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An Analysis of the Vacancies within the Federal Judiciary

Thursday, January 19, 2012

Adam Brown | Bloomberg Law In his December 31, 2010, Year-End Report on the Federal Judiciary, Chief Justice of the U.S. Supreme Court John G. Roberts warned that some districts and judges were being "burdened with extraordinary caseloads" as a result of the U.S. Senate's failure to fill the growing number of federal judicial vacancies.1 In 2008 and 2009, the Senate confirmed a mere 44 district court, 16 circuit court, and two Supreme Court nominees.2 While the statistics show that President Barack Obama was not particularly aggressive in selecting nominees, the larger, more persistent problem is that the Senate's confirmation process has become increasingly politicized and contentious. As of the date of Justice Roberts's 2010 report, a total of 94 judgeships were vacant due in large part to the Senate's refusal to vote on President Obama's nominees.3 Despite Justice Roberts's pleas for a solution, 2011 saw the Senate continue to drag its feet in filling vacancies, which continue to hover near 10 percent of the total number of seats on the federal bench.4 Moreover, less than one half of these vacancies have a nominee pending before the Senate, a fact that all but guarantees that the vacancies crisis within the federal judiciary is likely to continue into 2012 and beyond.5 As case fillings continue to increase at the district court level, where the majority of vacancies exist, an already overburdened judicial system stands to become even more stressed if the status quo continues.

Overall Vacancies

As shown in Table 1, the total number of federal judicial vacancies, as of the time of this writing, stands at 84 with 16 vacancies among the various courts of appeals, 66 vacancies within the district courts, and 2 vacancies within the U.S. Courts of International Trade. There are 37 nominees still pending final approval by the Senate.6 Table : Article III Judicial Vacancies
CourtVacanciesNominees Pending
U.S. Court of Appeals167
U.S. District Courts6630
U.S. Courts of International Trade20
TOTAL8437
Source: Administrative Office of the U.S. Courts7 On December 15, 2011, towards the end of the Senate's last session for the year, Senate Republicans, led by Minority Leader Mitch McConnell, refused to allow a vote on 21 judicial candidates. Even though all but two of the candidates had received bipartisan approval from the Senate Judiciary Committee, Senator McConnell refused to allow an up-or-down vote without an assurance from President Obama that he would not make any judicial or executive appointments during Congress's recess. In light of President Obama's recent decision to appoint Richard Cordray to run the Consumer Financial Protection Bureau during the recess, Senate Republicans are likely to remain uncooperative going forward.8 Consequently, the fate of these 21 consensus nominees, and any subsequent nominees to be recommended by the Judiciary Committee, remains in doubt.

Vacancies by Circuit

— District Court Vacancies Table 2 breaks the number of district court vacancies down by circuit. The Second, Third, and District of Columbia Circuits appear to be the hardest hit by the vacancies crisis, with vacancy rates ranging between 13 and 14.5 percent. Table : District Court Vacancies by Circuit
CircuitVacanciesTotal # of JudgeshipsVacancy Percentage
First32910.34%
Second96214.52%
Third86113.11%
Fourth4557.27%
Fifth7828.54%
Sixth5628.06%
Seventh4478.51%
Eighth4419.76%
Ninth1310911.93%
Tenth43710.81%
Eleventh5677.46%
D.C.21513.33%
TOTAL6866710.30%
Source: Administrative Office of the U.S. Courts9 By any measure, the Second and Third Circuits are larger than average circuits. With 62 and 61 total judgeships respectively, both circuits exceed the average number of judgeships per circuit of approximately 55. Both also handle a high volume of cases relative to their sister circuits. In the 12 months ending March 31, 2011, district courts within the Second Circuit saw approximately 22,000 new civil case filings and 3,600 new criminal filings.10 In that same time period, district courts within the Third Circuit processed a staggering 68,000 new civil filings—approximately 58,300 alone in the Eastern District of Pennsylvania, where there are currently four district court vacancies—and an additional 2,450 new criminal filings.11 Despite the high number of vacancies, courts within the Second and Third Circuits have only four nominees pending Senate confirmation.12 Thus, even if all four of the nominees receive confirmation, both circuits will continue to be significantly strained for resources. With respect to district court vacancies generally, the fact that caseloads continue to increase promises to put further strain on the system. In 2011, as vacancies remained largely unfilled, the total case filings within the district courts increased by more than 2 percent.13 As a result, the average number of cases each judge must handle continues to increase. Table 3 shows the total actions per judge over the past five years. Table : Actions per Judgeship
 Total Actions Per JudgePercentage IncreaseWeighted FilingsPercentage Increase
20115601.08%5054.12%
20105549.70%4852.97%
20095051.41%471-0.42%
2008498-3.30%473-1.05%
20075158.88%4782.36%
Source: Administrative Office of the U.S. Courts14 After experiencing nearly a 10 percent increase in their caseloads in 2010 (as judicial vacancies peaked) district courts are not likely to take any solace in the fact that actions per judge increased only modestly (1.08 percent) in 2011. Moreover, "weighted filings," which take into account the different amounts of time district judges require to resolve various types of civil and criminal actions, continue to increase.15 Thus, district court judges continue to be burdened with larger and larger caseloads. — Circuit Court Vacancies In contrast to the district courts, circuit court filings actually decreased by 1.5 percent in 2011 to 55,126.16 Consequently, the circuit courts are not suffering additional strain due to an overall increase in cases. In fact, caseload metrics such as case terminations per active judge and written decisions per active judge remain virtually unchanged compared to 2010.17 Nevertheless, as shown in Table 4, the circuit courts are short a total of 16 judges. The Ninth Circuit has the highest number of vacancies with four. The D.C. Circuit has the highest vacancy rate with vacancies in three out of 11 authorized judgeships. Table : Circuit Court Vacancies by Circuit
CircuitVacanciesTotal # of JudgeshipsVacancy Percentage
First1616.67%
Second0130.00%
Third1147.14%
Fourth1156.67%
Fifth0170.00%
Sixth0160.00%
Seventh1119.09%
Eighth0110.00%
Ninth42913.79%
Tenth21216.67%
Eleventh21216.67%
D.C.31127.27%
Federal1128.33%
TOTAL161799.41%
Source: Administrative Office of the U.S. Courts18 Judicial Emergencies Of the 84 federal court vacancies, 32 have been designated as "emergency vacancies" by the nonpartisan Administrative Office of the U.S. Courts. Table 5 shows the number of emergency vacancies by circuit. Table : Emergency Vacancies by Circuit
CircuitVacancies
First0
Second1
Third2
Fourth2
Fifth5
Sixth0
Seventh4
Eighth0
Ninth11
Tenth1
Eleventh6
D.C.0
U.S .Courts of Int'l Trade0
TOTAL32
Source: Administrative Office of the U.S. Courts19 The Administrative Office defines a district court vacancy as "emergency" if weighted filings in the district exceed 600 per judgeship or the vacancy has been in existence for more than 18 months and weighted filings are between 430 and 600 per judgeship.20 Similarly, a circuit court vacancy qualifies as an emergency if it is in a circuit where adjusted filings per panel exceed 700 or it has been in existence for more than 18 months in a circuit where adjusted filings are between 500 and 700.21 In other words, the 32 judgeships currently designated as "emergencies" either have been vacant for a long period of time, fall within a particularly busy district or circuit, or both. An analysis of the Administrative Office's most recent data shows that on average the 32 judgeships designated as emergencies have been vacant for approximately two years with weighted or adjusted filings of 625 and 823, respectively.22 In the Ninth Circuit, which finds itself burdened with more than one-third of the total emergency vacancies, the length of time the positions have remained vacant range from mere days to as much as six years.23 The emergency vacancy designation indicates positions where resources are particularly scarce. These are the courts that pose the greatest risk to the overall efficiency of the federal court system unless they receive additional staffing.

Comparison to Historical Vacancies

Table 6 shows the number of vacancies as a percentage of the total number of judgeships over the past decade. Table : Article III Judge Vacancies by Year
  
YearVacanciesTotal Number of JudgeshipsVacancy Percentage
2011848749.61%
201011087412.59%
20099887511.20%
2008428744.81%
2007468755.26%
2006518755.83%
2005528755.94%
2004298753.31%
2003448775.02%
2002608586.99%
200110185811.77%
Source: Administrative Office of the U.S. Courts24 The overall judicial vacancy percentage has fallen back from its 2010 high. Nevertheless, at 9.6 percent it remains well above the rates seen between 2001 and 2008, as Republicans continue to obstruct efforts to confirm President Obama's nominees. The pace at which President Obama selected nominees in his early days in office has also played a part in the continuing vacancies crisis. In the first 18 months of his Presidency, when other issues of his agenda took precedence, President Obama submitted only 63 trial court nominations and 22 circuit court nominations to the Senate. Over the same period of time in his first term, despite a lower number of total vacancies, President George W. Bush submitted 83 district court and 32 circuit court nominees to appointment.25 Of President Obama's 85 early term nominations, the Senate confirmed a mere 27 trial court and nine appellate court nominees (an overall confirmation percentage of approximately 42 percent). By contrast, at the same point in President Bush's first term, the Senate had confirmed 51 judges in the trial court and another 12 in the appellate courts (for an overall confirmation rate of 55 percent). Thus, it would appear that both sides played a role in allowing to the vacancies crisis to persist. Senate obstructionism is not a purely Republican tactic. In fact, in 2005, Democrats blocked seven of President Bush's ten nominees to the appellate court from receiving confirmation for largely political reasons. As Justice Roberts stated in his 2010 Report, "each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes." The fact that vacancies remain close to their historical high shows that Justice Roberts's plea "for the political branches to find a long-term solution to this recurring problem" has been largely ignored. There are an additional 17 judgeships scheduled to become vacant in 2012.26 If new nominations continue to get held up, vacancies will increase beyond their 2010 high, further compromising the ability of the federal judiciary to do its job. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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