Nearly a quarter of all civil and criminal cases closed in the nation’s federal district courts last year were handled by senior judges who had retired but decided to keep on working, according to a by the Transactional Record Access Clearinghouse (TRAC).
Moreover, the size of the workload carried by senior judges last year was almost twice what it was two decades ago. In 1996, senior judges “terminated” 41,323 cases, or 14 percent of all civil and criminal matters. By 2014, the counts had jumped to 79,121 cases, 24 percent of the total.
The TRAC study found that while there is considerable year-to-year fluctuation, senior judge activity is up by nearly every metric: their numbers overall, the percentage of the judicial workforce they comprise and the average number of cases they are closing. In 1996, the 247 senior judges closed an average of 150 cases and made up 31 percent of all judges hearing cases. In 2014, there were 386 senior judges (38 percent of the total) who, on average, closed 205 cases during the year.
The core explanation for this change is simple: While the number of cases being funneled annually into the nation’s district courts has been steadily growing, Congress has for many years been reluctant to support the additional judgeships that have been regularly recommended by Chief Justice John Roberts and Chief Justice William Rehnquist before him. As far back as January 2003, Rehnquist cited “rising caseloads, too many judicial vacancies and too few authorized judgeships” as problems facing the courts.
The result of this gridlock is that the role of the senior judges in the basic operation of the courts has grown considerably.
In another finding from the TRAC analysis, there is considerable variation in the utilization of senior judges among the nation’s judicial districts. At the higher end, for example, there were 24 courts in which the senior judges processed more than a third of all the civil and criminal matters. The records also showed, however, there were 10 jurisdictions where senior judges dealt with 5 percent or less of the workload. This in large part reflects the fact that the number and percentage of senior judges serving in each district also varies considerably.
For court administrators, the growing role of senior judges is a nagging and well-recognized phenomenon. For example, David Sellers, a long-time public affairs person in the Administrative Office of the U.S. Courts, was recently asked whether the availability of senior judges had helped meet the challenge of the growing caseloads.
“Congress has not enacted an omnibus judgeship bill since 1990,” Sellers observed. “Courts that need additional judgeships and/or suffer from long-term unfilled judicial vacancies particularly benefit from the contribution of senior judges.”
The lingering nature of the concerns can be seen in the September 2013 testimony of Judge Timothy M. Tymkovich, chair of the Judicial Resources Committee of the Judicial Conference Committee. “To enable the judiciary to continue serving litigants efficiently and effectively, the judicial work force must be expanded.”
Thus the contribution of the growing number of senior judges in helping an overburdened system achieve its core goals is a genuine benefit. But their expanding role in the operation of the courts also highlights important questions and concerns, including whether growing politicization of the judicial confirmation process is affecting the basic operation of the federal courts. The basic nature of this continuing problem becomes clear when it is considered that while the Democrat-controlled White House does the nominating, the Republican-controlled Congress must approve those nominees. Congress also must approve new judgeships and the funds needed to fill them.
Where Are the Senior Judges?
Because of the complex mix of many factors鈥攊ncluding judge ages, years of service and the character of district caseloads鈥攖he workloads that senior judges carry differ dramatically across judicial districts.
Ranking at the top in the 2014 list was the Western District of Kentucky, where three quarters (75.1 percent) of its civil closures and defendant sentencing were handled by senior judges. Other districts where senior judges played a significant role were Vermont (63.7 percent of closures), Washington East (52.8 percent) and Utah (50.8 percent).
In his interview with TRAC, Chief Judge McKinley of Western Kentucky was asked what it was like managing a court with such a large percentage of senior judges.
“Well, it’s interesting to be the chief judge to three former chief judges in the same district,” McKinley said, also noting that he was the only non-senior judge in his district for much of 2014. “That’s just a little bit different, but we make it work.”
Judge McKinley said that at national judicial conferences, concerns have been expressed “about the cost of providing space and staff to senior judges.” But he said those comments were often followed by remarks from judges in other districts “who say the seniors are essential to the management of the district’s caseload.”
Meanwhile, at the opposite end of the spectrum, there are three courts where the senior judges played no role鈥擠elaware, Wyoming and North Dakota[4].
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