Judge Not

The wheels of justice grind slow, but they grind exceeding small," according to the old saying. Usually applied to judges' decisions, the proverb could just as easily apply to the appointment of the judges themselves, who typically undergo a lengthy review process before winning Senate confirmation.

But in a recent speech to the American Bar Association's annual convention, Attorney General Janet Reno tried to grease the wheels. Charging that Republicans have created an "unprecedented slowdown" in confirming President Clinton's nominees to the federal bench, Ms. Reno demanded that the Senate act quickly to end the "vacancy crisis."

Some were eager to comply. Arlen Specter, the Pennsylvania Republican who faces reelection next year, called on his Judiciary Committee colleagues to hold extra meetings to work through the backlog. "There needs to be some real pressure in the Senate," he said in a press conference.

But others weren't so desperate to hang out the "No Vacancy" sign. Utah Senator Orrin Hatch, who doesn't depend on liberal Philadelphia voters to keep him in office, dismissed the idea of a vacancy crisis. In the first place, he points out, the Senate can be held responsible only for nominees, not vacancies. When a judge leaves the bench, it is the president's responsibility to name a replacement. Until he does so, the Senate can do nothing to fill the post.

The problem from Sen. Hatch's perspective is that President Clinton, on average, has taken 618 days to name a judicial nominee. Because of the administration's foot-dragging, the Senate currently has only 40 names to consider for 101 openings. Moreover, 13 of those nominees were named on July 31, the Senate's last day of business-and a week before Ms. Reno decried the backlog of nominees waiting for confirmation.

Besides the problem of slow nominations, Sen. Hatch argues that 101 judicial vacancies don't constitute a crisis at all. At the end of the last Congress, he points out, there were only 65 openings out of some 800 federal judgeships. Back when Democrats reigned in the Senate, the Justice Department had proclaimed 63 vacancies to be virtually "full employment" in the judiciary. The number of vacancies began to soar only when it was obvious that Mr. Clinton would coast to reelection. Assured that ideological liberals would be named to replace them, 21 judges announced their retirement in just the last three months of 1996, and many more sought greener pastures in 1997.

It's not really the newly vacated seats that the Attorney General is worried about, however. The average time to confirmation in the Senate is 91 days, and those recent vacancies are being filled apace. What really galls the administration is the 23 nominees that had to be resubmitted because the previous Congress refused to confirm them.

"There was generally a good reason why those nominees weren't confirmed in the last Congress," insists Jeanne Lopatto, a Senate Judiciary Committee spokesman. "Those who were non-controversial or obviously qualified and had no problems in their past, we've been acting on. We've held hearings on 20 nominees, 18 have been reported out of committee, and the Senate has confirmed nine."

That leaves about two dozen nominees who don't fit the description of "non-controversial or obviously qualified." WORLD asked Thomas L. Jipping, director of the Judicial Selection Monitoring Project, for a sampling of the prospective Clinton judges that have merited a hard look by the Senate. Among his picks:

A Berkeley law professor with no courtroom experience of any kind, Mr. Fletcher has been under consideration for more than two years. The main problem, Mr. Jipping says, is that confirming him would actually be illegal. An anti-nepotism statute forbids close relatives' working together on the same court, and Mr.Fletcher's mother has served on the appeals court for almost 20 years. The administration, suggests Mr. Jipping, "apparently isn't very concerned about enforcing the law."

Aside from pesky concerns about legality, the president is having a hard time selling his Oxford buddy's judicial philosophy. Mr. Fletcher has written that "judicial discretion may be a necessary and therefore legitimate substitute" for legislative deliberation, which he sees as too tainted by political concerns such as the will of the people. He once criticized the Supreme Court for upholding the principle of separation of powers, charging that although the court had correctly interpreted the Constitution "as a textual matter," such a rigid approach to the Constitution was "fundamentally misguided."

A Seattle attorney, Ms. McKeown was nominated for the Ninth Circuit Court of Appeals in 1996. Senators balked, however, when they learned that she had led the charge to bar a state referendum on special rights for homosexuals. According to Mr. Jipping, she claimed that "the process of democracy itself-gathering signatures and placing the question on the ballot-would ... cause hate crimes, emotional suffering, and suicides."

In 1992, Ms. McKeown was one of the lawyers who signed a report urging the American Bar Association to abandon its neutral stance on abortion. Such a stance, the report argued, was reminiscent of the ABA's "shameful neutrality on civil rights in the '50s and '60s."

A New York state mental health advocate who has never practiced law, Mr. Sundram has been under Senate review for more than a year. Republicans on the Judiciary Committee balked when he told them that he supported New York's 1977 law decriminalizing marijuana possession-a law that he himself helped to draft.

Mr. Sundram's views on race have not helped his chances in the Senate, either. He once wrote that highly qualified white law school applicants should be displaced by unqualified black applicants if the minority students showed a proper "attitude" and "motivation to study law as a means of helping his community." Such reverse discrimination is "benign," he argued, because it does not "stigmatize and single out blacks for hostile treatment." The white students who are stigmatized and singled out could simply "attend a less desirable law school," he wrote.

As long as President Clinton continues searching 600 days to find sufficiently liberal judges, Republicans on the Judiciary Committee reserve the right to examine a nominee's record for a few more months. Sen. Hatch insists that judges are free to hold whatever political views they like, so long as "they possess a proper judicial temperament and will interpret the law, not make it."

In the long-range view, such caution appears to be merited. After all, once these vacancies are filled, it becomes almost impossible to serve an eviction notice.