Senate Must Move Quickly On Federal Judge Nominations

When the US Senate returned from its Fourth of July recess, it finally turned its attention to an important piece of business that had been left undone for too long. It began voting on some of the 23 nominees for appointment to the federal bench. The names of 17 of those nominees had been pending before the Senate since May 16, when the Senate Judiciary Committee approved the last of that group and sent their names to the floor. The Senate had confirmed no nominees since Jan. 2, when it confirmed three judges.

Upon the Senate's return, it agreed to vote on one nominee a day. By last week, it had voted on nine nominees altogether, but none for any of the regional courts of appeals. Because the Senate's agreement may break down, particularly when it considers nominees to the appellate courts, it should vote as soon as possible on the 14 nominees who were awaiting confirmation last week.

Why is it so important that the Senate act quickly? First, a number of the nominees are to fill judicial seats that have remained vacant for a considerable period, some as long as a year. In most courts, the appointment of new judges could help reduce backlogs of civil cases and expedite the resolution of criminal cases, which the Speedy Trial Act requires. Attorney General Janet Reno recently said, "Vacancies cause delays and - as victims, prosecutors, defendants, and civil litigants will all confirm - justice delayed is justice denied." Confirmation of the 14 nominees would fill one-quarter of the current vacancies in the federal judiciary.

Second, many of the nominees have been under consideration for a lengthy period of time, which can disrupt their professional careers and personal lives. Those lawyers who are willing to undergo the public scrutiny that attends nomination to the federal bench are entitled to a decision about their candidacies within a reasonable time. If we want the finest possible attorneys serving as federal judges, we must treat the nominees fairly and respectfully, lest other excellent candidates be discouraged from considering public service as federal judges.

When President Bush was running for re-election in 1992, the Democratic-controlled Senate confirmed more than 60 nominees, fully one-third of Bush's appointments and more than in any year of his term. In fairness, however, the Senate did not act on some 50 names Bush had submitted, and the president failed to nominate lawyers for all of the vacancies that existed.

DONALD MOLLOY, a highly respected practicing lawyer from Billings, Mont., confirmed last week by the Senate, is illustrative of the 14 attorneys awaiting a floor vote. I use Mr. Molloy as an example because I am familiar with his professional and personal qualifications and with the Montana Federal District Court, to which he has now been appointed.

President Clinton nominated Molloy to the Montana District in December 1995. Molloy had served as a member of the law review at the University of Montana School of Law and as a law clerk for US District Judge James Battin of the Montana District upon graduation. He enjoyed a two-decade-long career as one of the ablest attorneys in the state. He twice served as the chair of the Federal Practice Section of the Montana Bar, was a Montana Delegate to the Ninth Circuit, and has played a leadership role in numerous other bar and court committees.

THE Montana Federal District Court has traditionally avoided some of the caseload pressures that have plagued other urban districts. It has been well administered and is blessed with judicial resources that are proportionate to the complexity and volume of its caseload. Yet, three recent developments have significantly increased caseload pressures on the court.

First, Chief Judge Paul J. Hatfield assumed senior status last February after years of distinguished service. Second, the FBI's arrest in April of a suspect in the Unabomber bombings has preoccupied Judge Charles Lovell and the Helena Division of the district. Third, the legal trials and tribulations of the so-called "freemen" have absorbed many resources of the Billings Division in particular and of the Montana District in general.

Chief Judge Jack Shanstrom, for example, properly recused himself after the freemen publicly threatened him. Magistrate Judge Richard Anderson has heard most of the matters involving the freemen, which has taken time away from the numerous other duties he performs. These developments apparently have imposed greater pressure on Judges Shanstrom and Lovell, the only two active Article III judges in the Montana District, complicating their efforts to resolve civil and criminal cases. Additional judicial resources would be welcome.

And, again, let's not forget the professional and personal sacrifice asked of individuals whose nominations are pending. Molloy's practice consisted of many complex, expensive personal-injury cases. He had to agonize over whether to accept new clients, knowing that he would be unable to handle their cases to conclusion if the Senate confirmed him, and over whether to assign his cases to other attorneys.

This suggests the Senate should promptly schedule a vote on the 14 nominees for federal judgeships, most of whose nominations have been pending on the floor for two months. In fairness to the federal courts, the public, and the nominees, the Senate should expeditiously debate the candidates' strengths and weaknesses and then vote.

*Carl Tobias, a professor of law at the University of Montana, writes frequently on federal judicial selection.

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