Politics and Judgeships

There are certain events that one can count on every four years, as predictable as Leap Year itself: the Olympic games, a presidential election and a stalemate in the process of filling vacancies in the federal courts. The fighting over whether new judges should be nominated by the outgoing President or his successor will never arouse the same excitement as the other two quadrennial events, but it should not be ignored, if only because the White House, which names judges, and the Senate, which confirms them, seem to be reaching an impasse earlier and earlier.

With the presidential election still six months away, the Judicial Conference of the United States reports 37 vacancies in U.S. district courts and circuit courts of appeals around the country; two of those benches have sat empty since 1984. The chances that the Senate will confirm judges for all those vacancies before a new President is sworn into office next Jan. 20 are fading fast.

To spotlight the long delays in filling judgeships, the Judicial Conference--the policy-making arm of the federal judiciary--has declared “judicial emergencies” in 11 courts where judgeships have been vacant for more than 18 months, including the U.S. 9th Circuit Court of Appeals. Calling the delays “emergencies” may overstate the problem, particularly in the 9th circuit, where there is no significant case backlog despite three vacancies on the 28-member tribunal.

Other courts have suffered more: On the U.S. District Court in Hawaii, one of three judgeships has been empty for 41 months. Judges have been rotated from the mainland for temporary duty there, but that is a stopgap--and expensive, too.

Why the delays? In some cases, no one has been nominated because of internal Republican Party squabbling over who should get the nod. In other cases, the Democratic-dominated Senate Judiciary Committee has refused to schedule confirmation hearings or to vote on a nominee. And, in one notable case, that of Bernard Siegan, a University of San Diego law professor nominated to the 9th circuit, the nominee has declined to withdraw his name despite pointed warnings from Atty. Gen. Edwin Meese III that his appointment was doomed by overwhelming committee opposition. We continue to believe that Siegan, who was nominated nearly 15 months ago, does not belong on the 9th circuit. His extreme libertarian views and hostility to constitutional precedents put him far outside the judicial mainstream.

No one could reasonably expect the Democrats to swallow a nomination as ill-advised as Siegan’s. But they have promised to move quickly on all Reagan nominees, despite the temptation to stall during an election year. A test of the Democrats’ real intentions will come on another nomination, that of U.S. District Judge Pamela Ann Rymer to the 9th circuit.

Like Siegan, Rymer is a conservative with strong Republican connections. But, unlike Siegan, she would bring professional distinction--as chairwoman of California’s Postsecondary Education Commission, for example--and five years’ experience as a trial judge to the circuit court. Rymer is superbly qualified for the job, and we believe her nomination should sail through the Judiciary Committee. If it does not, if it’s becalmed in committee or disappears into that Bermuda Triangle where too many other nominations end up, that will be a sign that politics is completely in command of the process.