It's offensive to call Tony Rudy said. "We have three nominees. vast majority of cases since S0 few tion pace at a panel Sunday, White critics un-American," said D.C. branches, and the only check Con- torted in a statement that the Reno said that during the first get heard by the Supreme Court. House Deputy Chief of Staff John lawyer Leonard Leo, a leader of the :nate's power to approve judicial gress has on judicial power is im- three years of the Clinton adminis- Reno said that of the president's Podesta said, "This is a Congress conservative Federalist Society. peachment." dien have and utor PERSPECTIVE ON THE FEDERAL JUDICIARY LA Times 8/18/97 No Nominees, No Judges, No Justice One-third of the chairs in Not only do legal issues the names of 62 people for consideration remain tangled. but the delay by the Senate. Still. there are far too the 9th Circuit are in filling vacancies makes for many vacancies. heavier workloads for the sit- vacant, resulting in 600 The former president of the Los Ange- ting judges. less time in which les County Bar Assn., Margaret Morrow, hearings canceled in a to render thoughtful decisions was nominated by President Clinton to a on pending matters and vir- federal district judgeship in Los Angeles. single month. tual hopelessness in finding a The Senate Judiciary Committee resolution to civil litigation. By ROBERT M. KAUFMAN approved her by a vote of 13 to 5. A full The explanations are not vote in the Senate has not been hard to find. scheduled. O ne of the golden virtues of our Many qualified people no longer view A law professor at UC Berkeley, Will- form of government is the means, nomination to the federal bench as iam Fletcher, was nominated for the 9th through our judiciary, to obtain a attractive. The Clinton administration Circuit more than two years ago. Last prompt and fair resolution of disputes. has been slow to send candidates' names year, the Judiciary Committee approved This virtue is in jeopardy. to the Senate for approval. And the him, 12 to 6. The nomination was not It has been more than four years since Republican Senate has picked clean the brought to the Senate floor and now the Clinton administration was elected, bones of many of those they ve been appears dead. promising to end the gridlock in Wash- asked to confirm. Change in this process is desperately ington. It has been more than two years The nomination/confirmation process needed: since the Gingrich revolution pledged to itself has become something like an Federal judicial leadership should restore government to the people. It has inquisition. Before the White House strongly encourage judges to give been more than six months since leaders actually nominates anyone, a person advance notice of their decisions to of both parties. chastened by the election under consideration for appointment retire, resign or take senior status so that results of 1996. promised to cooperate. must fill out a 600-page form that probes the process of filling an anticipated But if you have a matter pending every decision ever rendered, every vacancy can begin before the vacancy before the federal judiciary-a business action ever taken. occurs. dispute or an environmental claim, for If candidates pass through that gaunt- The White House should instruct its example-you might as well worry about let successfully, the administration sends staff and the Department of Justice that something else. In the 9th Circuit Court their names to the Senate, where they all investigations should be completed of Appeals in one month alone. more than face additional grilling. Just as often, two to four months after a vacancy 600 hearings on such cases were they face weeks and months of inaction occurs. The White House should send a canceled. as senators look for their own reasons to nominee's name to the Senate no later block the nomination. than four months after a judge leaves the There were no judges available to bench. consider them. How bad is it? The Senate should establish and In California, more than 20% of the In the past 18 months. only one federal observe deadlines of no more than three federal trial judgeships are vacant. In the appeals court judge has been confirmed months to consider nominees. 9th Circuit. almost 33% of the judicial by the Senate. An editorial in Judicature, the journal chairs are empty. Nationwide, there Clinton has become so wary of charges of the American Judicature Society, con- were 103 federal judicial vacancies on that his nominees are "liberal judges" cluded: "The problem of vacancies in the election day last year. Now, seven that his spokespersons even chastised federal judiciary demands immediate and months after inauguration day, there are one of the administration's own appoin- serious attention." 97 vacancies. tees during the election campaign, days That was in 1990. It's seven years later. But this abdication of responsibility after the Dole campaign accused the and nothing has changed. didn't start with President Clinton. judge of being soft on crime. Seven years ago, with a Republican in For the 103 judicial vacancies that Robert M. Kaufman is president of the the White House and the Democrats in existed on election day, the White House American Judicature Society, a nonprofit the majority in Congress, there were 48 has named 39 candidates. Atty. Gen. organization of judges, lawyers and non- judicial chairs vacant. 25% of them for Janet Reno told the American Bar Assn. lawyers that promotes an effective more than 18 months. earlier this month that she had submitted judiciary. Pav Too Much Tnn T ittln Page 3 1ST STORY of Level 1 printed in FULL format. Copyright 1997 Times Mirror Company Los Angeles Times May 11, 1997, Sunday, Home Edition SECTION: Opinion; Part M; Page 2; Opinion Desk LENGTH: 1396 words HEADLINE: THE NATION; THE LAW; THE WAR AGAINST JUDICIAL INDEPENDENCE BYLINE: Herman Schwartz, Herman Schwartz, a professor of constitutional law at American, University, is the author of "Packing the Courts: The Conservatives', Campaign to Rewrite the Constitution" (Simon & Schuster) DATELINE: WASHINGTON BODY: Judicial independence is one of those laudable virtues that is praised on Law Day but resented when practiced. Since judges must often decide politically sensitive issues, virtually certain to displease some political interests, that resentment often erupts into politically partisan attacks. Politically motivated criticism of the courts is nothing new. Today's assaults are, however, more vitriolic, more determined and thus more dangerous, for they threaten to undermine judges' independence. Also, because the strategy for going after the federal bench includes stalling the judicial-selection process itself, there are huge backlogs in many federal courts that are increasing daily. These attacks are a reaction to the revolutionary changes of the postwar period, when minorities, women, gays and other groups began to claim the equality that the Declaration of Independence and 14th Amendment promise to all. The attacks began with the "Impeach Earl Warren" signs that sprang up all over the South after the 1954 Brown vs. Board of Education desegregation decision. Republicans realized the political value of assailing the courts during Sen. Barry M. Goldwater's 1964 attacks on judges who were "soft on crime, and Richard M. Nixon used both race and crime to go after the judiciary in his 1968 presidential campaign. After the fury of the reaction to the 1973 abortion decision, targeting the courts became central to Republican campaign strategy, particularly as the religious right and other conservative elements in the party became stronger. It is thus hardly surprising that Sen. Bob Dole's presidential campaign featured an attack on President Bill Clinton's judicial appointments. Dole's favorite target was a federal judge in New York who had ruled in a drug case that prosecutors could not use certain evidence because the police had seized it unconstitutionally. Though close, the decision was not unreasonable. Yet, Dole TM TM TM LEXIS·NEXIS® LEXIS:NEXIS® LEXIS:NEXIS® A member of the Reed Elsever pic group A member of the Reed Elsevier pk group A member of the Reed Elsever plc group Page 4 Los Angeles Times, May 11, 1997 demanded that the judge resign, and soon the judge folded. In an unusual move, he reheard the case, and reversed himself. Dole had other candidates for what he labeled Clinton's "judicial Hall of Shame. One was Federal Appellate Judge Martha Craig Daughtry, who had dissented from her colleagues' refusal to hold a Tennessee state judge criminally liable under federal law for sexually assaulting female court employees, job applicants and attorneys. For this, Dole attacked her as one of Clinton's "liberal activists." But, in March, the U.S. Supreme Court agreed with Daughtry unanimously. With the presidential campaign over, Congress has gotten into the act. This week, the GOP-controlled House Judiciary Committee will hold hearings on "judicial activism" and a bill to curb the federal courts. A few months ago, House Majority Whip Tom DeLay (R-Texas) called for the impeachment of federal judges who issue decisions that Congress doesn't like. In March, he said, "articles of impeachment are being written right now" for certain judges the GOP finds objectionable. Should anyone think that for a judge to displease the GOP majority is not usually considered an impeachable offense, DeLay has asserted "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." DeLay has obviously studied communist legal practice closely. DeLay's bizarre suggestion has been given a sophisticated veneer by former Judge Robert H. Bork, who recently proposed a constitutional amendment to allow federal and state court decisions to be overruled by a simple majority of either house of Congress. On this one, he even lost many of his usual allies. The DeLay and Bork proposals will go nowhere, as even they must know. Judges have lifetime tenure because, as Alexander Hamilton explained, "that inflexible and uniform adherence to the rights of the Constitution and the individual, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by temporary appointments." DeLay's purpose, however, is clear: to intimidate the judiciary. The New York drug-case reversal proves this can occur. On the state level, there has been more than intimidation. Because most state judges are either elected (21 states), or must go through some form of electoral process to stay in office (38 states), they are particularly vulnerable. Californians will remember the brutal campaign against Chief Justice Rose Elizabeth Bird for her court's capital-punishment rulings. Last year, a Tennessee Supreme Court judge was denied reelection because she had joined in one decision requiring a new hearing for someone sentenced to death; in Nebraska, supporters of term limits blocked the reelection of a judge who had ruled against the measure; in Florida, a supreme-court judge barely survived a nasty reelection campaign for dissenting from a death sentence, though she had voted to impose the death penalty in 200 other cases. Few state judges can fail to get the message. The attempt to control the judiciary includes not only after-the-fact reprisals but also who goes on the bench. Federal judges are subject to Senate confirmation. Throughout U.S. history, the Senate has usually confirmed a president's nominees routinely, particularly for lower federal courts. President Ronald Reagan relied on this tradition to appoint extremely conservative judges like Antonin Scalia. Since the Republicans lost the White House, but now control TM TM LEXIS·NEXIS' LEXIS:NEXIS® LEXIS·NEXIS® R A member of the Reed Elsever pic group A member of the Reed Elsevier plc group A member of the Reed Elsevier pk group Page 5 Los Angeles Times. May 11. 1997 the Senate, they have decided to use their advise-and-consent power to block whoever doesn't have the proper ideology. The strategy is two-pronged: First, to slow the nomination process; then to veto ideologically unacceptable nominees. One delaying tactic has been to impose ever-more onerous informational requirements. Last year a woman nominee for a California judgeship was approved by the Judiciary Committee but the Senate did not vote on it because of the GOP's delaying tactics. Although she satisfactorily answered everything initially asked of her, many more questions are now being posed. A revealing example is a request for "your views in support or in opposition to California initiatives in the last decade all 160 of them! As a result of this and other tactics, the Senate confirmed, in 1996, just 17 district judges and no appellate judges; this year, only two judges have gotten through. Today, 99 federal judgeships are vacant, 23 considered "judicial emergencies. " Schemes to block ideologically impure nominees, the other part of the strategy, are also being hatched. Sen. Phil Gramm (R-Texas) recently proposed that the Judiciary Committee reject any circuit-court nominee opposed by GOP senators from that circuit. The Republican Caucus rejected this, primarily because it encroached on the power of committee chairmen. The caucus did, however, resolve to give "strict scrutiny" to nominees to weed out "activist" judges. The "activist" label is, of course, just a dirty word for judges who issue decisions that Gramm and his friends don't like. The most activist Supreme Court judges today are conservatives and their allies on the lower courts; the more liberal members are just trying to hold on to what has already been gained. Chief Justice William H. Rehnquist and his allies have struck down hundreds of federal, state and locally adopted affirmative-action plans, as well as scores of congressional statutes on crime, religion, fair-labor standards, gun control and legislative-executive relations. Scalia not only wanted to strike down the independent-counsel law, but he has often expressed his contempt for legislators and the legislative process. All judges faced with hard constitutional and legal questions are activist. They must be if the law is to offer guidelines for a changing society. Ironically, the stepped-up conservative attacks on the federal judiciary come when it seems least necessary. The federal judiciary is dominated by Reagan-Bush appointees and Clinton has never been willing to risk political capital on judges--even those he can probably win. Criticizing the performance of the courts is justified and indeed necessary. Partisan attacks that undermine their independence are not, for without an independent judiciary neither the rule of law nor liberty itself can long survive. GRAPHIC: GRAPHIC-DRAWING: (...), JOHN PACK / for The Times LANGUAGE: English TM LEXIS·NEXIS® LEXIS:NEXIS® LEXIS:NEXIS A member of the Reed Elsevier plc group A member of the Reed Fisevier plc group A member of the Reed Elsevier plc group and enty starts Monday to collect Information on in possible Clinton picks well before they are ass THE WALL STREET JOURI nominated. The Judge Robert Bork has suggested limit- day ing judicial review-an Idea being picked who GOP Mulls up by Republicans around the country. Jap One such idea is already moving through Fighting Bill's the Washington state House. ma Inevitably, this throws a spotlight on dep Orrin Hatch, the Senate Judiciary chair- Ma in- man who hates political fights but may end sai Dread Judges up leading a few. No senator has a reputa- nes tion more out of line with reality. Far from rev ern- When it comes to President Clinton's being a bomb-thrower, he's one of the Sen- (ist aty, nominees, Republicans have been almost ate's most congenial souls. Ile's been car the as generous as the Riadys. Even Alexis known to cut deals with his last friend Ted sm in- Herman, she of the $500,000-for-no-invest- Kennedy. Mr. Hatch was S0 kind to Mr. ma tion ment windfall, seems likely to get a pass to Clinton's nominees in his first four years cyc speak for the working man. IV'S that a pair of the GOP's biggest legal mo So it qualifies as news that, behind the names paid the senator a visit urging him cyc ex- scenes, Senate Republicans are getting nta. to get tougher. ready to grumble, and maybe even num- Mr. Hatch's defense was that by coop- as bie. over Mr. Clinton's judicial nominees. crating then he'd have more standing to due In- "On the cabinet, the president deserves influence the White House then and now. to the benefit of the doubt," says Sen. Stade But re-election seems to have canceled the the Corton, a moderate from Washington White House end of this deal. the state. But regarding judges, he adds. "It's ven Early in this Congress Mr. Clinton tifi perfectly legitimate to vote against some- be- sent up 21 judicial picks without consult- Irc one for a lifetime appointment based on ing Mr. Hatch. My sources say he first to S a ideology." heard they were coming via a Senate De- cra rom If he and his commades mean it. judges mocratic aide. When Mr. Hatch sent pol ion will be a main battleground of Mr. Clin- word back that he wanted to be consulted Pro the ton's second term. Republicans have first, the White House replied-no dice. ob- awakened to the fact that, almost without Mr. Chinton may yet regret playing Mr. ha notice, the president has been remaking Hatch for a patsy. WE th. the third branch of government. He made Especially because a majority of his more first-term nominations-202-than om Senate GOP colleagues are also pushing Ronald Reagan or George Bush or Richard ec- for a tougher line. One sign is a special Nixon. and with only four roll call votes. task force of senators preparing new rules By the end of four more years, Mr. Clinton for handling judicial picks. One of Mr. es could have replaced 50% of the federal ju- Hatch's own task-force proposals is that if ves diciary. the White House doesn't consult, in ad- for Allied with Jimmy Carter remnants, vance, with the home-state senator of a in Clinton judges are already positioned to nominee, that senator could veto the pick. III yank the courts back in an activist liberal Other Republicans would then go along. of direction. There are already portents. A to Another idea is requiring a roll call vote on In California Carter appointee threw out a its every nominee. in referendum outlawing racial preferences In a little-reported Feb. 18 speech in en ?n only days after voters passed it. Utah, Mr. Hatch torched decisions by Clin- a at A Clinton appointee. Guido Calabresi, ton judges-by name and by case. Of the pr h. found a New York law against killing one- 30 Clinton ap- th self to be quaint and out-of-date. As a pointees to the fed- CO philosopher king. he's much more hip. eral appeals bench, III Numerous Clinton nominees have issued he said 22 have writ- dissents that would have overturned ten or joined liberal lis criminal convictions had they been in the activist decisions. vi majority. a These judges, he el All of this has put judicial activism back added, want to ac- pl at the top of the GOP agenda. A new Pro- complish through le jort on the Judiciary. sponsored by the the courts what "the fi, 11 Ethics and Public Policy Center here, president himself el e has been unable to to achieve and unwill- Orrin Hatch pl ing publicly to admit cl to." And he promised more searching re- ul views of Mr. Clinton's judicial picks. vi Not that this will be easy. Most nomi- SI nees don't advertise their activism and 1 some (Supreme Court Justice David 11 Souter) disguise It. Judicial fights can also 11 be loud and messy, making senators squeamish. Liberals (and some conserva- n tives) will try to distill every fight to abor- 0 tion, scaring GOP moderates. Most of the II media will be on the other side of these cul- n tural fights. II On the lack of consultation. one early II test of GOP Senate resolve will be Helene to White, n liberal Michigan judge nomi- 11 nated without a word to GOP Sen. Spencer 0 Abraham. As for Ideology, the nominee to T watch Is Seattle lawyer Margaret McKe- S own. who one GOP source says sends "red ti flags all over the place" as a liberal politi- p cal activist but has no judicial paper trail. 1 Even Washington GOP Sen. Gorton, for all of his fervor, hasn't yet taken a position on II Ms. McKeown. n By debating these Judges, Republicans I can begin to educate the public In advance 1 of the likely fight over any Clinton choice / for the closely divided Supreme Court. I Senate Democrats changed judicial his- I tory with their campaign against Reagan I nominees. Republicans may return the fa- ( vor NEW THE REPUBLIC MAY 19, 1997 OBSTRUCTION OF JUSTICE Some Republican senators, still unreconciled to Presi- evant cases, compared to the most activist Justice, the dent Clinton's re-election, are seeking to prevent him Reagan-appointed Anthony Kennedy, who voted to sec- from discharging his constitutional duty to appoint fed- ond-guess the political branches 85 percent of the time. eral judges. The Senate Republican Conference this The GOP attacks on pending appellate court nomi- week defeated a proposal by Senator Phil Gramm of nees are similarly spurious. Consider the case of William Texas that would have allowed a two-thirds majority of Fletcher, nominated to the U.S. Court of Appeals for the GOP senators in any given judicial circuit to veto nomi- Ninth Circuit last year. Fletcher, a law professor at the nees to the federal appellate bench. But obstructionism University of California at Berkeley, is a moderate Demo- is still in the air: the Republican Conference voted omi- crat and one of the most respected scholars of federal nously to "respond legislatively to judicial activism." The jurisdiction in the country. Republicans dislike his more Senate Judiciary Committee, furthermore, has not sched- liberal mother, Betty Fletcher, who sits on the Ninth Cir- uled hearings on any of Clinton's outstanding nominees cuit; and, under pressure from Utah Senator Orrin to the federal appellate courts, many of whom are being Hatch last spring, Judge Fletcher agreed to take "senior attacked on the floor of the Senate as "judicial activists." status" on the day her son's commission was signed. And the increasingly out-there Robert Bork, having A band of partisan senators, led by John Ashcroft of recently abandoned his proposal for legislative override Missouri, has now decided to Bork Professor Fletcher on of judicial decisions as insufficiently radical, now says he the basis of a single sentence from an article that wants to end judicial review entirely. Fletcher published in the Yale Law Journal in 1982. In the This magazine, long a supporter of liberal judicial re- article, Fletcher took the conservative and restrained straint, has no sympathy for judicial activism. And that is position that, because remedies designed by trial courts why we consider it an editorial imperative to emphasize are "presumptively illegitimate," courts should resist the that the Republican attacks are intellectually incoherent urge to design them "unless the political bodies that and constitutionally subversive. One of President Clin- ordinarily should do so are in such serious and chronic ton's most notable achievements in office has been to default that there is realistically no other choice." Mis- wean the Democrats of their attachment to judicial activ- representing Fletcher's criticism of discretion in the ism. Instead of applauding this achievement, the Repub- hands of trial judges as an endorsement of discre- licans are politicizing the judiciary in a poisonous way. tion in the hands of appellate judges, Ashcroft The current wave of judicial bashing began in Novem- told the Heritage Foundation on March 18 that ber, when First Things, a journal of religious opinion, Fletcher "feels judges should be able to use published "The End of Democracy?," a symposium what he calls 'discretionary' powers to achieve decrying judicial activism. Many conservatives at the time desired policy goals." predicted that liberal judges would soon strike down the Distortions this crude would be amusing if they California Civil Rights Initiative and invent a constitu- weren't so serious. There are eight appellate nomi- tional right to die. Both predictions are being proved nees now in limbo before the Senate Judiciary Commit- false. The U.S. Court of Appeals for the Ninth Circuit has tee, and none has been scheduled for a hearing because recently upheld Proposition 209; and, in June, the of nakedly partisan opposition on the right. It is disgrace- Supreme Court will almost certainly decline to recognize ful that the usual voices of responsible conservatism have a constitutional right to die. not found the courage to say publicly what they must A recent study by the libertarian Institute for Justice know privately: there is no epidemic of liberal judicial confirms the absurdity of GOP charges that Clinton's activism. The president's nominees are moderate and Supreme Court nominees are avatars of judicial ac- unobjectionable. The terms of debate on the courts have tivism. Justices Ruth Bader Ginsburg and Stephen Breyer shifted, and the Republicans have won. And their only are more restrained and less likely to strike down federal response to this historic victory has been to politicize the and state laws involving economic and civil liberties than confirmation process beyond recognition. This is an ugly any of their Republican colleagues. Both voted to limit turn the Republicans have taken, and it will return to the power of government in about 35 percent of the rel- haunt them for years to come. MAY 19, 1997 THE NEW REPUBLIC 9 Comment The Cold War on Judicial Independence Impeaching judicial 'activists' The politics of judicial appointments would mire judges in politics is wreaking gridlock on the bench By ABNER J. MIKVA By PROCTER HUG JR. be House Judiciary Commissee they go assura. Some congressmen want W Titue the unique checks and confirmed (WO out of 27 nominees T held hearings last month in R- this judge impeached. balances set forth by our - not an impressive betting ever- sponse 10 4 cacophony of com- I have listed only three of the GASES founding fathers. the federal age. And finally, to make mains plaints about the "activism" of that seem to aggrieve the Impeachment judiciary plays a visal role preserving worse, receat articles federal judges. Rep. Tom DeLay of activists the most. There are others. in and protecting the individual rights and have predicted that partisan wran- Texas lad the chorus of those members fact. Rep. DeLay has housted that be was liberties guaranteed by the Coestitution. giving may the up the appointment of Congress who chink the federal receiving suggestions from all over the as well as enforcing the federal statuse process to the point of statemate." judges are usually pasts, and the at least country as to judges who sould be and other matters within its jurisdiction sore of them ought to be iropesched. "prime candidate(s) for impeachment through fair and Impartial judgments. This expressed the serious concern of Rep. DaLay is not a lawyer- be under our approach." The federal courts are fraquently called the chief justice a couple of works ago. would will you that quite proudly and Of course, every time & judge reles in the guardians of the Constitution. his former profession involved getting any controversy, M least one of the per- But those traditions roles are be CONFIRMATION BRIDLOCK rid of pests. But even non-lawyers ought Lies is unhappy with the judge. If the coming endangered in the face of the At the present time. we have 98 va- to realize that our founders expected controversy is big enough and gets growing number of vacencies on Endor- cancies astionwide. There were 101 va- judges to be uspopular. which is why the enough publicity, the number of unhappy al district courts and the circuls courts cancies up until tast Friday. On Friday. Constitution gives them life leaure, pro- people multiplies. When opse MMOR B. of appeals a problem that is critical- the Senate confirmed three district declared on judges. many will come - ly hamperting the administration of jus- judges. With the two cartier confirme- Lawful Pursuits shooting. dos. As the number of wefilled judge- LOSS of judges is the D.C. Circuit. this Nor M this threat United to federal ships mounts. courts are failing further makes a total of five confirmations in tecks them against pay cau. and makes it judges. in Illinois. a state legislative behind their growing dockets of pend- the first five months of this year. in all very difficult to same them from of. of last year. there were only 17 confir- floc. mations. nose for any ctrcuit judges. And even non-lawyers ought to mai- The effect of this in the Ninth Circuit in that making at casier to remove = that we currency have 13 district judges from office will encourage judges court vacancies with six aominations to weigh their popularity is making decl- pending. Four of those vacancies are in sions. Members of Congress should the Central District of California: acmi- know better than anyone else how compt- nations for two of those seats have been ing it is ID suspend your better judgmess pending for many months, one for over when your job hangs to the balance, and & year. why that sitimately hurts us all The situation in the Circuss Court of Why are DeLay and others to engry at Appeals is extremely serious. It has federal judges? The bill of particulars is nine vacancies out of 28 judgeships. pretty accounding in les pertiness. That is over one-third of the court. This There is a judge is Texas who issued & is asscerbated by the fact that the court temporary order barring two Republi- has not baca authorized a new judge- care from taking local office uncil there ship since 1984. despits out request was an tavestigation of whether some The caselbad was thes 4.700 appeals. h military personnel who had been sta- world in Texas many years ago should has since nearly doubled ID 8,600 ap- have been allowed 9 VOTE absenies from peais in 1996. It 18 impossible to expect 19 assive judges to handle the increased the base. While the local pola should be given credit for their ingenuity is as- caseload with the CMD each appeal de- serves. Even with the generous help of panding the voter rolls by seeking out those former temporary Texans. a legiti- the senior judges, this canact be done. What the public coesn't realize is that. mass question as to their eligibility to vous has been reised. in effect, they are working for free, as Then there is another Taxas judge, they could rotire on full salary. who has ordered the state prisce system Let me express our Circuit Court of to abide by the Eighth Amendment to Appeals' predicament another way. In the U.S. Constitution and aliminate the 1978, right after I joined, the court was committee reluctandy decided not to im- ing cases. It is time for the president "sruel and conditions that as- authorized 23 active judgeships to has- peach & justice of the Illinois Supreme and the Congress to do their constitu- isted While such orders might explain die 3,100 appeals. Today. we have 19 Court While the justice involved. by his tional dury is providing the resources the enjoy mood of the Texas separatists acti judges to handle 8,600 appeals. I own admission and that of former we need to do our job. who recondly took hostages to emphasism have been to Washington, D.C., three Clov. James Thompson, who represented As [U.S.] Chief Justice [William] their demand that Taxas secede from the times in recent months to emphasize Rehaquist stated in & recease speech to union. 1 shink our founders hoped for the Federal Judges Association: better from members of Congress use pecially numbers of the House leader- Even non-lawyers "The most Immediate problem ship like Rep. DeLay. the majority whip. ought to realize that we face in the federal judiciary is I was dismayed when the failure to full the vacancies OR *NEVERMIND THE SUPREMACY our founders the federal courts. Sen. Hatch said that CLAUSE Beyond the borders of Texas, there is expected judges to A significant source of con- sere to the judiciary is the filling of he planned to the California foderal judge who had the be unpopular, which judicial vacancies. As I are sure temerity to rule unconscitutional under many of you know, some very conduct a hearing for the U.S. Constitution 0 referendum smending the state constitution to pro- is why the troubling statistics were recently only one circuit judge hibit affirmative action. Nevermind the Constitution gives published on this topic in The Third Branch. These acatiatics a month. There are supremacy claims of the U.S. Constitu- them life tenure, show that, unless the executive and tion. which requires all judges B mea- legislative branches change their now 26 circuit Judge sure state laws, including state constitu- tions. against the federal sonstitution and protects them ways. the future for judicial ap- vacancies, nine of pointments is bleak. laws. Novermind that the judge's opinios against pay cuts, and As of April 1. 1997, there were which are ours. This, is the case was thoughtful and well-res- makes It very difficult 97 judicial vacancies. Tweaty-three soned. and acknowledged the delicary of of these vacancies have been va. to me, is intolerable. talling the VOTERS that a state referendum they had approved was beyond their - to remove them from cant for 18 months or more. thus earning the dubious distinction of thority. Never mind that the judge's oc- office. being judicial emergensiss' from der was reversed on appeal which is the seriousness of the vasancy situs- the polor of view of the Judicial the usual way the judges are corrected if tion I must say I am disappointed. The Conference. White House staff had sought to have him in the impeachment inquiry is As of April, no accidations Almor 1 Mine. - teaches n the Univer 100 nominations by July 1. They will somewhat arrogant. I am 501 convinced a/ty of Chicago Law Benool. is a retired have been made for 70 of the 97 - now have, as most, 50. judge of the O.C. Claims us Court of 40- that acrogance was the primary NAME cant positions. La turn, since August people, former White House délivral for Pree- for the impoachment clames. The justice of last year. the Secure has only INTOLERABLE* DELAY Ident Clinton, and . former member of the happened to have written M opinion (for U.S. House of Representatives. He calved a unaimous cown) awarding cestody of Procter Hag & is chief judge of the Ninth Even more discouraging is the pace as chief justige of the D.C. Crown from 1991 4 child to the natural persons even Circuit U.S. Court of Appeals. This arbole is of the Senais ludiciary Commines. I to 1994 Pursums' approve 6008- adapted from an address he give in Los An- was dismayed when Sen. Hatch said signatly - The Recorder. though the child had base living with give on May 29 a the annual meeting of that he planned to conduct a hearing for See MAYS page , the Federal Ber Association: See HUG case , THE RECORDER Comment PROFESSIC ANNOUNCEN HUG: Congress Must Avoid Gridlock on the Bench Continued from page 6 ments under social security, claims for in- only one circuit judge a month. There are surance payment of medical expenses. and BOW 26 chronit judge vacancios, nine of personal injury claims. It is and to see the Campbell & De which are ours. This ID me, is Intolerable. uncertainty Involved when a claim is ulst What does this mean to the lingants? masely denied. or to see the consequences Professional & Our court bas anempted to adopt every of delay when the claim should have been efficiency massure WC could devise that paid. The delay will affect environmental would help to keep us current. We have claims where the sevironment should have carefully examined the methods used by been protocted or 8 business venture that every other streuis to ⑉ if these would be should have been allowed to proceed, with helpful. We have adopted other measures employees frequently being affected. TAKES GREAT PLEASURE IN ANNOI the have, in are, been used by other air- Civil rights appeals will be delayed with cuits. We have sought the extra help of our the uncertainty pressor for both parties. senior judges. our district court judges and Commercial disputes need to be resolved JAMES FARRAGHER C visiting judges from other aircuits. These so that the parties can proceed without the are Sarid-aid incasures and not the way a uncettainty of $ pending case. Our whole federal Court of Appeals is intended to op- society " dependent upon our court sys- HAS BEEN SELECTED erate. term operating fairly and promptly. FOR THE THIRD YEAR TO SERVE ON We have done all we can in the way of The federal judiciary is the third brench FACULTY FOR THE SUMMER PROC officiency and seeking the help of others. of government designated in the United NATIONAL COLLEGE FOR DCI DEFEN In order to sootinue deciding the cases States Constitution. We are dependent LAW SCHOOL THE COLLEGE WILL 1 without over-delegation 10 law elerks or upon the other two branches of govern- JULY 23 TO JULY 26. 19 cursory review by the judges. we will airn- ment - the executive and the legislative ply have to let a backlog of appeals devol- ID provide the resources we need to do ANYONE INTERESTED N THE PROGRA op with the delay for thigants that ensues. our job right. Wt do not ask much. Most KAREN NAGY, NATIONAL COLLEGE FC We are this year having to cancel 100 immediately. и is for the president to make 4513 YOAKUM. HOUTTON. TO days of hearings. invoiving over 600 cas- the nominations and for the Secare to hold 65. that we will be unable to hear. Criminal (713) 223-1719 the hearings and to vote the nominations cases have statutory priority: thus, the bur- OR up or down. What cannot be relerated is den will fall on those having civil appeals VISIT THE WEB SITE stailing in the process. The public Is earl- pending. These include disability pay- tied to better then that . htutp//msamlees.com/ncdd/indu MIKVA: Impeaching 'Activists' 320 MONTGOMERY STREET. St SAN FRANCISCO. CA 94104 (415 Would Bog Judges in Politics 455 NORTH CAMDEN DRIVE. 31 Continued from page S against laws passed by Congress in re- BEVERLY HILLS, CA 90210 (310) adoptive parents for many years. Is was one sponse to popular demand. Judges are ex- of those heart-reading cases. and the news- pacted 9 protect defendants m criminal papers had & field day. One Chicago colum- cases against even-the most outraged citi- ats: devoted column after column to the zersy who wast to short-circutt due pro- wrongness of the decision. DESE, the privilege against self-incrimina- tion and a hant of other "lechnicalities" that OUST LAWS, NOT ADDRES distinguish our system of justice from that Prom my distant varage point, influ- of the mobe who dispensed guillorine just- enood mostly by what the newspapers bec during the Prench Revolution. wrote abow. the decision. I would venture Around the hare of the century. Chicago Since 1954 that k probably was wrong. But wouldn't N had a famous political comments tor named Representing Pripate & Public Entitles make more MISSE LO change the law that the Pater Finley Duane, who wrote under the state Supreme Court was interpreting than pes name of Mr. Dooley," 8 fictitious Public Law Municipal Finance Litigation to remove the justice was simply wrote the Chicago saloon-keeper of great sagabity. Insurance Coverage Telecommunications opinion? Unfortunately. there is more polit- When he was asked to analyze a Supreme Land Use Real Estate Eminent Domain Court derision that gave extra-territorial of- feet a a law bashing the Philippines, Mr. Environmental Construction Transit Dooley replied (in brish dialect), "No matter Oil & Cas Law Administrative Law Elected judges may whether the Constitution follows the flag or Employment/Labor Arbitration & Modiation well remember the BOX, the Supreme Court follows the election returns." lesson that California ROSE BIRD Richards Water 6 Garahen . a fall service law voters taught Ohief I am afraid that elected judges may well firm representing both private and public testor Justice Rose Bird. She remember the lesson that California voters alients in California for more than 40 years. We taught Chief Justice Rose Bird of their state serve # city attorney to 25 cluss and represent was denied a second Supreme Court. She was denied & record numbers other REN. redevelopment agencies, your term, even though her re-election was un- powers suthorities, transit agencies, and school. term because she contested, because she was perceived to water, senitation, hazard statement and library was perceived to have have decided some death penalty cases the dismists throughout the state as litigation and special G wrong way covered. We also represent primary and decided some death And federal judges may well remember Interers, . wall M requirements throughout Call fornia the ordeal of Harold Baer, the New York in litigation and arbitration involving penalty cases the federal judge who became a campaign issue coverage. bad feith and hability claims. in 1996 because he decided a suppression wrong way. metion in favor of the defendant in $ crims- nal casc. Then-Sen. Bob Dole cited Judge Bear as 0 perfect example of the kind of 40- Ms Stepanisms is & public law partner in his twentisth ical miloage in threatening 10 impeach the Livist judge appointed by his opponent, year with Richards Weach & Gershen, representing judge. President Bill Clieton The president was and other public eatiles Me currently Many observers of the legal-political purportedly considering asking for Baar's serves as city attorney for Agoure Hills and Beverly sceno are sanguine about the current rash of relignation. Fortunately or unfortunately. Hills is has service to public agencies. Mr TWC threatened impoachments They point to the Bear changed his decision on rehearing. has attained expertion in a wide range of government great crusade that assempted unsecomentally While be may have been justified is 50 do- law was including land - environmental. telecom- SAN FR to impunch Barl Warren hen be was chief ing. a lot of judges read more imo his manitations. lessi M. elecuous. public works. and justice of the United States back in the change of heart than appeared in the order. (415): 1950s. 4 is true that Warrent was not 1m- charge any law. He cared his law dagree a 1977. Is may well be that federal judges should peached and probably paid limis mind to his gradesting Order of the Coll from Hastings College of concisue to derive smength and fortitude la critics. BG Warres had great confidence is the Law where be served - Articles Editor the face of criticasm from the special judi- what be was doing and where be was taking of the Hamings Low Journal, Re received his under- cial prosections 101 forth in the Constitution the Supreme Court. Not every judge. feder- gradents degree with Highest Henors from the Univer It may well be that federal judges should al or otherwise. has that same inner have "the Wisdom, Uprightness and Learn- sity of California. Riverside is 1973 A Imquest speaker strength. DR poblic and massripal law topics, be is . number of LOS AN ing to which their commissions to office The U.S. Constitution gives federal the Urine Land Institute and National Montagen of (11)) oxhort them. But all this calk of impeach- judges M anti-majoritarian role to play la meat - ever If nothing comes of h - has Tajecommentcation Officers and Advisors (NATOA) our political system. It is the judges who to impact the decisional process. Some- are expected to prosect Our liberties, even times, judges follow the election returns. I 2/14/97 A36 1, THE NEW YORK TIMES EDITORIAL! ARTIIUR ocus SULZBERGER JR., Publisher JOSEPH LELYVELD. Executive Editor GENE ROBERTS, Managing Editor Assistant Managing Editors SOMA GOLDEN BEHR CAROLYN LEE The New York Times GERALD M. BOYD JACK ROSENTIAL DAVID R. JONES ALLAN M. SIEGAL Founded in 1851 HOWELL RAINES. Editorial Page Editor PHILIP M. BOFFEY, Deputy Editorial Page Editor ADOLPH S. OCHS, Publisher 1896-1935 ARTIIUR ILAYS SULZBERGER, Publisher 1936-1961 JANET L. ROBINSON, President. General Manager ORVIL F. DRYFOOS, Publisher 1961-1963 WILLIAM L. POLLAK. Executive V.P., Circulation ARTHUR OCHS SULZBERGER, Publisher 1963-1992 PENELOPE MUSE ABERNATHY, Senior V.P., Planning DANIEL 11. COMEN. Senior V.P., Advertising RICHARD 11. GILMAN. Senior V.I., Operations RAYMOND P. DOUGLAS, V.P., Systems and Technology CHARLES E. SHELTON, V.P., Distribution DENNIS L STERN. V.P., Human Resources DAVID A. THURM, V.P., Production Too Many Federal Court Vacancies The backlog of pending cases in the Federal The President has the power to appoint judges, court system continues to grow as aggressive parti- with the advice and consent of the Senate. Some san tactics by Senate Republicans and neglect by conservative senators, led by Jon Kyl of Arizona the Clinton Administration have nearly paralyzed and Slade Gorton of Washington, would radically the confirmation process for new Federal judges. alter this arrangement. They believe that the Re- The result is delayed justice for litigants and an publican majority should have a direct say in ap- unreasonable burden on the courts. pointments to the bench. They have discussed vari- During the second session of the 104th Con- ous ways to assert more control, including having gress, only 17 district court judges were confirmed the President allot half the slots to Republican by the Senate. For the first time in 40 years, the nominees. Presumably, they would then give the Senate failed to confirm any judges for the Court of White House freer rein on the other half. Appeals. There are now 93 vacancies on the Federal There are few indications that the Senate ma- bench, a number that grows monthly as more jority will take its confirmation duties any more judges retire. seriously this year. The White House says it may Judiciary appointments tend to slow during send up to 100 nominations to the Senate in the next election years, but the Republican refusal to act on few months. President Clinton may have the chance the Administration's choices exceeded any reason- in his current term to fill more than half the seats on able standard of review. In 22 cases, some involving the Federal bench, as the Republicans were able to slots vacant since 1992, the Senate failed to com- do during the Reagan and Bush Administrations. plete the confirmation process, giving no indication Although politics is always part of the process, that the nominees in question were controversial or the Senate's responsibility is to evaluate nominees unqualified for the bench. The Administration, for on their professional qualifications. By neglecting its part, has been slow in putting forward names in that role and turning the confirmation process into a recent months and timid in supporting qualified purely partisan battle, the Republicans have nominees who may be considered liberal by the clogged the court dockets and done the nation a Senate Republicans. disservice. 10A DETROIT FREE PRESS/MONDAY, MARCH 24, 1997 Detroit Free Press AN INDEPENDENT NEWSPAPER 321 W. Lafayette, Detroit, Mich. 48226 (313) 222-6400 KR KNIGHT RIDDER A Knight-Ridder Newspaper JOHN S. KNIGHT LEE HILLS (1894-1981) Publisher Emerium HEATH J MERIWETHER Publisher JOE H. STROUD ROBERT G. McGRUDER Editor Executive Editor CAROLE LEIGH HUTTON DAVID KUSHMA DAVE ROBINSON Managing Editor Associate Editor Deputy Managing Editor/Sports and Operations OPINION THE 3-24-97 FEDERAL JUDGES Clinton must move more forcefully to fill vacancies he attack by conservative Re- jority. Meanwhile. House Republican T publicans on the process of con- Whip Tom DeLay of Texas is calling for firming federal judges is ap- the impeachment of "liberal judges." palling. The silence from the Those who cherish democracy and White House is just as worrisome. the Constitution must vigorously resist GOP partisans seek to undermine these efforts. The approval of judicial nom- President Bill Clinton's constitutional au- inations traditionally has relied on a bipar- thority to nominate judges. The presi- tisan commitment to move them along, dent's lack of response suggests he either even when strong ideological disagree- does not care to expend political capital on ments exist. such battles or has not crafted an effective As the majority party in the Senate, Re- strategy. Either way, he is allowing the ju- publicans have a legitimate role in advising dicial process to be poisoned. on, and consenting to, the president's By the end of his second term, the nominees. But the cynical strategy of ob- president may have the opportunity to struction and mullification practiced by too have appointed nearly half of all federal many GOP senators subverts the confir- judges. To prevent this, Republicans sen- mation process and weakens the integrity ators, with help from right-wing lobbies, of the courts, are engaging in obstructionist tactics and Michigan Republican Sen. Spencer extra-constitutional efforts. Abraham has not engaged in these dis- Last year, the GOP-controlled Senate graceful tactics. Last year, he shepherded Judiciary Committee approved only 17 of through the confirmation process the the president's 45 nominees to the federal nomination of Eric Clay, a prominent bench. No judges were confirmed for the African-American attorney from Detroit, U.S. Court of Appeals - the court of last to succeed the legendary Judge Damon resort for most plaintiffs. In 1992. the last Keith on the U.S. 6th Circuit Court of Ap- year of the Bush administration, the De- peals. The Judiciary Committee has ap- mocrat-majority Senate confirmed 66 of proved Mr. Clay's nomination. but he still the Republican president's judicial nomi- awaits confirmation by the full Senate. nees. President Clinton properly promised Some Republican senators propose to make government institutions, includ- eliminating judgeships or leaving perma- ing the federal bench, "look like America." pent vacancies, to prevent the president To fulfill this pledge, he must move ag- from appointing more judges. Others de- gressively to rescue the judicial confirma- mand that the president cede half his ju- tion process and his future nominees from dicial appointments to the GOP Senate ma- extremists who seek to destroy both. USA Today Mon, March 3, 1997 13A Clinton judges: Appoint defenders of the little guy By Nan Aron He was a superb criminal defense lawyer, a constitutional theorist, a staunch advocate of free speech. He represented the underdog against pow- erful interests. He defended accused murderers and other clients regardless of ability to pay. He would have made a compassionate and distinguished federal judge. Instead, Abraham Lincoln was the best trial lawyer ever to be president. Sadly, today a lawyer of modest means who defends the defenseless probably would not be appointed, much less confirmed, to the federal bench. The Clinton administration is reluctant to tap the nation's vast resource of public-interest lawyers and to fight for appoin- tees who are attacked as "liberal" by conser- Blg-bucks judges vative organizations. And if such a lawyer did scale those walls, he or she would probably be The Alliance for Justice blocked by the highly partisan Republican ma- found that more and more new federal jority in the Senate. judges have a net worth Today the federal judiciary is dominated by of over $1 million. former corporate lawyers, conservative ideo- logues and criminal prosecutors. Justice de- Percent of judgee mands that there also be a substantial number appointed who are of judges who have defended the weak and millionaires (by vulnerable, American workers and ordinary president) citizens. A judge who has represented coal Carter 3.9% miners, migrant workers or civil rights plain- tiffs is likely to bring an empathy and concern Reagan 21.4% about injustice that is central to the judicial Bush process. A judge who views the court as a 32.5% means to protect the rights of individuals will Clinton 34.1% ensure that the Bill of Rights remains en- shrined in the Constitution. By this measure, President Clinton falls By Dave Memil, USA TODAY short. In 1995, for example, only two of the president's judges had experience as public defenders representing indigent defendants. Thirty-eight had experience as prosecutors. And Clinton's first term was marked as much by the men and women who did not end up on the bench as the ones who did. When controversy arose, the White House folded. The president, for example, backed away from Sam Paz, a Los Angeles civil rights lawyer, after a controversy erupted over his representation of victims in police abuse cases. Paz said he sued police officers who violated the law out of his respect for the badge; his two uncles were lifetime mem- bers of the Los Angeles Police Department. Clinton should have stood behind this capable man. To Clinton's credit, he has fulfilled his pledge to nominate judges "who look like America" in one significant way: Nearly 60% of his appointees have been women and minorities. But the cause of justice is served by diversity of expe- rience and background as well as diversity of gender and race. In the Senate, the Republican majority has spurned a tradition of biparti- san cooperation to block an unprecedented number of judicial nominees. In the past, Senate leaders of both parties have worked together to carry out their constitutional duty to confirm judges. Disagreements were the excep- tion rather than the rule. Last year, only 17 judges were confirmed in the second session of the 104th Congress, the lowest number for an election year in two decades. Moreover, the Senate majority erected higher barricades for appointees who were women and minorities than for white males. Of the 28 nominees blocked by the Senate, 43% were women and 33% minorities. Such obstruction is not only discriminatory, but it also increases the backlog of cases in the courts with empty seats, delaying justice. It is time for the Senate to end gridlock over judicial appointments. And it is time for Clinton to nominate lawyers who have combated injustice and fought for individual and civil rights. Justice for all - and a significant part of histo- ry's verdict on the Clinton presidency - hangs in the balance. Nan Aron is the president of the Alliance for Justice, a liberal judicial watchdog group which releases a report on Clinton's judges todav. washington 3-25-97 ory of judicia impeachment actions. John Feerick examined Professor Michael Gerhardt con- By Thomas L. Jipping more than 100 impeachments of cluded last year that impeachable O n March 11, House Majority English judges and found that 75 offenses are not limited to indictable Whip Tom DeLay announced percent were for "high crimes and offenses and that "the critical ele- that the GOP will consider misdemeanors" that included ment of injury in an impeachable using impeachment to check the "grave misuse of one's official posi- offense was injury to the state." excessive power of activist federal tion." Fifth, American impeachments judges. Activist judges take statutes Blackstone argued that "mal- have nearly all involved non- and the Constitution, laws enacted administration" by public officials indictable offenses. Thirteen of the by the only legitimate lawmakers, was impeachable. His successor 16 officials impeached since-Amer- and re-make them by giving them counted among impeachable offens- ica's founding have been judges; all new and changing meanings. Judi- es when "judges mislead their sov- seven convicted by the Senate and cial activism, then, is literally the ereign by unconstitutional opinions." removed from office have been exercise of power judges do not judges. legitimately possess. John Pickering was impeached in Democrats and their leftist inter- 1803 for, among other things, errors est group allies have made the in his conduct of a case. His "high tinusual claim that public officials crimes and misdemeanors" includ- cannot be impeached for acts they ed ignoring the requirements of an could not be indicated and prose- act of Congress. During the debate cuted for in a court of law. They also over impeachment of Judge James claim, in a variation on that theme, Peck in 1830, Rep. (later president) that judges cannot be impeached Buchanan argued that usurpation of for anything they do as judges. authority was an impeachable Consider the implications of this offense. novel theory. Judges would be free to None of the articles on which the re-write statutes and the Constitution House impeached Judge Robert at will. compromising self-govern- Archbald in 1912 constituted an ment and democracy, undercutting indictable offense. The House man- liberty, and throwing our constitu- ager of the Archbald case argued tional system of separation of powers that impeachable acts by judges completely out balance. Judges English judges were impeached for included usurpation of power and could run the country so long as they extrajudicial opinions and misinter- "the entering and enforcement of did not, violate statute. This preting the law. Mr. Berger's exam- orders beyond his jurisdiction." claim is patently false, contradicted ples include impeachment for When the Senate convicted and by 600 years legal history, the "abuse of official power" and removed Judge Halsted Ritter in Constitution's framers and ratifiers, "encroachment on or contempt of 1936, several Senators said that a and American political history. Parliament's prerogatives." judge could be impeached for con- The Constitution allows impeach- Third, the American system of duct that undermines confidence in ment of public officials for "high written law rests on the foundation the courts. crimes and misdemeanors." Yank- of English common law. The com- In the Federalist No.78, Alexan- ing this phrase from its constitu- mon view during the convention der Hamilton wrote that judges can tional moorings and giving it a that drafted the Constitution was exercise judgment, but cannot exer- desired modern meaning would be that the category of impeachable cise will. The evidence from English the same interpretive sin as the acts is considerably larger than the and American legal and political activist judges who are today under- category of indictable acts. The sin- history shows that many actions for mining the Constitution. The legal gle proposal limiting impeachments which judges have long been and historical evidence contradicts to a narrow category of crimes met impeached fit within this frame- the modern theory that impeach- immediate opposition. James Madi- work. Judges may be impeached for able acts are limited to indictable son thought George Mason's sug- actions that usurp authority, invade acts or that judges. cannot be gestion of including "mal-adminis- the prerogatives of the legislature, impeached for their judicial behav- tration" among impeachable exceed their proper jurisdiction, ior. offenses was too vague and they set- unconstitutional opinions, misinter- First, as Professor Raoul Berger tled instead on the familiar "high pretation of law, and subverting the writes, "impeachment itself was crimes and misdemeanor" lan- Constitution. conceived because the objects of guage. Both Mason and Madison, All of these are also features of impeachment, for one reason or however, believed this phrase would today's judicial activism. These acts another, were beyond the reach of include such things as attempts to go beyond mere mistakes of judg- órdinary criminal redress." subvert the Constitution. ment; rather they involve a willful Impeachment, by definition, is a tool Fourth, scholars have long agreed disregard of a judge's proper role for removing public officials for that impeachable acts are not limit- and authority and an attempt to non-indictable offenses. ed to indictable acts. One commen- exercise power he does not legiti- Second, impeachment for "high tator wrote in 1916 that "the word mately possess. crimes and-misdemeanors" already 'misdemeanor' was used to negate The House must decide which had a 400-year history in English the thought that only 'crimes' were individual cases meet these stan- common law before America's impeachable." Another concluded dards. They should not be deterred, founding fathers put that phrase in in 1937 that "it is settled that the however, by the chorus singing this the U.S. Constitution. Judges have stipulated grounds for impeach- strange tune that judges may not be been impeached at least since 1388, ment include more than the impeached for non-indictable judi- often for their judicial decisions and indictable offenses technically cov- cial behavior. In the long run, ered by these classifications." A impeaching judges who refuse to 1973 analysis found "an intent on stay within their proper role and try Thomas L. Jipping, is director of the part of the framers to include to usurp the prerogatives of the leg- the Free Congress Foundation's Cen- non-criminal misconduct within the islature may be the only way to keep ter for Law & Democracy. catalog of impeachable offenses." the American system in balance. 09/09/97 TUE 09:43 FAX 2 5 002 SPEECH BY ATTORNEY GENERAL JANET RENO TO AMERICAN BAR ASSOCIATION MEMBERS SAN FRANCISCO 12:14 P.M. EDT TUESDAY, AUGUST 5, 1997 .STX TRANSCRIPT BY: FEDERAL NEWS SERVICE 620 NATIONAL PRESS BUILDING WASHINGTON, DC 20045 FEDERAL NEWS SERVICE IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT. COPYRIGHT 1997 BY FEDERAL NEWS SERVICE, INC., WASHINGTON, DC, 20045, USA. NO PORTION OF THIS TRANSCRIPT MAY BE COPIED, SOLD, OR RETRANSMITTED WITHOUT THE WRITTEN AUTHORITY OF FEDERAL NEWS SERVICE, INC. TO RECEIVE STATE, WHITE HOUSE, DEFENSE, BACKGROUND AND OTHER BRIEFINGS AND SPEECHES BY WIRE SOON AFTER THEY END, PLEASE CALL CORTES RANDELL AT 202-347-1400. COPYRIGHT IS NOT CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS A PART OF THAT PERSON'S OFFICIAL DUTIES. THIS IS A RUSH TRANSCRIPT. ATTY GEN. RENO: (Applause.) I thank you all for that warm welcome. In the four years that I have been attorney general, I have been privileged to meet and to work with SQ many of the members of the ABA and so many lawyers across the country. I have observed firsthand all that you. do to protect the rights of so many Americans, to help others less fortunate, and to build stronger communities to serve this nation and to make this world a better place. I salute you, and I thank you. Today, I would like to address the hard work and the dedication of a special group of lawyers, those who serve as members of the federal judiciary. I would like to talk about their very important role and about the importance of preserving their independence. I would also like to discuss the impact of the growing number of federal judicial vacancies and the slowdown of the confirmation process. 09/09/97 TUE 09:44 FAX 2 1003 Much of the current debate appears to ignore the fundamental role that an independent judiciary plays in our constitutional system of government, and it risks undermining respect for and compliance with the law. I, too, oppose judicial action that ignores the law for the purpose of advancing a particular political or social agenda, Judges are obliged to follow the law. The Clinton administration takes great care to ensure that its nominees understand the role of the federal courts, the role of stare decisis, and the need to put aside personal views when applying the law. Indeed, our only criteria are professional excellence and an understanding of the proper role of a judge in the federal system. Our work in this regard has been greatly enhanced by the work of the ABA. I appreciate the efforts of the ABA Standing Committee on the Federal Judiciary in independently evaluating the professional qualifications of the administration's nominees. I am also pleased that the president's nominees have garnered such a high percentage of well-qualified evaluations from the ABA, the highest percentage of any group in the last 20 years. (Applause.) We must all work to ensure that these judges' and all federal judges' independence is not chilled by threats of impeachment. Respect for our system of government is critical to its continued legitimacy. Ongoing challenges to the judiciary's independence has the potential not only to undermine citizens' respect for the judicial branch but, even more broadly, to undermine their respect for our government as a whole. Clearly, we must be free to debate all issues, but We must keep this debate on a level that will not do harm to our underlying institutions so vital to our form of government and which we hold so very dear. I am also very concerned about the current vacancy crisis that has left so many Americans waiting for justice. As the chief justice said in last year's year-end report on the judiciary, "Filling judicial vacancies is crucial to the fair and effective administration of justice." We are, of course, pleased that the Senate confirmed three judges last Thursday, bringing the total for the year to nine. We now have new judges on the sixth Circuit, the Federal Circuit, and the Northern District of Georgia. But one out of every eight judgeships remains vacant. Today there are 101 vacancies on the federal bench -- almost 12 percent of the judiciary. That includes 76 court vacancies and 25 vacancies on the circuit Court. of those 101 vacancies, 33 are what the Administrative Office of the U.S. Courts call "judicial emergencies," which means they have gone unfilled for at least 18 months. The vacancies are increasing at a time when the workload of the federal courts is also growing. District Court filings climbed nearly 8 percent last year, and filings in the Courts of Appeal rose as well. 09/09/97 TUE 08:44 FAX 2 004 During most of President Clinton's first term, this administration had a productive record of judicial appointments, working first with Senator Biden and then with Senator Hatch. During the first three years of the president's first term, we filled 107 of the 115 vacancies that existed in the 844-seat judiciary when President Clinton took office. Another 80 of the 120 vacancies that arose during that three-year period were also filled. "1 That progress toward a full federal bench was derailed, however, during 1996, the second session of the 104th Gongress. We have seen an unprecedented slowdown of the Senate confirmation machinery. Although the admínistration had 46 nominations pending in the Senate last year, only 17 district-court judges, and no court of appeal nominees, were affirmed by the end of the session. This was the first time in 40 years that not even one pending circuit-court nomination was approved. This year the pace has been even slower. This pace cannot be justified by the criticism of the administration's record of sending some of the pending nominations to the Senate, as some have suggested. The administration has submitted a plentiful and a steady supply of nominees for the Senate to consider from day one of this session. Twenty-two went up in January, four in February, three in March, one in April, two in May, eight in June, and 22 in July; a total of 62. That is more than one-half of the vacancies. But despite the ample number of superbly qualified nominees and the growing number of judicial emergency vacancies, the Judiciary Committee has held only four hearings and sent only 13 nominees to the full Senate. The Senate has thus far confirmed only nine of those, barely more than one per month. At this rate, it would take almost seven years just to fill the existing vacancies. This unprecedented slowdown in the confirmation process has a very real and very detrimental impact on all parts of our justice system. Litigants, judges, the quality of justice that our system is able to deliver -- all are impacted. One district judge in Texas likened his heavy workload to a tidal wave. The chief judge here in the Ninth circuit called the vacancy situation "urgent" and has had to cancel oral arguments for about 600 cases this year. The Second Circuit too has had to cancel sittings. One district court in Illinois was so overburdened that one of its judges recently went an entire year hearing only criminal cases. The district court in San Diego is holding only about 10 civil trials a year. Some judges have even raised concerns about the quality of justice that they are able to dispense with their caseloads. 09/09/97 TUE 09:45 FAX 2 005 We need to put any partisan differences aside and work together to resolve this situation, as has been done in the past and as I know we can do again. During the 100th Congress, when President Reagan was in the White House and the Democrats controlled the Senate, 86 judges were confirmed. That's nearly four judges every month. And in 1992, with President Bush running for reelection and Democrats in the majority in congress, the Senate confirmed a total of 66 judges. That is-more more than seven times the number confirmed 50 far this year. The Senate, of course, has a constitutional duty to advise and consent, but surely the framers did not intend Congress to obstruct the appointment of much-needed judges, but rather simply to ensure that well- qualified individuals were appointed to the federal bench. We should not lose sight of what this is finally all about. This is fundamentally about how the judicial system serves the people of America. The federal courts may not always reach people in their day-to-day lives, as local courts do, but the federal courts do affect a worker seeking justice for employment discrimination, a small-business person seeking trademark protection for her company, major corporations litigating takeover suits, a criminal defendant receiving the full protection of the Constitution, and the government being able to fully prosecute criminal cases or bringing cases to protect the environment. And of course, people look to the federal courts for the protection of SO many rights -- right to religious freedom, privacy rights, property rights, and free speech, whose daily impact may be harder to measure, but it is nevertheless so critically important to the form of government we prize so much. Quite simply, without enough judges, our laws will become empty promises, and swift justice will become a meaningless phrase. And without the independence they need to uphold these laws, our judges will become hostages to politics instead of being the guardians of our principles. so I urge the Congress to remember the people and the very real issues they bring to the federal courts for timely Justice as we move forward with greater expedition to fill the far too many vacant seats on the federal bench, and as we seek to safeguard the crucial independence of those judges who work so hard for this nation. Thank you for this opportunity to be with you. (Applause.) #### END

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Judicial Vacancy Crisis - 09/09/1997 - AFL-CIO Action Packet on Judicial Vacancies

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url	https://catalog.archives.gov/id/44162755
naId	44162755
levelOfDescription	fileUnit
otherTitles	42-t-7409206-20130306F-019-014-2016
recordType	description
ocrSource	nara-archive

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