The wanted posters tacked to the walls of courthouses around the country normally depict carjackers, kidnappers and other scruffy lawbreakers on the lam. But these days the flyers might just as well feature distinguished men and women in long dark robes beneath the headline HELP WANTED. As of this week, 100 seats on the 844-person federal bench are vacant. Case loads are creeping out of control, and sitting judges are crying for help.
The situation is urgent, says Procter Hug Jr., chief judge of the Ninth Circuit Court of Appeals, which covers California and eight other Western states. Hug says that with a third of its 28 seats vacant, the court has had to cancel hearings for about 600 cases this year. Criminal cases take precedence by law, so at both the trial and appellate levels, it is civil cases that have been crowded out. Civil rights cases, shareholder lawsuits, product-liability actions, medical-malpractice claims and so forth are being pushed to the back of the line, however urgent the complaints. Chief Judge J. Phil Gilbert of the southern district of Illinois went an entire year without hearing a single civil case, so overwhelmed was he by the criminal load in a jurisdiction down to two judges out of four. "It's litigants who end up paying the price for the delays," says A. Leo Levin, a professor at the University of Pennsylvania Law School.
Things won't improve anytime soon. Democratic Senators have been slow in recommending names to the White House, which in turn has dragged its feet in forwarding those recommendations to the Senate for confirmation. At a private meeting with federal judges last week, Clinton promised to send close to two dozen new names to Capitol Hill by July 4. But once they get there, they face new hurdles. Last year the Senate confirmed only 17 federal district-court judges and none for the appeals courts. This year looks even worse, with only two confirmations thus far. The number of days from nomination to confirmation is at a record high of 183, and 24 seats have been vacant more than 18 months, qualifying them as judicial emergencies.
This slowdown in judicial confirmations is not due to congressional lethargy. Just the opposite. With Republicans firmly in control of the Senate, many of the party's theorists feel they have the power--and the rightful mandate--to implement the ideals of a conservative revolution that lost its focus in recent years. So they have been not so quietly pursuing a historic change in the ambiguous "advise and consent" role the Constitution gives the Senate in the selection of federal judges. The successful assault by Democrats on Ronald Reagan's nomination of Robert Bork for the Supreme Court helped open the way for what has become a more partisan and ideological examination of all judicial nominees.