American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1998
© American Bar Association. All rights reserved.

Legislative Update

BY E. E. ANDERSON

E. E. Anderson, a retired general in the U.S. Marine Corps, is the director of the Solo and Small Firms Division of the ABA General Practice, Solo and Small Firm Division.

In a stinging speech before the ABA House of Delegates on August 5, 1997, Attorney General Janet Reno accused the Republican-controlled Senate of creating a "vacancy crisis" in the federal courts by failing to confirm the president's judicial nominees.

She called the Senate's inaction an "unprecedented slow-down in the Senate confirmation machinery." She contended that "without enough judges, our laws will become empty promises and ‘swift justice' will become a meaningless phrase."

She noted that there are 101 vacancies on the federal bench, and of those vacancies, 33 are what the federal court's administrative office calls "judicial emergencies" or seats vacant for at least 18 months. The shortage of federal judges, she argued, has caused an increased backlog in the federal court system. She urged the senators to "put any partisan differences aside" to correct this matter.

The attorney general reported that only 17 district court judges were confirmed in 1996 and no circuit court judges were confirmed. Only nine judges have been approved this year, and one out of eight judgeships remain vacant, despite the fact that the president has sent 62 nominees to the Senate this year. She also spoke against the attempts by some in Congress to rein in what they consider liberal judges.

She strongly defended the federal judiciary as hard-working and dedicated, and said that judges, as one of the three co-equal branches of the federal government, have one of the toughest jobs. She reiterated the importance of judges being independent and of "chilling judicial independence" by moves being discussed to curb so-called activist judges.

The attorney general was not the only one at the Annual Meeting to lambast the Congress. In a news conference on August 1, 1997, then-ABA President N. Lee Cooper cited three concerns that have confronted him during his tenure as president. The first concern mentioned was the threat to the independence of the federal judiciary. He pointed out that during the last presidential election, both Clinton and Dole "took out after judges."

As a consequence, he established the ABA Commission on Separation of Powers and Judicial Independence. Cooper argued that the clear objective of the critics is intimidation, as some members of Congress have actually called for impeachment of judges because they disagreed with their decisions. The news conference was a reiteration of what then-President Cooper wrote in a letter to President Clinton and Senate Majority Leader Trent Lott (R-MS) on July 14, 1997.

This letter, signed by President Cooper and the presidents of six other national legal organizations, urged President Clinton and Senator Lott to address "the looming crisis in the nation brought on by the extraordinary number of vacant federal judicial positions."

Senator Orrin G. Hatch (R-UT), chair of the Senate Judiciary Committee, responded to these criticisms in an article in the August 13, 1997, issue of the Wall Street Journal, calling the attorney general's analysis "incomplete, factually inadequate, and ultimately misleading." Senator Hatch noted that at the close of the last Congress, there were 65 vacancies, a level almost identical to the 63 vacancies existing at the close of the prior Congress.

He disagreed with the attorney general on her contention of a "vacancy crisis." Indeed, he said, "the current vacancy rate doesn't even approach the 142 vacancies in August 1991 or 117 in August 1992 when the Democrats controlled the Senate." He also stated that the record of this Congress compares quite favorably to the recent Democratic-controlled Congress when in "August 1993, not a single judicial nominee had been confirmed; 23 had been confirmed by August 1991, 4 by August 1989 and 17 by August 1987."

Additionally, he pointed out that there are more active federal judges today (742) than there were during recent Democratic-controlled Senates. In that period, 1987-94, the number of judges ranged from 704 to 716. He also said that President Clinton has been slow to submit judicial nominees. The Administra-tive Office of the Courts states that the president, on average, takes 618 days from the day a judge steps down to nominate a successor. The full Senate takes an average of 91 days to confirm a judicial nominee.

The attorney general's attack has resulted in a counterattack on her dilatory attitude toward her own office appointments. In the August 12, 1997, edition of the Wall Street Journal, it was reported that the "Office of Assistant Attorney General in charge of the Criminal Division has been vacant for two years. The Solicitor General hasn't existed for 13 months. And the job of Assistant Attorney General for the Office of Legal Counsel has been open for 13 months." The article claims that these unfilled posts appear to violate the 1988 Vacancies Act that says that a vacancy in an executive agency can be filled by someone in an acting capacity for no more than 120 days.

Affirmative Action

As reported in this column in the Fall 1996 issue of The Compleat Lawyer, Representative Charles Canady (R-FL) introduced H.R. 2128 in the 104th Congress, which would bar the federal government from considering race and gender as factors in hiring and awarding federal contracts. The bill would effectively end what has been known as affirmative action.

The bill was approved by the House Judiciary Subcommittee on the Constitution, but advanced no further in the House. A similar bill, S. 1085, was introduced by then-Senate Majority Leader Robert Dole (S-KS), but it also went nowhere. The principal objections of the ABA to that proposed legislation were outlined in the aforementioned issue of The Compleat Lawyer.

Now, Representative Canady has introduced a similar bill, H.R. 1909, in the 105th Congress. A similar bill, S. 950, has been introduced in the Senate by Senators Mitch McConnell (R-KY) and Orrin G. Hatch (R-UT). On July 9, 1997, H.R. 1909 was approved by the House Judiciary Subcommittee on the Constitution, and House Judiciary Committee Chair Henry J. Hyde (R-IL) said he would soon schedule a full committee markup of the bill.

While Representative Canady predicts the bill will reach the floor this year, party leadership, such as House Majority Leader Richard K. Armey (R-TX) and Speaker Newt Gingrich (R-GA), have been reluctant to move the legislation ahead. Canady, while recognizing the lukewarm support of the leadership, has said, "Ultimately the leadership will listen to the majority of the Republican Conference." It also should be noted that Canady's bill deals only with the federal government and does not affect targets for minority participation at public universities.

In the meantime, President Clinton has created a panel of experts, chaired by John Hope Franklin, which is charged with leading the national discussion on racial reconciliation. At its first meeting, member Mrs. Angela Oh, a second generation Korean lawyer, created a stir by suggesting that the board, in examining the status of race relations in America, move beyond the "black-white paradigm" to include the experiences of other minorities.

Some black columnists have stated that she is wrong to suggest that the Board not waste time looking at the conflict between whites and blacks dating back to slavery. One writer, DeWayne Wickham, stated that Mrs. Oh "says that the panel should not spend a lot of time exploring the roots of the problem between black and whites." Mrs. Oh replied that such a position ascribed to her was not what she intended to express. While accepting that others suggest that the black-white conflict is intractable, she is of the belief that "perhaps we should shed new light on it by adding the voice of other minorities."

Others are wading in on the issue. On August 19, 1997, Republican National Committee Chair Jim Nicholson stated that he would soon discuss with GOP congressional leaders a possible first step in reforming federal affirmative action this fall. He said he would discuss with those leaders a possible first legislative step in reforming affirmative action that is less sweeping than H.R. 1909 and S. 950.

Mr. Nicholson caused some controversy when he indicated that Representative J.C. Watts (R-0K) had said in a private conversation that had he been a resident of California, he probably would have voted for Proposition 209. Efforts have been made to have Representative Watts support H.R. 1909, but he has said that his "only reservation about the Canady Bill and Proposition 209 is that you cannot assume that we have a level playing field yet in this country."

Opponents of Proposition 209 have argued that it is unconstitutional, and their claim was upheld in the U.S. district court by Judge Shelton Henderson, who issued a stay that kept the law from taking effect. Upon appeal to the 9th U.S. Circuit Court of Appeals, a three-judge panel overruled Judge Henderson on April 8, 1997 (Coalition For Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997)), and held that, "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."

On August 20, 1997, the 9th Circuit Court denied the request for an en banc rehearing when the matter failed to receive a majority of the votes in favor of en banc consideration. Justice Sandra Day O'Connor, who oversees the 9th Circuit, did not act to block the law from taking effect until the full court decides to hear the case, so Proposition 209 is now the law in California.

On the Senate side, one of the strongest supporters for affirmative action is Senator Edward Kennedy (D-MA). In a Senate speech a year ago, he stated, "Affirmative action has paid enormous dividends in the medical context." He said that beneficiaries of race-conscious university admissions are "likely in later life to benefit their professions and the communities in which they live," and offered proof. "Dr. Bernard Chavis is a perfect example. He is the supposedly less qualified African-American student who allegedly ‘displaced' Allen Bakke at the University of California-Davis and triggered the landmark case. Today, Dr. Chavis is a successful ob-gyn in Central Los Angeles, serving a disadvantaged community and making a difference in the lives of scores of poor families."

In a recent article, however, Jeff Jacoby of the Boston Globe countered that just eight weeks ago, warning of Dr. Chavis's "inability to perform some of the most basic duties required of a physician," the Medical Board of California suspended his license. Administrative Law Judge Samuel Reyes found Dr. Chavis guilty of gross negligence and incompetence in the treatment of three patients—one of whom died at his hands. The three patients concerned had liposuction performed on them after Dr. Chavis's only training in the procedure was a four-day course at the Liposuction Institute of Beverly Hills—only half of which he completed.

The Line-Item Veto

On June 26, 1997, the U.S. Supreme Court, in a 7-2 decision in Byrd v. Raines, dismissed a lawsuit brought by six members of Congress who argued that the Line-Item Veto Act (P.L. 104-130) changed the procedure laid out in the Constitution for making law. The Supreme Court, while not addressing the constitutional issues, dismissed the suit because they found that the plaintiffs lacked standing to sue as they had not suffered injury under the act.

The line-item veto has been sought by presidents since the mid-1800s, and President Clinton indicated at the time of his signing the act that he intended to use it in those circumstances where appropriate. While not a true line-item veto, where the executive can strike individual items or words from bills he signs, P.L. 104-130 was drafted in such fashion as to permit the president to cancel specific dollar items in appropriation bills, new entitlement spending, or certain limited tax breaks.

Under the line-item veto law, any tax breaks handed out to 100 or fewer people can be "canceled" by the president. It must be kept in mind, however, that the Joint Tax Committee of the Congress determines which items, if any, can be "canceled" by the president. In the case of the twin spending (P.L. 105-33) and tax (P.L. 105-34) bills, the Joint Tax Committee identified only 79 of those limited tax benefits. Another provision of the veto law is a requirement that any savings from a vetoed item must be used to reduce the deficit and cannot be spent on other programs.

With legal challenges to P.L. 104-130 still in the offing, on August 11, 1997, President Clinton used his new power by "canceling" two tax breaks and a Medicaid provision applying only to the State of New York. The president's decision to use the line-item veto came only after considerable debate in the White House, where his chief of staff and Treasury Secretary recommended caution, while others on his staff urged him to show strength by exercising the veto.

The canceling of the spending provision for Medicaid payments in New York State has raised considerable dissent from both sides of the New York congressional delegation, and also from Governor Pataki. Congress has only 30 calendar days to pass a bill disapproving the veto. Assuming that President Clinton vetoes the disapproval bill, the only recourse for Congress is to pass a bill overriding the veto of the disapproval bill, but a two-thirds majority of both Houses is required.

The big test for the Congress and the president will come when 13 discretionary bills reach the president this fall. They account for one-third of the federal budget, and according to the Citizens Against Government Waste Organization, these bills will contain between $10.5 billion and $14.5 billion in wasteful spending that is ripe for line-item veto.

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