William & Mary Law Review Volume 37 (1995-1996) Issue 2 Article 4 February 1996 A Constitutional Charge and a Comparative Vision to Substantially Expand and Subject Matter Specialize the Federal Judiciary: A Preliminary Blueprint for Remodeling Our National Houses of Justice and Establishing a Separate System of Federal Criminal Courts Victor Williams Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Criminology and Criminal Justice Commons, and the Jurisdiction Commons Repository Citation Victor Williams, A Constitutional Charge and a Comparative Vision to Substantially Expand and Subject Matter Specialize the Federal Judiciary: A Preliminary Blueprint for Remodeling Our National Houses of Justice and Establishing a Separate System of Federal Criminal Courts, 37 Wm. & Mary L. Rev. 535 (1996), https://scholarship.law.wm.edu/wmlr/vol37/iss2/4 Copyright c 1996 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr A CONSTITUTIONAL CHARGE AND A COMPARATIVE VISION TO SUBSTANTIALLY EXPAND AND SUBJECT MATTER SPECIALIZE THE FEDERAL JUDICIARY: A PRELIMINARY BLUEPRINT FOR REMODELING OUR NATIONAL HOUSES OF JUSTICE AND ESTABLISHING A SEPARATE SYSTEM OF FEDERAL CRIMINAL COURTS VICTOR WILLIAMS* Where there is no judiciary department to interpret, pro- nounce, and execute the law, to decide controversies, to pun- ish offenses, and to enforce rights, the government must either perish from its own weakness, or the other depart- ments of government must usurp powers for the purpose of commanding obedience, to the utter extinction of civil and political liberty.1 I. INTRODUCTION America's national court system has reached a critical junc- ture and is under increased public scrutiny.2 For the past sever- al years, our federal judiciary has endured consistently high judicial vacancy rates, while struggling to cope with substantial increases in civil and criminal cases.' The resulting logjam of cases threatens the speed and quality of federal justice; without substantial change, the situation will worsen. Indeed, a first of its kind long-range planning effort by the U.S. Judicial Confer- * Associate Professor of Law, John Jay College of the City University of New York. B.A., Ouachita University (1980); M.A.T., National-Lois University (1982); Ed.M., Harvard University (1984); J.D., University of California-Hastings College of the Law (1990); LL.M., Columbia University School of Law (1994). 1. JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF TE UNITED STATES 180 (1840). 2. See Doreen Carvajal, Awaiting Judgment: A Special Report; New York's Clogged U.S. Courts Delaying Civil Verdicts for Years, N.Y. TIMES, Apr. 17, 1995, at Al; Neil A. Lewis, Survey to Press U.S. Judges on Caseload and Expenses, N.Y. TIMES, Dec. 17, 1995, at 35. 3. See Janet Seiberg, Court Vacancies Result in Longer Case Dispositions, CONN. L. TRIB., May 9, 1994, at 8. 535 536 WILLIAM AND MARY LAW REVIEW [Vol. 37:535 ence projects the judiciary's future as grave:4 "the picture in 2020 can only be described as nightmarish."5 The litigant casu- alties of this crisis are escalating, and the integrity of the judi- cial system is threatened. For several years, the federal courts have suffered from high judicial vacancy rates. Scores of our nation's 840 judgeships-as many as one out of seven-have remained empty because of appointment malfeasance by the political branches.6 Indeed, a single judicial vacancy presently takes an average of 804 days to fill. As a direct consequence of these vacancies and appointment delays, the U.S. Courts' Administrative Office has declared "judi- cial emergencies" in all but one of the federal judicial circuits. In a recent state of the judiciary report, Chief Justice Rehnquist cautioned: "There is perhaps no issue more important to the judiciary right now than this serious judicial vacancy problem."' President George Bush handed over more than 100 empty judgeships to incoming President Bill Clinton. Notwithstanding promises of prompt appointments, dozens of judicial vacancies have remained throughout the Clinton Administration's tenure.' More than one-third of the more than sixty vacancies that exist- ed in mid-1995 existed for longer than eighteen months.9 High judicial vacancy rates greatly weaken a system that is already stressed from the effects of a recent litigation explosion. Over the last thirty years, combined civil and criminal case filings have increased almost 1000% in the United States courts of appeals and more than 250% in the district courts.'0 In the 4. Coping With the Great Flood, LA. TIMES, Dec. 29, 1994, at B6. 5. COMMITTEE ON LONG RANGE PLANNING, JUDICIAL CONFERENCE OF THE U.S., PROPOSED LONG RANGE PLAN FOR THE FEDERAL COURTS 18 (Mar. 1995) [hereinafter PROPOSED LONG RANGE PLAN]; see Randall Samborn, Judges Foresee Federal Courts Caseload Crush, NAT'L L.J., Jan. 9, 1995, at 1. 6. See, e.g., Mark Pazniokas, Judgeship Vacancies Add to Case Backlog, HARTFORD COURANT, Mar. 16, 1995, at Al. 7. WILLIAM H. REHNQUIST, 1993 YEAR-END REPORT ON THE FEDERAL JUDICIARY [hereinafter 1993 YEAR-END REPORT]; see William H. Rehnquist, Seen in a Glass Darkly: The Future of the Federal Courts, Address Before the University of Wiscon- sin Law School (Sept. 15, 1992), in 1993 WIs. L. REV. 1. 8. See Robert Marquand, Clinton Races To Put His Stamp on Judiciary, CHRIS- TIAN SCI. MONITOR, Mar. 7, 1995, at 1. 9. See Stephen S. Dunham, Vacant Federal Judgeships Hamstring Our Legal System, DENV. POST, July 22, 1995, at B7. 10. See FEDERAL COURTS STUDY COMMITrEE, WORKING PAPERS AND SUBCOMMIT- 1996] FEDERAL CR1MINAL COURTS 537 last fifteen years alone, the number of appeals filed per judge with the United States courts of appeals has doubled in number." As the national effort to combat violent crime and drugs in- creases, the number of criminal cases correspondingly esca- lates.' In each of statistical years 1992 and 1993, federal pros- ecutors filed almost 50,000 criminal cases in district courts-an increase of sixty-seven percent since 1980.'" Appeals of those prosecutions added substantially to appellate courts already burdened by, among other things, cases raising new sentencing issues under the novel Sentencing Reform Act of 1987."4 In- deed, between 1988 and 1993, the total number of criminal ap- peals, from convictions and sentences, increased 400%."5 The growth in federal litigation is certain to continue. In re- cent years, Congress has expanded, rather than restricted, the scope of federal laws, most notably in the area of civil rights and employment discrimination. That trend is likely to persist. Con- gress also has responded to the startling rise of violent crime across the nation by enacting tough new criminal laws. At a time when public concern about violent crime is at an all-time high, 6 and public confidence in the criminal justice process is TEE REPORTS 26-30 (1990); 1993 ANNUAL REPORT OF THE DIRECTOR OF THE ADMINIS- TRATIVE OFFICE OF THE U.S. COURTS [hereinafter 1993 ANNUAL REPORT]; 1992 ANNU- AL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS [hereinafter 1992 ANNUAL REPORT]; 1991 ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS [hereinafter 1991 ANNUAL REPORT]. 11. See FEDERAL JUDICIAL CENTER, STRUCTURAL AND OTHER ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS: REPORT TO THE UNITED STATES CONGRESS AND THE JUDICIAL CONFERENCE OF THE UNITED STATES 18 (1993) [hereinafter STRUCTUR- AL AND OTHER ALTERNATIVES]. 12. See William W. Scharzer & Russell R. Wheeler, On the Federalization of the Administration of Civil and Criminal Justice, 23 STETSON L. REV. 651, 653-54 (1994). 13. 1993 ANNUAL REPORT, supra note 10; 1992 ANNUAL REPORT, supra note 10. 14. Pub. L. No. 100-182, 101 Stat. 1266 (1987). 15. 1993 ANNUAL REPORT, supra note 10; 1988 ANNUAL REPORT OF THE DIREC- TOR OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS. 16. See, e.g., Bob Barr, A 'More Aggressive' Crime Bill This Time, ROLL CALL, May 22, 1995, available in LEXIS, News Library, Rollcl File; Frank James & Timo- thy J. McNulty, America, the Insecure, CmH. TRIB., May 28, 1995, at Cl; Michael Janofsky, Thousands Seek Permits To Carry Concealed Arms, N.Y. TIMES, July 6, 1995, at A14; Morton Kondracke, Crime Wave, Coming Soon, Demands Action, 538 WILLIAM AND MARY LAW REVIEW [Vol. 37:535 at an all-time low, 7 an event such as the bombing of the feder- al building in Oklahoma City is a shocking reminder of the im- portance of maintaining an efficient and fair federal criminal justice system."8 Our overworked, understaffed federal courts are certain to face an overwhelming number of additional crimi- nal prosecutions, resulting from enforcement of the 1994 Violent Crime Control and Prevention Act,'9 the pending Comprehen- sive Antiterrorism Act,2" and subsequent national anticrime and reform legislation promised by the Republican Congress's "Contract With America. ' 21 Case overload at both the trial and appellate levels has led inexorably to a state of gridlock.22 Federal civil litigants now COMM. APPEAL, May 14, 1995, at B4; Miriam Pepper, Violence Encroaches on the Job, KAN. CITY STAR, Apr. 20, 1995, at Bi. For a recent study of the complex dy- namics involved in the fear of crime, see KATHLYN T. GAUBATZ, CRIME IN THE PUB- LIC MIND (1995). 17. See, e.g., John Bare, Williamson: The Best Defense, CHAPEL HILL HERALD, Apr. 24, 1995, at 4; Charles M. Calderon, Jury System Needs Reform, USA TODAY, June 12, 1995, at AIO; Rhonda Cook & Bill Rankin, The Death GAME, ATLANTA J. & CONST., July 23, 1995, at Ni; Bill Hutchinson, Poll Shows Lady Justice Is Also on Trial, BOSTON HERALD, Jan.