Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.
President Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees.
Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.
Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.
Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.
A strange development in West Virginia. State judge Charles King passed away last month, and Governor Jim Justice is charged with appointing his replacement. Interviews will be taking place this week. At the time of his death, Judge King was presiding over a lawsuit in which the Governor was the defendant. The new appointee will take the reins of that suit. Put differently, the Governor will literally be picking the judge in his own case.
While it is common for governors to temporarily fill vacant seats on the bench so that the courts remain at full strength, this situation is plainly awkward. It is all the more so because of the efforts in the mid-2000s of Massey Coal Company to heavily finance the election of Brent Benjamin to the state supreme court; Benjamin would later cast the deciding vote in Massey’s favor in a major case pending before that court.
Governor Justice must carry out his appointment responsibilities, but he would be well-served by including extra transparency in the process — for his sake, the new judge’s sake, and the sake of long-term public confidence in the state judiciary.
A snippet from a fascinating Law360 article, which notes that a temporary ban on jury trials combined with a judicial vacancy rate over 10% does not bode well for access to justice in the Garden State:
“My fear is the backlog of trials … whenever jury trials start again, is going to require so much attention from the judges that it’s probably going to have an effect on how other matters proceed in terms of motions and things that normally would be getting done sooner rather than later,” said Keith McDonald of Norris McLaughlin PA.
With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.
The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.
The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.
Surprise me, Senators. Do the right thing.
I have been writing recently about the vacancy crisis in the U.S. District Court for the District of New Jersey, which has only 11 active judges despite a statutory entitlement to 17 (and a Judicial Conference recommendation for 20). But docket challenges can occur even where a court has its full complement of judges. This story highlights the docket overload in the Middle District of Louisiana, which has all three of its authorized judges in place but which still struggles to manage its docket, one of the heaviest in the nation.
Happily, it appears that Senator John Kennedy is continuing to push for more resources for the district. But in our fractured age, when every judicial appointment has taken on a (misplaced) political tint, it’s nearly impossible to expect that Congress will adequately address the resource need.
I previously reported on the judicial vacancy crisis in the United States District Court for the District of New Jersey. The court, entitled to 17 active district judges by law (and recommended to have 20), is now operating with only 11 active judges due to a recent spate of retirements. Making matters worse is the district’s docket — the second heaviest in the nation — and the fact that President Trump has not nominated a single candidate to fill the district’s judicial vacancies.
Chief Judge Freda Wolfson has not been shy about discussing the challenges facing her court. Unable to replace judges on its own, the district is seeking creative ways to manage its docket, including encouraging parties to consent to trial by magistrate, turning away multidistrict litigation, and borrowing “visiting” judges from the Eastern District of Pennsylvania.
The use of visiting judges is not new, and the federal courts have shared judicial resources to the extent permitted by law for nearly a century. Indeed, in the early 1920s Chief Justice Taft (a favorite of this blog) proposed a “flying squadron” of judges who would not be assigned to any specific district but would instead be available to serve in any district where needs were the highest. That suggestion was rejected by Congress, but even today the courts show their ability to adapt to resource deficiencies beyond their control, and beyond their ability to remedy directly.
The U.S. District Court for the District of New Jersey is authorized by law to have 17 active (i.e., full time) district judges. Since 2015, however, retirements have dwindled that number to 11 active judges. And simultaneously, the number of case filings has gone up 150 percent. As a result, the district today faces terrible docket congestion. The number of cases pending more than three years has more than doubled, and the total number of pending cases has more than tripled, over the last four years.
Now some of the district’s judges are speaking out. In a story published on NJ.com, Chief Judge Freda Wolfson insisted that Congress and the President should do their job and fill the vacancies.
While Wolfson said the judges continue to work around the clock and treat every case — no matter the magnitude — diligently, the sheer number of cases is going to inevitably slow down the process.
“We need help tremendously,” Wolfson said. “It is not just to relieve the burden on the judges. It is because we need to service the public as quickly as we can in a just manner.”
There is plenty of fault to go around. The Trump Administration has not put forward a single nomination for the District of New Jersey, even as it works to fill other judicial vacancies at a rapid pace. And in any event, neither of the state’s Democratic Senators, Bob Menendez and Cory Booker, have suggested any willingness to work with the Administration on potential nominees.
As I wrote for The Hill back in March, judicial vacancy emergencies like this stress the capacity of the courts and damage the administration of justice in all cases — most of which are entirely apolitical, garden-variety disputes. Playing politics with judicial appointments is damaging and largely pointless.
The Hill reports: Feeling heat from the left, Dems reject judges deal.
A Senate Democratic aide said Wednesday that [Chuck] Schumer would not agree to approve the final slate of judicial nominees as the Senate prepares to wrap up its work for the year.
Progressives skewered Schumer for agreeing to two previous deals this year, one in August and the other in October, when he signed off on a group of court picks in exchange for letting vulnerable incumbents head back to their home states to campaign before the November midterm election.
Current number of vacancies in the federal courts: 143.
The problems surrounding the backlog sound rather extreme to American ears. First, the summer session is designed to address cases prior to January 1, 2000 — seventeen-and-a-half years ago. By contrast, federal civil cases in the U.S. are flagged after being in the system for three years. Second, the backlog has been exacerbated by the Calcutta court’s vacancy crisis — only 35 judges are sitting, although 72 are authorized.
The bar association has opposed the summer session, on the grounds that “lawyers also need some respite during the grueling summer.” No word on the opinion of the litigants who cases have been pending for nearly two decades.
Speaking to the Seventh Circuit Bar Association, Justice Elena Kagan told attendees that she was proud of the way the Supreme Court handled the prolonged vacancy crisis in the wake of Justice Antonin Scalia’s death in February 2016. She particularly praised Chief Justice Roberts for working to guide the Court toward a concrete resolution in cases which initially suggested a 4-4 split. From the Indiana Lawyer story:
During the 419 days the Supreme Court operated with an even number on the bench, the eight justices worked to find common ground so the court could issue majority opinions. Kagan said she and her colleagues learned to keep talking, listening and persuading as well as being open to persuasion.
She noted in a particularly polarizing time in American politics, the Supreme Court’s ability to find common ground offers a broader lesson.
“I think courts do model behavior,” Kagan said. “They teach people about reasoned decision-making and they teach people about collegiality. And when they’re working at their best, they also teach people about bridging differences and reaching agreement in places where you might not expect to find it.”