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Expert Brief

Trial Courts Update: Vacancies Higher After Filibuster Reform

Three months after Senate Democrats reformed the filibuster rules for executive and judicial nominees, Senate obstruction continues in new forms while courts and litigants continue to pay the price.

Published: February 22, 2014

Three months after Senate Demo­crats reformed the fili­buster rules for exec­ut­ive and judi­cial nomin­ees, Senate obstruc­tion contin­ues in new forms, and courts and litig­ants are paying the price.  When the Senate returns from its holi­day recess on Monday, Febru­ary 24, it should move forward on confirm­ing pending judi­cial nomin­ees.

In a 2013 report, Federal Judi­cial Vacan­cies: The Trial Courts, the Bren­nan Center docu­mented how unusu­ally high vacancy levels coupled with unpre­ced­en­ted work­loads are burden­ing federal trial courts like never before.  The fili­buster played a major role in creat­ing this back­log, but to date, reforms to the fili­buster rule have not ended Senate obstruc­tion or addressed the urgent need to fill trial court vacan­cies.  Since the fili­buster rules were changed in Novem­ber 2013, the number of district court vacan­cies has actu­ally increased from 75 to 80, creat­ing a 12 percent vacancy rate and the highest vacancy level since March 2011.[1] Prior to Pres­id­ent Obama taking office, the last time trial courts exper­i­enced 80 or more vacan­cies was in 1994, which saw high numbers of vacan­cies due in part to the creation of 74 new trial court judge­ships in 1990.[2]

The current level of trial court vacan­cies is substan­tially higher than what exis­ted at the equi­val­ent point in Pres­id­ent Clin­ton’s second term (60) or Pres­id­ent Bush’s second term (35).[3]   

Contin­ued Senate Obstruc­tion

In Novem­ber 2013, Demo­crats changed the Senate’s fili­buster rule to elim­in­ate the 60-vote cloture require­ment on exec­ut­ive and judi­cial nomin­ees (other than Supreme Court justices).  Senate Major­ity Leader Harry Reid argued that minor­ity obstruc­tion had “turned ‘advise and consent’ into ‘deny and obstruct.’” Yet despite fili­buster reform, “deny and obstruct” contin­ues to be the order of the day. 

Depart­ing from ordin­ary prac­tice, Repub­lican senat­ors have refused to allow non-contro­ver­sial judi­cial nomin­ees to move forward through “unan­im­ous consent” — a process by which the Senate can exped­ite proceed­ings by setting aside proced­ural rules if no Senator objects — effect­ively requir­ing a multi-day confirm­a­tion process for each nominee, includ­ing debate and multiple votes. At the same time, Demo­crats have failed to push forward with confirm­a­tions.  Other nomin­ees have been blocked through the “blue slip” process, by which home state senat­ors can keep nomin­ees from moving out of the judi­ciary commit­tee.

Remark­ably, not a single district court nominee has been confirmed since the Senate began its new session in Janu­ary; 27 nomin­ees are currently pending on the Senate floor and another 26 are pending in the Judi­ciary Commit­tee, accord­ing to data from Alli­ance for Justice.[4] On Febru­ary 12, Senator Reid initi­ated the cloture process for four district court nomin­ees prior to the start of a Senate recess.  Debate and confirm­a­tion votes are expec­ted to begin on the Senate’s return on Febru­ary 24, although absent unan­im­ous consent it could take several days before all four nomin­ees are confirmed. 

With 80 outstand­ing district court vacan­cies, along with four new vacan­cies anti­cip­ated by the end of March and an addi­tional six new vacan­cies expec­ted by the end of June, the pace of confirm­a­tions must dramat­ic­ally increase in order to make a mean­ing­ful dent in the vacancy back­log.[5]

Impact on the Trial Courts

Our courts — and the indi­vidu­als and busi­nesses that rely on them — have been unfor­tu­nate casu­al­ties of the ongo­ing partisan stan­doff in the Senate.  District courts are the work­horses of the federal judi­cial system, resolv­ing legal disputes, conduct­ing civil and crim­inal trials, and over­see­ing cases from filing to termin­a­tion.  When they are not func­tion­ing effi­ciently, it rever­ber­ates through­out our entire judi­cial system.

As detailed in the Federal Judi­cial Vacan­cies report, recent years have seen an unpre­ced­en­ted pattern of high and sustained vacan­cies in the district courts: For the first time since 1992, the aver­age number of district court vacan­cies has been greater than 60 for five straight years, from 2009–2013, with the trend now continu­ing into 2014.[6] The 2014 aver­age vacancy level currently sits at 78 vacan­cies (compared with an aver­age of 70 vacan­cies in 2013). The follow­ing graph details the annual aver­age number of district court vacan­cies since 2003, the last time new judge­ships were created:

Annual Aver­age District Court Vacan­cies 2003–2014[7]

The vacancy gap between Pres­id­ent Obama and Pres­id­ent Bush’s terms in office illus­trates this strik­ing break with the past.  This gap has grown even larger since the Federal Judi­cial Vacan­cies Report first docu­mented the trend in July 2013.

Total Vacan­cies By Month in Office[8]

Months in Office

These high vacancy levels, coupled with heavy case­loads, are also leav­ing trial court judges with unpre­ced­en­ted work­loads.  Count­ing both full-time active judges and part-time senior judges, the number of pending cases per sitting judge reached an all-time high in 2009 and was higher in 2012 than at any point from 1992–2007.[9] (Data for 2013 calcu­la­tion is not yet avail­able.) 

Growth in over­all district court case­loads is one reason for this grow­ing burden.  The total number of pending felony and civil cases has grown by nearly 40 percent since 1992, and by more than 17 percent since 2003, the last time new district court judge­ships were created.  It reached an all-time high in 2009, followed by a slight decline in 2010–2012, due prin­cip­ally to the termin­a­tion of tens of thou­sands of asbes­tos cases in the East­ern District of Pennsylvania in 2010–2012 and a decline in the filing of new asbes­tos cases in that district in 2012.[10]

At the same time, the contin­ued high vacan­cies since 2009 have signi­fic­antly exacer­bated the burden on sitting judges from these record case­loads.  The follow­ing graph shows the yearly aver­age of pending cases for each sitting district court judge, includ­ing those on senior status coun­ted as half-judges.  The red line estim­ates what the per-judge case­load would have been during 2009–2012 if all vacan­cies had been filled.  The green line estim­ates per-judge case­load with all vacan­cies filled and the addi­tion of 85 new judge­ships, the number recom­men­ded by the Judi­cial Confer­ence of the United States, the policy-making body of the federal courts.

Aver­age Number of Pending Cases Per Sitting Judge, 1992–2012[11]

Vacan­cies are also continu­ing to hurt those districts with the greatest need.  One way to gauge the sever­ity of the vacancy prob­lem is to exam­ine the number of “judi­cial emer­gen­cies” declared by the Admin­is­trat­ive Office of the U.S. Courts.  The Office relies upon a vari­ety of meas­ure­ments to declare an emer­gency, includ­ing the number of filed cases in each district, weighted by an estim­ate of the relat­ive judge-time, on aver­age, that differ­ent case types require.[12]  Since 2010, the district courts have been hobbled by an unpre­ced­en­ted number of judi­cial emer­gen­cies, as reflec­ted in the follow­ing graph.  (Because of changes in how judi­cial emer­gen­cies are calcu­lated, compar­at­ive data is only avail­able begin­ning in 2002.) The total number of judi­cial emer­gen­cies currently sits at 29 — the same number as exis­ted in Novem­ber 2013, when the fili­buster rules were changed.[13]  (The 2014 aver­age since Janu­ary is 28.)

Annual Aver­age Number of Vacan­cies Declared Judi­cial Emer­gen­cies, 2002–2014[14]

Conclu­sion

Obstruc­tion of non-contro­ver­sial nomin­ees is an abuse of the advise and consent process.  Polit­ics should not be permit­ted to hobble our courts.  With courts facing unpre­ced­en­ted work­loads, action is urgently required so that courts can effect­ively deliver justice despite heavy case­loads. 

Foot­notes

[1]  For current vacancy data, see Admin­is­trat­ive Office of the United States Courts, Article III Vacan­cies – As of 2/20/2014, http://www.uscourts.gov/Judges­And­Judge­ships/Judi­cial­Va­can­cies.aspx (last visited Feb. 20, 2014).  On Novem­ber 21, 2013, the date the Senate changed the fili­buster proced­ure, there were 75 vacan­cies.  See Alicia Bannon, Updated Trial Court Vacancy Figures (Nov. 21, 2013), http://www.bren­nan­cen­ter.org/analysis/updated-federal-trial-court-vacancy-figures.

[2] See Admin­is­trat­ive Office of the United States Courts, Archive of Judi­cial Vacan­cies, http://www.uscourts.gov/Judges­And­Judge­ships/Judi­cial­Va­can­cies/Archi­ve­OfJu­di­cial­Va­can­cies.aspx/ (last visited Feb. 20, 2014) (monthly data on judi­cial vacan­cies).

[3] Id.

[4] Alli­ance for Justice, Pending Judi­cial Nomin­ees, http://www.afj.org/wp-content/uploads/2014/02/Pending-Judi­cial-Nomin­ees-2.11.14.pdf (last visited Feb. 20, 2014).

[5] Admin­is­trat­ive Office of the United States Courts, Future Vacan­cies in the Federal Judi­ciary, http://www.uscourts.gov/Judges­And­Judge­ships/Judi­cial­Va­can­cies/Future­Ju­di­cial­Va­can­cies.aspx (last visited Feb. 20, 2014).

[6] See Alicia Bannon, Federal Judi­cial Vacan­cies: The Trial Courts 2–3 (2013), avail­able at http://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Judi­cial%20Va­can­cies%20Re­port%20Fi­nal%20-%20web.pdf.

[7] See Admin­is­trat­ive Office of the United States Courts, Archive of Judi­cial Vacan­cies, supra note 2. Calcu­la­tion of annual aver­ages on file with author. 2014 annual vacancy aver­age based on monthly data through Febru­ary 1, 2014.

[8] Id. Due to miss­ing data, the Novem­ber 2001 vacancy level is estim­ated using an aver­age of the vacan­cies in Octo­ber and Decem­ber 2001.

[9] Calcu­lated by divid­ing total pending cases by the total number of active and senior judges (coun­ted as half judges).  Data on the number of active and senior judges is from Admin­is­trat­ive Office of the United States Courts, Judi­cial Busi­ness of the United States Courts (1997 through 2012), tbl. Status of Article III Judge­ship Posi­tions, avail­able at http://www.uscourts.gov/Stat­ist­ics/Judi­cial­Busi­ness/archive.aspx.  Data on pending cases is from Admin­is­trat­ive Office of the United States Courts, Federal Court Manage­ment Stat­ist­ics (1997 through 2012), avail­able at http://www.uscourts.gov/Stat­ist­ics/Feder­al­Court­Man­age­ment­S­tat­ist­ics/Feder­al­Court­Man­age­ment­S­tat­ist­ics_Archive.aspx.  Yearly data is as of Septem­ber 30.  Calcu­la­tions are on file with author.

[10] See Admin­is­trat­ive Office of the United States Courts, Federal Court Manage­ment Stat­ist­ics (1997 through 2012), supra note 9; Admin­is­trat­ive Office of the United States Courts, Judi­cial Busi­ness of the United States Courts: District Court Summary (2012), avail­able at http://www.uscourts.gov/Stat­ist­ics/Judi­cial­Busi­ness/2012/us-district-courts.aspx; Admin­is­trat­ive Office of the United States Courts, Judi­cial Busi­ness of the United States Courts Summary 17 (2011), avail­able at http://www.uscourts.gov/uscourts/Stat­ist­ics/Judi­cial­Busi­ness/2011/Judi­cial­Busi­ness2011_Summary.pdf; Admin­is­trat­ive Office of the United States Courts, Judi­cial Busi­ness of the United States Courts 21 (2010), avail­able at http://www.uscourts.gov/uscourts/Stat­ist­ics/Judi­cial­Busi­ness/2010/Judi­cial­Businesp­d­fver­sion.pdf.

[11] For meth­od­o­logy in gener­at­ing graph, see supra note 9.

[12] District court judi­cial emer­gen­cies are defined as any vacancy where weighted filings are in excess of 600 per judge­ship, or any vacancy in exist­ence more than 18 months where weighted filings are between 430 to 600 per judge­ship, or any court with more than one author­ized judge­ship and only one active judge. See Admin­is­trat­ive Office of the United States Courts, Judi­cial Emer­gen­cies, http://www.uscourts.gov/Judges­And­Judge­ships/Judi­cial­Va­can­cies/Judi­cialE­mer­gen­cies.aspx (last visited Feb. 20, 2014).

[13] Id.

[14] See Admin­is­trat­ive Office of the United States Courts, Archive of Judi­cial Vacan­cies, http://www.uscourts.gov/Judges­And­Judge­ships/Judi­cial­Va­can­cies/Archi­ve­OfJu­di­cial­Va­can­cies.aspx/ (last visited Feb. 20, 2014) (monthly data on judi­cial emer­gen­cies). Calcu­la­tion of annual aver­ages on file with author.