With nearly 12 percent of all federal judge positions vacant
across the United States, there is no doubt among legal analysts
that the efficiency of the courts is suffering.
But is the perpetual high judicial vacancy rate eroding the
quality of justice in America?
For the most part, the nation's judges are trying to take up the
slack. They are relying on semi-retired judges pressed back into
service and in some cases employing innovative case-management
techniques to avoid a judicial meltdown.
But as the White House and the US Senate prepare for perhaps the
most contentious and drawn-out battle yet over judicial nominees
and the direction of the courts, the costs of a chronically
undermanned judiciary are coming into sharper focus.
It is a price that will be paid in large part by ordinary
Because the US Constitution guarantees a speedy trial to criminal
defendants, criminal cases must be given preference by judges. As a
result, civil cases - such as discrimination suits, product-
liability claims, and contract disputes - are routinely postponed
so a judge can devote his or her full attention to the most
It now takes almost two years for the average civil case filed in
federal court to simply get to trial. Since 1995, the number of
civil cases pending for at least three years has more than doubled.
"It is quite true that justice delayed is justice denied," says
Carlton Carl of the Association of Trial Lawyers of America in
"If there is, for example, a legitimate claim against an
insurance company and the insurance company can delay for 10 years
... basically the injured person is forced to wait," he says. "An
injured person may have to mortgage his or her house to pay medical
bills, or sell the house, or go bankrupt."
Still high quality?
Allan Ashman of the Hunter Center for Judicial Selection at the
American Judicature Society in Chicago views the issue from a
different perspective. "Given the heavy workload that all our
federal and state judges face, it certainly puts an extra burden on
the judges," he says. "But it doesn't mean necessarily that the
work they are doing on individual cases suffers."
"We aren't getting less justice. It is just not being processed
as quickly as it might be," Mr. Ashman says.
The impact of vacant judgeships isn't being felt just in civil
cases. Some courts are struggling to keep pace with a huge volume
of criminal cases.
For example, each of the five federal districts along the US-
Mexico border is being inundated with a flood of prosecutions of
drug traffickers and smugglers in the wake of a massive investment
by Congress to beef up border-enforcement efforts.
The problem is that while Congress provided funds for more agents
who are now making more arrests, lawmakers did not anticipate the
need for more federal judges for the inevitable trials. …