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COURT IS DOWN 3 JUDGES, WITH NO QUICK FIX IN SIGHT

A Utah attorney's decision to withdraw from consideration for a 10th Circuit judgeship has only made the overworked Denver-based appellate court's situation worse.

The 10th Circuit continues to handle one of the federal justice system's heaviest workloads with three of its 12 judicial slots unfilled."We have survived in part by using visiting judges," said the court's chief administrative clerk, circuit executive Robert Hoecker. "But we need the help badly."

Nominations have reached the U.S. Senate Judiciary Committee for two of the three court vacancies, said Sen. Orrin Hatch, R-Utah, the committee's chairman.

Nominees Mary Beck Briscoe, chief judge of the Kansas Court of Appeals, and Carlos Lucero, a Colorado attorney, likely will be confirmed by the full Senate later this year, Hatch predicted.

But the effort to fill the third slot, historically reserved for a Utahn, had to start over when Salt Lake attorney Dan Berman with-drew.

Part of the reason for delays in appointments in general, Hatch believes, is the increasingly political nature of the confirmation process. Some Republicans, remembering Democratic attacks on nominees put forward by Presidents Reagan and Bush, want pay-back.

"You have some Republicans who want to play tit for tat now," Hatch said. "But I do not believe judgeship nominees should be stopped over ideology. Clinton won the election, and as long as the people he puts forward are competent, ethical and decent, the president has a right to pick them."

Two 10th Circuit Court spots have been open for more than two years. The third position became vacant in Jan. 1, 1994, when the court's chief judge, ex-Brigham Young University law professor Monroe McKay, took senior status.

During the same period, the 10th Circuit - covering Utah, Colorado, Wyoming, New Mexico, Kansas and Oklahoma - has witnessed steady growth in its caseload. Total filings have risen from 2,200 in 1989 to 2,714 last year.

Hatch predicts it could take two weeks to three months before the name of a new Utah appellate court candidate can be forwarded to the Justice Department for screening.

Leading candidates for the spot now include U.S. Attorney for Utah Scott Matheson Jr., Utah Supreme Court Justice Christine Durham and Presiding 3rd District Court Judge Michael Murphy.