A Strategy for the Courts

The chief justice of the United States, William Rehnquist, is among those who warn that the inexcusably high number of vacancies on the federal bench threatens the ability of the courts to administer justice fairly and promptly. The sobering numbers show what he is talking about. About one seat out of every nine on the federal bench is now vacant. Close to one-third of the 97 judicial chairs in the U.S. 9th Circuit, which covers California and eight other western states, are empty. There is no judge for about 20% of the 55 federal trial courts in California. The pattern holds nationally. Tens of thousands of plaintiffs and victims are thus being denied their day in court.

President Clinton blames the Senate Republican leadership and the Judiciary Committee for the problem. By refusing even to schedule hearings on most of his nominees, the committee has assured that vacancies will remain and the backlog of cases will swell. Senate Republicans defend their inaction by saying it is their responsibility to keep “judicial activists” off the bench. But denying nominees hearings is hardly a responsible way to determine who might be deemed an activist or, indeed, just what that apparently dreaded condition involves. At the same time Clinton has been far from blameless in this vacancy crisis. He has been dilatory in nominating judges, and his administration is not known for spending a lot of political capital to fight for those who have been nominated.

As Rehnquist suggests, the public and the justice system are the losers in all this. What can be done? Writing in these pages a few days ago, Neal Kumar Katyal, a professor of law at Georgetown University, offered one answer. Article II, Section 2, of the Constitution says “the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their sessions.” In other words he can make interim appointments, something presidents from George Washington on have done about 300 times. He can even renew those appointments the next time the Senate recesses if it has not in the meantime acted to fill vacancies. The Senate is scheduled to recess the middle of next month. Clinton might want to start thinking about interim appointments.