There are 98 unfilled judgeships in federal courts nationwide out of 844 positions, a 12 percent vacancy rate. Twenty-three of those positions have been vacant for 18 months or more.
The ninth circuit court of appeals is the hardest hit. Nine of the 28 ninth circuit positions are vacant, one for three years. A tenth position is soon to be vacant, leaving the ninth circuit with the fewest number of sitting judges since 1980, yet its caseload has doubled since then.
Not only are vacant seats not being filled, but congress has not created any new appellate judgeships since 1990, and no new appellate judgeships for the ninth circuit since 1984.
The situation takes a toll on countless plaintiffs with civil cases, which are shelved while criminal cases that--by lawtake precedence at both the trial and appellate levels. The ninth circuit alone has been forced to cancel 600 hearings in the first half of 1997. One PLN reader says he has awaited a ninth circuit ruling on a simple motion for more than eleven months.
The problem stems from pure politics. U.S. senator Slade Gorton (R-WA) has played an embarrassing role in holding up the nomination to the ninth circuit of several Clinton appointees, while crusading for a radical expansion of the senate's role in screening white house nominees.
Some critics observe that Gorton has a personal vendetta with a "liberal" 9th circuit that in recent years has given environmentalists a series of high-profile victories on natural resources policies in the West, including last year when it canceled many of the Washington old-growth timber sales contained in the controversial salvage rider law -- a measure Gorton sponsored.
But the political foot-dragging by republicans in congress may be more forward looking than anything else. If Clinton and western democrats get to fill all 10 vacant seats on the ninth circuit, the court would be "stacked" 18 to 10 in favor of judges appointed by democratic presidents.
"Senator Gorton is looking at the potential Democratic domination of that court for a long, long time," said Arthur Hellman, a law professor at the University of Pittsburgh who follows the federal courts.
So rather than allow the dispensing of so-called liberal justice, Gorton and other republicans in congress would rather see the judiciary choked to the point where it can dispense little or no justice at all. Clinton's aversion to confrontation with congress over controversial nominees compounds the problem. Ironically, the majority of Clinton's nominees have been characterized by court watchers as "fairly moderate."
In the first four months of the 105th congress, which convened January 7, 1997, the senate voted on only two judges, confirming both. Twenty-five judges nominated by Clinton in the past two years remain pending senate approval.
LA Times, Seattle Times
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