COURT VACANCIES MAY DEMONSTRATE FISCAL RESTRAINT

In an age when many Americans are convinced the federal bureaucracy is swollen beyond all reason with employees (even President Clinton recites the mantra of downsizing), at least one top official believes the government's hiring process has gone numb. Chief Justice William H. Rehnquist, the nation's top judge, has urged the White House to step up its efforts to fill 113 vacant federal judgeships. While Justice Rehnquist's concern in this regard deserves respect and consideration, we are cognizant of the need for American courts to face up to some realities of modern government.

Justice Rehnquist cites that the Senate confirmed 28 new federal judges in 1993, representing fewer than 15 percent of all authorized judgeships. Of the vacancies, 64 have existed for more than 18 months, and at least some have stood unfilled for four years. He credits senior judges (semi-retired and accepting only the cases they want) with helping fill gaps in the system.

America's judiciary is marked by infinitesimal intent: it is to provide justice to all. Fundamental as this is, it does not always square with real-world machinations of government, which is marked by finite resources. Thus, there will inevitably be conflicts between what can be hoped for and what can be paid for. To his credit, Justice Rehnquist acknowledges the judiciary's role in what he calls "an era of austerity," saying the courts must continue to provide a quality adversary system while doing so with greater fiscal accountability and efficiency.

Does this mean fewer federal judges? The times may call for budgetary responsibility, but Americans are also calling for law and order. The easy observation is that if some judgeships have gone unfilled for four years, perhaps they are unnecessary. (If a vacancy for a federal park ranger or an agency's middle-level supervisor existed for four years, it would be our hope the positions would ultimately disappear as a budget item.) In all aspects of American government, we believe some trimming would be not only fiscally prudent, but useful in terms of efficiency. On the other hand, we see federal judicial operations like the one in Cape Girardeau, where cases are dispatched quickly and where the mere presence of the court sends a significant signal of law and order to the region.

Beyond this, we wonder whether the vacancies that remain in the judiciary are an extension of any sort of budgetary vigilance, or if it is merely the result of inefficiencies by those responsible for filling them. President Clinton earned criticism during his first year in office for foot dragging with regard to filling key high-level government positions and ambassadorships. Many jobs still go begging for occupants. If this is calculated as an action of fiscal restraint, we might applaud the move as frugal. However, we fear it is just unproductive administration.

In a litigious society, and what seems to be an increasingly lawless one, the judiciary has a tough nut to crack in doing more with less. Efficiencies count for something, though, even where justice is concerned.