the impact of judicial vacancies on federal trial courts

8/12/2019 The Impact of Judicial Vacancies on Federal Trial Courts

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B R E N N A N

C E N T E R

F O R J U S T I C EA N A L Y S I S

Te Impact o Judicial Vacancies

on Federal rial CourtsAlicia Bannon

Brennan Center or Justice at New York University School of Law


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ABOUT THE BRENNAN CENTER FOR JUSTICE

Te Brennan Center or Justice at NYU School o Law is a nonpartisan law and policy institute thatseeks to improve our systems o democracy and justice. We work to hold our political institutions and

laws accountable to the twin American ideals o democracy and equal justice or all. Te Centers workranges rom voting rights to campaign finance reorm, rom racial justice in criminal law to Constitutionalprotection in the fight against terrorism. A singular institution part think tank, part public interestlaw firm, part advocacy group, part communications hub the Brennan Center seeks meaningul,measurable change in the systems by which our nation is governed.

ABOUT THE BRENNAN CENTERS PUBLICATIONS

Red cover| Research reports offer in-depth empirical findings.

Blue cover| Policy proposals offer innovative, concrete reorm solutions.White cover| White papers offer a compelling analysis o a pressing legal or policy issue.

2014. Tis paper is covered by the Creative Commons Attribution-No Derivs-NonCommercial license(see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center is credited, a link tothe Centers web page is provided, and no charge is imposed. Te paper may not be reproduced in part or in altered orm,or i a ee is charged, without the Centers permission. Please let the Brennan Center know i you reprint.


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ACKNOWLEDGEMENTS

Te Brennan Center grateully acknowledges the Democracy Alliance Partners, Te Joyce Foundation,Te JPB Foundation, John D. and Catherine . MacArthur Foundation, Mertz Gilmore Foundation, and

Open Society Foundations or their generous support o this work.

Many Brennan Center staff members contributed to this publication. Te author would like to thankWendy Weiser or her advice and editorial assistance throughout the drating process and Oliver Roederand Sabeel Rahman or their assistance with data analysis. Te author would also like to thank BrennanCenter clinic students Wayne Smart and Chris Leuchten or their extensive research in support o thispublication, including conducting interviews with court administrators and ederal court practitioners.

Allyse Falce, Katherine Munyan, and Cody Cutting also provided excellent research assistance, andMichael Waldman, John Kowal, Jim Lyons, Seth Hoy, Kate Berry, and Matthew Menendez providedinvaluable insights and editorial assistance. Te author is also grateul to legal interns Rebecca Morse andKwame Akosah or their proo-reading and cite-checking.

Finally, the author is grateul to the many judges, court administrators, and practitioners who participated

in interviews with the Brennan Center.

ABOUT THE AUTHOR

Alicia Bannon serves as counsel or the Brennan Centers Democracy Program, where her work ocuseson judicial selection and promoting air and impartial courts. Ms. Bannon also previously served as aLiman Fellow and Counsel in the Brennan Centers Justice Program, where she co-authored a report onthe harmul effects o ees imposed by the criminal justice system. Prior to joining the Brennan Center,

Ms. Bannon was a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons P.C.in Newark, N.J., where she engaged in a wide range o public interest litigation within New Jersey andnationally.

Ms. Bannon received her J.D. rom Yale Law School in 2007, where she was a Comments Editor o theYale Law Journal and a Student Director o the Lowenstein International Human Rights Clinic. She

subsequently clerked or the Honorable Kimba M. Wood in the Southern District o New York and the

Honorable Sonia Sotomayor in the Court o Appeals or the Second Circuit. She graduated rom HarvardCollege summa cum laude in 2001 with a degree in Social Studies. Prior to law school she worked inKenya and Uganda managing evaluations o development projects, as well as at the Center or GlobalDevelopment in Washington, D.C.


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TABLE OF CONTENTS

I. Introduction 1

II. Research Scope and Methodology 3

III. Impact of Vacancies 4

A. Justice Delayed 4

B. Individual Cases Suffer 8

C. Impacts on Court Administration 8

D. Risk o Judicial Burn-Out 9

IV. Variations in Capacity to Compensate for Vacancies 11

A. Level o Senior Judge Assistance 11

B. District Workload 12

C. Vacancies as a Proportion o otal Judgeships 14

D. Geographic Size 14

E. Use o Magistrate Judges and Other Administrative Variations 15

V. Conclusion 16

Endnotes 17


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HE IMPAC OF JUDICIAL VACANCIES ON FEDERAL RIAL COURS | 1

INTRODUCTION

Since 2009, the ederal trial courts have experienced unusually high and sustained levels o judicial

vacancies.1Following years o obstruction, the pace o Senate confirmation o judicial nominees hasdramatically accelerated since April 2014.2Yet hal o all district court vacancies lack nominees (25 outo 50, as o July 14, 2014),3meaning that more than two dozen vacancies are likely to remain unfilledin the oreseeable uture. (Under current practice, nominees are put orward by the White House ol-lowing consultation with home state senators, who have the power to keep nominees rom movingorward in the Senate.) In addition, nine new district court vacancies are expected to open by the endo the year.4From 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 disputesand 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.5In this study we dig deeper, analyzing theexperiences o 10 districts that currently have judicial vacancies or that recently had vacancies filled. An

analysis o court data, coupled with interviews with more than 20 chie judges, court administrators,and practitioners, suggests that vacancies impact the ability o many courts to effectively and timelyadminister justice. In eight o the 10 profiled districts, judges and court administrators reported thatjudicial 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 reportingdelays caused by vacancies. Our analysis o court data ound that having a single judicialvacancy or 12 months was associated, at a statistically significant level, with a 2 percentage

point increase in the percentage o cases pending or three years or more.

Less time spent on individual cases:Judges in our districts observed that heavier case-loads due to vacancies meant they spent less time considering individual cases, raising

troubling concerns about the quality o justice dispensed.

Administrative burdens: Vacancies mean more than the loss o a judge. Judges and

court administrators in five districts emphasized the trickle-down effect on judicialadministration, including the loss o law clerks and other administrative resources andreduced capacity or the work o judicial committees.

Risk of judicial burn-out: Vacancies mean more work or a districts remaining judges. Ineight districts, chie judges and court administrators raised concerns about judges takingon heavy workloads in an effort to compensate or vacancies, with our specifically citingjudicial burn-out as a cause or concern.

I.


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2 | BRENNAN CENER FOR JUSICE

At the same time, the experiences o the 10 profiled districts suggest that some districts have a greaterability to compensate or unfilled seats than do others, with the amount o assistance rom seniorjudges (judges who are retired rom active service but continue to hear cases on a voluntary basis)playing a particularly important role.

Tis study suggests that unfilled seats leave many ederal trial courts unable to effectively manage theirdockets with the individuals and businesses that rely on these courts paying the price. Te WhiteHouse and Senate should prioritize identiying nominees or unfilled judgeships and continue their

recent progress in confirming qualified nominees.


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RESEARCH SCOPE AND METHODOLOGY

Tis study considers the impact o judicial vacancies on the ederal trial courts through an analysis o 10

judicial districts that currently have or have recently experienced vacancies. Te profiled districts are theDistrict o Arizona, Eastern District o Caliornia, Northern District o Caliornia, Middle District oFlorida, Southern District o Florida, Eastern District o Michigan, District o Nevada, Western Districto New York, Eastern District o exas, and Western District o Wisconsin.

Te profiled districts cover six o the countrys 12 geographic circuits, varying in size rom two judgeshipsin the Western District o Wisconsin to 18 judgeships in the Southern District o Florida. At the time

interviews were conducted, all o the selected districts had at least one vacancy, and all but two hadat least a 15 percent vacancy rate as a percentage o total judgeships. As o July 14, 2014, three o thedistricts continued to have judicial vacancies (E.D. Cal., S.D. Fla., E.D. ex.). In addition, in threeo the profiled districts, judges have inormed the Administrative Office o the United States Courts

o their intention to retire, meaning that new vacancies are expected to open in these districts (N.D.Cal., W.D.N.Y., E.D. ex.). Te Chie Judge o the Middle District o Florida likewise noted duringan interview that she was anticipating at least two new vacancies in her district to open in 2015 due tojudges taking senior status.6

While not a random sample, the 10 profiled districts were selected to reflect diverse sizes, caseloads,and geographic regions.7Tis study is based on interviews with chie judges, court administrators, andpractitioners regarding how their districts have been affected by vacant judgeships, as supplemented

by an analysis o court data rom the Administrative Office o the U.S. Courts. Each profiled districtincluded an interview with at least one judge or court administrator, and the principal findings are basedon sel-reporting by interviewees. Interviews were conducted between September 2013 and May 2014.

II.


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IMPACT OF VACANCIES

A. Justice Delayed

Te most common observation in the surveyed districts was that vacancies slowed down the ability

o courts to resolve motions and try cases.Interviewees highlighted how delays can raise the cost olitigation, cause evidence to go stale, make it harder to settle civil cases, and even put pressure oncriminal deendants to plead guilty.

In eight out o the 10 districts profiled, judges or court administrators observed that the vacancies hadcaused delays due to heavier caseloads (D. Ariz., E.D. Cal., N.D. Cal., M.D. Fla., D. Nev., W.D.N.Y.,

E.D. ex., W.D. Wis.).8As Chie Judge Anne Conway o the Middle District o Florida observed,Tings take longer because o vacancies. . . . When you have as many cases as we have, its just hard.9

An analysis o national court data similarly suggests that districts with vacancies are seeing greater delays.In 2012, districts with no vacancies had an average o 9 percent o civil cases that were three or moreyears old, while in districts with at least one vacancy the percentage was 13 percent. 10Controlling or

a districts workload, having a single vacancy or 12 months was associated, at a statistically significantlevel, with a 2 percentage point increase in the percentage o cases pending or 3 years or more.11

By the Numbers: The Eastern District of California

One district that has been particularly hard-hit by vacancies is the Eastern District o

Caliornia. Since July 2012, between one and two o the districts six seats have beenvacant, with one seat currently unfilled. From July 2012 through December 2013, themedian time rom filing to trial or civil cases in the district increased by more thanfive months, while the percentage o civil cases pending or more than three years roserom 11.6 percent to 13.5 percent. Tese signs o delay occurred at the same time thenumber o filings weighted or case complexity in the district ell, strongly suggesting

that the vacancies contributed to the delay.12With the third-highest number o filings per

authorized judgeship in the country in 2013, judges in the Eastern District o Caliorniaace an overwhelming caseload even with a ully staffed court.13Te current situation isnot sustainable, observed the districts Chie Judge.14

In the profiled districts, delays were requently described as most pronounced in civil cases, becausespeedy trial obligations necessitate prioritizing criminal cases.15Several judges and court administratorssuggested that complex civil cases were requently hardest hit by judicial shortages, because they oten

require close review o a lengthy record or the scheduling o a multi-week trial.16

III.


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Chie Judge Claudia Wilken o the Northern District o Caliornia, whose district has a highconcentration o patent cases, explained why she thought vacancies were more likely to impact complexcases, noting that bigger cases make more work, difficult motions, and lengthy trials that can bedifficult to schedule.17Likewise, Chie Judge Raner Collins o the District o Arizona explained that

the huge records that characterize many habeas petitions mean that they are oten subject to delaywhen seats go unfilled. He explained, I you only have an hour or two, youre not going to get throughit. Youre going to have to repeat work the next time. You need a long uninterrupted stretch, which youdont get when youre operating under the gun.18Chie Judge William Skretny o the Western Districto New York also identified habeas petitions as particularly affected by vacancies. He explained that ittakes a very special effort to read through the papers and put them into the kind o shape that enablesfinal disposition since the petitioners are oten sel-represented. I dont think the cases are neglected,

but they are certainly affected, he added.19

However, while vacancies typically impact civil cases most severely, in one o the profiled jurisdictions,the Eastern District o exas, a heavy criminal docket coupled with a long-standing vacancy in the

Sherman Division has created substantial delays in criminal trials and sentencings as well.20 wocriminal practitioners in Sherman observed that delays caused by the divisions vacancy were putting

additional pressure on their clients to orego trials altogether and plead guilty to avoid continueduncertainty and lengthy pre-trial detentions. You cant underestimate the quieting effect it has ondeendants willingness to assert their right to a trial, said one attorney.21[See Spotlight on Sherman,exas for more information.] Nationally, analysis o court data suggests that vacancies have a small butstatistically significant effect on the progress o criminal cases; controlling or caseload, 12 months o

a vacancy in a district is associated with almost an extra month in the median time or the dispositiono elony cases.22

With respect to the mechanism by which vacancies slow down cases, difficulty scheduling trials was

the most common source o delay attributed to vacancies, cited in seven o the 10 profiled districts (D.Ariz., E.D. Cal., N.D. Cal., M.D. Fla., W.D.N.Y., E.D. ex., W.D. Wis.).23As Chie Judge Skretny othe Western District o New York observed, We dont neglect the seventh amendment, the right to a

civil trial. But we tell people, i this is what you want to do, it will take time to get there.24Chie JudgeCollins o the District o Arizona, which recently had six vacancies filled, highlighted how vacancieslet his court with ewer judges to assist with taking cases when multiple trials were ready to begin atthe same time.25Tese lengthy waits or trial can prejudice outcomes and harm the individuals andbusinesses that rely on courts to resolve their disputes. As Chie Judge Morrison England rom the

Eastern District o Caliornia emphasized, People lose their memory o what occurred, evidence spoils,people die. Its not a good thing.26

We dont neglect the seventh amendment, the right to a civil trial. But we

tell people, if this is what you want to do, it will take time to get there.

CHIEFJUDGESKRETNY, WESTERNDISTRICTOFNEWYORK

(describing impact o vacancies on his district)


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Judges in three o the profiled districts also described how vacancies led to delays in resolving motions,which in turn slowed down a cases path to trial or settlement (E.D. Cal., N.D. Cal., M.D. Fla.).27ChieJudge Conway explained how vacancies in the Middle District o Florida led to delays in resolvingdispositive motions, creating additional expenses or the parties appearing beore the court. Vacancies

push cases back . . . I you could rule on a summary judgment motion right away it would save theparties a lot o time [and] narrow the issues, she explained. Reducing the number o open questionsalso narrows a cases discovery. Fewer issues mean that the client pays less.28

Judges and court administrators in three districts likewise observed that delays in resolving motions andsetting firm trial dates had made it harder to settle civil cases, leaving disputes unresolved or longerperiods and perpetuating uncertainty or litigants (E.D. Cal., M.D. Fla., W.D. Wis.).29However, a

judge in one district believed that long waits or trial dates were actually encouraging settlement,30while an Arizona attorney suggested that delays were shiting the balance o power in settlementdynamics toward deendants.31Tese different perspectives reflect the complex considerations that gointo settlement decisions and suggest that the impact o vacancies on settlement dynamics is a ripe area

or urther inquiry.

Spotlight on Sherman, Texas

Judicial vacancies can pose significant challenges or geographically dispersed districts,where judges and other court resources cannot be easily redistributed when judgeships go

unfilled. One such example is in the Eastern District o exas, a district more than ourtimes the size o Massachusetts that is broken into six divisions. Te district currently has

two vacancies, including one in the Sherman Division, which serves close to 2 millionresidents.

Te Sherman Division currently has only one resident judge who hears cases. ocompensate or the vacancy, two judges rom other divisions in the district regularly travel350 miles to hear cases in Sherman, typically spending several days per month traveling.32Shermans only resident judge has announced his intention to take senior status in March2015, which will create a second vacancy in the division.

Over hal o the criminal prosecutions in the Eastern District o exas are located inSherman,33and the divisions vacancy has had a particularly significant impact on criminal

cases. Its taking a lot longer or criminal deendants to get to trial, and then to getsentenced,34observed the districts Clerk o Court, David Maland. In 2013, the mediantime rom filing to disposition or elony cases in the Eastern District o exas was 12months, up rom 9.9 months in 2009 when the district had no vacancies, and substantially

higher than the national median o 7.3 months.35According to a deense lawyer who


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practices in Sherman, Its common to wait a year, a year-and-a-hal or sentencings, onlyto have the case transerred to another judge at the last minute.36

Criminal deense lawyers practicing in Sherman expressed concern that the delays causedby vacancies were compromising the rights o their clients. One lawyer noted that orthe first time in his experience, he has a client sitting in jail awaiting trial who will seeco-deendants who pleaded guilty finish their prison terms beore her case is even heard.Tey [the prosecutors] tell you your client will be in jail because [her co-deendants] took

a plea and she wants a trial, he said. Its a hammer over her head plead guilty andyoull be out o jail.37He explained the dilemma his clients ace: It undermines yourability to truly go to trial and deend yoursel because you think youre innocent. Te delayis so much, its easier to take the plea. He added, When I started doing this work 15 yearsago, or even six or seven years ago, our big ear was that a judge would tell you to be ready

or trial in 90 days. [Te vacancy has] led to such a huge difference in how the prosecutionlooks at the cases. Teres no other explanation or the change other than the vacancies andthe number o criminal cases filed in the district.38

Te Eastern District o exass Chie Judge, Leonard Davis, also highlighted the impacto the Sherman vacancy on the timing o sentencing. Its a hardship or the litigants,he explained. Due to the backlog and [the] vacancy [in Sherman], we have a very high

population o criminal deendants, about 200, sitting in county jails, having pled guiltyand waiting or sentences. Tey cant get their cases processed.39He noted that inmatesare typically housed in a county jail because there are no ederal acilities available, whichis more costly or the government and leaves inmates with ewer work and educational

opportunities. Tats not air to [the inmates] and adds a great deal o unnecessary cost byhaving to house them or so long in county jail holding acilities, he said.40

Shermans vacancy has also burdened civil cases. A civil practitioner described challengesin moving a complex case against a large financial institution to trial in Sherman. I haveto worry that i the judge doesnt hear the case during a December pre-trial date, the judgewont take another civil sitting until May 2015. He explained that i any issues come up in

discovery that require extra time and they miss the [December] slot, theres no orgivenessor hal a year.41

Local bar associations and business leaders in Sherman have sounded the alarm, urging

that the courts vacancy be filled.42

Ater more than two years, a nominee was named in lateJune, raising hopes that there may finally be progress in filling Shermans vacant seat. Local

attorney and ormer president o the Grayson County Bar Association Roger Sandersobserved, Its incredible to think that with a division approaching 2 million people, withmassively growing cities how can you have almost 2 million people with only onejudge, whos about to take senior status?43


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B. Individual Cases Suffer

Overloaded dockets due to vacancies do more than slow down cases. In our o the 10 districts surveyed,judges also expressed concern that vacancies caused them to spend less time on individual cases (D.

Ariz., M.D. Fla., W.D.N.Y., E.D. ex.).44Tese concerns are consistent with scholarship that suggests

that when judges are overworked, the quality o justice suffers as judges use shortcuts that can leadto everything rom harsher criminal sentences to more deerential review o lower court decisions byappellate courts.45

Chie Judge Davis in the Eastern District o exas described the situation in his district as simple

math. With more cases you have less time to give to [an individual] case, he explained. It affects thequality o justice thats being dispensed and the quantity o work you can complete, he added. 46Anattorney who practices regularly beore the Eastern District o Caliornia echoed these concerns rom apractitioners perspective. Te judges decide things without hearings, even big dispositive motions likesummary judgment, he observed. I tend to think it results in less time to actually reflect on whats

being submitted. Tey might call it efficiency, but one might also call it rushed rulings, he added.47

Chie Judge Conway in the Middle District o Florida concurred that vacancies and heavy caseloadshad impacted the practice o judging, although she emphasized that she did not believe it was changingultimate outcomes. Sometimes youd like to be able to spend more time thinking and writing, or

having more hearings, she noted. We just dont have time to do that there are ewer hearings andless ace time with attorneys [because o vacancies]. I dont think the final product is any different,but . . . [w]e would like to be able to benefit rom hearing more rom the lawyers.48You really want aclear mind or the kind o cases we have, she continued.49

Sometimes youd like to be able to spend more time thinking and writing,or having more hearings. We just dont have time to do that.

CHIEFJUDGECONWAY, MIDDLEDISTRICTOFFLORIDA

C. Impacts on Court Administration

Judges and court administrators in five districts also raised concerns about the broader impact thatvacancies placed on court administration (E.D. Cal., N.D. Cal., M.D. Fla., E.D. ex., W.D. Wis.). 50

Its a trickle-down effect. When you have a vacancy it affects all parts o your court system,observedthe Eastern District o exass Chie Judge Davis.51

Vacancies can impact districts judicial resources and staffing, particularly i a judgeship stays vacantor a lengthy period. When a judgeship becomes vacant, the remaining judges in the district typicallytake on greater workloads to compensate or the vacancy. However, i a judge leaves the bench through

retirement or death, the district loses any law clerks, courtroom deputies, or administrative assistants


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that had been allocated to the judge ater 120 days (with the possibility o an extension o up to 210days).52Without these law clerks and chambers personnel, the remaining judges lose research andadministrative support or the cases added to their dockets. Tose law clerks do a lot o legwork,noted Chie Judge Davis, whose districts two vacancies were the result o retirements. Were not only

down two judges [in my district], were also down six law clerks or their equivalent.53

Similarly, a judge that retires rom active service and takes senior status is allocated staff based on thesenior judges actual workload.54Since many senior judges carry reduced loads, staffing or the districtis reduced even though the overall workload or the district is unchanged. Te Clerk o Court inthe Western District o Wisconsin, which recently experienced two vacancies in a two-judge court,

describes this as a multiplier effect. Te loss o the judge is only part o the problem, he explained.55

Vacancies likewise impact other aspects o judicial administration. Chie Judge Claudia Wilken romthe Northern District o Caliornia observed that vacancies reduce the capacity o judges to work oncommittees that address important administrative issues, such as changes to local procedural rules and

initiatives to effectively utilize technology. With more judges, we could be more proactive and study

the issues more, she noted.56

D. Risk of Judicial Burn-Out

Beyond the direct impact o vacancies on litigants and courts, judges and court administrators in eighto the 10 districts also identified overworked judges as another consequence o vacancies (D. Ariz., E.D.

Cal., N.D. Cal., M.D. Fla., S.D. Fla., D. Nev., W.D.N.Y., W.D. Wis.). 57As Chie Judge Wilken in theNorthern District o Caliornia, which at the time o the interview had three vacancies, noted, Id liketo emphasize just how hard the judges are working . . . [including] evenings, weekends, work at home.58

Tese heavy workloads can take a toll on judges; in our districts, interviewees explicitly raised the concern

o burn-out due to the burdens o compensating or long-term vacancies (E.D. Cal., S.D. Fla., D. Nev.,E.D. ex.).59Chie Judge Davis in the Eastern District o exas, or example, described the long-termtolling effect on the judges rom his districts two vacancies, citing an impact on morale.60He added, Isense a weariness and a tiredness on behal o our district judges, especially ones that have to travel longdistances [because o vacancies].61Judge Davis speculated that this long-term toll was encouraging judgesin his district to retire, noting that the number o senior judges in his district has declined as more judges

chose to leave the bench altogether when they reached retirement age. 62Chie Judge Federico Moreno inthe Southern District o Florida likewise highlighted the toll that vacancies in his district placed on judges,despite observing that he did not think the vacancies were impacting the administration o justice. 63Its

like an emergency room in a hospital, he observed. Te judges are used to it and people come in and outand get good treatment. But the question is, can you sustain it? Eventually you burn out. 64

In two districts, interviewees also highlighted the burdens on senior judges who had retired rom activeservice while continuing to carry ull or close-to-ull caseloads,65arguing that it wears [them] down.66TeClerk o Court in the Western District o Wisconsin commended the districts senior judge as workingas hard or harder than beore she retired.67


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Its like an emergency room in a hospital. Te judges are used to it and

people come in and out and get good treatment. But the question is, can

you sustain it? Eventually you burn out.

CHIEFJUDGEFEDERICOMORENO, S.D.FLA.

Several attorneys raised similar concerns, describing wear and tear on their districts judges,68alongwith overwork,69a lower level o morale,70and a very heavy burden71on judges. Tese observationssuggest that high and sustained levels o judicial vacancies raise concerns not just or their impact oncurrent cases but or the long-term health and vitality o our courts.


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VARIATIONS IN CAPACITY TO COMPENSATE FOR VACANCIES

While most o the profiled districts described substantial impacts rom vacancies, districts varied intheir capacity to compensate or empty seats. In our districts, or example, chie judges reported thatheavy caseloads and limited senior judge assistance exacerbated the burden rom judicial vacancies in

their districts (D. Ariz., E.D. Cal., M.D. Fla., E.D. ex.).72In contrast, chie judges in two districts

stated that they had not observed a major impact rom vacancies, emphasizing the assistance they hadreceived rom multiple senior judges (E.D. Mich., S.D. Fla.).73

Although urther study is needed, the experiences in the profiled districts suggest several actors relevantto understanding how damaging a vacancy is likely to be to the administration o justice in a given

district. Tese actors include: the amount o assistance a district receives rom senior judges; thedistricts overall workload; the number o unfilled seats in a district as a proportion o total judgeships;

the districts geographic size; and the administrative responses undertaken by the district to compensateor vacancies, including the use o magistrate judges. While the impact o vacancies on individualdistricts is complex and multiaceted, these actors suggest some o the ways that districts may vary intheir capacity to compensate or unfilled seats.

A. Level of Senior Judge Assistance

Interviews in the profiled districts suggest that one o the most significant actors in how well a courtcan compensate or vacancies is the extent o assistance rom senior judges. In nine o the 10 profiled

districts, judges or court administrators identified their districts level o senior judge assistance as vital

to whether and how they were able to compensate or vacancies (D. Ariz., E.D. Cal., M.D. Fla., S.D.Fla., E.D. Mich., D. Nev., W.D.N.Y., E.D. ex., W.D. Wis.).74

Under ederal law, eligible judges can retire rom the bench at ull salary or choose to take senior

status, where they are retired rom active service but continue to serve and hear cases, oten on a part-time basis.75Nationally, senior judges carry an average o 50-60 percent o an active judges caseload;however, senior judge caseloads vary substantially, as do the number o senior judges in each district.76When vacancies are filled in a timely manner, senior judges provide supplemental support that increasesa courts capacity. However, when vacancies linger, senior judges in some districts have played a centralrole in helping offset the impact o empty seats.

Among the profiled districts, three districts reported that senior judges had volunteered to take ull or

close-to-ull loads to help compensate or vacancies (E.D. Cal., W.D.N.Y., W.D. Wis.).77For example,a court administrator in the Western District o Wisconsin described his district as being kept rom anuntenable situation because a senior judge had volunteer[ed] to be a ull-time judge.78

Senior judge assistance was likewise described as vital in the two districts whose chie judges had notobserved a major impact rom vacancies. In the Eastern District o Michigan, which has 15 judgeships,the Chie Judge explained that our vacancies (which have since been filled) were counterbalanced

IV.


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by the service o 11 senior judges, nine o whom were carrying a ull docket. Te districts Chie Judgenoted, Senior judges have really helped us. We would have much greater need i we didnt have suchactive participation by our senior judges.79Likewise, the Chie Judge or the Southern District o Florida,which had three vacancies or 18 judgeships at the time o the interview and currently has two vacancies,

described his district as still productive, emphasizing the assistance o his districts nine senior judges,which he described as a godsend and making a big difference.80

In contrast, our districts reported that one o the reasons they were having difficulty compensating orvacancies was because they had only limited senior judge assistance due to retirements or senior judgescarrying small caseloads (D. Ariz., E.D. Cal., M.D. Fla., E.D. ex.).81For example, since 2007, three judges

in the Eastern District o Caliornia have let the bench altogether, leaving the district with our (rather thanseven) senior judges.82O the current trial court vacancies, roughly three quarters stem rom judges takingsenior status, while the remainder are due to retirement, death, or the elevation o a judge to a circuit court. 83

Significantly, court data generally describes districts workloads by reerence to the number o judgeships

authorized by Congress a figure that excludes senior judge assistance and does not make statistics on

senior judge assistance in individual districts readily available. Te Administrative Office o the U.S. Courtscould acilitate a better understanding o the role that senior judges play in districts with vacancies by makingdata on senior judge assistance accessible as part o their case management statistics.

B. District Workload

In seven o the 10 profiled districts, judges or court administrators described above-average caseloads asexacerbating the burden rom vacancies, with vacancies pushing already overwhelmed courts past theirlimits (D. Ariz,. E.D. Cal., N.D. Cal., M.D. Fla., W.D.N.Y., E.D. ex., W.D. Wis.).84District courtjudges carry widely varying caseloads even when all seats are filled. In 2013, or example, the Eastern

District o exas had almost six times as many filings per judgeship, as weighted or case complexity, asdid the district court or the District o Columbia (not counting senior judge assistance).85

Although not universal, interviewees in many high-caseload districts complained that the districtsjudges were severely burdened by having to take on additional cases when seats were let unfilled,

describing judges as treading water86and being very overworked,87with one observing that thesheer burden o our caseload numbers means that delay is inevitable when there are vacancies.88In all,nine o the 10 profiled districts have been identified by the Judicial Conerence o the United States,the principal policy-making body or the ederal courts, as having sufficiently heavy caseloads to justiynew judgeships,89while Congresss ailure to create new judgeships was itsel a wide source o complaintamong districts profiled or this report.90[See Beyond Vacancies: Te Need for New Judgeships for

more information.] Te Southern District o Florida was the only high-caseload district whose chiejudge did not view vacancies as posing a severe burden, citing both the productivity o the active judgesin his district along with the assistance o the districts nine senior judges.91

Tese observations suggest that a districts overall workload is another actor that should be considered

in evaluating the likely impact o a vacancy. Tis finding is consistent with the practice o theAdministrative Office o the U.S. Courts, which categorizes vacancies in districts with high caseloadsas judicial emergencies.92


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Beyond Vacancies: The Need for New Judgeships

Congress has not passed a comprehensive judgeship act since 1990, and the last time

that any district court judgeships were created by Congress was in 2002. Nationwide,32 out o 94 districts have been recommended or additional judgeships by the JudicialConerence o the United States, based on the districts workload and sel-assessmento need.93When these recommended additional judgeships are added to the numbero existing vacancies, districts effective vacancy rates are striking, with 20 districts in14 states let with vacancy rates o 25 percent or higher.94

EFFECTIVE VACANCY RATES

Fourteen states have a judicial district with an effective vacancy rate of 25 percent or higher, counting existing

vacancies and requested additional judgeships.

*Data as of July 14, 2014. Percentages based on districts with the highest effective vacancy rate in each state.

Map Legend

1-14%

15-24%

>25%


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C. Vacancies as a Proportion of Total Judgeships

Federal trial courts also vary widely in the number o judgeship slots authorized by Congress, romdistricts with only a single authorized judgeship to districts with as many as 28. Vacancies as a

proportion o total authorized judgeships is thus another actor that may be relevant to understandingthe likely burden on a district rom a vacancy. Indeed, chie judges and court administrators in our othe 10 profiled districts highlighted the number o vacant seats as a percentage o total judgeships whendiscussing the impact o vacancies on their district (D. Ariz., D. Nev., E.D. ex., W.D. Wis.).95

For example, the District Executive or the District o Nevada explained how the workload in his

district became significantly more manageable when his district went rom having our o seven activejudges to six o seven, because cases could be distributed among more judges. Obviously, when youonly have our o seven judges, all o their filings increased dramatically, which results in more workor them to do, he explained. Teres more stress, and less ability to get the job done like theyre usedto.96He estimated that when there were three vacancies, each active judge had about 650 civil cases;

with each vacancy filled, the remaining judges were able to reallocate 50-75 cases.97

Likewise, districts with only a ew authorized judgeships may be particularly hard-hit by vacanciesbecause they have limited capacity to compensate or the loss o judges. For example, in the WesternDistrict o Wisconsin, a district with two authorized judgeships, the Clerk o Court explained that hisdistrict could not keep pace when the two judgeships became vacant in quick succession in 2008-

2009, with one judge taking senior status and one retiring. One o the two vacancies remained open ormore than five years, until May 2014. Te districts case management statistics reflect the challenges thedistrict aced during this period; the number o pending cases in the district jumped rom 610 in 2008to 1,024 in 2013, while the number o filed cases increased by less than 150 cases.98

Te experience in these districts suggests that vacancies as a proportion o total judgeships is another

relevant actor in understanding districts capacity to compensate or vacant judgeships, with smalldistricts warranting particular attention.

D. Geographic Size

Districts that are geographically dispersed may also ace unique challenges in allocating resourceswhen vacancies arise, as reflected by the experiences in the Eastern District o exas and Middle

District o Florida.

For example, in the Middle District o Florida, which has 15 judgeships spread over five divisions,

the Chie Judge explained, Its not like we have everyone in one building, where we can just movepeople easily to respond to needs. She added, [Having a vacancy] means we need to constantly

juggle resources.99 Tis juggling also impacts litigants. One attorney who practices in the district

recounted that due to a vacancy, a patent case in the Jacksonville Division was heard 150 miles awayin Orlando. Local counsel and the client were required to spend three weeks in Orlando or the trial,adding substantial costs or the client.100


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Similarly, in the Eastern District o exas, which has eight judgeships spread over six different divisions,two judges regularly travel 350 miles each way to help compensate or one o the districts vacancies,while another judge regularly travels 150 miles to help compensate or the other vacancy. ogether,these judges spend several days per month simply traveling taking time away rom hearing cases,

deciding motions, and managing their dockets.101

Tese experiences suggest that a districts geographicsize is another actor relevant to understanding the likely impact o vacancies.

E. Use of Magistrate Judges and Other Administrative Variations

Finally, districts also varied in their administrative responses to vacancies in ways that likely impacted

their ability to compensate or empty seats.

For example, the Western District o New York undertook efforts to streamline its process or hearingcases in response to a vacancy, expanding its alternative dispute resolution program and introducing

a program utilizing attorney law clerks to review habeas petitions and motions by sel-representedlitigants.102Likewise, since Magistrate Judges can resolve civil cases with the consent o both sides, twodistricts reported integrating Magistrate Judges into their civil case assignment wheels, in an effort toencourage consent and alleviate the burdens on sitting judges (E.D. ex., W.D. Wis.).103

Tree districts likewise reported relying heavily on visiting judges to help compensate or vacancies

(D. Ariz., E.D. Cal., M.D. Fla.),104although several judges and practitioners emphasized that visitingjudges lack o amiliarity with local practices and the composition o the local docket limited theirutility. Finally, some interviewees suggested that some districts were also simply more efficient thanothers in managing heavy dockets, making them better able to cope with empty seats.105Te experiencesin the profiled districts thus suggest that variations in court culture and practices are also relevant tounderstanding the practical impact o vacancies on our trial courts.


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V. CONCLUSION

Te experiences in the profiled districts illustrate the real costs imposed by vacancies on the people and

businesses that rely on our courts. While numerous actors impact which vacancies are likely to havethe most severe effect on the administration o justice, this study suggests that around the country,vacancies make it harder or trial courts to keep their promise o delivering equal justice or all.


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ENDNOTES

1 A B, B C J, F J V: C (), availableat http://www.brennancenter.org/sites/deault/files/publications/Judicial%20Vacancies%20Report%20Final%20-%20

web.pd.

2 SeeA J, S J: J S D C 5 (2014),

available at http://www.af.org/reports/the-state-o-the-judiciary-judicial-selection-during-the-113th-congress. However, thetotal number o trial court vacancies remains substantially higher than at an equivalent point during President Bushs term (50vs. 29 as o July 1), with vacancy levels now slightly lower than what existed during an equivalent point in President Clintonsterm (54).

3 Data as o July 14, 2014. SeeAdministrative Office o the United States Courts, Article III Vacancies As o July 14, 2014,http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx.

4 Data as o July 14, 2014. See Administrative Office o the United States Courts, Future Vacancies in the FederalJudiciary, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/FutureJudicialVacancies.aspx.

5 B, supra note 1.

6 elephone Interview with Anne C. Conway, Chie Judge, M.D. Fla. (Mar. 6, 2014).

7 Te ollowing six districts were also initially considered or the analysis, but were excluded when the districts Chie Judge didnot respond to interview requests or declined to participate: Northern District o Georgia, Western District o Kentucky, Dis-trict o Massachusetts, Eastern District o North Carolina, Eastern District o Pennsylvania, and Southern District o exas.

8 elephone Interview with Raner C. Collins, Chie Judge, D. Ariz. (Oct. 11, 2013); elephone Interview with Morrison C.England, Jr., Chie Judge, E.D. Cal. (Oct. 11, 2013); elephone Interview with Claudia Wilken, Chie Judge, N.D. Cal. (Oct.10, 2013); Interview with Anne C. Conway (M.D. Fla.), supra note 6; elephone Interview with Lance S. Wilson, DistrictCourt Executive, D. Nev. (Feb. 27, 2014); elephone Interview with William M. Skretny, Chie Judge, W.D.N.Y. (Oct. 16,2013); elephone Interview with Michael Roemer, Clerk o Court, W.D.N.Y. (Oct. 23, 2013); elephone Interview with

Leonard Davis, Chie Judge, E.D. ex. (Feb. 26, 2014); elephone Interview with Peter Oppeneer, Clerk o Court and U.S.Magistrate Judge, W.D. Wis. (Sept. 19, 2013).

9 Interview with Anne C. Conway (M.D. Fla.), supra note 6.

10 Analysis on file with the Brennan Center or Justice. Data on the percentage o cases three or more years old is rom Admin-istrative Office o the United States Courts, Federal Court Management Statistics, http://www.uscourts.gov/Statistics/Feder-alCourtManagementStatistics/district-courts-september-2012.aspx. Data on judicial vacancies is rom Administrative Officeo the United States Courts, Article III Vacancies As o June 18, 2014, http://www.uscourts.gov/JudgesAndJudgeships/

JudicialVacancies.aspx. All data covers the 12-month period ending September 30, 2012.

11 Data analysis was undertaken by Oliver Roeder, Economics Fellow at the Brennan Center. Te findings are based on anordinary least squares regression, which examined the relationship between the number o months judicial seats had beenvacant in a district and the percentage o cases pending in that district or three years or more, controlling or the districts

number o weighted filings per judgeship. Results were statistically significant at the 5 percent level. Data on vacant judge-ship months and weighted filings per judgeship is rom the Administrative Office o the United States Courts, Federal CourtManagement Statistics, supranote 10. Data on the percentage o cases pending or three years or more is rom A- O U S C, J B U S C tbl. C-6 (),available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2012/appendices/C06Sep12.pd. All data coversthe 12-month period ending September 30, 2012. Calculations are on file with the Brennan Center.


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12 U.S. District Court Judicial Caseload Profile: California Eastern, U.S. C., http://www.uscourts.gov/uscourts/Statistics/FederalCourtManagementStatistics/2013/district-cms-profiles-december-2013.pd (last visited June 16, 2014).

13 Id.

14

Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8.15 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note

8; Interview with Claudia Wilken (N.D. Cal.), supra note 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6.

16 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note8; Interview with Claudia Wilken (N.D. Cal.), supranote 8; Interview with Michael Roemer (W.D.N.Y.), supra note 8.

17 Interview with Claudia Wilken (N.D. Cal.), supranote 8.

18 Interview with Raner C. Collins (D. Ariz.), supra note 8.

19 Interview with William M. Skretny (W.D.N.Y.), supra note 8; see alsoInterview with Morrison C. England, Jr. (E.D.Cal.), supra note 8 (We have [habeas] cases that have been going on or years because there are not enough judges to

handle them.).

20 elephone Interview with David Maland, Clerk o Court, E.D. ex. (Feb. 26, 2014).

21 elephone Interview with G. almadge Nix, III, Nix & Poet, Attorneys at Law, Sherman, ex.(Mar. 31, 2014); see alsoelephone Interview with John Hunter Smith, Wynne & Smith, Sherman, ex. (Mar. 31, 2014).

22 Data analysis was undertaken by Oliver Roeder, Economics Fellow with the Brennan Center. Te findings are basedon an ordinary least squares regression, which examined the relationship between the number o months judicial seatshad been vacant in a district and the median time rom filing to disposition or elony criminal cases, controlling or thedistricts number o weighted filings per judgeship. Results were statistically significant at the .1 percent level. Data isrom the Administrative Office o the United States Courts, Federal Court Management Statistics, supra note 10. Alldata covers the 12-month period ending September 30, 2012. Calculations are on file at the Brennan Center.

23

Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note8; Interview with Claudia Wilken (N.D. Cal.), supranote 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6;Interview with William M. Skretny (W.D.N.Y.), supra note 8; Interview with David Maland (E.D. ex.), supra note 20;Interview with Peter Oppeneer (W.D. Wis.), supra note 8.

24 Interview with William M. Skretny (W.D.N.Y.), supra note 8.

25 Interview with Raner C. Collins (D. Ariz.), supra note 8.

26 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8.

27 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8; Interview with Claudia Wilken (N.D. Cal.), supranote 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6.

28 Interview with Anne C. Conway (M.D. Fla.), supranote 6.

29 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.


31 Interview with Donald L. Gaffney, Partner, Snell & Wilmer L.L.P., Phx., Ariz. (Dec. 3, 2013).


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32 Interview with Leonard Davis (E.D. ex.), supra note 8.

33 Interview with David Maland (E.D. ex.), supra note 20.

34 Id.

35 U.S. District Court Judicial Caseload Profile: exas Eastern , U.S. C., http://www.uscourts.gov/uscourts/Statistics/FederalCourtManagementStatistics/2013/district-cms-profiles-december-2013.pd (last visited June 16, 2014); Archiveo Judicial Vacancies, U.S. C., http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/ArchiveOJudicialVa-cancies.aspx (last visited June 16, 2014).

36 Interview with John Hunter Smith (E.D. ex.), supra note 21.

37 Interview with G. almadge Nix, III (E.D. ex.), supra note 21.

38 Id.


40

Id.

41 elephone Interview with Roger Sanders, Sanders, OHanlon, Motley & Young, Sherman, ex. (Mar. 31, 2014).

42 See Letter to President Barack H. Obama rom Grayson County Bar Association (Feb. 7, 2014) (unpublished letter onfile with the Brennan Center).

43 Interview with Roger Sanders (E.D. ex.), supranote 41.

44 Interview with Raner C. Collins (D. Ariz.), supra note 8 (I try to give cases the same level o attention, but I cant helpbut think theres an impact [rom vacancies].); Interview with Anne C. Conway (M.D. Fla.), supranote 6; Interview

with William M. Skretny (W.D.N.Y.), supra note 8 (Te more cases you have, the less time you can spend on any case.I the vacancies were filled, we could allocate our assignments better and spend more time on cases.); Interview withLeonard Davis (E.D. ex.), supra note 8.

45 See Jason Best & Lydia Brashear iede, Vacancy in Justice: Analyzing the Impact of Overburdened Judges on SentencingDecisions (Paper posted on Social Science Research Network dated Mar. 28, 2014), available athttp://ssrn.com/ab-stract=2417348 or http://dx.doi.org/10.2139/ssrn.2417348 (empirical analysis finding that judges overburdened due tovacancies use shortcuts resulting in harsher criminal sentences, and finding that this effect is concentrated in vacanciescaused by reasons other than a judge taking senior status); Brian Sheppard,Judging Under Pressure: A Behavioral Exami-nation of the Relationship Between Legal Decisionmaking and ime, 39 F. S. U. L. R. 931 (2012) (using a judicialsimulation with law students, finding that ewer resources increased the likelihood o straightorward applications o thelaw while reducing judges conviction that they had reached righteous outcomes in their cases); Bert I. Huang, LightenedScrutiny, 124 H. L. R. 1109 (2011) (empirical evidence suggests causal link between judicial burdens and lightenedlevels o appellate scrutiny o lower court decisions); Diarmuid F. OScannlain, Striking A Devils Bargain: Te FederalCourts and Expanding Caseloads in the wenty-First Century, 13 L C L. R. 473, 476 (2009) (Ninth Circuit

judge arguing that [i]mpossibly large dockets and administrative responsibilities have orced us to create a system thatmight be called, with only slight exaggeration, assembly-line justice).


47 elephone Interview with imothy J. Buchanan, Partner, McCormick, Barstow, Sheppard, Wayte & Carruth LLP, Fres-no, Cal. (Dec. 4, 2013); see also elephone Interview with om Higgins, Owner, Law Offices o om Higgins, uscon,

Ariz. (Nov. 22, 2013) (arguing that it would be better or clients or judges to have more time to spend on cases).



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49 Id.

50 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8; Interview with Claudia Wilken (N.D. Cal.), supranote 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6; Interview with Leonard Davis (E.D. ex.), supra note8; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.


52 E-mail rom Karen Redmond, Public Inormation Officer, Admin. Office o the U.S. Cts., to author (May 16, 2014) (onfile with the Brennan Center).


54 E-mail rom Karen Redmond, supra note 52.

55 Interview with Peter Oppeneer (W.D. Wis.), supra note 8.


57

Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supranote8; Interview with Claudia Wilken (N.D. Cal.), supranote 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6;elephone Interview with Federico A. Moreno, Chie Judge, S.D. Fla. (Mar. 25, 2014); Interview with Lance S. Wilson(D. Nev.), supra note 8; Interview with William M. Skretny (W.D.N.Y.), supra note 8; Interview with Peter Oppeneer(W.D. Wis.), supra note 8.


59 Interview with Morrison C. England, Jr. (E.D. Cal.), supranote 8; Interview with Federico A. Moreno (S.D. Fla.), supranote 57; Interview with Lance S. Wilson (D. Nev.), supra note 8; Interview with Leonard Davis (E.D. ex.), supra note 8.


61 Id.

62 Id.

63 Interview with Federico A. Moreno (S.D. Fla.), supranote 57.

64 Id.

65 Interview with Morrison C. England, Jr. (E.D. Cal.), supranote 8; Interview with Peter Oppeneer (W.D. Wis.), supranote 8.

66 Interview with Morrison C. England, Jr. (E.D. Cal.), supranote 8.


68 Interview with imothy J. Buchanan (E.D. Cal.), supranote 47.

69 Interview with Isaac D. Rothschild, Attorney, Mesch, Clark, & Rothschild, P.C., uscon, Ariz. (Oct. 20, 2013).

70 Interview with om Higgins (D. Ariz.), supranote 47.

71 elephone Interview with Ava Doppelt, Sholder, Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, Fla. (May8, 2014).


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72 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note8; Interview with Anne C. Conway (M.D. Fla.), supranote 6; Interview with Leonard Davis (E.D. ex.), supra note 8.

73 Interview with Federico A. Moreno (S.D. Fla.), supranote 57; elephone Interview with Gerald E. Rosen, Chie Judge,E.D. Mich. (Sept. 13, 2013).

74 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note8; Interview with Anne C. Conway (M.D. Fla.), supra note 6; Interview with Federico A. Moreno (S.D. Fla.), supra note57; Interview with Gerald E. Rosen (E.D. Mich.), supra note73; Interview with Lance S. Wilson (D. Nev.), supra note8; Interview with William M. Skretny (W.D.N.Y.), supra note 8; Interview with Michael Roemer (W.D.N.Y.), supra note8; Interview with David Maland (E.D. ex.), supra note 20; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.

75 28 U.S.C. 371.

76 See Hon. Frederic Block, Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings,92 CL. R. 533, 540 (2007) (senior judges on average carry approximately 50 percent o an active judges workload, butamounts vary widely across districts); Stephen B. Burbank et al., Leaving the Bench, 1970-2009: Te Choices Federal

Judges Make, What Influences Tose Choices, And Teir Consequences, 161 U. P. L. R. 1, 29 (2012) (senior districtcourt judges with chambers and staff carry approximately 63 percent o an active judges caseload); Federal Judicial

Center, Biographical Directory o Federal Judges, 1789-present, http://www.fc.gov/history/home.ns/page/judges.html(providing inormation on senior judges in each district).

77 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8; elephone Interview with Marianne Matherly, Clerko Court, E.D. Cal. (Oct. 23, 2013) (senior judge in Fresno carrying a caseload o roughly 1100 cases); Interview with

William M. Skretny (W.D.N.Y.), supra note 8; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.


79 Interview with Gerald E. Rosen (E.D. Mich.), supranote 73.

80 Interview with Federico A. Moreno (S.D. Fla.), supra note 57.

81 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note

8; Interview with Anne C. Conway (M.D. Fla.), supranote 6; Interview with Leonard Davis (E.D. ex.), supra note 8.

82 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8.

83 SeeAdministrative Office o the United States Courts, Article III Vacancies As o July 7, 2014, supra note 3.

84 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note8; Interview with Claudia Wilken (N.D. Cal.), supra note 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6;Interview with William M. Skretny (W.D.N.Y.), supra note 8; Interview with Leonard Davis (E.D. ex.), supra note 8;Interview with Peter Oppeneer (W.D. Wis.), supra note 8.

85 See U.S. District Court Judicial Caseload Profile, U.S. C., http://www.uscourts.gov/uscourts/Statistics/FederalCourt-ManagementStatistics/2013/district-cms-profiles-december-2013.pd (last visited July 14, 2014).




89 SeeJudicial Conerence Judgeship Recommendations (Mar. 2013), available athttp://www.uscourts.gov/uscourts/Judg-esJudgeships/docs/judgeship-recommendations.pd.


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90 Interview with Morrison C. England, Jr. (E.D. Cal.), supra note 8; Interview with Claudia Wilken (N.D. Cal.), supranote 8; Interview with Anne C. Conway (M.D. Fla.), supranote 6; Interview with Lance S. Wilson (D. Nev.), supra note8; Interview with William M. Skretny (W.D.N.Y.), supra note 8; Interview with Leonard Davis (E.D. ex.), supra note8; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.

91

Interview with Federico A. Moreno (S.D. Fla.), supra note 57.92 District court judicial emergencies are defined as any vacancy where weighted filings are in excess o 600 per judgeship,

or any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship, or anycourt with more than one authorized judgeship and only one active judge. SeeAdministrative Office o the United StatesCourts, Judicial Emergencies, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx (last visited June 23, 2014).

93 SeeJudicial Conerence Judgeship Recommendations, supra note 89. A district court with more than 430 weightedfilings per authorized judgeship is eligible to request an additional judgeship. Te Judicial Conerence only recommendsadditional judgeships i so requested by the district. SeeUnited States Government Accountability Office, Federal Judgeships:Te General Accuracy of District and Appellate Judgeship Case-Related Workload Measures, Statement for the Record to theSubcommittee on Bankruptcy and the Courts, Committee on the Judiciary, U.S. Senate3 (2013) (statement o David C.Maurer, Director, Homeland Security and Justice Issues), available athttp://www.gao.gov/assets/660/657661.pd.

94 Effective vacancies were calculated by adding each districts existing vacancies and proposed new judgeships, divided bythe total authorized judgeships and proposed new judgeships. Figures are as o July 14, 2014.

95 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Lance S. Wilson (D. Nev.), supra note 8;Interview with Leonard Davis (E.D. ex.), supra note 8; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.

96 Interview with Lance S. Wilson (D. Nev.), supra note 8.

97 Id.

98 See U.S. District Court Judicial Caseload Profile: Wisconsin Western , U.S. C., http://www.uscourts.gov/uscourts/Statistics/FederalCourtManagementStatistics/2013/district-cms-profiles-december-2013.pd (last visited July 14, 2014)(data or 12 month period ending September 30).

99 Interview with Anne C. Conway (M.D. Fla.), supra note 6.

100 Interview with Ava Doppelt (M.D. Fla.), supranote 71.



103 Interview with Leonard Davis (E.D. ex.), supra note 8; Interview with Peter Oppeneer (W.D. Wis.), supra note 8.

104 Interview with Raner C. Collins (D. Ariz.), supra note 8; Interview with Morrison C. England, Jr. (E.D. Cal.), supra note8; Interview with Anne C. Conway (M.D. Fla.), supranote 6.

105 Interview with Ava Doppelt (M.D. Fla.), supranote 71 (avorably comparing the Middle District o Florida to otherdistricts in which she has practiced); Interview with Federico A. Moreno (S.D. Fla.), supranote 57.


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the impact of judicial vacancies on federal trial courts

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