Editorials and Opinion
How President Trump will shape the federal courts (Volokh Conspiracy, 01/20/17)
Jonathan H. Adler: Trump’s influence on the courts could be magnified if Congress decides to expand the size of the federal judiciary. There are some courts with tremendous backlogs that could use more judges, and others (such as the D.C. Circuit) that Republicans would like to “pack” (or, if your prefer, “unpack”) to offset the effects of Obama’s appointments and Sen. Harry Reid’s decision to invoke the nuclear option to facilitate nominations.... I think judicial seats should be added to those courts with a genuine need, but judicial seats should not be created simply for the purpose of altering any given court’s balance. In other words, I see no reason to add seats to the D.C. Circuit. In addition, I would stagger the creation of these seats, spreading them out over several years — e.g. X in year one, Y in year two, etc. — so that such legislation does not create a partisan windfall.)
[Editorial] Fill the courts: Federal vacancies delay justice for all (Pittsburgh Post-Gazette [PA], 01/05/17)
Editorial Board: the four vacancies in the U.S. District Court for the Western District of Pennsylvania are the most anywhere. Across the nation, however, there are 112 vacancies, the highest profile being the empty seat on the Supreme Court left by the Feb. 13 death of Justice Antonin Scalia. There are also 86 vacancies in district courts, 17 in circuit courts of appeals, six in the Court of Federal Claims and two in the Court of International Trade.
Worse, only 59 candidates have been nominated for the vacancies, meaning there would be no quick way to fill nearly half of those seats even if the partisan bickering were to cease immediately. Forty-one courts have what are called “judicial emergencies”.... None of that takes into account what some observers believe is a pressing need for additional judges in parts of the country.... In Pennsylvania, Sens. Pat Toomey, a Republican, and Bob Casey, a Democrat, are known for collaborating on the selection of judicial nominees — and they plan to continue their collaboration. Mr. Casey’s office said the nominees are in limbo because the GOP leadership wouldn’t bring them to a vote.
Vacancies slow cases, dragging out justice for victims and hampering the fortunes of companies involved in contract or intellectual property disputes.
Here are New Year’s resolutions for the folks in charge as 2017 unfolds [Editorial] (Idaho Statesman, 12/31/16)
Editorial Board: here are a few of the New Year’s resolutions we propose for our community, state and nation as 2017 unfolds.... Resolutions at the federal level
▪ Federal judicial appointments for Idaho and elsewhere in the nation succumbed to gridlock politics last year and throughout the last Congress. Our senators must get to work and get Judge David Nye’s name before President-elect Donald Trump so he can again be nominated, and then confirmed by the Senate. While they are at it, our senators need to figure out how to get Idaho a badly needed third Article III judge. Justice demands it.
While gridlock grinds in Washington, justice suffers in Idaho [Editorial] (Idaho Statesman, 12/11/16)
Editorial Board: the fate of Pocatello’s David C. Nye, whom President Barack Obama nominated back in April to a federal judgeship in the District of Idaho.
Within days of that nomination our two Republican Senators, Mike Crapo and Jim Risch, chimed in and agreed with their Democratic president that Nye — now serving in the Sixth District Court of Idaho — was an excellent choice and ought to be approved by the Senate.
Crapo and Risch introduced Nye to the Senate Judiciary Committee back in June, and that body approved him on July 14 without dissent. Everybody, including us, is supportive of Nye, but nobody has been able to push him over the finish line and put him to work for Idaho –– who desperately needs him.
Idaho only has two such judgeships (and has a great argument for a third).... Nye, and many other judges awaiting confirmation by the Senate, languish in the kind of limbo that only gridlock can create.... Why not take 10 minutes to confirm Nye and others for the federal bench and allow them to get to work? Among the theories is that Senate Republican leadership and the rest of the world would be reminded of the GOP’s obstinance to not even consider Obama’s nominee to the U.S. Supreme Court, Merrick Garland.
We are unconcerned about face-saving –– and only hoping for justice, which will have to wait.
If 2016 ends without Nye’s confirmation, we’ll all have to pray that President-elect Donald Trump will re-nominate him in 2017 and he can come on board with Senate confirmation.
The Supreme Court vacancy is just the tip of the iceberg (Baltimore Sun, 03/31/16)
Tommy Tobin Op-Ed: "Just this month, a retirement from D.C.'s U.S. District Court brought the total number of judicial vacancies up to 84 .... The open positions are leading to a backlog of cases across the country .... The dockets in 32 jurisdictions are so packed that the Administrative Office of the U.S. Courts has labeled them "judicial emergencies."
The delay in filling judicial vacancies has real-world effects.... In a recent piece in the Harvard Journal on Legislation, George Everly — the chief counsel of the Senate Budget Committee — noted that while caseloads in the federal trial courts have grown by 38 percent since 1990, the number of district judgeships expanded by only 4 percent.
Mr. Everly and his co-author argue that the Congressional Budget Office's high cost estimates for adding judgeships, which Congress members use to argue against new positions, are fundamentally flawed. ... The authors concluded that withholding federal judgeships from high-caseload jurisdictions can be "penny-wise and pound-foolish, impeding the efficiency and cost-effectiveness of the Judiciary."... Nearly 10 percent of all seats on the federal bench currently sit vacant. The Senate must do its job so that the members of the judiciary can do theirs."
EDITORIAL: Welcome changes in federal court cases (Daily Sentinel [CO], 01/31/16)
"If the state keeps adding 100,000 new residents every year, Colorado’s U.S. District Court may very well need to add two Article III judges.
Colorado’s congressional delegation supports more federal judgeships in the state .... There hasn’t been an Article III judge in Grand Junction since 1984."
A Call for Additional Federal Judges (The Docket [Denver, CO Bar Association], 12/28/15)
Sean R. Gallagher and James M. Lyons: "31 years later, the United States District Court for the District of Colorado is still only allocated seven active Article III judges. The time has come for Congress to create and fund two new Article III judges for the District of Colorado."
On Judges, GOP Senate Finally Breaks Into Double Digits (People For blog, 11/16/15)
"Third Circuit nominee L. Felipe Restrepo is still waiting for a confirmation vote.
The low number of judicial confirmations also isn’t because the nominees are controversial. Almost all of them faced no opposition whatsoever in the Judiciary Committee or on the Senate floor. ...Restrepo is hardly the only slow-walked nominee this year who would fill a judicial emergency. In fact, the number of judicial emergencies nationwide has skyrocketed from 12 at the beginning of the year to 29 today (after DeArcy Hall is confirmed). Similarly, the number of circuit and district court vacancies has risen dramatically, from 40 at the beginning of the year to 62 after today’s confirmation.
Even if every vacancy were to be filled tomorrow, there would still not be enough judges to ensure every American’s opportunity to have their day in court. Judges are so overwhelmed that the Judicial Conference of the United States recommended in March of 2015 that Congress create five new circuit court seats and 68 new district court seats (as well as make permanent nine district court seats that are now temporary). So filling vacancies is a priority."
Views of the News: DELAYING JUDGE NOMINEES IMPEDES CIVIL COURT CASES (Redlands Daily Facts [CA], 10/06/15)
Howard Hurlbut, Guest columnist: "There is such a shortage of federal judges across America that critical civil cases often must wait three to four years for a hearing.
Since 1990, there has been a 39 percent increase in district and circuit court filings, but only a 4 percent increase the number of judgeships. Congress has not passed a major increase in judges for 25 years.... The Senate has nearly 70 judicial vacancies waiting to be filled. This year Republicans have confirmed only six of Obama’s nominees."
How Republican obstruction is destroying the third branch of government (Daily Kos, 10/03/15)
Joan McCarter: "Their obstruction of judges is wrecking that branch, too, and the individual judges.... there's an empty seat in that California district that's been open for more than 1,000 days; judges normally take 500-600 cases annually, but have more than 1,000 in this district; reaching that average caseload would require six new judgeships. That's just one district.
The same problems are playing out across the whole of the federal judiciary and what it means for the American people is justice delayed.... Part of the problem is that Congress has stopped creating judgeships—it hasn't done it since 1990, and there's been a 39 percent increase in cases filed at district and circuit courts. The other, massive, problem is Republican obstruction of nominees to existing vacancies, from refusing to work with President Obama to name nominees at all, to refusing to allow them to reach the Senate floor for confirmation."
Federal Judges Are Burned Out, Overworked And Wondering Where Congress Is: The people hearing your cases are drowning in work because the Senate isn't filling vacancies. (Huffington Post, 09/30/15)
Jennifer Bendery: For many district and circuit court judges, going to work means doing their job -- plus the jobs of other judges who are supposed to be there, but aren't. That's because federal courts are full of vacancies that aren't being filled by the Senate, and Congress hasn't created new judgeships in many states for decades, despite skyrocketing caseloads.
Litigants are waiting years for their civil cases to be heard because criminal cases take precedence. Judges are struggling with burnout.... The Huffington Post talked to half a dozen federal judges about how court vacancies and the lack of new judgeships affect their workloads. All of them said they feel like they're underwater and desperately need more judges"
Judicial vacancies (Durango Herald [CO], 09/26/15)
Matt Kenna: "This caseload backlog problem will only get worse if one of those seven seats on the trial court is left vacant in April. The entire Colorado congressional delegation has introduced legislation to add two new seats to our federal court for a total of nine for the state. Both Gardner and Bennet are co-sponsoring the Senate companion bill. This is commendable, but they should also work together to prioritize filling the vacancy to be created by Blackburn before he leaves the bench. Colorado businesses need this for economic growth, and individuals need this to protect their rights."
Montez: Colorado can’t afford a vacancy on our overworked federal court (Colorado Statesman, 09/24/15)
Guest Commentary By Dave Montez: "In a refreshing moment of bipartisan unity, the entire Colorado congressional delegation — all seven members of the House and both U.S. senators — support legislation introduced this summer to add two new judgeships to the District Court for Colorado. ... The District Court’s caseload backlog problem will only get worse if one of the current seats is left vacant in April."
Republicans are clogging the judicial pipeline (Washington Post, 09/22/15)
Catherine Rampell column: "Motivated by a desire both to make President Obama look bad and to delay any judicial appointments until there’s (possibly) a Republican in the White House, GOP senators have thrown obstruction after obstruction in front of the judicial appointment process. As a result, the Republican-controlled Senate has confirmed only six federal judges in 2015.... It’s the slowest pace in over six decades .... The number of judgeships has not kept pace as the U.S. population has increased.... Sen. Marco Rubio, a Republican presidential candidate, publicly endorsed the nominee for the Southern District of Florida, but seven months later still hasn’t returned his blue slip. Without it, the nominee, Mary Barzee Flores, won’t get a hearing.
In other cases, the Judiciary Committee chairman, Sen. Charles E. Grassley (Iowa), has received the relevant blue slips but delayed holding confirmation hearings and votes on the nominees. In still others, Majority Leader Mitch McConnell (R-Ky.) has delayed or outright refused to schedule floor votes for nominees.
This happens, I should note, even when the judicial nominees are not the least bit controversial."
Editorial: Empty seats on federal bench a ‘judicial emergency’ (Palm Beach Post [FL], 09/15/15)
"“Justice delayed is justice denied.” In other words, failure to give redress in a timely manner is the same as giving no justice at all.
Today, it is an unfortunately apt description of U.S. federal courts, which are overwhelmed because the U.S. Senate refuses to fill dozens of judicial vacancies. ... More than two dozen federal courts, including the Middle and Southern Districts of Florida, have declared “judicial emergencies.” They cite a lack of the necessary jurists to handle growing caseloads as complex as drugs, racketeering and financial scams. The Southern District in Miami is so backed up that the Judicial Conference of the United States has asked Congress to create three new judgeships. But even that has not been enough to move senators, including Florida’s Marco Rubio, to fill vacancies."
Fully staff our district court (Colorado Springs Gazette, 09/06/15)
Deb Walker: "Historically, when a district court seat becomes vacant in Colorado, our two senators work together to screen possible candidates and provide some potential nominees to the president. Each of the last two vacancies were filled using a joint-senators bipartisan screening committee, and the president nominated someone within six months of the vacancy announcement. This year, it appears that Sens. Gardner and Bennet are each creating separate committees that will not work together and will not generate a joint list to the president....A fully staffed Colorado district court is vital because it keeps our judicial system open and accessible for Colorado citizens and businesses that need timely resolution of disputes ... our district court is overworked and understaffed because we have not increased the number of judges since 1984, despite immense population growth since then."
Will Colorado Continue to Be a Model in Filling Judicial Vacancies? (Huffington Post, 08/27/15)
Peg Perl: "Three years ago, Colorado was hailed as a "model for senators across the country"because of the cooperative, timely and successful screening process our then-Senators used to inform the President's nomination for a vacancy on the U.S. District Court of Colorado. It is unclear whether we are still deserving of such praise.... True, the senators are now from different parties, but similar mixed delegations in Florida and Pennsylvania (use joint bipartisan committees to screen potential nominees. However, four months after the future vacancy announcement Colorado's Senators appear to be working on separate tracks. Senator Gardner has created his own selection committee - one that is not bipartisan, but full of Republican supporters - and Senator Bennet appears to be still working on getting his own committee (bipartisan) together.
A fully-staffed federal district court is vital because it keeps our judicial system open and accessible for Colorado citizens and businesses that need timely resolution of disputes. The District Court in Colorado, which has not increased the number of judges since 1984, is already overworked and understaffed. Increased workload from 30 years of population growth, plus additional cases arising from increased federal agencies with a regional office in Colorado has lead the full bipartisan delegation to Congress to introduce legislation to increase the number of federal judges from 7 to 9."
Texas judicial vacancy flood means Cornyn, Cruz must act (Fort Worth Star-Telegram [TX], 08/26/15)
Natalie Knight: "By providing more than four-months’ notice, Schneider gave the Texas senators charged with finding his replacement an opportunity to do what they have never done before: fill a judicial vacancy before the judge actually steps down and further weakens an already strained justice system.
Avoiding the disruption of a vacancy is, after all, the whole point of giving advance notice. In other states, senators often begin working on a vacancy as soon as it’s announced.
But not Sens. John Cornyn and Ted Cruz. Instead, they have watched vacancies pile up — ignoring, in some cases, more than a year of notice. ... That slow-motion process is contrary not just to common practice nationwide, but to the precedent Cornyn himself established when fellow-Republican George W. Bush was president.... Texas has become the epicenter of a growing judicial vacancy crisis.
Including two seats on the Fifth Circuit, Texas has nine current judicial vacancies (the most of any state in the country), three of which have been vacant for more than two years.
Seven of the vacancies are officially designated “judicial emergencies” because of crushing caseloads and desperately needed judges.... The Eastern District of Texas is the second busiest court in the country. It’s so overburdened that the Judicial Conference of the United States called for adding two new judgeships, in addition to filling existing vacancies."
U.S. Senate drags its feet on federal judicial nominations (Fresno Bee [CA] , 08/07/15)
POLITICAL NOTEBOOK By John Ellis: "It’s well known that Fresno’s federal judges are overworked and struggling under the weight of one of the nation’s largest caseloads.
The U.S. Senate, however, appears in no hurry to help.
Federal legislation that would approve more judges for California’s Eastern District, which includes courthouses in Fresno and Sacramento, is going nowhere. And there appears to be no hurry to approve U.S. District Judge Anthony W. Ishii’s replacement.... So far this year, the Senate has confirmed just five judges, which puts it on track for its worst confirmation year since 1969 .... U.S. District Judge Lawrence J. O’Neill is the lone Fresno district judge. Ishii has taken “senior status,” which allows him to work in retirement, but he’s reduced his caseload by half.
“In light of the incredible need for judicial resources in the Eastern District of California, I must admit that I am at a total loss to understand the delay at the Senate level for confirmation,” O’Neill said. “While it affects negatively federal judges, it ultimately affects the rights and legitimate expectations of the members of the public that we serve.”
To get an idea how bad it is in Fresno and Sacramento, the non-partisan Judicial Conference of the United States has recommended that Congress double the number of judges in the Eastern District from the current six to 12."
Guest Commentary: Colorado senators should work to swiftly protect our federal trial court (Denver Post [CO] , 07/16/15)
Timothy Garvey: "Two months ago, U.S. District Judge Robert Blackburn announced he will be taking senior status effective April 2016. This announcement creates a "future vacancy" ... A fully-staffed U.S. District Court is vital because it keeps our judicial system open and accessible for Colorado citizens and businesses that need timely resolution of disputes. Yet, Coloradans already face an overworked and understaffed U.S. District Court, which has not increased the number of judges since 1984 — despite increased workload from 30 years of population growth and additional cases arising from increased federal agencies with regional offices in Colorado. Indeed, these changes caused the Judicial Conference of the United States to recommend two additional permanent judgeships be added to the U.S. District Court for Colorado in 2013. However, Congress has not acted on that recommendation and has not authorized any additional judgeships, and so Colorado's U.S. District Court holds steady with only seven judges.
Chief Judge Marcia Krieger has described the court's caseload as being at a "tipping point" even with all current seven judgeships filled. A failure to fill Judge Blackburn's vacancy by the time he takes senior status in April 2016 will only exacerbate these issues and further delay — and thereby deny — justice to those turning to the court to resolve their disputes. Therefore, in the interest of all Coloradans, I urge Sens. Bennet and Gardner to work together to create a bipartisan selection process to timely forward names to the president and to ensure the president's nominee for our U.S. District Court gets prompt consideration, both in committee and on the floor of the Senate."
Judicial Vacancies (American Bar Association, 07/02/15)
"Our nation is disadvantaged when our federal judiciary does not have sufficient judges to hear cases and resolve disputes in a thorough and timely fashion. ... Neither the Senate Judiciary Committee nor the Senate has acted expeditiously to confirm pending nominees. In fact, during the first three months of this Congress, the Senate failed to hold any confirmation votes, ... it appears that leadership has decided to slow-walk the process for reasons that have nothing to do with the qualifications of the nominees.... As a result, the number of vacancies and courts with judicial emergencies are increasing and the backlog of civil lawsuits keeps growing.... To further add to the strain on the federal judiciary, dozens of new judgeships are needed, according to the Administrative Office of the U.S. Courts (AO), especially in the Delaware and the border courts where caseloads are crippling. On March 19, 2015, the Judicial Conference submitted its request for 73 new judgeships and the conversion of nine temporary ones into permanent judgeships."
Cornyn and Cruz Are Devastating Texas Courts (People For blog, 05/29/15)
"Even with judicial nominees they themselves recommended, Cornyn and Cruz don't lift a finger to help to prevent delays in committee or on the floor. Just ask Jose Rolando Olvera, who was denied a floor vote until nearly three months after his approval by a unanimous Judiciary Committee in February. That's particularly ironic, since at Olvera's hearing, Cornyn had said that he and Cruz would push for his "swift confirmation."
But even worse than this snail's pace post-nomination is the senators' foot-dragging pre-nomination, as they delay making recommendations to fill vacancies in the state's federal courts.
Even if there were no vacancies in Texas, the state would need more judges: The Judicial Conference of the United States has asked Congress to add eight new judgeships in the Lone Star State.
But Texas, in fact, does have judicial vacancies – nine of them, seven of which have been designated as judicial emergencies (meaning the current caseload is too much for the judges to handle). Not one has a nominee, because Cornyn and Cruz have shown little interest in recommending nominees to the White House in anything approaching a timely manner."
Justice denied because of so many vacant judgeships (Arizona Daily Star, 05/26/15)
Celinas Ruth Op-Ed column: Our federal court system is crumbling. It is being crushed by the weight of a case overload and a shortage of federal judges.... We, as a nation and in Arizona, are experiencing firsthand: “justice delayed is justice denied.”... uring most of President Obama’s term, a seriously high number of vacancies caused by the failure of the Senate to process Obama’s nominations has slowed the progress of civil cases ... On April 5, the Judicial Conference of the United States recommended Congress add six permanent and four temporary district judges to the district of Arizona to help handle our state’s burgeoning caseload.
A civil case familiar to me in Tucson’s Federal District Court has been stalled for three years,"
EDITORIAL: Delays in filling two federal court seats shortchange the legal process in WNY (Buffalo News [NY], 05/03/15)
"Buffalo is now without a single active federal district judge. That will worsen what is already one of the nation’s worst backlogs of civil cases. It is up to the president and Senate to act swiftly to fill the two federal judicial vacancies.... This is not just an inconvenience. Not when it comes to a federal legal system in which it takes, on average, more than five years for civil cases to come to trial in Buffalo. The delays are unconscionable, and more so because the solution is obvious.
One legal observer said this region could use another three district judges, but at the very least the two open seats should be filled.... Both O’Donnell and Vilardo are outstanding candidates and deserving of the positions. They need to win the necessary approvals and take their seats to begin dealing with the overwhelming amount of work waiting for them.
The courts here received more new filings last year than all but nine of the 94 court systems across the country. It’s no wonder that the backlog of civil and criminal cases ranks among the worst in the nation."
The Judicial Policy Implications of Reckless Driving on Federal Land (Maryland Appellate Blog, 04/15/15)
Steve Klepper: "As of today, the U.S. Judicial Conference has identified 23 Article III vacancies as “judicial emergencies.” That includes five district judgeships within the Fifth Circuit. The Judicial Conference is requesting an additional eight permanent district judgeships for Texas; that proposal is going nowhere. I spent eight years of my career heavily litigating a case in the El Paso Division of the Western District of Texas, which shares a border with Mexico and includes the massive Fort Bliss. Every civil hearing required us to wait through multiple sentencing hearings for cross-border felonies. Imagine if misdemeanants were also entitled to trial or sentencing before an Article III judge.
Despite one longstanding vacancy (that finally has a nominee), the District of Maryland fortunately is devoid of emergency vacancies. ... But the situation would change in a heartbeat if traffic and petty misdemeanors were transferred from our magistrate judges to our district judges."
Here's A Look At The Most Ridiculously Long Judicial Vacancies The Senate Still Hasn't Filled (Huffington Post, 04/12/15)
Jennifer Bendery: "Despite talk when they took charge of the Senate this year that they would move nominees at the same pace Democrats did when they controlled the Senate, Republicans haven't done much of anything to fill vacancies on federal courts. ... But Republicans slow-walking nominees through the Senate confirmation process is just one piece of a broader problem for the federal judiciary. Many district and circuit courts have judicial vacancies that don't even have nominees in the queue, and some spots have been open for an incredibly long time.... Court workloads have expanded so much that the Judicial Conference of the United States, led by Supreme Court Chief Justice John Roberts, recently recommended adding 68 judgeships to district courts around the country to keep pace."
In North Carolina’s Eastern District, population grows while number of judges stalls (Progressive Pulse [NC], 04/09/15)
Sharon McCloskey: "Wall Street Journal weighed in on Tuesday on the growing backlog of civil cases in federal courts across the country .... But there’s another reason why the state’s U.S. Senators should act with a sense of urgency to get the Eastern District vacancy filled and perhaps also seek another judgeship for that court: The number of judges there hasn’t kept up with population growth in the region.
According to population data analyzed by the Journal and charted in its print edition (subscription required for online), North Carolina’s Eastern District is second only to California’s Eastern District in terms of number of residents per judgeship."
Down one judge and deserving another (NC Policy Watch, 03/18/15)
"The federal courts in eastern North Carolina have been operating under a state of judicial emergency for years now, though you wouldn’t know it given the lack of a sense of urgency exhibited by the state’s United States senators.
Down a judge since December 2005, the courts in this largely rural part of the state have managed one of the heavier district caseloads in the country ... The Eastern District has a good case for an additional judgeship, given caseload numbers already on the higher end, even if the vacancy is filled."
McConnell Should Let Senate Confirm Judges (People For blog, 03/10/15)
"Majority Leader Mitch McConnell has yet to schedule a confirmation vote on the four district court nominees who cleared the Judiciary Committee without opposition nearly two weeks ago:... Texas in particular is in desperate need of more federal judges. The Lone Star State has a shocking 11 judicial seats currently vacant (with a twelfth one opening this spring). ... Of those eleven vacancies, seven have been designated judicial emergencies. That's nearly one third of all the judicial emergencies nationwide. Confirming the three Texas nominees who have been waiting for Senator McConnell to schedule a floor vote would help alleviate this problem.... The Judicial Conference of the United States has asked Congress to create an additional two judgeships in the Southern District of Texas. In other words, even if all three pending nominees were confirmed today, and the other two vacancies were magically filled tomorrow (even though they don't have nominees), the crushing caseload burden on the Southern District is so bad that at least another two judges would be needed to ensure that the people of Texas have access to a fair and efficient federal court system."