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“I have always been persuaded, that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important, that the judicial system should not only be independent in its operations, but as perfect as possible in its formation.”
– President George Washington, in a letter to the nation’s first chief justice, John Jay, during the U.S. Supreme Court’s first term

In the closed chambers of overworked federal trial and appellate judges, it is too often freshly minted J.D.s and law students who actually author the opinions of the court. Chronic judicial vacancy rates, resulting from an ever-escalating game of judicial confirmation hardball, have created a “shadow judiciary” of clerks, law student externs, and even undergraduate interns being given unprecedented authority to write the law of the land. Perhaps even more disturbing than reliance on one-year-termed “elbow” clerks and interns is the increased use of “permanent” law clerks in the shadow judiciary. In addition to predetermining decisions for the judge and writing the court’s opinion, some permanent clerks serve for years in one chambers, “presiding” over hearings and pretrial and settlement conferences. Early reliance on these too-eager law clerks by a newly benched jurist retards the overworked judge’s development of his own judicial voice and, in some cases, his very competence. The late, great 2nd U.S. Circuit Court of Appeals Judge Learned Hand often described his clerks as his cherished “puny” judges, but he was adamant that they would never be allowed to draft, much less author, even one of his opinions. In times of gridlock, there are few such actual authors on the bench — very few. Seventh Circuit Chief Judge Richard Posner has admitted that a “judge-written” opinion is now a rare occurrence in America. The high rate of judicial vacancies and judicial default threatens judicial integrity and independence, as overworked federal judges continue to take shortcuts and institute various case-management coping mechanisms. As of mid-September, there were 107 vacancies on our combined federal trial and appellate bench of 852 active jurists. A score more have announced retirements. With 12 percent of the national judgeships vacant, 40 of the vacancies have been declared judicial emergencies by the U.S. Judicial Conference. Federal court caseloads continue to grow at a record pace, with more federal criminal prosecution filings than at any time since Prohibition. Southwest border jurisdictions face an especially massive increase in cases. “The border courts are beyond their capacity to handle their caseloads,” Judge Royal Furgeson of Texas testified to the House Judiciary subcommittee on crime earlier this year. He expressed the untold feeling of many federal judges across the nation: “We are desperately outmanned.” In addition to law clerk jurisprudence, federal appellate judges cope with case overload by substantially reducing the percentage of important cases in which oral argument is granted, and by limiting the number of written and published opinions. “Visiting” district court judges, who were not nominated by the president or confirmed by the Senate for appellate court power, frequent circuit court panels. Senior judges, some in their 80s, are literally being used as benchwarmers to make up panels of three. Too often, the appellate panel has only one active appellate judge. Worse still, circuit judges are increasingly relying on unknown institutional “staff attorneys,” who are given authority to assign weight to cases, recommend disposition through summary fashion, and author dismissive orders. At the trial level, vacancies and resulting case gridlock result in an overreliance on the “subjudiciary” of magistrates who now, tellingly, are formally referred to as “magistrate-judges.” No longer relegated just to discovery, jury selection, and warrant determinations, these nonappointed judicial employees preside over a significant percentage of both civil and criminal trials. In some jurisdictions, such as the Northern District of California, civil litigants have an affirmative obligation to say “no thanks” to the magistrate who is automatically assigned to conduct trials and who will, in any event, oversee discovery. And all of this is on the verge of worsening — if an obstructionist Senate decides to step up its opposition to the president’s judicial nominees. Putting aside the cost to judicial independence and integrity, the human cost of the coming confirmation fights will be borne by litigants who already must wait years for federal court time due to overloaded federal judicial dockets. Only the criminally accused are guaranteed a speedy trial and timely appeal in America. Civil litigants always go to the back of the courthouse queue. Individual Americans with important civil rights, employment, bankruptcy, Social Security, and constitutional cases must wait for years for resolution. Some elderly Americans literally die while waiting for their day in court. With 107 empty judgeships, fewer than 750 active federal judges must conduct the national justice business of 275 million residents. This past year, more than 320,194 cases were filed in federal district courts, more than 54,600 in the courts of appeals, and more than 1,300,000 in the bankruptcy courts. Does prolonged judicial docket gridlock similarly threaten our still struggling economy? George W. Bush returned from Crawford, Texas, in August to face some serious opposition. As a result of late summer procedural maneuvers in the Senate, each of his administration’s 164 nominees unconfirmed for executive and judicial positions were formally sent back to the White House. Each nomination made prior to the Labor Day recess was effectively canceled. Seven months into his presidency, Bush is almost back at square one, with only four judges having been confirmed. (And one of the four was the confirmation of a renominated, recess-appointed Clinton Democrat.) Like it or not, Bush, the White House Counsel’s Office, and Justice Department operatives better go into training for a full fall schedule of appointment hardball. For trial judge nominees, it will be a prolonged waiting game; for circuit benches it will be a closed-room trading game; and for the U.S. Supreme Court vacancies, it will be raw, unchecked blood sport. Just hours after Vermont’s Jim Jeffords announced his defection from the GOP, New Jersey Democrat Robert Torricelli boasted: “This isn’t about a single Senate seat … it’s about the federal judiciary.” Torricelli is right. For the partisan faithful on both sides of the aisle, the 2000 election debate continues. And, after Bush v. Gore, more than ever, it’s about the judges. Evidence the call by Yale Law School’s Bruce Ackerman (and others of the Clinton-Gore regular gang of 400 Democrat law profs) for a judicial appointment moratorium until “the American people vote again in 2004.” Some Democrats promise direct payback, not only for the Florida recount ruling but also for years of Republican confirmation delay tactics during the Clinton administration. Senate Republicans were responsible for prolonged delays of select nominees. Senate Judiciary chair Orrin Hatch focused intense concern on certain Utah-based and 10th Circuit nominees. Although only one Clinton judicial nominee was actually voted down by the Senate, many were subject to months of undue delay. Some literally waited years before receiving a hearing or full Senate vote. In the end, Clinton benched 377 judges, compared to Ronald Reagan’s 382. Clinton’s two choices for the high court won easy confirmation with the help of an overwhelming number of Republican senators’ votes. Even taking account of an increase in the number of benches to fill, Clinton still got his fair share of confirmations. In hindsight, considering the troubles faced by the Reno Justice Department and the rapid burn rate of his White House counsel, Bill Clinton was quite a successful judge-bencher. George W. should do as well. Although Vermont Democrat Patrick Leahy, the new Senate Judiciary chairman, has promised quick action to fill vacancies, some evidence is contradictory. Only four judges out of 44 nominees had been commissioned before summer recess, and Leahy’s late August confirmation hearings were conducted in an unusual fashion — just one nominee at a time. (Leahy may have held the two hearings during the Senate recess to buffer against recess appointments coming from Bush.) Perhaps the measure of “deliberate speed” still depends on whose ox is being gored. In 1998, when there were 83 empty judgeships and Clinton nominations at stake, Sen. Leahy asserted that, unless at least three judges were confirmed each week, “the Senate [would be] failing to address the vacancy crisis.” Now Democratic judiciary member Charles Schumer of New York openly proclaims an ideological litmus test for Bush nominees and demands full ABA evaluations. But who can hold the Senate accountable for a slow ABA process? Bush countered with the so-called California plan, under which Democrat and Republican lawyer committees propose and evaluate trial court nominees. Under this plan, support is elicited from the diverse practicing bar, rather than from a more elite sector of the profession, as is the case with the ABA Standing Committee on Federal Judiciary. For now, the Bush strategy appears to be to keep the pipeline full of judicial nominees, with special emphasis on specific federal appellate circuits. By targeting circuits for which two or three Republican appointments would be determinative of the en banc bench, the Bush administration can set up intercircuit conflicts for which the U.S. Supreme Court will be the last word. Any vacancy on the high court in the coming term, of course, will mobilize all interested parties to join the battle. Perhaps George W. Bush can trade away a few lower court judges to the Democrats, but no David Souter need apply for the high court. Before repeating his father’s mistake and losing the conservative reelection base with another Souter, Bush should consider the alternative, but controversial, recess appointment process that brought Earl Warren, William Brennan, and Thurgood Marshall to the bench without Senate confirmation. For years, both Republicans and Democrats have misrepresented not only established appointment practice, but also the U.S. Constitution itself regarding appointments. Legitimate “advice and consent” authority by the Senate as an institution has been distorted to demand individual senatorial “choice” of judicial nominees. Senators expect the “courtesy” to choose the president’s lower court judges for national court vacancies that occur in their states, while honoring each other’s “blue-slip” holds on nominations. (Surprisingly, while Bush was in Texas, his White House counsel and judiciary chair, Leahy, extended the privilege of “senatorial courtesy” and blue-slipping to D.C. delegate Eleanor Holmes Norton.) The text and history of Article II, Section 2, are at odds with such senatorial (or quasi-delegate) choice. The Constitution’s Framers explicitly rejected congressional selection of judges. Delegate Edmund Randolph warned the 1787 Constitutional Convention that appointments made by legislative bodies result from “cabal, from personal regard, or some other consideration than … proper qualifications.” Alexander Hamilton described the Senate’s limited appointment function in “Federalist No. 66″: “There will be no exertion of choice on the part of the Senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice of the President.” In “Federalist No. 76,” Hamilton further explained that although the president is given the “sole and undivided responsibility” to select appointees, “the Senate, in contrast, is given the limited power of either accepting or rejecting the President’s choice.” Senate Democrats should honor the organizational agreement, hammered out midyear with the Republican minority, and guarantee swift hearings and certain full Senate votes on nominees. The legitimate textual charge of “advice and consent” ultimately must be understood as to “ratify or reject” the president’s choices. A break in the deadlock is being demanded by left and right. In a recent Washington Post op-ed, academic Sheldon Goldman warned of a genuine “judicial-confirmation crisis,” stating that “obstruct and delay has replaced advise and consent.” While sympathizing with the Democrats’ fear of “stacking the bench with right-wing ideologues incapable of administering justice fairly and impartially and threatening fundamental individual rights,” Goldman advocates immediate Senate confirmation reform. Suggested reforms include elimination of “blue-slip” holds, scheduling of regular hearings, and guaranteed speedy, full Senate votes. “When Republicans obstructed and delayed the confirmation of President Clinton’s nominees, it clearly was wrong,” wrote Goldman. “It would be equally wrong for Democrats to reciprocate no matter how justified it might seem.” Regardless of reform preferences or ideological biases, however, the consequences of continued confirmation gridlock are unacceptable. It’s no rush to judgment to ensure that federal justice is not delayed. Victor Williams teaches at Catholic University’s School of Law in Washington, D.C., where he is also director of the Lawyering Skills Program.

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