Last week, the Judicial Conference of the United States recommended that Congress add 73 permanent judgeships around the country. These are new judicial positions which would have to be filled, above and beyond the more than 120 existing federal judicial vacancies nationwide.
Political commentators have predictably seen this request through partisan lenses, noting (for example) that if all the requested judgeships were added and filled in short order, President Trump could “flip” the ideological composition of the Ninth Circuit. Given the current ugliness in Washington over proposals to pack the Supreme Court for partisan gain, it’s not entirely surprising that some would see the Judicial Conference’s request for more judges as having similarly political dimensions.
But the Conference must make its recommendation to Congress every two years, and that recommendation is based on hard evidence concerning the workload of the courts. Law360 has a good breakdown of the statistics behind the request, noting that nearly a third of the federal district courts have per-judge workloads that far exceed the recommended level.
It’s not clear if and when Congress will act on the request, although I certainly would not hold my breath on anything happening soon. In the meantime, the federal court system will continue to rely on internal strategies to manage its workload, including the use of senior judges and visiting judges in courts with otherwise crushing dockets.
I have a new op-ed in The Hill, noting the unfortunate conflation of growth in federal case filing, the mass of ongoing judicial vacancies, and ugly partisanship in the judicial confirmation process. Key grafs:
These partisan inquisitions are embarrassing and wholly unnecessary. The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.
Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?
Please read the whole thing!
The Alien Terrorist Removal Court (ATRC) is a special federal court, created by Congress in 1996 to review applications by the government for the removal of non-citizens who are suspected of being terrorists. It is populated by five federal district judges, who hold their position on that court in addition to their regular appointments.
Never heard of it? That’s not surprising, since the court has never met in its 23 years of existence. And that’s because the government itself has never once applied to the court to remove a resident alien suspected of terrorism. The judges on the court don’t even know where they would meet if an application was filed, since no specific courthouse has been designated for their deliberations.
Why has the court never been called into order? For one thing, its powers and jurisdiction are arguably unconstitutional:
“I honestly don’t know why it has not decided any cases, but there has been speculation that concerns about its constitutionality may have played a part,” said Robert F. Turner, a professor at the University of Virginia who is familiar with the court.
Turner, a national security expert, said when the government is dealing with permanent resident aliens, legitimate constitutional issues have been raised. He said he believes constitutional complaints concern secret evidence, like sensitive intelligence sources and methods that identified the individual as a terrorist, versus the Sixth Amendment’s right to see evidence and confront witnesses.
The Bristol Herald Courier has a terrific piece explaining the origins, administration, and constitutional challenges facing of one of the least-known courts in the country. Well worth the read!
That’s one immediate and important takeaway from the Annual Report of the Director of the U.S. Courts, published today. I shall have more to say about this once I have digested it — but business appears to be booming.
Professor Marin Levy has posted a new article, Visiting Judges, on SSRN. It’s a very useful piece which describes the origins of the visiting judges program in the federal courts, and provides some insider perspective on the use of visitors on the federal courts of appeal (drawn from 35 interviews with appellate judges and staff).
One persistent theme in the judicial interviews is that visiting district judges benefit from learning about the appellate process and appellate culture. That makes good sense: a trial judge who better understands and appreciates how appellate panels think is more likely to structure a written opinion with appellate reviewers in mind. And many of the circuit courts in the study had formal programs that invited new district judges within the circuit to sit by designation in their first few years on the bench.
The appellate judges recognized that they, too, would benefit from sitting by designation more frequently on the district courts. Their circuits, however, had no meaningful tradition of doing so, and indeed, many of the appellate judges worried about their own competence on the trial bench.
But the benefits of trial experience for appellate judges are just as strong, if not stronger, than the benefits of appellate experience for trial judges. Appellate panels are routinely called upon to determine whether the trial court abused its discretion, or whether its assessments of witness credibility withstand scrutiny. Having to sit as a trial judge–to rule on evidentiary objections, instruct jurors, pore through records on summary judgment, sentence a defendant, or make quick decisions on motions for preliminary injunctions–would give appellate judges an essential perspective on the litigation trenches. (It’s worth noting that many judges interviewed stated that they had already served as trial judges or at least trial attorneys. But of course, that it not the case for all appellate judges, many of whom come from academia, state appellate courts, or some other non-trial practice.)
One might even imagine a formalized shadowing or training system, in which district and appellate judges take the time to show each other the ropes of their respective benches. Of course, such a program would require administrative planning and quite likely Congressional support and approval, but it would allow the benefits of experience to inure to both levels of the federal judiciary.
In January, President Trump renewed the nominations of more than 50 people to serve as federal district and appellate judges. (These individuals had been previously nominated, but there nominations were not acted up before the end of the year, and had to be re-nominated for a new Congress.) Yesterday, 44 of the nominees passed the Senate Judiciary Committee, and will advance to the full Senate for a vote.
Several of the nominees passed on a 12-10 party-line vote. Others (primarily district court nominees) received little opposition from Senate Democrats. Courthouse News Service has a good roundup here.
I will leave commentary on Senator Cory Booker’s increasingly absurd committee histrionics for another day.
That’s the only reasonable interpretation of her stunning announcement that she will preemptively oppose any federal appellate court nominee put forth by President Trump. This is naked politics in its worst form: in an effort to score points with her political base and show off her willingness to resist the President, she is ready to deprive an entire branch of government the basic resources it needs to operate.
One might conclude that it’s all sound and fury, given that the Republicans control the Senate, and Harris’s Judiciary Committee vote will rarely be dispositive. But what an ugly precedent it sets. Should the junior senator from California succeed in her presidential aspirations, she will have set the stage for others to reject her own nominees sight unseen.
And of course, the judiciary is the body that truly suffers from this silly posturing. There are currently twelve vacancies on the federal circuit courts of appeal, half of which are on Harris’s home circuit, the Ninth Circuit. Those vacancies put pressure on the remaining judges to process heavy dockets with inadequate resources, leading to worse outcomes for criminal defendants, civil litigants, and the entire court system.
Senator Mitch McConnell was rightly criticized for failing to schedule a vote on the nomination of Judge Merrick Garland to the Supreme Court in 2016. That was ugly power politics, and this is no different. Democrats should reject unequivocally Senator Harris’s absurd and counterproductive policy.