Nominees to federal bench may be political hostages

0 Comments | Insight on the News, Sept 4, 1995 | by Lisa Leiter

With a Republican-controlled Congress and a presidentialelection year only a few months away, the Senate may not confirm as many of President Clinton's nominees to the federal bench as it has during the past two years.

In 1992, then-Senate Judiciary Committee Chairman Joseph Biden, a Delaware Democrat, left 55 of President Bush's nominees to the federal bench swinging in the wind without a hearing, effectively blocking their appointments until such time as a Democratic president could choose his own candidates for the lifetime posts. Depending upon Clinton's reelection prospects, Republican senators could force the current chairman, Orrin Hatch of Utah, to adopt the same tactic. "Those 55 names burn in the minds of Republicans," says a GOP staffer.

Without pressure from senior senators, however, Hatch probably will continue his once-a-month schedule of confirmation hearings, says Thomas Jipping, director of the Judicial Selection Monitoring Project at the conservative Free Congress Foundation in Washington. "His general disposition is one of cooperation, and only in extreme cases will there be opposition," Jipping predicts. "I would hope that the Republican leadership -- who has been very cooperative in the majority and in the minority -- would resist the purely partisan call to ram judges through."

That worries Deborah Lewis, legislative counsel for the Alliance for Justice, a liberal public-interest group. She says the president has made great strides in filling the many vacancies he inherited two years ago. But she is concerned that the Republican-controlled Congress could dim prospects for Clinton's upcoming judicial nominees in an election year. "I think that Clinton is appointing well-qualified, diverse and strong judges," Lewis says. "Our concern for the future is that the Senate will slow down the pace of confirmations."

Currently, 21 of Clinton's nominees are pending before the Senate Judiciary Committee. Before leaving for August recess, 11 nominees approved by the Judiciary Committee were confirmed on the Senate floor by a unanimous-consent vote.

Clinton is expected to nominate Merrick Garland, chief aide to U.S. Deputy Attorney General Jamie Gorelick, to the important U.S. Circuit Court of Appeals for the District of Columbia. Earlier this year, the president floated the name of Peter Edelman, a Department of Health and Human Services attorney and husband of Hillary Rodham Clinton's close friend Marian Wright Edelman, as a possible appealscourt nominee. When GOP senators shook their heads in disapproval, Clinton tried to keep Edelman's potential nomination alive by shifting Garland to the appeals court and considering Edelman for a D.C. district-court appointment. Typically, senators recommend to the president possible district-court nominees; but in this case there were obviously no senators from the District of Columbia to approve or disapprove of the selection.

Jipping expects the Senate to oppose Edelman. However, he says some senators may be more compliant now that he is being considered for the less-influential trial-court appointment. "If his activist philosophy makes him inappropriate for one life-term judicial post, then it certainly doesn't make him more appropriate for another," Jipping continues.

Only two of Clinton's nominees were controversial enough for a roll-call vote in the Senate. Rosemary Barkett, the first female chief justice of the Florida Supreme Court, was confirmed to the federal appellate bench in 1994 despite charges from conservatives that she was soft on crime and opposed to the death penalty. H. Lee Sarokin, a former district-court judge in New Jersey, also survived criticism that branded him a liberal activist and was confirmed to the appeals court in 1994.

Clinton has appointed 155 judges to the federal bench -- almost as many as President Bush named in his entire four-year term. He got off to a slow start, with only 48 judges confirmed in 1993; but, in 1994, 101 were confirmed, the highest number in a single year since 1979. He has selected more women and minorities for the federal courts than any other president. But his appointees fill only 18 percent of the seats on the federal bench, while judges appointed by Bush and Ronald Reagan sit in more than half of the occupied seats.

The federal bench currently has 52 vacancies, many of which are deemed judicial emergencies -- those seats remaining open for more than 18 months. The courts suffer from heavy caseloads as a result of these vacancies, Lewis says. "It's not good to have any and it is really felt by the judges and their workload," she explains. "There is so much work that the system can't function with too many vacancies." A GOP Senate staffer predicts that if Hatch continues to confirm judges at the current pace there should only be about a dozen vacancies in the federal courts by the end of the year.