Monday, March 14, 2011

Elders To The Rescue

The Federal Circuit Courts of Appeal are in dire straits. More than 10% of the current seats are vacant because of congressional delays in voting on nominees over the past two administrations. Case filings are up, which complicates matters even further. In order to keep things afloat, even if just barely, the appellate courts have had to rely on judges long past their retirement age. "Seniors" have had to fill the gap which only gets larger each year.

...Nearly 11% of the nation's 875 lifetime positions are empty.

Senior judges, working overtime to keep the wheels of justice turning, earn the gratitude of their overwhelmed colleagues. But they do not earn a penny more for continuing to work, many of them almost full time, than they would if they were to hang up their robes and head for the golf course. ...

All but three of the 9th Circuit's 19 senior judges heard cases over the last year. Their collective caseload accounted for 33% of the appeals court's work in the year that ended in September, said Molly Dwyer, the court's clerk.
[Emphasis added]

Many of the senior judges were appointed and confirmed during the Carter and Reagan administration, so they obviously have the experience. Many of them are also in their 80s, and while they are doing their jobs beautifully, they cannot continue to be considered an endless solution to the vacancy problem. Additionally, even if the vacancies were filled tomorrow, the burden of the federal court system would still be heavier than it ought to be because each circuit simply needs more judges to do the job required under our system. Federal court officials have been begging Congress for years to increase the number of judges, but Congress has refused to act, usually for "budgetary" reasons. That obviously will be the excuse used by the 112th Congress as well.

Meanwhile, nominees to the bench continue to await confirmation votes, even in the midst of this judicial emergency.

A few recent confirmations brought the vacancies below the 100 mark, but Wheeler points to the alarming trend of lengthening times between when a vacancy occurs and when it is filled. One of the three open seats on the 9th Circuit — soon to be four with Schroeder's senior status — has been vacant for more than six years. The nominee to another of the vacancies, UC Berkeley law professor Goodwin Liu, has weathered more than a year of Senate scrutiny and interrogation with no confirmation vote in sight.

This is an appalling state of affairs in a nation which brags about the "rule of law."

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