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Send Clinton judges down the hatch

Human Events, Jan 16, 1998 by Coulter, Ann

Rehnquist's Remarks Widely Misreported

The front-page headline in the New York Times declared, "Senate Imperils Judicial System Rehnquist Says." National Public Radio began its news report: "Chief Justice William Rehnquist has joined the attack on Senate conservatives for inaction on judicial posts:"

NPR's helpful commentators went on to criticize Senate Judiciary Committee Chairman Orrin Hatch (R.-Utah) for, as they put it, changing the subject: "[Hi]e said the Senate can't. . . implement litigation reform [limiting the federal court's jurisdiction] the President opposes. That brings a whole 'nother issue into this. I'd say it's a little offpoint and a little distracting when what Chief Justice Rehnquist was basically saying is there's too few judges and too much work."

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Actually, what Hatch said is exactly what Chief Justice Rehnquist was "basically saying," though the news articles conveniently skipped over the first several paragraphs of the Chief Justice's "Year-End Report on the Federal Judiciary." Rehnquist led off by discussing "the disparity between resources and workload in the Federal Judiciary." Obviously, a "disparity" in anything can be eliminated by altering either side of the equation.

In this case, Congress can stop federalizing every issue under the sun--thereby creating more cases that must be decided in the federal courts--or it can create more federal judges.

Rehnquist came out pretty clearly on the side of limiting the federal courts' jurisdiction: "There have been instances . . in which Congress wisely has acted to reduce this disparity by enacting laws that in effect decrease the number of potential filings in federal court."

He went on to single out for special praise the "Antiterrorism and Effective Death Penalty Act," which finally put some limits on the number of appeals death row inmates may file, and Sen. Spence Abraham's (R.-Mich.) "Prison Litigation Reform Act" which limited the number of frivolous lawsuits prisoners can bring. Both laws came out of Hatch's Senate Judiciary Committee, with his lead sponsorship.

Oddly though, the headlines were not "Rehnquist Effusively Thanks Hatch," "Rehnquist Praises Republican Limits On Death Penalty Appeals," or "Rehnquist Pleads for laws Limiting Federal Jurisdiction," but "Senate Is Imperiling Courts, Rehnquist Says."

To be sure, several paragraphs later, Rehnquist went on to almost resignedly request more federal judges, saying: "If federal jurisdiction remains at its current level-or worse, increases-judicial vacancies will aggravate the problem of too few judges and too much work."

Even in this empire-building request, Rehnquist tempered his remarks by noting-as only a life-tenured government official can that-"the Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote for him up or vote him down." (When Rehnquist said almost the same thing about the Senate's role in the judicial appointment process back during the Bush Administration, the headlines were, e.g., "Rehnquist Favors Scrutiny of Nominees' Philosophy"L.A. Times, Nov. 20,1987.)

There are several problems with the only part of Rehnquist's remarks reported by the press. His call for more judges-or, technically, more votes on more judicial nominees-assumes that holding no Senate vote constitutes inaction; that there are many fewer judges deciding cases; and, most absurd, that more Clinton judges will mean less work for the federal courts.

The Senate, in fact, is rejecting a judge when it doesn't "act," as Rehnquist recommends, "to confirm or reject them." That's not how courts work (most of the time) but it is how elected officials often decide disputed issues.

Filibusters and motions for cloture are two of the most common procedures in any legislative body. Neither is a final vote "for" or "against" anything, but both effectively decide an issue.

That is exactly what Sen. Hatch and the other Republicans on the Judiciary Committee are doing when they don't act on a nomination, either in committee or on the floor. People with life tenure may not see the point of avoiding a recorded vote on an issue, but those who have to run for reelection to keep their jobs do.

Moreover, "vacancies" on the courts are abstractions. All a "vacancy" means is that the President is entitled to nominate someone for the position. It doesn't necessarily mean the judge is gone. This is because most "vacancies" consist of judges' opting to take senior status. They still get paid, have offices, secretaries, and law clerks, and they still hear cases and write opinions. They just take a caseload of about 50% to 75% of normal.

The 9th Circuit Court of Appeals, for example, has ten vacancies, the most of any circuit, and all the other circuits in total have only ten more vacancies among them. Of those ten vacancies in the 9th Circuit, only one judge has actually left the bench. The rest are still deciding cases.

But more importantly, as one 9th Circuit judge who wished to remain nameless noted, it is a misconception that more judges will mean less work. Activist judges generate more work up and down the federal court system.

Send Clinton judges down the hatch

Human Events, Jan 16, 1998 by Coulter, Ann

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