Mired Selection Effort Keeps Judgeships Open

Blame it on a Senate Republican stall, a weak White House or the natural byproduct of divided government, but the result is that 102 federal judgeships--one in eight--are now vacant.

In California alone, 10 of the 51 federal trial judgeships are open, as are nine of the 28 positions on the San Francisco-based U.S. 9th Circuit Court of Appeals, which has jurisdiction over several Western states.

Last month, the 9th Circuit’s chief judge said 600 hearings on cases ranging from business disputes to environmental claims had been canceled due to the shortage of judges.

This week, leaders of the American Bar Assn. and six other national legal groups said the “extraordinary number of vacant federal judgeships” is a “looming crisis” hanging over the nation’s system of justice. They noted that in the last 18 months, only one federal appeals court judge has won confirmation in the Senate.

But in Washington, the unusual number of court vacancies has been largely ignored by political leaders. President Clinton, to the dismay of his legal advisors, has been silent on the issue. The charge of naming “liberal judges” has seemed to paralyze his administration.

Last year, when GOP presidential nominee Bob Dole charged Clinton with having put “liberal activists” on the bench, the White House responded by condemning one of its own appointees, U.S. District Judge Harold Baer of New York, for throwing out some evidence in a drug case.

During the election year, the White House sent only a handful of court nominations to the Senate. Despite a recent rush of nominations, the administration still has named only 39 candidates to fill the 102 vacancies.

Nan Aron, executive director of the liberal-leaning Alliance for Justice, says conservatives have frightened the White House by trumpeting charges of “judicial activism.”

Privately, administration officials complain about what they see as a deliberate, brazen Republican effort to block Clinton’s judicial nominees. But no high-level official has gone public.

Eleanor D. Acheson, the assistant attorney general who heads the Justice Department’s judicial selection project, offered a restrained assessment. She and Atty. Gen. Janet Reno “have been concerned and are now increasingly concerned about the relative lack of committee and Senate action” on nominees, she said.

Some nominations have simply languished, neither winning approval nor suffering outright rejection.

For example, UC Berkeley law professor William Fletcher was nominated more than two years ago for the 9th Circuit. Last year, he was approved 12-6 by the Senate Judiciary Committee, but his nomination was not brought to the Senate floor. Now the nomination appears dead.

Meanwhile, Clinton’s nomination of Margaret Morrow, a former president of the Los Angeles County Bar Assn., to a federal district judgeship in Los Angeles, was finally approved by a 13-5 Judiciary Committee vote last month. But a vote by the full Senate has yet to be scheduled.

Sen. Patrick J. Leahy (D-Vt.), the committee’s ranking Democrat, has repeatedly lambasted the GOP majority for conducting “a witch hunt for what they call ‘judicial activists.’ ”

Senate Republicans say they are not stalling but, rather, carefully screening nominees. Judiciary Committee Chairman Orrin G. Hatch (R-Utah) blames the administration for its slow pace in making nominations.

Conservative legal activists, meanwhile, are urging Senate Republicans to take an even more confrontational stand.

“Their job isn’t to rubber-stamp Clinton’s nominees,” said Tom Jipping, an attorney with the Free Congress Foundation. “If slowing down the process means weeding out some of the worst [nominees], the country will be better for it.”