Re-Opened for Business?

By Collins, Todd | Judicature, July/August 2011 | Go to article overview

Re-Opened for Business?


Collins, Todd, Judicature


Caseloads, judicial vacancies, and backlog in the federal circuit courts

There is an immediate and most pressing need for additional judges ... In many places, this failure is throwing a burden on judges which they are not able to bear, if it were not for many of the retired judges who continue to serve so faithfully, we would, indeed, be in a terrible condition.1

Scholars and practitioners alike have noted the high increase in judicial caseloads and the relative lack of proportional increases in judicial positions.2 While the quote above could be easily attributed to a modern jurist,3 it was actually delivered in 1959 by Chief Justice Earl Warren. This quote, from over 50 years ago, remains highly relevant in today's discussions of the federal courts and represents an often-heard complaint by those involved in the legal process - the increase in judicial workload without a corresponding increase in personnel poses significantly negative consequences for the judiciary.

In addition to the relative lack of new judicial positions, particularly at the circuit court level,4 the confirmation process, even for lower court appointments, has become more tedious, particularly in terms of the personal scrutiny placed on the nominees.5 As well as the more personal nature of the modern hearings, the nomination process has become a longer ordeal based on the lengthy delay of lower court confirmations.15 For some practicing attorneys, the "in limbo" status of the nomination can create professional hardships, particularly for those in private practice. Many calls have been made to reform the system, even from the highest judicial officers in the federal system. As Chief Justice Rehnquist noted in 2002 concerning the newly unified Republican government:

With the same party now controlling the White House and the Senate, some will think the crisis [over judicial vacancies] has passed and that the confirmation process does not need to be fixed. Be that as it may, there will come a time when that is not the case and the Judiciary will again suffer the delays of a drawn-out confirmation process. . . I urge the President and the Senate to work together to fix the underlying problems that have bogged down the nomination and confirmation process for so many years.7

However, this unified government did not lead to a significantly speedier process nor did it assure then President George W. Bush automatic approval of his nominees. Bush's nominees languished in the Senate, many of which had to be renominated after failing to move through the confirmation process before the elections recesses.* The Democratic senators' ability to filibuster stalled several controversial nominees, raising the threat of a rules change by the Republican leadership to limit debate on judicial nominees, also referred to as the "nuclear option."9 The stalls, accentuated by Bush's final two-years as a "lame duck" president, left several vacancies still open at the end of Bush's final year in the White House.10

While some have downgraded the emergency calls from "crises" to "challenges" in recent times,11 the problems of unfilled seats and long delays in confirmations still exist and could have potential implications for the administration of justice. As has been noted, this may be a particular problem in the federal circuit courts, as this intermediate appellate level may represent "the biggest potential bottleneck in a judicial system."12 If vacancies create inefficiencies in the courts, then these open positions could lead to delays in the legal process, causing postponements in victims' compensation, disruptions in the piOsecutorial process, and increasing legal costs to all parties. Further, some have suggested that case delays may erode public trust and confidence in the entire judicial system. l3

This analysis examines the recent trends in case filings, case terminations, and open seats on the federal circuit courts.

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