Is There a Judicial Vacancy "Crisis"?
Writing in Salon, Joe Pace argues there is exists a judicial vacancy crisis:
At present, 104 of the 876 federal judgeships -- almost 1 in 8 -- lie vacant. Some openings have persisted for so long and some caseloads have become so unmanageable that the Administrative Office of the U.S. Courts has declared 49 "judicial emergencies." In districts once known as "rocket dockets," civil litigants can expect to wait two to three years before they get a trial. According to Carolyn Lamm, the president of the American Bar Association, the problem is "fast approaching crisis proportion."
It would take an extraordinary amount of naïveté to deny the sad but true fact that there are too many judicial vacancies. The size of the problem cannot be denied, but there are some real disagreements about its source. One of these is quite simply that life on the bench is not as attractive as it formerly was. There are many more judges who are on the bench, so that the status value of serving on any of the lower courts is necessarily lower than it once was. The problem is compounded by the crushing nature of the workload, including a huge dose of habeas and other criminal type cases on the docket. Then there is a real issue of getting qualified applicants to endure the immense level of formality needed to get a nomination for a judgeship, including endless disclosure and interview requirements. And last the pay levels are sufficiently low that many qualified applicants are not prepared to go through the process. So there is constriction on the supply side.
Matters are only worse on the other side, given that any judicial nominee with intellectual distinction is fair game for all sorts of attacks. The fault here is bipartisan because each party when out of power will use blocking tactics. This pattern was observed when Republicans opposed Clinton nominees, including Elena Kagan when her name was floated as Circuit Court nominee. And this trend continued throughout both the Bush and Obama administrations.
The problem is simple: Neither side believes that if it backs off today, the other side will reciprocate when the tables are turned. The only short term solution is to divide the power in both Republican and Democratic administrations so that the minority party gets some portion of the nominations. That is very hard to implement, so that I see the impasse moving forward into the future. A smaller government might reduce these pressures, but not so long as the either party has ambitions to grow the size of the nation. This is but one more instance of a set of national institutions falling apart at the seams.
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Re: Is There a Judicial Vacancy "Crisis"?
Right now, America needs more judges like it needs more congressmen. There may be a number of vacancies. But like any good leftie writers, those complaining about the vacancy "crisis" are only interest in spending more money on government employees, rather than asking about their outputs.
The right question is whether there is excessive delay in the decision of cases. Are there horror stories of federal prisoners waiting too long for their trials? Of civil cases waiting too long for their court dates? Ask the supporters and defenders of Prop 8 if they feel that Judge Vaughn Walker didn't move on their case swiftly enough.
To the extent there is a vacancy problem, I bet the short term explanation is nothing more than the coming of the midterms and the Supreme Court appointments of the last two years. President Obama, I suspect, has not wanted to nominate judges too quickly because he doesn't want to provide even more proof of his left wing ideology. The Senate -- which after all is run by his own party -- has not been swift because the confirmations of Sotomayor and Kagan blocked up the judicial appointments process for two summers in a row.
Re: Is There a Judicial Vacancy "Crisis"?
The third, deeper, problem, is a result of liberal politics itself. The left has built part of its governing agenda on the idea that courts should bypass the political process to impose its values on the country. The more that liberal judges have nationalized issues ranging from abortion to gay marriage, the more that people will understandably seek to pursue their agenda through the courts. And that means that both sides will struggle to achieve their political goals through the judicial appointments process.
Re: Is There a Judicial Vacancy "Crisis"?
I tend to view this issue in less partisan terms. Huge portions of the federal docket deal with ordinary kinds of business and regulatory affairs for which prompt adjudication is needed. To some extent, this problem can be solved, as it were, by resorting to arbitral processes that lack the power of law, but which secure a high level of compliance nonetheless. The issue of judicial shortages is not about gay rights or abortion. Those cases will always be on some fast track, and the difficulties that they raise deal with substance, not with delay, which is a very different concern.
The delay problem arises because Congress and the states pass so many new laws that the volume of litigation is certain to rise. At this point, the first best solution is to roll back many of these laws. But in the interim, it is to expand the judiciary to meet that huge pent up demand. So think of the vacancy issue as a tip of a very large iceberg. The system may not hold together. This is one of the rivets that is popping out below the water line.
May '10
Re: Is There a Judicial Vacancy "Crisis"?
From my perspective here in the trenches, so to speak, I have to side with Professor Epstein. The District Court judges with whom I am familiar are doing yeoman's work keeping up with their burdensome criminal dockets with the result that civil motions must wait for months for a decision. Also, I am in the Fourth Circuit and for several years recently nearly every three judge panel had a District Judge sitting by designation. I don't have much to offer in terms of causes or solutions (other than asking those involved in the nomination process to behave like adults), but I agree we have a problem.
Re: Is There a Judicial Vacancy "Crisis"?
I agree with Richard on the deeper structural issue -- the problem is all of the laws that Congress is passing and the excessive regulation of the administrative state. The Framers' original idea is that most regulation would be by the states, with state courts deciding most cases, and the federal government using its commerce clause power to clear away what was needed to created a national free market.
Edited on Sep 23, 2010 at 12:09pmHow about this to think about. About 40 states have judicial elections and term limits. If the federal courts continue to get politicized, as I think is inevitable, perhaps the solution is to have more public accountability for judges, not less. And that means elections, even with recalls. We could also include term limits to prevent the reverse the growth of a juristocracy.
For business cases, which I agree with Richard are important, I think that arbitration will do the trick. Most business cases should settle or go to private judges most of the time. The courts are needed only for the interpretation of important statutes or the resolution of first of a kind cases. The expense of litigation and any delay can be avoided by faster arbitration, which is win-win for the private businesses and society.
Jun '10
Re: Is There a Judicial Vacancy "Crisis"?
I hesitate to take my rowboat out in waters where dreadnaughts are exchanging ranging shots, but here goes: Don't Article Three courts arguably have inherent powers under the constitution to declare their own budget to be inadequate for the exercise of their constitutional role and directly draft the treasury without congressional appropriation (hypothetically, the appropriation of one dollar would be tantamount to dissolving the judiciary)? If inherent powers are conceded then could salary levels and even "temporary emergency appointments" conceivably be ordered by the Supreme Court to preserve the judiciary?
Edited on Sep 23, 2010 at 12:22pmRe: Is There a Judicial Vacancy "Crisis"?
Pilgrim: I hesitate to take my rowboat out in waters where dreadnaughts are exchanging ranging shots, but here goes: Don't Article Three courts arguably have inherent powers under the constitution to declare their own budget to be inadequate for the exercise of their constitutional role and directly draft the treasury without congressional appropriation...? If inherent powers are conceded then could salary levels and even "temporary emergency appointments" conceivably be ordered by the Supreme Court to preserve the judiciary?
Yours is a rowboat with a nuclear weapon attached. The judiciary may have many inherent powers, but nominations to these positions are prescribed in detailed form on Article III, and there can be no circumvention. The hard question is the one that you do hint at. This system only works by a sense of comity. The legislature cannot deny judges a reasonable salary, but it is politics and not law that enforces this obligation. The one case that dealt with this, Evans v. Gore, held that judges could not ask for salary increases to offset inflation. The point of the no reduction in payment provisions was to protect against special legislation by Congress. It was not to set macroeconomic policy.
May '10
Re: Is There a Judicial Vacancy "Crisis"?
Public elections of judges seem unlike elections of politicians in that it's much more difficult for citizens to understand and monitor a judge's performance. Considerably more context seems necessary to make a sound consideration of a legal decision than of a legislative decision. Afterall, the essential role of a judge is to apply the general principles which politicians create to specific circumstances. I've never felt adequately informed about those circumstances before voting on my county's judges. Voter ignorance would be even greater at the state level.
Would anything beyond good sense prevent cases from stacking up ad infinitum until citizens finally feel abandoned by the judiciary? Is direct pressure from voters the only strong motivation for politicians to address the issue?
I hope Ricochet has another lawyer podcast again soon. Perhaps the next one could include Adam as well.
Jun '10
Re: Is There a Judicial Vacancy "Crisis"?
Federal District Judges use the 14th Amend to unlock state treasuries and mandate the performance of executive actions to provide access to schools that can educate too many times to mention. FDJ's are also running more than a few jails and prisons to provide decent detention, same justification. If my 14th Amend due process rights (procedural, the real ones) are denied because a state's courts are unable to function, couldn't a FDJ intervene to require the legislature and governor to provide adequate judicial officers for a state court system? Then the question, could judicial power not accomplish the same thing at the federal level to protect my due process rights. When you state "nominations to these positions are prescribed in detailed form on Article III, and there can be no circumvention" I respectfully suggest that the first clause is factual but the second clause is aspirational.
Aug '10
Re: Is There a Judicial Vacancy "Crisis"?
Today, I was just assigned a new pro se Section 1983 civil rights case to defend. Talk about a waste of time, money and other resources. Fortunately, the magistrate carefully went through the pro se litigant's complaint and winnowed out all the claims that have no remedy under Sec. 1983. The last claim is up to me to win...
Aaron, your reflections on state judges are well taken but all Federal judges, including Federal Magistrates, are appointed by the President, for life so long as they behave themselves. The amount of practical, day-to-day power a District Court Judge has is awesome. Quite frankly, in most states, the average Federal District Judge is going to be the most powerful man or woman in the state.
Re: Is There a Judicial Vacancy "Crisis"?
Let me try to deploy an ABM system here (we could always use more of them). It was once famously said that if Congress wanted to, it could reduce the Presidency to a desk, a piece of paper, and a pencil. Same goes for the courts. Nothing in the Constitution requires Congress to fund the judiciary at a certain amount or create a certain number of judgeships. If you look at the Constitution closely, it only requires the creation of the Supreme Court. We could get by without a federal court system; only a Supreme Court and the state courts.
As Richard suggests, the main constraints on Congress meddling with the courts come about from political practice, not the Constitution. Jefferson failed to use the impeachment power to control the courts, but he came close. I don't think it would be a bad thing for the federal courts to do less and the state courts to do more -- one of the positive aspects of our constitutional system is that it relies on decentralized federalism -- so long as Congress does not attempt to undermine the judiciary's independence in deciding cases.
May '10
Re: Is There a Judicial Vacancy "Crisis"?
Federal judicial elections?!?! Please, no. For the sake of my day-to-day sanity - please no.
In my practice area we use arbitration often, and often to favorable results. I do not share your broader enthusiasm for it, though. In particular, if you are naming arbitration's virtues, speed and economy should not appear on the list.
Re: Is There a Judicial Vacancy "Crisis"?
John rightly raises another issue worthy of brief reflection. By common consent there is no distinguished state court in the land, even though there are many distinguished state judges. But there is no court that reminds me of the Massachusetts Court from 1880-1900, or the New York Court of Appeals, 1920-1940, or the California Court 1960-1980, And why? Because of the dominance of federal law, which leads many judges, both liberal and conservative (think Janice Rogers Brown, Diane Sykes) who move to the federal system, where all the action is. It is hard to revive the state courts when so much law is federal law, and when the United States as such cannot be sued typically in state court and never sues there. The shift from common law to statutory and from state to federal is quite extraordinary. And through it all, state courts are still crowded. Too much law!
May '10
Re: Is There a Judicial Vacancy "Crisis"?
I am chomping at the bit to comment on Professor Epstein's post in #13 but, alas, I use my real name and not a nom de plume.
Jul '10
Re: Is There a Judicial Vacancy "Crisis"?
Is this perhaps at some level a reflection that there is just too much damned "judging" going on? Has the litigious society exceeded the bounds of its constitutionally allotted function? Ought we to need that many judges?
Sep '10
Re: Is There a Judicial Vacancy "Crisis"?
Indeed Patrick. Seems to me that way to much of our societal interactions are ending up in court. Decriminalization (in all areas), arbitration and any other effective measures to reduce workloads would be preferable to me over increasing the amount of judges.
May '10
Re: Is There a Judicial Vacancy "Crisis"?
At some level, yes. People talk about interest group politics; well, interest groups have been moving away from politics toward litigation over the last several decades, no doubt encouraged by increasing numbers of judges who are willing to apply legislative style remedies. After all, convincing 218 House members, 51/60 Senators and one president that you have a good idea is hard stuff. Finding that one special judge is much easier.