High Justice Department officials have charged that senators control the appointment of federal judges, wielding a yeild power that "is heavily political and grounded in outdated notions of senatorial patronage."
The legislator's constitutional obligation to advise and consent to judicial appointments is often converted into a practice "consistent neither with the needs of the American public or nor the needs of the judicial system," the officials said in a report issued last week.
Under a pratice known as "senatorial courtesy," a senator objecting to an appointee to the federal bench in his state will be unchallenged by his collegues. Frequently, this senatorial power to block appointments has amonted to an affirmative power to make them, although formal appointment power is vested in the President.
The report urged formation of a commission on judicial appointments, composed of representatives of the public as well as the legal community, that would formulate standards for selection.
The report was issued by a committee of department officials formed in July, 1975, in response to a directive from President Ford to find ways to deal with severe problems in the judicial system. The committee chairman was Robert H. Bork, the Solicitor General until the Carter administration took office. Several committee members are non-political career officials in the department.
The new Attorney General, Griffin B. Bell, a former circuit appeals court judge, has expressed a determination to seek merit selection of federal judges, particularly for appeals courts.
A primary concern of the department committee was what it called a "crisis overload" of eases that now have to be handled by fewer than 600 judges, mainly in federal trial and appeals courts.
The crisis is "so severe that it threatens the capacity of the federal system to function as it should," the appeals courts.
The crisis is "so severe that it threatens the capacity of the federal system to function as it should," the report said.
Between 1960 and 1975, the number of cases - many of them more complicated than in previous years - doubled in federal courts and in the Supreme Court and quadrupled in appeals courts.
To cope withe the workload, the committee's recommendations include:
Requiring inmates of state prisons to seek redress of their civil-rights complaints - usually attacking conditions of their imprisonment - in state courts before seeking a hearing in federal courts (about 6,000 prisoners a year file such suits).
Confining to state courts all so-called diversity actions, in which litigants now can get into the federal courts simply because plaintiff and defendant live in different states. (In fiscal 1975, federal diversity actions numbered 30.000, about one-fifth of all fillings in federal courts, and accounted for 68 per cent of all civil jury trials.)
Creating a new layer of administrative judges to review cases arising from Social Security and welfare prosumers and borrowers, and other fedgrams, federal laws protecting coneral regulatory programs (such cases, often involving redundant factual disputes, also account for about one-fifth of the business of the federal courts).
Lifting from the Supreme Court the duty to review appeals from invalidations of federal laws by lower federal or state courts, as well as appeals of orders in which state courts uphold state laws against challenges based on the Contitutions.