GOP Stonewall Creates Judicial Limbo

A small group of Senate conservatives who loathe the federal appeals court in San Francisco--probably the nation’s most liberal--has succeeded in keeping a seat on the court vacant for a record-breaking 44 months.

Because of developments Friday in Washington, D.C., that position and a second may remain unfilled considerably longer, leading to charges by Latino and women’s rights activists that race and gender are playing a troubling role.

Currently, seven of the 28 positions on the U.S. 9th Circuit Court of Appeals are vacant, resulting in a massive backlog. Court officials say 800 appeals due for action will not be considered this year because of the judge shortage.

The Clinton administration nominated U.S. District Judge Richard Paez of Los Angeles for the 9th Circuit in January 1996, and he now ranks as the Cal Ripken of judicial confirmation battles. The former head of the Legal Aid Foundation here has waited an unparalleled 44 months for a Senate vote.

In addition, San Francisco labor lawyer Marsha Berzon, who has won major cases at the Supreme Court and was described by Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) as one of the most qualified nominees he’s ever seen, has waited nearly two years for a full Senate vote.

Both nominations have cleared the Judiciary Committee, Paez’s twice, but Senate Majority Leader Trent Lott (R-Miss.) has refused to bring them to the floor for a vote, bowing to the wishes of a group of his Republican colleagues led by Jeff Sessions of Alabama.

Late last week, the Clinton White House and Senate Democratic leaders made a deal with Lott. The accord paved the way for a vote on a nominee Hatch pushed for a Utah federal judgeship and four nominees the Democrats want for various judgeships. Among them are 9th Circuit nominee Ray Fisher, a top Justice Department official who formerly served as Los Angeles Police Commission president. But not Paez and Berzon.

At this point, there is no telling when, if ever, the two will get a vote. That process is totally in Lott’s control and he said Friday he would make no commitments.

“Senate Republicans have used Marsha Berzon and Judge Paez as judicial hostages in the nomination process. That undermines our justice system,” said White House chief of staff John Podesta. “We will aggressively look for and exploit every opportunity we can to bring them up for a vote.”

Latino leaders were even stronger in their sentiments.

“For such a distinguished jurist and a leader in our community to be treated this way is outrageous,” said Antonia Hernandez, president of the Mexican American Legal Defense and Educational Fund. “The fact that Republicans don’t care about Latinos is bad enough, but to have Democrats accede to them . . . is unconscionable.”

Similar statements about Berzon came from women’s activists.

“Whatever is going on with larger partisan politics, this woman is a star, a brilliant mainstream lawyer who is this generation’s Ruth Bader Ginsburg,” said Donna Lenhoff, general counsel of the National Partnership for Women and Families.

Sessions spokesman John Cox said his boss and others are opposed to allowing a vote on Berzon and Paez. In Judiciary Committee confirmation hearings, Sessions and some other Republicans have said that nominees to the 9th Circuit--reviled by the right for reversing some death sentences and restricting development in environmental lawsuits--will receive stricter scrutiny than those for other federal circuits.

U.S. Chief Justice William Rehnquist, no fan of the 9th Circuit, has not commented directly on the controversy. But he has said that, in general, unfilled vacancies are the most serious problem facing the federal courts, and that after nominees’ credentials are reviewed, they should be voted up or down.

Attempting to clear a path for a group of stalled nominees, including Berzon and Paez, the Clinton administration in late July, at Hatch’s behest, nominated the chief aide to Utah’s Republican governor for a federal trial judgeship. Nominee Ted Stewart had never represented a client in court and was vigorously opposed by environmentalists and the Alliance for Justice, a coalition of liberal organizations.

Just two days later, Stewart cleared the committee after a perfunctory hearing. But the anticipation of the White House and Senate Democrats that the prospect of Stewart’s swift confirmation would bring an end to the Berzon-Paez roadblock has proved unfounded.

In mid-September, proponents of Berzon, Paez and Stewart took the rare step of attempting to end debate and bring them to a vote, but each of three cloture votes fell short. Having concluded that Lott could not be moved, the White House and Senate Democrats decided this week to let the Stewart nomination move forward in exchange for allowing votes on others, including Fisher.

Until now, former UC Berkeley law professor William A. Fletcher had the longest wait for a 9th Circuit seat--41 months. On Friday, Sen. Patrick Leahy (D-Vt.), decrying the “unfairness” of preventing a vote on Paez and Berzon, noted that even in the case of two highly controversial Supreme Court nominees, the Senate took only 14 weeks to reject Robert Bork and 12 weeks to confirm Clarence Thomas.

Berzon, 53, and Paez, 52, have certain things in common. Both attended UC Berkeley’s Boalt Hall Law School, have a strong background in public interest law and are supported by normally influential law enforcement groups. Both told inquiring senators that David Souter, a moderate appointed by President George Bush, is the current Supreme Court justice they admire most.

In response to questions from senators, both nominees said that if confirmed they would be obliged to follow Supreme Court precedents and would have no trouble enforcing the death penalty.

Support From Some Republicans

Both also have garnered backing from some noteworthy Republican jurists and attorneys. Among those endorsing Paez are Rep. James Rogan of Glendale and Los Angeles attorney Sheldon H. Sloan, who used to advise former Gov. Pete Wilson on judicial nominees.

Rogan, a floor manager during the impeachment hearings against President Clinton, calls Paez a fine jurist whose “character and integrity have never been questioned.”

Berzon’s Republican backers include former conservative Sen. James A. McClure of Idaho and California appeals court justice Paul Haerle, a key aide to Ronald Reagan when he was governor of California. She also has the support of many corporate lawyers who opposed her on major labor cases.

Paez, appointed to the Municipal Court bench in 1981, has been more of a lightning rod for conservative Republicans.

Paez, who became the first Mexican American on the U.S. District Court in Los Angeles in 1994, has been criticized for public statements on ballot initiatives and for some of his rulings.

Tom Jipping, who runs a conservative judicial watchdog group in Washington, contends that Paez places politics over precedent, citing a 1995 speech the judge gave to UC Berkeley law students. Paez attacked Proposition 187, which denied benefits to illegal immigrants, as anti-Latino “discrimination and hostility,” and Proposition 209, which bars certain affirmative action preferences, as an “anti-civil rights initiative.”

At his second confirmation hearing last year, Paez, responding to Sessions, said he regretted using those words about 209. “Sometimes these initiatives tend to be somewhat divisive throughout the population of California. . . . It’s not anti-civil rights. It’s designed to ensure equal opportunity.”

Paez stressed that he is not biased against the initiative process and said it was clear that preference programs are almost always unconstitutional.

Like Paez, Berzon cleared the Judiciary Committee by a 10-8 vote. Sen. Arlen Specter of Pennsylvania, one of only two Republicans to vote for them, was sufficiently impressed with Berzon to quip that he looked forward to seeing her questioned when she was nominated to the Supreme Court.

Berzon, who clerked for the late Supreme Court Justice William Brennan, has written briefs in dozens of Supreme Court cases and successfully argued some of them before the court. In United Auto Workers vs. Johnson Controls, Berzon represented women’s rights groups and unions that challenged a “fetal protection” policy adopted by the nation’s largest car battery manufacturer in an attempt to prevent females from being exposed to lead.

The Supreme Court, in 1991, agreed with Berzon that employers may not exclude women from jobs in which exposure to toxic substances could harm a developing fetus.

Sessions and other members of the Judiciary Committee have grilled Berzon on matters including her membership on an American Civil Liberties Union board. She responded that she does not always agree with the ACLU and has opposed it on two cases.

When Berzon narrowly cleared the Judiciary Committee, chairman Hatch, who voted for her, criticized Republican colleagues who said they voted no because they think the 9th Circuit is too liberal and that its candidates ought to be held to a stricter standard.

“We must be very careful,” said Hatch, “before we conclude that a nominee will be a judicial activist when the evidentiary record does not affirmatively support such a conclusion.”