Political Logjam on Filling Vacant Judgeships Broken

The White House and the Senate, prodded by Chief Justice William H. Rehnquist, have broken a political logjam over filling vacant judgeships on the embattled U.S. Court of Appeals for the western states.

So far this year, three new judges have been added to the U.S. 9th Circuit Court of Appeals and two others are nearing final approval in the Senate. Three other nominees were sent to Capitol Hill recently.

If all goes well, by summer the 28-member appeals court may have only three or four vacancies, down from 10 last year.

“Things are definitely moving at a faster pace now,” said David A. Sellers, a spokesman for the Administrative Office of the U.S. Courts.

Last year, the 9th Circuit was caught in a squeeze between two groups of Republican senators. The appeals court sets federal law for the states on matters ranging from the environment and property rights to crime and the death penalty, and it is often criticized as too liberal and out of step with the Supreme Court.

A contingent of Republicans from the Northwest, led by Sens. Conrad R. Burns of Montana, Ted Stevens of Alaska and Slade Gorton of Washington state, want the region removed from the sprawling 9th Circuit, and they had balked at approving new judges for the court. That impasse was broken when a study group was established to recommend whether or how to divide the nine-state Appeals Court, which stretches from Arizona and California to Alaska and Hawaii.

Its report is expected at the end of this year.

Meanwhile, several Southern conservatives had balked at approving liberal “judicial activists” to the bench. Led by Sens. John Ashcroft (R-Mo.) and Jeff Sessions (R-Ala.), they blocked even a committee vote on President Clinton’s nominees they viewed as too liberal.

But prodding from conservative Rehnquist apparently has succeeded in moving those nominations toward a final vote. In his annual year-end message, issued Jan. 1, Rehnquist complained that nearly 1 in 10 federal judgeships was vacant. Senators have a duty to vote up or down on pending nominees, he said. Some of Clinton’s nominations had languished for two years or more without a vote.

A classic example was Los Angeles lawyer Margaret M. Morrow, whose nomination for a federal district judgeship was on hold nearly two years in the Judiciary Committee. She had been labeled as a potential “activist” by some conservatives but, when her nomination moved to the Senate floor in February, she won easy approval.

The long-delayed 9th Circuit confirmation of UC Berkeley Law Professor William Fletcher may finally move through the Judiciary Committee next week. Three years ago, Clinton nominated Fletcher, whose friendship dated to their days as Rhodes scholars at Oxford University. Some conservatives attacked the choice because his mother, Judge Betty Fletcher of Seattle, already sat on the Appeals Court. If her son is confirmed, the 75-year-old judge has told Committee Chairman Orrin G. Hatch (R-Utah), she will take semi-retirement as a senior judge.

On Thursday, the committee had planned to vote on Fletcher’s nomination, but one or more senators asked for another week’s delay. A spokeswoman for Hatch said that the panel plans to vote on the nomination this week.

“The chairman made clear he was frustrated. This nomination has been held up too long,” said Jeanne Lopatto.

Even Clinton’s judge-choosers say they are optimistic.

Last year, only 36 judges were confirmed for the federal bench. Already 22 have won final approval in the first four months of this year.

“The Judiciary Committee has started this year much differently,” said Assistant Atty. Gen. Eleanor Acheson. “The hearings are coming fast and furious and things are looking good.”

The three recently confirmed 9th Circuit judges are Barry Silverman of Phoenix, a former state judge; M. Margaret McKeown, a Seattle lawyer, and Susan Graber, an Oregon Supreme Court justice and a college classmate of First Lady Hillary Rodham Clinton at Wellesley College and Yale Law School.

U.S. District Judge Richard Paez in Los Angeles awaits a final vote by the Senate, having won approval from the Judiciary Committee on a 12-6 vote in March. Fletcher hopes to join him on Thursday.

Recently nominated to the 9th Circuit were U.S. District Judge Kim McLane Wardlaw from Los Angeles, San Francisco labor lawyer Marsha Berzon and Seattle corporate lawyer Ronald Gould.