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Judicial vacancies reaching crisis point

Sen. Charles Schumer

Monroe County District Attorney Michael C. Green has been waiting almost five months to see if his nomination for a federal judgeship will be approved by the Senate.

He is not alone. Dozens of nominations are pending — many for a lot longer — while the number of vacancies continues to grow, hovering around 10 percent according to the American Bar Association.

“I think it’s one of the most serious issues facing our justice system,” said ABA President Stephen N. Zack. “The Rule of Law, which we are fighting to establish around the world begins with one word — and that is: access. In order to have that, you have to have fully functional courts.”

Zack said the vacancy problem is occurring across the nation from trial courts to appeals courts.

Green, who declined to comment, was nominated in July by Sen. Charles Schumer, D-NY, to replace retiring U.S. District Judge David G. Larimer of the U.S. District Court for the Western District of New York. Judge Larimer, who was appointed in 1987 by President Ronald Reagan, assumed senior status March 3, 2009, and continues to serve.

His vacancy is one of 11 in the U.S. District Court, for the Second Circuit, which includes eight vacancies in New York, one in the Western District.

There are 109 Article III vacancies in the federal judiciary, according to www.uscourts.gov with 53 nominations pending. Article III courts make up the Judicial Branch of the government as defined by Article III of the Constitution.

Green is not yet listed as the nominee to replace Judge Larimer. Schumer spokesman Max Young said the nomination was recommended to the White House. It is up to President Obama to make a formal nomination to the Senate Judiciary Committee, of which Schumer is a member.

“We generally don’t comment on yet-to-be-announced nominees or potential nominees,” said Matt Lehrich, a White House spokesperson.

In fact, Larimer’s vacancy is listed as one of 50 judicial emergencies because there are more than 600 cases filed annually for his post and his vacancy has existed for more than 18 months.

There are a total of 876 federal judgeships in 89 districts within 13 circuits. An additional 20 future vacancies are expected through 2011.

There have been 41 federal judicial confirmations — none in New York — by the 111th Congress, which is in lame-duck session until the end of the year. A new Congress will be seated in January. Any unconfirmed nominees will be returned to the president, said Erica Chabot, judiciary press secretary for the majority of the Senate Judiciary Committee, which consists of 12 Democrats and seven Republicans.

She outlined the nomination process that starts when nominations are sent — often by home state senators — to the president, who decides whether to make a formal nomination to the Senate Judiciary Committee.

Nominees then complete extensive questionnaires as a prelude to a hearing before the committee, which may decide to vote. If a majority is in favor, the nomination can be voted on by the full Senate. If a majority of the Senate approves, the president is notified and the nomination is confirmed.

The ABA’s Standing Committee on the Federal Judiciary also provides an evaluation of the professional qualifications of a judicial nominee, which is why Zack cannot comment on any.

Zack said 17 judges have come out of committee with no recorded opposition, but are still waiting for a hearing date to be scheduled. He said some nominees have waited 400 days or more for Senate action.

“It’s almost an invisible wall that is keeping the process in check,” Zack said, noting there are “political issues.” He wouldn’t be specific, but the association’s website (www.abanet.org) mentions Senate Republicans have objected to scheduling a floor vote on numerous nominees.

“Criticism over the high vacancy rate has rightfully been leveled at both ends of Pennsylvania Avenue,” the website says. “The Administration has been slow to make nominations, particularly during the 1st Session. Even though the Administration has picked up the pace of nominations, there are still a high number of vacant positions for which no nominee has been announced: at present, there are no nominees for 56 of the 104 vacancies.”

In response to mounting concerns over the lack of progress in reducing the vacancy rate, the ABA sent a letter to Obama and congressional leaders urging them to act promptly to reduce the vacancy rate. Zack has also highlighted the urgency of the issue on the speech circuit and by publishing editorials.

The No. 1 reason for the vacancies, according to Zack, is retirements. The second is economics and attracting people for consideration when they are paid a fraction on the bench of what they could earn in private practice.

Even federal employees, according to www.uscourts.gov, can receive salaries at or above those of district judges, who are compensated $174,000 annually.

“Judges are being appointed earlier to the federal bench,” Zack said. “They’re appointed fairly young and reach a point where their children are going to college and they can’t afford to send their children to college so they leave the bench to go into private practice.”

Zack said the vacancy rates are straining the court system which is also being slowed by the increasing number of pro se litigation because of economic conditions.

“The judges that are sitting have more work with less people to do it,” he said. “I think that’s pretty significant. They have more cases with less people to work on them and that means that we have less access to our courts. It’s like the old adage: ‘Justice delayed is justice denied.’ The public is entitled to a fully functional court system.”

Zack said Congress has to work together to get the nominations moving and that it’s up to the people to pressure their representatives.

On Friday, Sen. Patrick J. Leahy, D-Vt., chairman of the Senate Judiciary Committee, urged action on more than 20 judicial nominations pending before the full Senate, including 16 reported by the Judiciary Committee unanimously.

“There is no good reason to hold up consideration for weeks and months of nominees reported without opposition from the Judicial Committee. I have been urging since last year that these consensus nominees be considered promptly and confirmed.”

Even if all vacancies were filled promptly, according to the ABA website, the Judicial Conference of the United States has stated that there is an urgent need for 67 permanent and temporary new judgeships.

A comprehensive judgeship bill has not been enacted since 1992, and omnibus judgeship legislation, introduced this session by Leahy in the Senate (S. 1653) and Rep. Henry C. Johnson, D-Ga., in the House ( H.R. 3662), is not likely to reach the floor for a vote this session.

Unlike judgeship bills in the past, neither of these bills have Republican cosponsors.

“Congressional reluctance to authorize new judgeships is understandable in light of the substantial expense associated with each new judgeship,” the website says. “Opposition, motivated in part by a desire to prevent a president of a different party from having the opportunity to fill additional judgeships, on the other hand, is one more indication that partisanship may trump concern for a well-functioning judiciary. Justice should not be delayed or denied to any American because of overburdened courts or the lack of federal judges.”

New York State

  • 1,253 judgeships
  • 238 in the eight-county Fourth Department
  • 15 vacancies statewide, three in the Fourth Department
  • 68 judgeships with no vacancies, Fifth Judicial District
  • 71, one vacancy, Seventh Judicial District
  • 99, two vacancies, Eight Judicial District

— New York State Unified Court System, Office of Court Administration

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