Last week, two long-standing judicial emergencies in the district courts ended with the Senate’s confirmation of Gregg Jeffrey Costa as a District Court Judge for the Southern District of Texas and David Campos Guaderrama as a District Court Judge for the Western District of Texas. Judge Costa’s seat had been vacant since June 11, 2010, and Judge Guaderrama’s since February 26, 2009. Nevertheless, judicial emergencies remain in effect with respect to thirty district court judgeships and seven Circuit Court judgeships.
These emergencies are not solely the result of a slow-moving nomination and confirmation process. Congress has failed for a generation to keep up with the fast-growing dockets in the Federal courts. In the district courts, the number of cases per judgeship increased 30% between 1993 and 2010 – from 407 cases per judgeship to 528. In 1993, 264,038 cases were pending in the district courts; in 2010, 359,594 cases were pending. During that same period, Congress authorized 35 new permanent District Court judgeships – an increase of only 5.5 percent [pdf].
The Circuit Courts are stretched equally thin. In 1993, 48,474 cases were pending in the Circuits – an average of 290 per judgeship. In 2010, 56,790 cases were pending – an average of 340 per judgeship, and an increase of 17 percent. The number of new permanent Circuit judgeships authorized by Congress during that period? Zero [pdf].
Federal judges see the harm done by this crisis firsthand. “I have my own standards,” said Chief District Judge B. Lynn Winmill of the District of Idaho late last year, “but it’s getting very, very hard to meet my standards. I want to have my decisions out in 30 days. Historically, I’ve done OK – until last year.” “Civil litigation has ground to a halt,” said Chief Judge Michael McCuskey of the Central District of Illinois in a Wall Street Journal interview. “You’ve got a right to sue but you do not get a right to a speedy jury trial.” In 1997, Judge McCuskey’s district had 55 civil cases which had been pending more than three years. In 2010, that backlog had grown to 1,200. “Ultimately, I think people will lose faith in the rule of law,” Chief Judge Alex Kozinski of the Ninth Circuit told the Washington Post. “We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.” During a panel at the Brookings Institution, Judge W. Royal Furgeson voiced his frustration with his overcrowded criminal docket:
I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court . . . The problem, of course, in night traffic court is if my client got fined it was going to be a couple of hundred bucks at the most, and the problem I had with the defendants before me, they were looking at years – potentially years and years in a federal prison.
The four longest-standing judicial emergencies in the Circuit Courts are:
- The Ninth Circuit: This court currently has 822 adjusted filings per judgeship. Like nine other Circuits, the Ninth reduced its total number of appeals pending as of the end of 2011, with terminations outpacing new filings, but 13,913 appeals still remained on the docket [pdf]. Judge Stephen S. Trott took Senior status on December 31, 2004. There is no nominee from the White House.
- The Ninth Circuit: This new vacancy was created by Pub. L. No. 110-177, which transferred one authorized judgeship from the District of Columbia Circuit to the Ninth Circuit effective January 21, 2009. On February 24, 2010, President Obama nominated now-Associate Justice Goodwin H. Liu of the California Supreme Court to this seat, but Justice Liu asked that his name be withdrawn from consideration on May 25, 2011. Judge Jacqueline H. Nguyen of the United States District Court for the Central District of California was nominated for the seat on September 22, 2011.
- The Seventh Circuit: This Court currently has 522 adjusted filings per judgeship. As of the end of 2011, 1,933 appeals were pending [pdf]. Judge Terence T. Evans took Senior status on January 7, 2010, and passed away on August 10, 2011. Professor Victoria F. Nourse of the University of Wisconsin Law School was nominated for the seat by President Obama on July 14, 2010. On January 18, 2012, after her nomination was returned to the President by the Senate, Professor Nourse requested that her name be withdrawn from consideration. There is no new nominee from the White House.
- The Eleventh Circuit: This Court currently has 985 adjusted filings per judgeship. As of the end of 2011, 3,546 appeals were pending [pdf]. Judge Stanley F. Birch Jr. retired on August 29, 2010. President Obama nominated Jill A. Pryor to the seat on February 16, 2012.