- The Washington Times - Monday, May 13, 2002

The federal judiciary is in dire need of emergency medical attention from the legislative branch but finds itself languishing in the waiting room with only vague hope that there is even a doctor on duty. The prognosis has become alarming. Current and projected vacancies on the federal bench have become so bad that they threaten to cripple the federal court system due to the burgeoning mountain of case backlogs and the failure of the U.S. Senate to rapidly move judge nominees through the confirmation process.
Some judicial circuits are, in fact, considered to now be operating at crisis vacancy levels. As many Americans know, Democratic members of the Senate Judiciary Committee recently refused to give the president's nominee for a critical vacancy on the U.S. Court of Appeals for the Fifth Circuit the opportunity of a confirmation vote on the floor of the Senate. That sad event was, of course, the much-publicized political drubbing of Judge Charles W. Pickering.
Judge Pickering, a well-qualified federal district court judge, almost certainly would have been confirmed if the Senate had been allowed to cast its vote. But what many Americans may not know is that of the 30 nominations submitted thus far by the president to fill vacant circuit court seats, 18 have received no attention by the Senate, whatsoever. Many of these critical nominations have been hanging in a sort of nomination limbo for almost a year. Eight of these circuit court nominees reached their one-year anniversary of being ignored this week.
There are presently 84 vacancies on the federal bench, 29 at the circuit court level. In the Sixth Circuit, which comprises Michigan, Ohio, Kentucky and Tennessee, half of the appellate court seats are empty, leaving only eight judges to carry the load of 16. The problem has gotten so bad that many of the vacant seats on the federal bench have been designated by the Administrative Office of U.S. Courts as judicial emergencies, meaning that literally hundreds, and in some cases, thousands of cases are stacking-up.
Seventeen of these caseload emergencies currently exist within the circuit courts of appeal. This is totally unacceptable in light of a burgeoning growth in case appeals for the fifth successive year in a row. At the district court level, where there are 54 vacant seats, 20 of those judgeships have been declared to be judicial emergencies. The caseload is particularly heavy for district courts in states along the U.S. border with Mexico, where border courts handle a caseload that is quadruple the average for the rest of the nation.
Thousands of average Americans seek a functional system of justice, one that was promised to them under the U.S. Constitution. The old adage, justice delayed is justice denied, unfortunately, becomes very true as this situation worsens. Whether it concerns a criminal case or a civil case, a victim or the wrongfully accused, the needless delay of justice can be as punishing and as painful to individual Americans as the alleged wrongful act itself.
The reality we face is that criminal appeals, civil appeals and administrative-agency appeals are up. Yet, despite a growing backlog of appellate cases, we have the largest number of vacancies on the circuit court since 1979. Many of the administrative appeals that come to circuit courts from agencies like the Occupational Safety and Health Administration, the National Labor Relations Board, and the Immigration and Naturalization Service involve some of the most basic questions of civil rights, safety and individual freedom. According to the Administrative Office of the U.S. Courts, the number of appeals related to immigration laws alone has leaped an incredible 297 percent since 1997. In light of numerous post-September 11 actions taken by our government to revamp years of flawed immigration procedures and to establish new homeland security measures, we can only expect this trend to continue.
While this problem continues to fester, the Senate Judiciary Committee engages in a theatrical kabuki dance of excuses. The primary rationale for failing to move expeditiously on the president's nominations as hinted not so subtlety by Senator Patrick Leahy and other key Democratic members on the committee is that this controlled foot-dragging is in some way a justifiable partisan payback for like-treatment endured by the Democrats when the Republicans held sway. The other rationale, oft-propounded with passion, is that the committee will not rubber-stamp the president's nominees if deemed too conservative by the Democratic members of the committee.
In response to these two questionable arguments, I need make only two irrefutable points. First, the rate of Senate judicial confirmations speaks for itself. The Senate Judiciary Committee can only boast an unimpressive 30 percent confirmation rate for the total number of circuit court nominations submitted thus far by the president. Compare this to an 86 percent confirmation rate for the first two years of the Clinton administration. Second point, is the fact that the Judiciary Committee has failed to hold hearings for 18 of the 21 total circuit-court nominees now pending before the committee.
Ultimately, any senator may come to any conclusion that they please, about any nominee, and so cast their vote. But it is exceedingly disingenuous for a block of partisan committee members to essentially deem the president's nominees unacceptable as a group, without ever providing them the opportunity to be heard and voted on by the full Senate. The Constitution demands nothing less.
This is a process that should work. And as someone who loves this institution, I am deeply saddened and embarrassed to witness this spectacle of partisanship grip the Senate in paralysis. Unfortunately, I am now seeing it with greater frequency organized stonewalling, character assassination, intolerance of differing perspectives and the subversion of long-standing conventions of process.
We have a vacancy crisis in our federal courts. It simply goes far beyond negligence to deliberately slow-roll the president's nominees. What the Democrats forget is that if left unattended, this vacancy crisis will grow and eventually reveal the true impact of that neglect on the American people. It will have a human face, and it will have consequences. This is not the time for inane retaliatory antics. The Democrats have control over the Senate and the power to correct this problem. It's time to stop the blame games and get the job done.

Sen. Don Nickles, a Republican from Oklahoma, is the assistant Republican leader.


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