Three Things Congress Should Do in 2015 About Judges

By Steve Klepper (Twitter: @MDAppeal)

The first six months of 2015 will provide a short breather before the nation’s political machinery turns its attention to the 2016 presidential election. For all the talk of how the Republican takeover of the Senate will affect judicial nominations, the next six months provide a window of time when Congress can reform judicial policy for the next president — before we have much of an idea who the next president will be.

Maryland, unlike some other states, has no federal judicial vacancy crisis. All 15 seats on the Fourth Circuit are filled. We’re blissfully removed from the vacancies that plagued the court for a decade. While it’s a problem that we have one U.S. District Court vacancy that needs a nominee, our district is lucky to have a long list of still-serving senior district judges to help pick up the slack.

This blog’s regular readers may not know, however, that there is full-blown federal judicial crisis in other parts of the country, especially out west. That crisis affects Maryland. Senior District Judge J. Frederick Motz sat by designation for 15 arguments during the Ninth Circuit’s February 2014 Pasadena sitting, and Senior District Judge Marvin Garbis sat by designation for 16 arguments during the Ninth Circuit’s March 2014 San Francisco sitting. If you review the argument lineups, you’ll see that a large percentage of arguments include a district judge sitting by designation. To be sure, the Senate has since confirmed two nominees to fill the remaining two vacancies on the Ninth Circuit. But, even with all 29 of the Ninth Circuit’s seats currently filled, 12 out of 16 panels during the court’s November 2014 Pasadena sitting include a district judge sitting by designation.

If you want to see how bad things are for our Article III friends on the West Coast, check out the March 2013 Judgeship Recommendations from the Judicial Conference of the United States (“the Conference”). At the appellate level, the Conference is requesting six new circuit judgeships.[*] All but one seat would be for the Ninth Circuit. At trial level, the Conference is requesting 85 new district judgeships. Those numbers include 29 total seats just for California, which needs about 50 percent more federal trial judges. Three more states — Arizona (10 new seats), Florida (10 seats), and Texas (nine seats) — take up much of the remaining list. I see three nonpartisan actions that the 114th Congress can and should do to address this judicial crisis.

  1. Create New Judgeships for the Next President to Fill

First, Congress should pass the Conference’s recommendations, effective January 21, 2017. Senators Coons and Leahy introduced such a bill in July 2014, but it went nowhere. There never was any chance that such a bill, creating more judgeships for President Obama to fill, would have passed both houses of Congress. But now, when we have only preliminary polls as to potential presidential candidates for 2016, Congress should create the needed new judgeships for our 45th president to fill. If the political will does not exist to create the requested new appellate judgeships — a topic I address in the next section — Congress should at least authorize the district judgeships.

  1. Encourage More Appellate Judges to Take Senior Status and to Maintain a Higher Workload.

Second, Congress should amend the statutes (28 U.S.C. §§ 46, 347) governing senior status for federal appellate judges. Upon reaching certain age and service requirements, a federal judge can retire or semi-retire. A judge can cease hearing cases entirely, and continue to receive a salary for life at the time of retirement, or the judge can keep a 25-percent workload and become eligible for raises. Semi-retirement is often an attractive option for federal trial judges, who continue to rule the roost in their own courtrooms and can exercise greater selection in their dockets (e.g., “I don’t want to hear criminal cases anymore.”). But if a federal appellate judge takes a 25-percent workload, he or she immediately loses all seniority on panels (becoming last in the pecking order for selecting opinions to author) and can no longer participate in en banc proceedings, unless he or she sat on the original panel. Often for that reason, appellate judges, upon deciding they’re ready to exit active service, leave the bench entirely for academia or other pursuits, still drawing their full salaries.

Currently in the Fourth Circuit, only Judges Clyde Hamilton and Andre Davis have chosen semi-retirement over full retirement. Back in the days of persistent vacancies on the Fourth Circuit, numerous senior circuit judges from other circuits were temporarily reassigned to the Fourth Circuit to help the Court keep its head above water.

Encouraging circuit judges to semi-retire, rather than retire, can provide a major help with the Ninth Circuit’s caseload, and to help as needed throughout the circuits. The reality is that Congress is unlikely to authorize the five circuit judgeships needed in the Ninth Circuit. Republicans are not going to authorize a wave of new judgeships on the West Coast without splitting the massive Ninth Circuit. The Federal Bar Association actively opposes any split, and Democrats (particular California’s two powerful senators) are not going to let a split happen. Solving that problem requires more creativity.

My proposed solution is to create, effective January 21, 2017, a new category of senior status. If a senior circuit judge carries a 50-percent workload, he or she is entitled to participate in 50 percent of en banc votes and 50 percent of en banc hearings, and to maintain up to five years of his or her seniority. Thus, if Senior Circuit Judge Andre Davis were to maintain 50-percent status and sit on a panel with two other Obama nominees, he would preside, at least until those more recent nominees start accruing more than five years of seniority.

Such a proposal should create more appellate vacancies for the next president to fill, while freeing up those new senior circuit judges to hear appeals in other circuits. At the same time, we would create incentives for senior circuit judges to maintain higher workloads.

  1. Don’t Make Consensus Nominees Wait for Floor Votes.

To reiterate a point I made in the August 2012 issue of The Federal Lawyer, the Senate, when it sets the rules for the 114th Congress, should adopt a rule that a unanimous favorable recommendation by the Senate Judiciary Committee counts as a cloture vote for a judicial nominee, who would then receive a voice vote on the Senate floor within 48 hours (giving time for any “nays” to be recorded). Such a system would encourage both President Obama and the next president to appoint consensus nominees of the highest qualifications, while ensuring that such consensus nominations do not languish while awaiting Senate floor votes.

These three nonpartisan recommendations would go far to alleviate the judicial crisis facing much of the country.


[*] For simplicity, I’m providing the Conference’s total recommendations for permanent judgeships, plus temporary judgeships. The total does not include the Conference’s recommendations that temporary seats be converted to permanent seats.

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