Judge shortage: a multi-layered problem

Experts want to increase the size of the bench, not just cut backlog ofnominees.

If only, goes the conventional wisdom, if only the Senate would move faster to approve appointments to the federal bench, then there'd be enough judges to save a judicial system awash in a rising tide of cases.

But the workload crisis facing the nation's federal courts is only partly due to the backlog of nominees in the Senate. The problem, say judicial experts, is much bigger, involving the size and purpose of the court system itself.

"We need to look at the entire system," says Lawrence Dessem, dean of Mercer School of Law in Macon, Ga. "You can't put 40 pounds of potatoes in a 20-pound sack. The bottom will fall out."

One starting place is the overall number of federal judges. It's been nine years since Congress last increased federal judgeships - breaking with a 40-year tradition of raising the number of men and women on the bench, on average, every three or four years.

The US courts in May recommended adding 69 new federal judgeships, but US lawmakers are unlikely to act on this for the remainder of the Clinton administration. Indeed, a bill calling for 72 new judgeships, introduced by Sen. Patrick Leahy (D) of Vermont, is going nowhere.

That's because everyone is focused on the immediate battle, filling the existing 65 vacancies in federal courts. With only 17 nominees confirmed this year, and 48 still pending in the Senate, "we're working like crazy to get judges who are up there confirmed," says Nan Aron, president of Alliance for Justice, which is pushing the president's nominees.

Similar political goals are key

Traditionally, the Senate holds back on confirming nominees if they are put forward by an opposition president and it's close to election time. The senators' hope is for a change of party at the White House, and thus, nominees who are more to the ideological liking of the party controlling the Senate.

But outsiders are perplexed by the nominee bottleneck, because the presidential election is more than a year away and because President Clinton has nominated mostly moderate judges. (That's not to say, though, that his picks aren't controversial. He recently nominated James Lyons, who wrote a high-profile report clearing the Clintons of any wrongdoing in Whitewater, to a spot on the 10th Circuit Court of Appeals.)

Given that the Senate and the White House are at loggerheads over unfilled vacancies, "it's really more difficult, nay, impossible," to sell the Senate on adding even more judges to the fold, says Elliot Slotnick, professor of political science at the graduate school of Ohio State University in Columbus.

But observers like Mr. Slotnick say it's high time to increase the number of judges. The rising caseload demands it.

Since 1991, the number of criminal-case filings has increased 25 percent, civil filings by 21 percent. As of June 30, there were more than 19,000 civil cases pending three years or longer in federal-district courts.

Even courts that are fully staffed, such as the middle-district court in Florida, are contending with significant backlogs.

Apart from adding judges, one way to ease the workload is to stem the flow of cases into the federal courts, say legal experts. Here, they point to Congress, which habitually federalizes crimes that are prosecutable in state courts.

When high-profile crimes capture the nation's attention, lawmakers feel compelled to respond by making the crimes federal offenses.

More than 40 percent of the federal-criminal provisions enacted since the Civil War have taken place in the last three decades, according to an American Bar Association task force. Just in the last session of Congress, there were more than 1,000 bills to turn local crimes into federal offenses.

The latest tries to federalize

Lawmakers' latest attempt at federalization is with class-action lawsuits. Recently, the House passed a bill that would require large, class-action lawsuits to be filed in federal, not state, courts under the assumption that federal judges would be less sympathetic to the plaintiffs. A similar bill has bipartisan support in the Senate.

But aides are advising the president to veto. And the policy group representing the federal courts, headed by Chief Justice William Rehnquist, is also opposed, arguing the bills strip the states of their jurisdiction and would burden the already-overcrowded federal courts.

Legal experts, however, caution about both increasing the numbers of judges and relying on Congress to stem the federalization tide.

"A good many people believe you can expand the federal judiciary and solve workload problems. That's an unhealthy solution," says James Strazzella, professor at Temple University School of Law in Philadelphia.

Warnings of inconsistency

Mr. Strazzella, who served on the ABA task force, warns that too many judges will lead to inconsistency in the application of federal law.

At the same time, he recognizes the political pressures on lawmakers to respond to highly visible crimes.

Still, he urges Congress to "be alert to the adverse consequences of federalizing crimes. It's not cost free."

(c) Copyright 1999. The Christian Science Publishing Society

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