EMPTY-BENCH SYNDROME

By Viveca Novak/Washington

The wanted posters tacked to the walls of courthouses around the country normally depict carjackers, kidnappers and other scruffy lawbreakers on the lam. But these days the flyers might just as well feature distinguished men and women in long dark robes beneath the headline HELP WANTED. As of this week, 100 seats on the 844-person federal bench are vacant. Case loads are creeping out of control, and sitting judges are crying for help.

The situation is urgent, says Procter Hug Jr., chief judge of the Ninth Circuit Court of Appeals, which covers California and eight other Western states. Hug says that with a third of its 28 seats vacant, the court has had to cancel hearings for about 600 cases this year. Criminal cases take precedence by law, so at both the trial and appellate levels, it is civil cases that have been crowded out. Civil rights cases, shareholder lawsuits, product-liability actions, medical-malpractice claims and so forth are being pushed to the back of the line, however urgent the complaints. Chief Judge J. Phil Gilbert of the southern district of Illinois went an entire year without hearing a single civil case, so overwhelmed was he by the criminal load in a jurisdiction down to two judges out of four. "It's litigants who end up paying the price for the delays," says A. Leo Levin, a professor at the University of Pennsylvania Law School.

Things won't improve anytime soon. Democratic Senators have been slow in recommending names to the White House, which in turn has dragged its feet in forwarding those recommendations to the Senate for confirmation. At a private meeting with federal judges last week, Clinton promised to send close to two dozen new names to Capitol Hill by July 4. But once they get there, they face new hurdles. Last year the Senate confirmed only 17 federal district-court judges and none for the appeals courts. This year looks even worse, with only two confirmations thus far. The number of days from nomination to confirmation is at a record high of 183, and 24 seats have been vacant more than 18 months, qualifying them as judicial emergencies.

This slowdown in judicial confirmations is not due to congressional lethargy. Just the opposite. With Republicans firmly in control of the Senate, many of the party's theorists feel they have the power--and the rightful mandate--to implement the ideals of a conservative revolution that lost its focus in recent years. So they have been not so quietly pursuing a historic change in the ambiguous "advise and consent" role the Constitution gives the Senate in the selection of federal judges. The successful assault by Democrats on Ronald Reagan's nomination of Robert Bork for the Supreme Court helped open the way for what has become a more partisan and ideological examination of all judicial nominees.

Some Republicans have as much as declared war on Clinton's choices, parsing every phrase they've written for evidence of what they call judicial activism. That label has long been applied to judges who come up with imaginative new legal principles in their decisions rather than simply following the letter of the law or the Constitution. Lately the term has been tossed around like insults at a brawl. "The Republicans define 'activist' according to their political agenda," says a federal judge. "It's O.K. to be an activist if you're striking down affirmative action and gun-free school laws. It's not if you're overturning abortion restrictions and the line-item veto."

Meanwhile, nominees are left adrift. The federal bench's poster child of the moment is Margaret Morrow. Nominated in May 1996 with broad bipartisan support, Morrow was the first woman president of the California Bar Association, has had a distinguished career in private practice and could fill a trophy case with her awards and citations. She cleared the judiciary committee unanimously but got stuck in last year's G.O.P. freeze-out on the Senate floor. Clinton sent her name back up this year, but in the meantime, conservatives began raising questions about some of her writings the committee hadn't seen. After another hearing, she received a letter from Republican Senator Charles Grassley asking her position on every ballot initiative that's come up in California over the past decade, in effect asking which levers she pulled in the voting booth. Morrow's nomination still isn't scheduled for a vote, and she isn't even the longest-suffering nominee. That distinction belongs to William Fletcher, named by Clinton to the Ninth Circuit in April 1995.

Orrin Hatch, chairman of the Senate Judiciary Committee, says he would like to clear the backlog. "Playing politics with judges is unfair, and I am sick of it," he said in March. But those close to him say he's feeling pressure from the right, and indeed his remarks have become more combative. Last week he told a group of judges that he would refuse "to stand by to see judicial activists named to the federal bench."

Republicans are also aiming rocket launchers at those lucky enough to have already been issued their robes. Proposals range from having three-judge panels, rather than a single judge, hear challenges to ballot initiatives to radical notions like amending the Constitution to eliminate lifetime tenure. Lawmakers have taken to threatening impeachment proceedings against judges whose rulings they dislike. House majority whip Tom DeLay of Texas, a chief proponent of using the impeachment process much more freely than it is now, says he wants "to make an example" of someone this year. Some candidates they're considering: Judge Thelton Henderson in California, who struck down a voter-approved referendum ending state affirmative-action programs (he has since been reversed); Judge John Nixon in Tennessee, who has reversed several death-penalty convictions; and Judge Fred Biery in Texas, who has refused to seat a Republican sheriff and county commissioner because of a pending lawsuit challenging some absentee ballots. Not mentioned are judges like New York's John Sprizzo, who freed two men who had blocked access to an abortion clinic because they acted on religious grounds.

So far, the Republicans see no real downside to picking on the third branch of government. "Some of these rulings have inflamed mainstream America," says Clint Bolick of the conservative Institute for Justice. "So when the G.O.P. elevates this issue, it is seen as a winner."

It's ironic that these fusillades should be coming now, when even activists like Bolick concede that Clinton's nominees have been mostly moderate, and liberals are moaning that the President hasn't done enough to counteract the effect of 12 straight years of Republican court choices. But what it adds up to is "probably the most intense attack on the judiciary as an institution ever," says Robert Katzmann, a lawyer and political scientist who has written a book on Congress and the courts. "The framers of the Constitution tried to create a system in which judges would feel insulated from political retribution. That's being undermined."

--With reporting by John F. Dickerson/Washington

With reporting by John F. Dickerson/Washington