[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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