By Vandana Sinha
WASHINGTON – Nearly seven years ago, Congress created four additional seats on the 4th U.S. Circuit Court of Appeals to help confront an escalating caseload.
Today, one of the new judgeships remains empty, another seat from a retirement three years ago is unfilled and the case backlog that worried lawmakers in late 1980s has nearly doubled in a decade.
With nearly 3,700 days of unfilled positions since 1990, the 4th Circuit Court of Appeals, which is based in Richmond and oversees Maryland, Virginia, West Virginia, North Carolina and South Carolina cases, holds some of the longest running vacancies for federal judges in the nation, according to the Administrative Office of the U.S. Courts.
The Republican-controlled Senate Judiciary Committee is blaming President Clinton for sending up nominations too slowly while the White House says GOP senators are dragging their feet on pending nominations.
But regardless of the underlying politics and finger- pointing, the vacancies have taken their toll on the court, causing delays, overworking sitting judges and leading to a heavier reliance on visiting and semi-retired judges.
Attorneys who argue before the court agree that the vacancies are creating delays.
“Judicial vacancies obviously delay the process of having cases resolved because of the heavy workload,” said former Assistant U.S. Attorney Robert Bonsib, now a criminal defense lawyer in Greenbelt.
“If a guy is getting his conviction reversed and is getting out of jail, but he is sitting around jail waiting for it for two years — that’s time he can’t get back,” Bonsib said.
Fred Warren Bennett, a Catholic University associate law professor who takes appeals to the 4th Circuit court regularly, said he argued a case in April and another in March 1996. Both are pending today.
“It’s almost unheard of,” he said.
The backlog of cases has grown from 1,952 in 1987 to 3,298 this year, according to the Administrative Office of the U.S. Courts.
The 13 active judges took on 17 percent more cases from 1991 to 1996, compared to the nationwide rise of 11 percent.
“It puts an unfair burden on the remaining judges,” said James K. Bredar, a federal public defender in Maryland. “It becomes 55 to 60 hours a week for a judge there instead of 40 to 50 hours a week.”
Judge J. Dickson Phillips Jr., 75, who created one of the vacancies in 1994 when he stepped down as an active judge, said filling the two slots would spread the work more evenly.
“The overall work of the court would be improved if there were more hands … so they could devote more time, energy and thought to their work,” said Phillips, who hears cases as a senior judge.
The vacancies also have led to a greater reliance on visiting judges, said Thomas Schrinel, the court’s deputy executive.
Of 45,560 total cases between 1991 and 1996, close to one- fifths required visiting or senior judge participation, according to court data.
White House and Senate Democrats blame the nationwide “vacancy crisis” on a Republican slowdown to avoid voting in Clinton’s choices, such as U.S. District Judge James Beaty Jr. of North Carolina for the 4th Circuit opening created by Phillips.
Clinton, who called the confirmation melee “the worst of partisan politics,” renominated Beaty Jan. 7 after senators failed to approve his nomination last year.
“They’re not even keeping up with the rate of attrition. It’s unprecedented for the Senate to be so irresponsible,” said David Carle, spokesman for Sen. Patrick Leahy of Vermont, the committee’s highest ranking Democrat.
But Republicans argue that the committee usually holds confirmation hearings as soon as they receive nominations and that the problem is the president’s failure to send nominations to Capitol Hill. Clinton has yet to send a nominee for the new 4th Circuit seat created in 1990.
“Part of the problem is the president has been slow to send us names,” said Jeanne Lopotto, Senate Judiciary Committee spokeswoman. “We can’t be responsible for a vacancy if there are no nominees.”
Lopotto declined to discuss why the committee has not held hearings on Beaty’s nomination and White House aides declined to discuss why Clinton has not tried to fill the other 4th Circuit vacancy.
George Rutherglen, a law professor specializing in federal courts at the University of Virginia, worried that the accumulating vacancies eventually could be filled simultaneously with judges new to the appellate court.
“The law works best when it makes gradual changes,” Rutherglen said.
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