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Some Republicans have as much as declared war on Clinton's choices, parsing every phrase they've written for evidence of what they call judicial activism. That label has long been applied to judges who come up with imaginative new legal principles in their decisions rather than simply following the letter of the law or the Constitution. Lately the term has been tossed around like insults at a brawl. "The Republicans define 'activist' according to their political agenda," says a federal judge. "It's O.K. to be an activist if you're striking down affirmative action and gun-free school laws. It's not if you're overturning abortion restrictions and the line-item veto."
Meanwhile, nominees are left adrift. The federal bench's poster child of the moment is Margaret Morrow. Nominated in May 1996 with broad bipartisan support, Morrow was the first woman president of the California Bar Association, has had a distinguished career in private practice and could fill a trophy case with her awards and citations. She cleared the judiciary committee unanimously but got stuck in last year's G.O.P. freeze-out on the Senate floor. Clinton sent her name back up this year, but in the meantime, conservatives began raising questions about some of her writings the committee hadn't seen. After another hearing, she received a letter from Republican Senator Charles Grassley asking her position on every ballot initiative that's come up in California over the past decade, in effect asking which levers she pulled in the voting booth. Morrow's nomination still isn't scheduled for a vote, and she isn't even the longest-suffering nominee. That distinction belongs to William Fletcher, named by Clinton to the Ninth Circuit in April 1995.
Orrin Hatch, chairman of the Senate Judiciary Committee, says he would like to clear the backlog. "Playing politics with judges is unfair, and I am sick of it," he said in March. But those close to him say he's feeling pressure from the right, and indeed his remarks have become more combative. Last week he told a group of judges that he would refuse "to stand by to see judicial activists named to the federal bench."
Republicans are also aiming rocket launchers at those lucky enough to have already been issued their robes. Proposals range from having three-judge panels, rather than a single judge, hear challenges to ballot initiatives to radical notions like amending the Constitution to eliminate lifetime tenure. Lawmakers have taken to threatening impeachment proceedings against judges whose rulings they dislike. House majority whip Tom DeLay of Texas, a chief proponent of using the impeachment process much more freely than it is now, says he wants "to make an example" of someone this year. Some candidates they're considering: Judge Thelton Henderson in California, who struck down a voter-approved referendum ending state affirmative-action programs (he has since been reversed); Judge John Nixon in Tennessee, who has reversed several death-penalty convictions; and Judge Fred Biery in Texas, who has refused to seat a Republican sheriff and county commissioner because of a pending lawsuit challenging some absentee ballots. Not mentioned are judges like New York's John Sprizzo, who freed two men who had blocked access to an abortion clinic because they acted on religious grounds.