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Florida fares well on federal judges.

While the time taken to nominate and confirm federal judges is increasing, according to a study by a Washington, D.C., group supporting the independence of the judiciary, Florida has done well in getting federal judgeships approved.

Citizens for Independent Courts, part of the bipartisan group The Constitution Project, released the study last month which also showed that the time to confirm women nominees is noticeably longer than for male nominees. However, Florida has seen 10 federal judges approved in recent years, according to Sen. Bob Graham's office, and legislation is pending that could add four judges to the Middle District.

"Florida has fared very, very well in getting judges passed," said Graham spokesman Chris Hand. "Since 1996, there have been 10 federal judicial nominees who have been nominated and confirmed."

That includes two judges in the Northern District, one in the Middle District, five in the Southern District and two Florida seats on the 11th U.S. Circuit Court of Appeals, Hand said. Currently there are two recent vacancies in the Middle District (nominations have not been made yet by President Clinton for either), which has one of the heaviest caseloads in the country, and legislation has cleared the House and Senate which would add another four judges to the Middle District. Those bills must be reconciled and approved by both chambers before being seat to the President for signing.

Hand said the U.S. Judicial Conference had recommended four new judges for the Middle District and two for the Southern District.

The recent success in getting new judges, Hand said, is due to cooperation between Graham and Sen. Connie Mack, R-FL, and the high quality of nominees, who are screened by a special commission chaired by former Florida Bar President Ben Hill.

Recent Florida confirmations include Stephan Mickle and Robert Hinkle in the Northern District; Richard Lazzara in the Middle District; Alan Gold, Don Middlebrooks Patricia Seitz, William Dimitroleas and Adalberto Jordan in the Southern District, and former Southern District Judge Stanley Marcus and former Middle District U.S. Attorney Charles Wilson to the circuit bench.

Slowing Pace

Citizens for Independent Courts advocates for and educates the public about the importance of an independent judiciary. Aside from its findings about delays in appointing new judges, the group also made recommendations for screening and confirming new judges, including avoiding "litmus" tests.

According to the study, titled "Justice Held Hostage: Politics and Selecting Federal Judges," President Clinton from 1993-98 took an average of 315 days to nominate a federal judge. That compares to 240 days for President Carter, 254 for President Reagan and 296 for President Bush.

Senate confirmation for Clinton's nominees took 201 days on average in the 105th Congress (1997-98). For President Carter, it was 90 days in the 96th Congress, 144 in the 100th Congress for Reagan and 138 in the 102nd Congress for Bush.

The delays have meant that over eight percent of federal judgeships are vacant, at a time when caseloads are increasing.

"It's silly for the Congress and the President to be pointing fingers at each other for this judicial crisis -- and it is a crisis -- when neither has performed well in their area on behalf of the American people," said former U.S. Rep. Mickey Edwards, R-OK, co-chair of Citizens for Independent Courts.

Added Lloyd Cutler, former counsel to both Clinton and Carter and the group's other co-chair: "Regardless of which party is in charge of the White House or the Senate, the trend in both has been an increase in the time required to get a judge both nominated and confirmed. There are also many cases in which the Senate or individual senators block a nomination until it is withdrawn. That judicial appointments can be held hostage for political purposes denies the American people the independent judiciary that the framers intended us to have."

Among the recommendations for improving the judicial selection system, the citizens group proposed that the President and Senate avoid ideological issues and instead focus on candidates who will decide cases based on law and fact. Candidates should also be found who bring the proper temperament to the bench, and reviewers should avoid seeking commitments on how candidates would rule on issues.

Faster Approvals

In reducing delays, the group recommended setting time limits of 180 days to make a nomination and 60 days to confirm, or a total of eight months, and both legislative and executive branches should take steps for more expeditious review of candidates.

"The Senate and the President have no business asking candidates for federal judgeships how they would vote on a future issue and candidates have no business answering such questions," said Virginia Sloan, executive director of The Constitution Project.

Better records should be kept and made available to the public on judicial nominations, to allow better review of how the system works. Existing records show that Senate action on Clinton's women nominees has taken an average of 160 days, compared to 137 days for male nominees. The difference was never more than a few days for Reagan and Bush and was actually five days quicker for Carter's women nominees.

"One of the striking things about this project was learning how little information is kept regarding nominations, confirmations or rejections, and how little is available to the public," said American University law Professor Thomas 0. Sargentich, who prepared the report. "In a democracy, people need that information to evaluate whether the judicial selection process is working, and it should be made available to everyone."

While the group did not make any conclusions on race, its data revealed some interesting information. For 1997-98, President Clinton nominated 92 whites to federal judgeships, 79 of whom were confirmed, or 86 percent. During the same period, he nominated 31 minorities, but only 20, or 65 percent, were confirmed. Put another way, minorities were more than twice as likely to be rejected.

There was also a discrepancy between the time to accept or reject white male nominees and to accept or reject women and minorities in the 105th Congress. White males who were accepted took an average of 154 days, and those who were rejected took 258 days on average. For women and minorities, it was an average of 194 days to be confirmed, or 40 days longer, but 386 days to be rejected, or more than 100 days longer than for rejected white males.

While males also had a better confirmation rate with the Senate in 1997-98, with 58 of 68, or 85 percent, winning approval, compared to 41 of 55 women and minorities, or 75 percent.

Another measure showed how much more political judicial nominations have become. Carter filled 98.1 percent of his vacancies with his first nomination to a post; only a handful required a second nomination. Reagan filled 88.7 percent with the first nomination, and 9.7 percent with the second nomination, and the rest required three or four nominees.

Bush did slightly better, filling 90 percent with his first choice, and 8.4 percent with his second. Clinton has had a rougher time, getting his first choice confirmed only 73.1 percent of the time, and his second choice 23.9 percent of the time. Nine times, he's had to go to a third or fourth nominee.

The report comes as the judicial process has come under increasing scrutiny U.S. Sen. Patrick Leahy, D-Vt., has harshly criticized delays in the Senate in confirming nominees, some of whom have had to wait two or three years. And Florida's two U.S. senators, Bob Graham and Connie Mack, have joined to sponsor a bill that requires a Judiciary Committee vote within three months on a nominee and then would allow any senator to bring the nomination to the floor. A full Senate vote would be required within a month after committee action.

The Constitution Project, funded by the Century Foundation, is an effort by the Georgetown University Law Center in Washington D.C., with the goal of addressing contemporary constitutional and legal issues. Part of the effort is the Citizens for Independent Courts.

Besides the report on federal judicial nominations, the citizens group is planning three more reports before the end of the year, covering the ways states select their judges, the difference between legitimate criticisms of judges and the judicial branch and attempts to intimidate, and the role of legislatures in setting judicial budgets and other oversight functions.
 Presidential Action
 Average Number of Days Between Nominating Opportunity
 and Nomination by President, 1977-1998
President District Circuit Courts District and
 Courts Circuit Courts
Carter 244 (234) 224 (62) 240 (296)
Reagan 262 (332) 230 (100) 254 (432)
Bush 297 (240) 292 (62) 296 (302)
Clinton 311 (321) 329 (81) 315 (402)
Carter Through 279 (1,127) 268 (305) 277 (1,432)

Note: A nomination opportunity arises when a new vacancy occurs, a prior nomination is withdrawn or fails to secure congressional approval, or a vacancy is inherited from a previous president. Numbers in parentheses indicate the number of nomination opportunities.
 Senate Action
 Average Number of Days Between Nomination and Final Action
 White Men Versus Women and Minorities for the 105th Congress [*]
 Successful Unsuccessful All Nominees
 Nominees Nominees
White Men 154 (58) 242 (10) 167 (68)
Women and 194 (41) 386 (14) 243 (55)
White Men, 171 (99) 326 (24) 201 (123)
Women and
(*.)Analysis limited to the 105th Congress due to unavailability of
complete minority data for other than the 105th Congress.
Note: Numbers in parentheses indicate the number of nominations.
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Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Oct 15, 1999
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