Lack of Judges Leaves Federal Courts Jammed

The federal appeals court for the Western United States has been forced to cancel 600 hearings this year--prompting delays in cases ranging from business and environmental disputes to claims over federal disability payments--because of a profound shortage of judges, the court’s chief judge said Thursday in Los Angeles.

Because criminal cases have priority by statute, virtually all of the cancellations have involved civil litigation, according to Procter Hug Jr., chief judge of the U.S. 9th Circuit Court of Appeals, which encompasses nine Western states, including California. Hug said President Clinton and Congress both bear responsibility for failing to fill vacant positions on the bench.

“The situation in the circuit . . . is extremely serious,” said Hug, of Reno, who was appointed to the federal bench by President Jimmy Carter in 1977.

At present, a third of the 9th Circuit judgeships--nine of 28--are vacant and one of those slots has been unfilled for three years, Hug said during a luncheon speech to the Federal Bar Assn. at a downtown Los Angeles hotel. “That is an unprecedented number for this circuit,” he said in an interview after the speech.

The judge also said the 9th Circuit has not been authorized a new judgeship since 1984 despite requests for increases. At that time, the caseload was 4,700 appeals. By 1996, it had skyrocketed to 8,600 appeals.

“It is impossible to expect 19 active judges to handle the increased caseload with the care each appeal deserves,” Hug said.

Moreover, he said the workload is going to increase because there are 700 inmates on death row in the circuit, including 476 in California, and petitions seeking review will be coming to the federal courts on virtually all of those cases. Now, there are 150 such petitions pending in federal trial courts in the nine Western states and another 35 are before the 9th Circuit.

“Our circuit court has attempted to adopt every efficiency measure we could devise that would help to keep us current,” Hug said. “We have sought the extra help of our ‘senior judges’ [judges over 65 who usually have a reduced workload], our District Court judges, and visiting judges from other circuits. These are Band-Aid measures and not the way a federal court of appeals is intended to operate.”

In response to Hug’s remarks, White House spokesman Barry Toiv said: “We’ve been very disappointed at the pace with which the Senate has been moving on our judicial nominations. There is absolutely no reason why they can’t move more quickly.” He declined any direct response to Hug’s criticisms of the White House.

Hug said he and his colleagues have reluctantly concluded that “in order to continue deciding the cases without over-delegation to law clerks or cursory review by judges, we will simply have to let a backlog of appeals develop, with the delay for litigants that necessarily ensues.”

Hug said that was undesirable for a variety of reasons, including prolonging the time until a case is resolved. “It is sad to see the uncertainty involved when a claim is ultimately denied or to see the consequences of delay when the claim [of an individual or business] should have been paid.”

There are 98 vacancies on the federal courts nationwide out of 844 positions. Those include 13 federal trial judgeships in the Western region--four of which are in Los Angeles. Hug said that 23 of those positions have been vacant for 18 months or longer, “thus earning the dubious distinction of being ‘judicial emergencies.’ ”

Los Angeles federal trial judges at the lunch said they are being seriously affected as well. “We’re picking up 45 to 50 new cases a month,” said U.S. District Judge Terry J. Hatter Jr. “That’s at least 30% to 40% higher than five years ago.”

Hug said he has gone to Washington three times in recent months to talk to officials at the White House and members of the Senate Judiciary Committee about speeding up the process of nominating and confirming judges, but with little apparent effect.

“I’m disappointed,” he said. Hug said White House officials told him in March that they would send 100 nominees to the Senate by July but that he recently had been informed that only 50 names would be forwarded.

He noted that as of April no nominations had been made for 70 of the vacancies and that since August the Senate has confirmed only five nominees. Hug, 66, a moderate Democrat who is a Stanford Law School graduate, blasted Congress for “stalling the [confirmation] process in an attempt to root out those who are perceived to be potentially ‘activist judges.’ ”

Hug stressed that “in my 20 years on the bench I have not seen any danger from activist judges.” He did not define the term, which is frequently used by conservatives to criticize judges who they contend have abused their judicial role and are acting more like legislators than interpreters of the law. For example, conservatives have strongly criticized the federal judges who have blocked California ballot initiatives dealing with immigration and affirmative action.

Hug said he was aware of “a lot of occasions in which judges have a genuinely different interpretation of the law.” He lamented attempts to erode the independence of federal judges, who have life tenure, which is designed to insulate them from shifting political winds.

Hug’s comments echoed criticisms leveled this month by Sen. Patrick J. Leahy (D-Vt.), ranking Democrat on the Senate Judiciary Committee, who accused Republicans of creating a judicial crisis by moving slowly on the confirmation process.

Also, in the last month, Chief Justice William Rehnquist, a staunch conservative, lamented the number of vacancies, calling it “the most immediate problem we face in the federal judiciary.”