[Congressional Record Volume 144, Number 9 (Tuesday, February 10, 1998)]
[Senate]
[Pages S547-S549]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL VACANCIES

  Mr. GRASSLEY. Mr. President, lately, there has been a lot of talk 
about Chief Justice Rehnquist's ``Year End Report on the Federal 
Judiciary.'' As chairman of the Sucommittee on Administrative Oversight 
and the Courts, I have an added interest in what the Chief Justice has 
to say. According to some, the Chief Justice's report indicates that 
the federal judiciary suffers from a partisan produced ``vacancy 
crisis.'' Indeed, some critics have gone so far as to feverishly 
conclude that the Senate's Constitutionally mandated confirmation 
process has become an ``obstruction of justice.'' Caught up in this 
frenzy, some Democrats have come to the Senate Floor blaming many, if 
not all, of the judiciary's problems on vacancies. Vacancies, however, 
are not the source of the problem.
  Despite assertions to the contrary, the Chief Justice could not have 
been more clear on this point: Vacancies are the consequence of what he 
perceives to be an overburdened judiciary. In fact, the Chief Justice 
pointed out that it is the judiciary's increased size and expanded 
jurisdiction that is the major threat to justice in the United States. 
In his Report, Chief Justice Rehnquist warned that the federal 
judiciary had become ``so large'' that it was losing ``its traditional 
character as a distinctive judicial forum of limited jurisdiction.''
  Mr. President, in addition to what the Chief Justice said about the 
size of the judiciary has become ``so large'' that it was losing ``its 
traditional character as a distinctive judicial forum of limited 
jurisdiction,'' I ask unanimous consent to have printed in the Record 
an article by Chief Judge Harvie Wilkinson III of our Circuit Court of 
Appeals entitled ``We Don't Need More Federal Judges.''
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, Feb. 9, 1998]

                   We Don't Need More Federal Judges

                      (By J. Harvie Wilkinson III)

       The tune is so familiar that most federal court watchers 
     can whistle it in their sleep. Add more and more judges to 
     the federal bench, goes the refrain, and all will be well.
       Well, Congress has been adding judges for years now, and 
     somehow each new addition never seems to be enough. The trend 
     has been dramatic. At midcentury, the number of authorized 
     federal judgeships stood at approximately 280. Today, the 
     number of authorized judgeships is 846. And the process shows 
     no signs of abating. The Judicial Conference of the U.S. has 
     asked Congress for 17 additional judgeships for the 13 
     circuits on the U.S. Court of Appeals--12 permanent 
     judgeships and five ``temporaries.'' Under the conference's 
     proposal, the Ninth Circuit alone would increase to 37 
     judgeships from the already unwieldy 28.
       The federal judiciary is caught in a spiral of expansion 
     that must stop. With growth in judgeships comes growth in 
     federal jurisdiction. And with the expansion of federal 
     jurisdiction comes the need for additional federal judges to 
     keep pace. Whether the growth in judges precedes the growth 
     in jurisdiction or vice versa is anybody's guess. The one 
     follows the other as the night follows the day.
       The process of growth has not been a carefully examined 
     one. Rather, it is fueled by a mechanical formula that 
     presupposes that every increase in case filings must be met 
     not with judicial efficiencies or jurisdictional restrictions 
     but with additional battalions of judges. The Judicial 
     Conference has come up with a benchmark of 500 filings per 
     three-judge panel for requesting an additional judgeship on 
     the appellate courts.
       Nobody knows precisely what is the basis for the 500 figure 
     except that it is a nice round number; not so long ago the 
     magic unit was 255. While the figure is intended to be used 
     in conjunction with other assessments, it remains the major 
     factor and the one on which a request for additional 
     judgeships is presumptively justified.
       To be sure, there are some hard-pressed courts where the 
     workload makes it imperative that new judges come on board. 
     But adding judges to the federal courts is no long-range 
     answer. In fact, the consequences of this silent revolution 
     in the size of the judiciary could not be more serious.
       Growth in the federal judiciary has three main costs. The 
     first is that of simple inefficiency. Large circuit courts of 
     appeals present problems that small ones don't have. There 
     are more internal conflicts in circuit law. These must be 
     resolved by more en banc hearings of the full court. If the 
     en banc court consists, for example, of 20 judges as opposed 
     to 12 it takes twice the time even to get the decision out. 
     Judges on a large court

[[Page S548]]

     must also spend more time simply keeping abreast of the work 
     of other panels--time that cannot be spent resolving their 
     own cases.
       The second cost is that of litigiousness. With a smaller 
     court of appeals, the possible panel combinations of three 
     judges are less numerous and the law is more coherent. Legal 
     principles are discernible and judicial outcomes are 
     predictable. As a court grows, so do the possible panel 
     combinations, and the law becomes fuzzier and less distinct. 
     Litigation takes on the properties of a game of chance and 
     litigants are encouraged to come to court for their roll of 
     the dice. When legal outcomes are uncertain, cases are 
     brought for their settlement value and parties lack clear 
     guideposts for their conduct out of court.
       The third cost of judicial growth is that of intrusiveness. 
     The number of life-tenured federal judges now exceeds the 
     membership of Congress. The outpouring of federal law from 
     this expanding establishment touches every local issue and 
     affects every public official. Local disputes are tossed into 
     federal court on the assumption that there will always be 
     plenty of federal judges around to resolve them. In the end, 
     unrestricted growth in the federal judiciary threatens to 
     upset the federal-state balance just as much as uncontrolled 
     growth in the federal budget would. With more federal judges 
     will come more federal rulings, and with more federal rulings 
     will come more opportunities for federal judicial 
     intervention into even the smallest of controversies in our 
     classrooms, our workplaces, our prisons, our zoning boards, 
     our city council chambers and the like.
       Congress must preserve an independent judiciary without 
     sanctioning an intrusive one. It can strike this balance by 
     imposing a ceiling on judicial growth and setting limits 
     beyond which the size of the federal judiciary may not 
     expand. A numerical cap would strike a historical blow for 
     limited government. But it would have other advantages also. 
     It would allow each party to fill judicial vacancies but only 
     up to the point of the numerical limit. A cap would force 
     Congress to think about what is, and what is not, the proper 
     business of the federal courts.
       As for the judiciary, a cap would force courts to adopt 
     innovative management techniques. In the Fourth Circuit, we 
     have established a sophisticated tracking system that 
     requires straightforward appeals to be resolved promptly and 
     inexpensively. This step would not have been taken if we had 
     assumed that the addition of new judges was the solution to 
     our problems.
       The alternative to a cap is a federal judiciary that, at 
     the current pace of growth, will number more than 2,000 well 
     before the middle of the next century. Judge Jon Newman, a 
     Carter appointee to the Second Circuit, and Judge Robert 
     Parker, a Clinton appointee to the Fifth Circuit, have spoken 
     eloquently of the threat that judicial growth poses to the 
     collegial functioning of appellate courts, to the stability 
     of legal precedent and to the historic regional 
     characteristics of the federal judicial system. Indeed, if 
     the courts of appeals become much larger, the temptation will 
     be to break them up into smaller and more parochial units. 
     With this development, we shall have surrendered a national 
     and regional perspective on American law.
       I have heard it said that those who favor a cap on growth 
     are nothing more than elitists supporting a small and 
     exclusive club. The truth is just the opposite. The real 
     elitists are those who would deprive the American people of 
     the right to determine their own destiny and would lodge 
     their collective fate in an overgrown federal judicial 
     establishment. Federal courts play an important role in the 
     protection of a uniform law and our fundamental liberties. 
     But with unrestricted growth it will become an all-important 
     role. I cannot imagine a more unhealthy development for our 
     society.

  Mr. GRASSLEY. Mr. President, in order to reverse this trend, the 
report resoundly concluded that Congress needed to reduce the 
jurisdiction of the federal courts.
  In the last Congress, the Republican leadership wisely pushed for 
measures designed to reduce the federal workload. Both the 
Antiterrorism and Effective Death Penalty Act and the Prison Litigation 
Reform Act ``streamlined'' procedures so as to decrease the number of 
potential federal court filings. These measures were praised by the 
Chief Justice as ``promising examples of how Congress can reduce the 
disparity between resources and workload in the federal judiciary 
without endangering its distinctive character.''
  Similarly, a bill I sponsored, The Federal Courts Improvement Act of 
1996, included a provision that raised the threshold for diversity 
jurisdiction cases. It's estimated this provision alone reduced the 
federal workload by as many as 10,000 filings per year.
  In addition to what had been a continually expanding jurisdiction, 
the judiciary's increasing case filings was also a result, in large 
measure, from the policies and practices of the current Administration. 
Over the last year, the Executive Branch alone increased its number of 
civil filings by 23%. This increase, in addition to the increase 
resulting from expanded federal jurisdiction, accounted for the total 
overall increase in the number of civil filings in 1997.
  The policies and practices of the President have also crippled the 
criminal justice system. President Clinton has yet to present even a 
single nominee to fill the six vacancies on the seven seat Sentencing 
Commission. As a result, the Commission is ``seriously hindered'' in 
pursuing its important statutory functions, making it more likely that 
criminals may ``beat the system.''
  The Ninth Circuit probably suffers the most from President Clinton's 
indifference to the judiciary's plight. The President sent up only six 
nominees to fill 10 vacant seats on the Ninth Circuit. One nominee has 
already withdrawn from consideration, leaving only four nominees to 
fill over one-third of the Circuit's total seats. To our credit, the 
Senate also just confirmed one of these nominees to this court a few 
days ago who had only been pending for a few months. Having solid 
qualifications and bi-partisan support, the Senate confirmation of 
Barry Silverman illustrates what we Republicans have long maintained. 
Whenever nominees can demonstrate that they follow the law as stated by 
the Constitution or enacted by Congress, rather than making up laws as 
they see fit, the Senate is prepared to expedite their nominations.
  By the latest count, there are around 83 vacant seats on the federal 
judiciary. When Democratic Senators controlled the confirmation process 
in 1991 and 1992, there were 148 and 118 vacancies respectively. Why 
wasn't the other side talking about a judicial crisis then? No one 
blamed the shortcomings of the judiciary on vacancies then, but now 
that Republicans control the confirmation process, 83 vacancies have 
all of a sudden become a ``judicial crisis.'' Taking into consideration 
the fact that there are 42 more judges sitting on the bench today than 
five years ago, 83 vacancies is not such an ominous figure as some 
would have us believe.
  Today, the Senate is working hard to confirm qualified nominees, but 
remains hard-pressed to fill those 83 judgeships when President Clinton 
has so far made only 42 nominations, which is just slightly over half 
of the number needed. The difficulty is only exacerbated by the 
President's refusal to offer new candidates after his nominees have 
been properly rejected by the Senate.
  The case of a nominee from Texas provides an excellent example. Both 
Texas Senators steadfastly rejected his nomination. Traditionally, and 
under Senator Biden's former chairmanship, when even one Home State 
Senator disapproves of a nomination, the nomination is effectively 
rejected. President Clinton, however, continues to press for this 
flawed nominee, despite the fact that other more qualified nominees 
could immediately replace him.
  These examples illustrate how some are trying to manipulate the 
vacancy issue in order to steer the public away from the real problems 
facing the federal judiciary. Put simply, the Chief Justice believes 
the judiciary's expanded jurisdiction and consequent workload is too 
large and needs to be cut back. Why aren't the demagogues who keep 
repeating the Chief Justice's point about vacancies also talking about 
his points of reducing jurisdiction as well as the overall number of 
judges? It's simple. They are being selective, because they don't agree 
with the Chief Justice's major arguments. They want to continually 
expand federal jurisdiction, and continually expand the number of 
judges.
  I agree with the Chief Justice that we should attempt to process 
qualified nominees in a timely manner and then have a vote. Of course 
some of the nominees we have been getting are not qualified or are 
flawed in some way.
  But, at the same time, Congress should refrain from expanding the 
overall size of the federal judiciary. As chairman of the Subcommittee 
on Administrative Oversight and the Courts, I have been conducting a 
review of the nation's judgeship needs. I hope to have this review 
completed by this summer. Although it may be true that additional 
judges are needed in some areas, it is also the case that judgeships 
should be reduced or at least not filled in other jurisdictions.

[[Page S549]]

  A number of these 83 judgeships are not even needed. For instance, in 
the Judiciary Committee we have already made the case that the 12th 
seat in the D.C. Circuit should not be filled. We have had chief judges 
in other courts testify that they don't need seats in their courts 
filled. This further undermines the argument that there is some kind of 
a vacancy crisis. As a matter of fact, three of these vacant seats were 
created in 1990 and have never been filled. If they were so necessary, 
why didn't a Democrat-controlled Senate fill them in the four years it 
had to do it? I think the answer is self-explanatory, Mr. President. 
Those who charge that Republicans are practicing partisan politics 
against Clinton nominees are the same crowd that brought partisan 
politics to an art form against Reagan and Bush nominees.
  Mr. President, I intend to speak on this matter more as we continue 
to consider nominees and debate the issue of judicial vacancies 
further. I urge my colleagues on this side of the isle to do the same.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. KEMPTHORNE). Without objection, it is so 
ordered.

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