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Open Season on 'Activist' Judges

The situation in Congress has gone too far and lasted too long

July 14, 1997

Delays, intimidation and posturing: That's about all Congress has to show for itself lately where the federal judiciary is concerned.

One of every eight federal court seats is now vacant, producing growing delays in some civil actions and causing burnout among the judges who have to take up the slack. Nominees to fill 33 of the 100 vacant seats are now before the Senate, where the administration's political foes have found ever-more creative ways to stall the confirmation process. In the House, sitting federal judges have become targets.

President Clinton deserves some of the blame for this mess. He has been far too slow in making appointments to the courts, given the pace of judicial retirements in recent years. And while he has nominated many worthy men and women to trial and appellate court posts, he has been distressingly silent as his nominees have been grilled, harangued and then left hanging by the Senate Judiciary Committee.

Clinton's reticence aside, the Senate's behavior has been downright churlish. For a time last winter, some senators refused to vote on Clinton's nominees unless he granted Republicans a share of nominations. That gambit failed. Now House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) has introduced a bill to trim the sails of so-called activist judges, among whose ranks he surely would include U.S. District Judges Thelton Henderson and Mariana R. Pfaelzer, who blocked California's controversial Propositions 209 and 187, respectively.

Hyde's proposed Judicial Reform Act of 1997 would step up scrutiny of class-action lawsuits in an effort to discourage them; make it harder to approve settlements in civil rights cases that involve raising taxes, and impose new procedural rules on constitutional challenges to voter-passed state laws.

Some of Hyde's colleagues are threatening to impeach any judge who displays what they see as activist tendencies. Rulings are being dissected and lists of offending jurists being compiled. In the end, the impeachment threat may be more rhetorical than real, but the strategy has sent a chilling message to judges in understaffed courts, anxious about the political games being played around them. This serves no one well, not even the senators and representatives so determined to have their way.

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