Thursday, May 10, 2001

Vacancies weigh on appeals judges

If two nominees are confirmed, 6th Circuit still will have five vacancies

By Dan Horn
The Cincinnati Enquirer

        Every few months, Judge Boyce Martin Jr. pulls a list of names from his desk drawer, picks up the phone and starts calling for help.

        He talks to fellow judges from Florida to Oregon, searching for volunteers who will travel to Cincinnati to temporarily serve with him on the U.S. 6th Circuit Court of Appeals.

        “I'm willing to work hard,” Judge Martin tells prospective volunteers, “if you're willing to help me.”

        The court's chief judge needs help because he is running out of full-time judges to serve on a court that hears 4,000 cases a year, from death penalty appeals to civil rights disputes.

        In terms of power and prestige, the 6th Circuit ranks just below the U.S. Supreme Court. But by this summer, seven of the court's 16 seats will be vacant.

        President Bush nominated two Ohioans — Jeffrey S. Sutton and Deborah Cook — to the 6th Circuit on Wednesday. They were among 11 nominations made by the president, who urged the Senate to rapidly confirm his diverse, mostly conservative first slate of judicial candidates.

        The increasingly contentious process of confirming judges makes the nominees' future with the court far from certain.

        Fierce battles between Democrats and Republicans have held up so many appointments that nearly one-eighth of the nation's 850 federal judicial posts are now vacant.

        The delays mean the 6th Circuit — which covers Ohio, Michigan, Kentucky and Tennessee — must make do with a patchwork of retired and visiting judges.

        Judge Martin says cases that now take nearly two years to pass through the court could be handled in half that time with a few more full-time judges.

        “We are clearly short-handed,” he says. “We could put seven more judges to work tomorrow if they were to come.”

        But he is not counting on reinforcements any time soon.

Same story, different party
        A bureaucratic confirmation process and a nasty political climate have combined to delay or doom dozens of judicial appointments in recent years. Early indications are that little will change under a new president and a new Senate.

        Already, some Democrats and liberal groups are gearing up for a fight over President Bush's first nominees. Their stance is similar to that of Republicans who spent much of the past eight years opposing President Clinton's nominees.

        “There's no question the party whose president is in office is more anxious to get these vacancies filled,” says John Norwine, president of the Cincinnati Bar Association. “The issue comes down to politics.”

        Although partisan battles are on the rise, politics always has been part of the appointment process.

        The process begins with the president nominating a candidate to fill a vacancy. The nomination then moves to the Senate Judiciary Committee, which holds a hearing to determine whether the candidate is qualified for the job.

   The U.S. 6th Circuit Court of Appeals, based in Cincinnati, has 16 seats, but five of those are vacant. Another two seats will open this summer with the retirement of two more judges. The makeup of the court today:
   1. Chief Judge Boyce F. Martin Jr., joined court in 1979.
   2. Judge Danny J. Boggs, joined court in 1986.
   3. Judge Eugene E. Siler Jr., joined court in 1991.
   4. Judge Alice M. Batchelder, joined court in 1991.
   5. Judge Martha Craig Daughtrey, joined court in 1993.
   6. Judge Karen Nelson Moore, joined court in 1995.
   7. Judge R. Guy Cole Jr., joined court in 1995.
   8. Judge Eric L. Clay, joined court in 1997.
   9. Judge Ronald Lee Gilman, joined court in 1997.
   10. Judge Alan E. Norris (retiring this summer), joined court in 1986.
   11. Judge Richard F. Suhrheinrich (retiring this summer), joined court in 1990.
   12. Seat vacant since 1995.
   13. Seat vacant since 1999.
   14. Seat vacant since 1999.
   15. Seat vacant since 2000.
   16. Seat vacant since January.

        If the committee approves the nomination, it sends the candidate to the full Senate for a final vote on confirmation.

        Twenty years ago, this process typically took no more than nine months. Judge Martin, nominated by President Carter in 1979, was nominated in April and confirmed in September of the same year.

Appointments delayed
        Most candidates today need a lot more time to reach the Senate.

        The most dramatic example of a delayed appointment is the case of Helene White, an appellate judge from Michigan. She was nominated to the 6th Circuit by President Clinton in 1997 and was still waiting for a confirmation hearing when President Bush withdrew her name from consideration this year.

        Judge White's backers in the Senate never mustered enough support on the Republican-controlled Judiciary Committee to get her a hearing.

        “Things have become more politicized,” says Joseph Tomain, dean of the University of Cincinnati's law school. “And that has slowed things down considerably.”

        Nearly 100 of the nation's 850 federal judgeships are now vacant. In the 6th Circuit, the seat that was supposed to go to Judge White has remained open for nearly six years. Other seats have remained open for as long as two years.

        “Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice,” Supreme Court Chief Justice William Rehnquist wrote three years ago. He warned that vacancies contribute to a backlog of cases and long delays.

        Judge Martin says his frequent calls for help from outside the court have kept the 6th Circuit from falling behind. But he concedes that more judges could cut the time it takes a case to be decided from 21 months to 12 months.

        “Give me more judges immediately and we could drop it in a year,” Judge Martin says. “The public is not being served as well when there is delay.”

        Cincinnati lawyer Robert Laufman says delays make the legal system less efficient and more expensive. He says a recent civil rights case he filed in U.S. District Court was delayed for two years and nine months while an appeal made its way through the 6th Circuit.

        Mr. Laufman says the delay in his case, a lawsuit involving a suburban police department, cost his clients another 100 hours in legal bills. It also added to their emotional strain by forcing them to deal with the case for an extra two years.

        “The longer a case drags on,” Mr. Laufman says, “the more time and money you spend on it.”

A growing problem
        Some question how long the court can continue to rely on temporary help to hear its cases. The judges who come to Cincinnati must be housed at taxpayer expense, and must leave behind their own work in their home courts.

        “There is a ripple effect,” Mr. Norwine says. “There's a problem in the court, and it's going to grow in significance if we don't get the vacancies filled.”

        The slowdown in judicial appointments began in the late 1980s, around the time Democrats killed President Reagan's Supreme Court nomination of Robert Bork.

        Although ugly political fights cropped up from time to time, the contentious Bork hearing galvanized partisan forces. Since then, Democrats and Republicans have repeatedly accused each other of putting ideology ahead of quality when reviewing judicial nominees.

        “I don't think there's any doubt these have become much more ideologically driven,” says Ohio Sen. Mike DeWine, a Republican member of the judiciary committee. “The nominations are seen by more and more groups as being ideological warfare.”

        He defended the Republican record on judicial nominations, arguing that the Republican-controlled Senate confirmed about as many nominees as the last Democrat-controlled Senate.

        Democrats, however, blame Republicans for creating a “litmus test” that bases approval on specific issues, such as states' rights or school prayer. Republicans blame Democrats for doing the same on issues such as abortion.

        “There's more of the element of payback now: "If you don't confirm mine, I won't confirm yours,'” Mr. Norwine says.

Carrying the load
        As the political wrangling continues, Judge Martin keeps making phone calls seeking volunteers to serve on the 6th Circuit.

        A regular volunteer is Judge Nathaniel Jones, a veteran of the court who retired to senior status four years ago. Normally, a senior judge hears about 120 cases a year. Judge Jones hears about 400, almost as many as a full-time judge.

        He says he sometimes wonders how his nomination would fare in the Senate today. The judge, a Carter nominee in 1979, was and still is considered a strong liberal.

        “I was considered a controversial appointment,” Judge Jones says. But that didn't stop his confirmation from sailing through the Senate in less than five months.

        The judge says several committee members disagreed with his views, but they never made that disagreement an issue. They looked at his qualifications and took a vote.

        “That,” Judge Jones says, “is the way it used to work.”

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