There are 62 unfilled vacancies on the federal bench, and according to
many observers this fact is a stinging indictment of our government. In
August, President Clinton referred to "a mounting vacancy crisis in our
country." Democratic senator Pat Leahy has described the insufficient
supply of judges as a "constitutional crisis." In his annual reports on
the state of the judiciary, Chief Justice William Rehnquist decries the
delays in nominating and confirming federal judges. And now 56 current and
former law-school deans have called for the vacancies to be filled
quickly. The vacancies, they say, are "increasing caseloads in courts
around the nation and affecting the lives of citizens whose cases wait in
the federal courts."
There is a real constitutional crisis in America: the overweening power
that federal judges have arrogated to themselves. The Supreme Court
purports to "speak before all others" for our ideals; it settles many of
the most important questions of our politics and claims a theoretically
unlimited right to settle all of them. This being the case, the quality of
our federal judges must take precedence over their quantity. Since all of
President Clinton's judicial nominees share a grandiose, extra-legal view
of judicial authority, none of them can responsibly be confirmed, even if
there were a shortage of judges.
In fact, though, the "crisis" of an overworked judiciary is overblown.
There were 97 vacancies at the end of 1992, but no cries of a judicial
emergency; there were 63 at the end of 1994, when Clinton still had a
Democratic Senate. The Supreme Court employs ever more clerks and hears
ever fewer cases. The appellate courts are deciding more cases without
issuing opinions. The chief judge of the Fourth Circuit has said that he
is getting along nicely without any more judges; the Fifth Circuit has
actually canceled some sittings, hardly a sign of a backbreaking burden.
The federal circuit finds time for enough junkets that, in legal circles,
it is called the "Bahamas circuit."
If the judges are in fact hearing too many cases, maybe the problem is not
that there are too few judges, but that there are too many cases. Chief
Justice Rehnquist rightly complains that Congress has given the courts
unnecessary work by creating more and more federal crimes. But the federal
courts have themselves to blame as well. The courts largely invented the
sexual-harassment law that has generated 15,000 cases a year. The courts
decided to get into the business of managing schools and prisons. They
decided to manage the display of figures at city halls-to spend their time
figuring out whether a Santa Claus is placed close enough to a nativity
scene to neutralize the religious effect.
Nobody forced the courts to liberalize the law of standing to make it
easier for people with no real claim of injury to bring lawsuits. For 20
years, the Supreme Court has said that individuals may file lawsuits to
enforce many statutes that Congress never intended to be the subjects of
litigation. The courts' hyperactivity in general encourages politically
motivated lawsuits. And their refusal to lay down clear principles in many
areas invites further cases to test just which racial preferences are
acceptable, which restrictions are "undue burdens" on abortion rights,
just how close to Santa that nativity scene has to be. Makework, not
overwork, is the problem here, and the courts have the power to end it at
any time.
The law-school deans do not believe that political struggles over the
proper role of the judiciary should slow down the confirmation assembly
line. They say they want to stop "politicizing the judicial-selection
process." But that will be possible only when the courts' political role
is brought within its proper constitutional dimensions. Not before.
