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In this study, the Bren­nan Center inter­viewed more than 20 chief judges, court admin­is­trat­ors, and prac­ti­tion­ers from 10 districts which either currently or recently had judi­cial vacan­cies to get a firsthand account of how vacan­cies impact our trial courts. These judges repor­ted that vacan­cies slowed the court’s abil­ity to resolve motions and try cases, which drove up litig­a­tion costs, caused evid­ence to go stale, made it harder to settle civil cases, and in some instances, pres­sured clients to plead guilty. They also said vacan­cies created heav­ier case­loads, which meant judges had less time to spend on cases, and resul­ted in fewer admin­is­trat­ive staff, which left courts unable to effect­ively manage dock­ets. Although some districts are able to compensate for empty seats, their stop­gap solu­tions do not fix the prob­lem and only under­score the need to fill those seats

Intro­duc­tion

Since 2009, the federal trial courts have exper­i­enced unusu­ally high and sustained levels of judi­cial vacan­cies.1 Follow­ing years of obstruc­tion, the pace of Senate confirm­a­tion of judi­cial nomin­ees has dramat­ic­ally accel­er­ated since April 2014.2 Yet half of all district court vacan­cies lack nomin­ees (25 out of 50, as of July 14, 2014),3 mean­ing that more than two dozen vacan­cies are likely to remain unfilled in the fore­see­able future. (Under current prac­tice, nomin­ees are put forward by the White House follow­ing consulta­tion with home state senat­ors, who have the power to keep nomin­ees from moving forward in the Senate.) In addi­tion, nine new district court vacan­cies are expec­ted to open by the end of the year.4 From habeas peti­tions wait­ing years to be heard, to complex patent disputes unable to find a trial date, vacan­cies affect indi­vidu­als and busi­nesses that rely on the courts to resolve their disputes and protect their rights.

In an earlier report, the Bren­nan Center analyzed national court data on vacan­cies and case­load in order to docu­ment the burden that judi­cial vacan­cies create.5 In this study we dig deeper, analyz­ing the exper­i­ences of 10 districts that currently have judi­cial vacan­cies or that recently had vacan­cies filled. An analysis of court data, coupled with inter­views with more than 20 chief judges, court admin­is­trat­ors, and prac­ti­tion­ers, suggests that vacan­cies impact the abil­ity of many courts to effect­ively and timely admin­is­ter justice. In eight of the 10 profiled districts, judges and court admin­is­trat­ors repor­ted that judi­cial vacan­cies had a substan­tial impact on their courts.

  • Case delays: Delay in resolv­ing motions and hear­ing trials was the most common impact cited in inter­views with judges and court admin­is­trat­ors, with eight districts report­ing delays caused by vacan­cies. Our analysis of court data found that having a single judi­cial vacancy for 12 months was asso­ci­ated, at a stat­ist­ic­ally signi­fic­ant level, with a 2 percent­age point increase in the percent­age of cases pending for three years or more.
  • Less time spent on indi­vidual cases: Judges in four districts observed that heav­ier case­loads due to vacan­cies meant they spent less time consid­er­ing indi­vidual cases, rais­ing troub­ling concerns about the qual­ity of justice dispensed.
  • Admin­is­trat­ive burdens: Vacan­cies mean more than the loss of a judge. Judges and court admin­is­trat­ors in five districts emphas­ized the “trickle-down” effect on judi­cial admin­is­tra­tion, includ­ing the loss of law clerks and other admin­is­trat­ive resources and reduced capa­city for the work of judi­cial commit­tees.
  • Risk of judi­cial burn-out: Vacan­cies mean more work for a district’s remain­ing judges. In eight districts, chief judges and court admin­is­trat­ors raised concerns about judges taking on heavy work­loads in an effort to compensate for vacan­cies, with four specific­ally citing judi­cial burn-out as a cause for concern.

At the same time, the exper­i­ences of the 10 profiled districts suggest that some districts have a greater abil­ity to compensate for unfilled seats than do others, with the amount of assist­ance from “senior judges” (judges who are retired from active service but continue to hear cases on a volun­tary basis) play­ing a partic­u­larly import­ant role.

This study suggests that unfilled seats leave many federal trial courts unable to effect­ively manage their dock­ets — with the indi­vidu­als and busi­nesses that rely on these courts paying the price. The White House and Senate should prior­it­ize identi­fy­ing nomin­ees for unfilled judge­ships and continue their recent progress in confirm­ing qual­i­fied nomin­ees.