Breaking through judiciary bottlenecks

There are not enough judges in America to hear all of the cases, Judge Richard S. Arnold, chief justice on the Eighth Circuit Court of Appeals told law students at a lecture Tuesday.

It was like a gathering of old friends as fellow justices filled the first three rows of tables in the Hillcrest Room of the Underwood Law Library. Students filled the remaining seats and stood against the walls as they listened.

Although President George W. Bush has appointed several justices to fill vacant benches, the Senate Judiciary Committee has failed to confirm those appointments.

“I deeply regret the way that the (Senate) confirmation process has broken down in the last nine to 10 years,” Arnold said. “It makes my blood run cold to think of the cases not being tried that should be because of a lack of judges to hear them.”

Currently,100 posts in the judicial system are vacant, said presidential counsel Alberto Gonzales in an appearance on campus Friday. Some posts have been vacant for more than 500 days, creating a judiciary crisis in the country.

“Of the 11 or 12 people submitted by Bush, two have had hearings and been rejected, two have had hearings and are pending, the rest are just out there in limbo,” said Don Stewart, an aide to Texas Sen. Phil Gramm. “I’m sure that the Constitution protects us against a government shutdown. There were provisions in 1995 for the financial shutdown that allowed the government to continue. I’m just not sure what we would do.”

In recent months, both Michael Estrada and Priscilla Owen were nominated by Bush and submitted to a firestorm of criticism in the committee’s hearing process.

Estrada’s application has been on the floor for more than 500 days.

Charles Bauer, the chief of staff for Texas operations for Congressman Pete Sessions, doubts the application will be heard during this session.

“It’s a case of someone who is highly respected by the bar and judiciary system being disqualified without a good reason,” Bauer said. “We need to work out the appointment process somehow.”

The Senate Judiciary Committee has approved approximately 50 percent of Bush’s appointees, Gonzales said.

In 1915 there were 134 federal judges and 1,448 appeals filed each year. That means that the judges averaged 45 cases each and rendered 15 opinions.

Today there are 2,832 federal judges with more than 55,000 appeals filed each year. That means that each judge hears over 300 cases per year, more than six times the amount per judge in 1915.

When judges are pressed for time, they receive summaries of cases that have been reviewed for the judges that contain a recommendation on the ruling.

They can rule on the case without hearing the arguments in person, Arnold said.

“I admit there have been occasions where I have accepted the summary and ruled accordingly without having heard all of the case facts,” Arnold said.

When this occurs, Arnold said, the judges render a decision without publishing an opinion on the case. Unless an opinion is written by the justice, the ruling cannot be referenced by other lawyers or justices in arguing other cases.

“This is very bad. I wonder how many cases are not being heard that should be,” Arnold said.

One student asked the judge what would happen if the appointment process failed to fill these posts while casework continues to pile up.

“We [will] continue on as we have been and hope that something breaks the situation up on the Hill,” he said. “What else can we do?”

However, Rebecca Dergarabedian, a staff member for the Senate Judiciary Committee said that there was absolutely no cause for concern.

“The [committee] is reviewing and passing on appointments every day,” Dergarabedian said. “They have passed more than 50 percent of the president’s recommended appointees for judiciary positions.

“We’re not seeing anything that we did not see during the Clinton or [any] other administration. People need to understand that it takes a year for the approval process before it goes to the Senate floor.”

If for some reason, none of a president’s appointees were confirmed to their positions, Dergarabedian said that the court system would continue to function.

“There are provisions in the Constitution for that sort of thing. I just can’t tell you what they are,” she said. “But it will never happen.”

If the courts close in some areas or districts in Texas due to the lack of judges, the judicial process will continue, Stewart said.

“It is really bad that appointments have been held up the way that they have,” Stewart said. “It’s an odd political game that is being played. We can try to force a break in the current stalemate by explaining to people what’s happening, but we don’t have many options right now.

“One thing is certain, if enough people get tired of waiting for their cases to be held they can express their opinion on Nov. 5,” he said.

The Republican Party hopes to change the legislative ratio of Republicans to Democrats in the Nov. 5 election. With a majority, they can force the process through with less opposition under a new chair.

Because the appointment process is so stringent and the pay is not comparable to what can be earned in a law practice, fewer young lawyers aspire to become judges, Arnold said.

Gonzales, who many suspect will be Bush’s first Supreme Court nominee, said that he would have to seriously discuss a possible Supreme Court nomination with his family.

“I just don’t know if I want to put my family through that kind of ordeal,” Gonzales said. “It doesn’t matter if you have any past sins to hide or not. Just talk can destroy lives.”