One of the problems with covering the story of the destructive impact of judicial vacancies is that it is difficult to find lawyers or litigants who are willing to complain publically about the torpid pace of federal lawsuits. For selfish reasons, but also as a matter of etiquette and legal ethics, few people want to stand up and criticize their overworked, understaffed trial judge for taking one year, or two, or more, to resolve a civil case. And when trial judges bravely call attention to the toll caused by all the empty benches — and many judges have — their cries of frustration over Senate intransigence are usually considered to be self-serving, which of course doesn’t make them any less true.
There are scores of federal judicial spots which remain unfilled, year after year. There are dozens of jurisdictions all across the nation which now operate under what are known as “judicial emergencies” because of a lack of confirmed judges. News consumers absorb these facts but don’t absorb what they really mean to the individual who is trying to adjudicate her employment claim or to the corporation trying to defend itself against a litigious rival. By delaying the administration of justice, by thwarting the principles of finality and certainty, judicial vacancies, especially at the trial court level, cause real harm both to the American people and to the free market.
Alicia Bannon, of the Brennan Center for Justice, issued a report titled “Federal Judicial Vacancies: The Trial Courts” which does a better job than most of trying to bridge this gulf between the raw statistics of judicial vacancies and what those statistics mean for real people. She’s done this not just by offering basic statistics about the rate of vacancies — roughly ten percent right now — but also by offering a more comparative analysis of how things are today compared to how they were, say, two decades ago, before the Senate ran off the rails with its abuse of the filibuster on uncontroversial judicial nominations.
For example, Bannon tells us that a “judge in 1992 had an average of 388 pending cases on his or her docket. By 2012, the average caseload had jumped to 464 cases – a 20 percent increase. The average per-judge caseload in 2009–2012 was likewise 13 percent higher than the average for the preceding four years.” Why? Bannon tells us this, too.” The total number of pending felony and civil cases has grown by nearly 40 percent since 1992,” she writes, “and by more than 17 percent since 2003.” You don’t need to be a statistician to understand that increasing a judge’s caseload is going to decrease that judge’s ability to resolve any particular case in a timely fashion. That means longer financial uncertainty for business litigants and longer disruptions in the personal lives of individual litigants.
Bannon’s research also serves a valuable purpose by giving us statistics on what it would take to permit the federal judiciary to run as it should — in other words, to populate the nation’s benches with enough judges to meet the need of the nation’s litigants. “The 2009–2012 vacancy crisis has significantly exacerbated the burden on sitting judges from these record caseloads,” she writes, “Had all vacancies in 2009–2012 been filled, judges would have had an average of 42 fewer pending cases each year — still higher than historic levels, but a significantly less stark disparity than exists now. In fact, to fully compensate for the increased caseloads more judgeships are required — reinforcing the necessity of at least filling existing vacant seats.”
When Senate Republicans refuse to hold substantive votes on uncontroversial judicial nominees — dozens and dozens of them over the past five years — they don’t proclaim that they are filibustering to protect the federal government from bloat. They don’t claim that litigants don’t need to have their cases adjudicated in a timely fashion or that it’s good enough to have a federal judiciary that is chronically understaffed. They don’t claim that the Constitution is best served by making people and corporations wait years to have their federal claims settled. They don’t make these claims, at least not in public, because as a matter of politics they cannot make those claims.
It should be uncontroversial and uncontested — a fundamental matter of governance in any First World country — that the nation’s court system should be permitted by lawmakers to run efficiently, with adequate staffing at all levels but especially adequate staffing of trial court positions. The cost of administering the courts is terribly small when compared with the costs of running the Pentagon or the costs of any number of other federal endeavors. But the cost of neglecting the nation’s trial courts is terribly high. What Bannon has accomplished with her study is to give voice to those litigants and lawyers out there who are too shy to speak out about the delays in getting their cases and causes heard. If the new Brennan Center report does nothing else it will have accomplished at least that.