Five judges from the U.S. 9th Circuit Court of Appeals have died this year, worsening an already critical case backlog and spotlighting President Obama’s inability to put his judicial choices and stamp on the powerful court.
The deaths of four semi-retired senior jurists and full-time Circuit Judge Pamela Ann Rymer have intensified concerns on the aging bench and among judicial scholars that the 9th Circuit will fall farther behind in what is already the slowest pace of dispensing justice in the federal courts.
Judges of the 9th Circuit currently sit on twice the number of cases each year as those of the other 12 federal appeals courts, according to the Administrative Office of the U.S. Courts. And it takes an average of 16.3 months for the court’s panels to issue opinions after an appeal is filed, compared with 11.7 months on average for all circuits. The 9th Circuit has jurisdiction over California and eight other Western states and is authorized to have 29 full-time jurists.
“While we mourn the loss of our colleagues, whom we will miss as friends, we are alarmed by the loss of judicial manpower,” said 9th Circuit Chief Judge Alex Kozinski, who was appointed to the court by President Reagan. “A very difficult situation has been seriously exacerbated, and we fear that the public will suffer unless our vacancies are filled very promptly.”
The 9th Circuit is an especially important court because it helps to define many of the nation’s laws on immigration, sentencing, intellectual property and civil rights, experts say.
Obama inherited two 9th Circuit vacancies with his inauguration. Two jurists retired last year. Rymer’s Sept. 21 death from cancer created another vacancy. Another vacancy looms at the end of the year, when former Chief Judge Mary M. Schroeder plans to take senior status.
Obama has managed to get only one of his picks for the 9th Circuit confirmed by the Senate. He elevated U.S. District Judge Mary H. Murguia in 2010 from the Arizona federal court, leaving that bench with its own manpower crisis after its chief judge, John M. Roll, was killed in the Jan. 8 shooting rampage in Tucson.
Obama’s other appeals court nominations, Alaska Supreme Court Justice Morgan Christen and U.S. District Judge Jacqueline H. Nguyen of Los Angeles, are still making their way through the contentious confirmation process. Christen was nominated in May and Nguyen was nominated last month. Obama has yet to name anyone for the other three 9th Circuit vacancies, including one that has been open for seven years because of a dispute between California and Idaho senators over which state gets to propose candidates to the White House. Nationally, Obama nominations are pending in 51 of 92 vacancies.
Some judicial scholars speculate that Obama may be having trouble convincing those he would like to appoint to accept nominations for fear of derailing their legal careers only to be rejected by partisan fights in the Senate. Goodwin Liu, a UC Berkeley law professor twice nominated by Obama, was forced to withdraw earlier this year when Senate Republicans again blocked a confirmation vote.
“What we know is that the nominations haven’t been coming through with the speed we would expect. What we don’t know is whether that is because the president is not asking people or whether he is being turned down,” said Arthur Hellman, a University of Pittsburgh law professor and 9th Circuit historian. Citing the relatively low pay compared with what a lawyer can make in private practice and the often withering interrogations in the confirmation process, he said, “some may be saying it’s just not worth it.”
Hellman worries that the overwhelmed 9th Circuit judges will have to cut corners to prevent their case backlog from further increasing. That could mean less time spent reviewing each case, holding fewer oral arguments before issuing decisions or bringing in judges from other circuits who might be unfamiliar with 9th Circuit law.
A call to the White House press office asking why Obama has not nominated more judges wasn’t answered Thursday. Earlier in the day, at a session of the Senate Judiciary Committee, its Democratic chairman blamed Republicans for stalling judicial appointments by refusing to give consent for confirmation votes even on candidates voted out of committee with unanimous support.
“Millions of Americans across the country are harmed by delays in overburdened courts,” said Sen. Patrick J. Leahy (D-Vt.). “The Republican leadership should explain to the American people why they will not consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies.”
The committee’s ranking member, Sen. Charles E. Grassley (R-Iowa), countered with a claim that the Senate is “ahead of the pace” compared with the confirmation rate of the Democratic-controlled Congress during the Bush administration. His comment followed Thursday’s confirmation vote on three of 30 Obama judicial nominations that Republicans agreed to bring to a vote.
Even if Obama acts quickly to nominate three more 9th Circuit judges, the impending 2012 campaign could thwart Senate approval of those choices, said Michael McConnell, a Stanford law professor and former judge on the 10th Circuit.
Russell Wheeler, a Brookings Institution fellow and veteran analyst of the federal courts, said Obama is entering “uncharted territory” with the 9th Circuit vacancies occurring so late in his term.
Noting that Bush got Senate confirmation of 35 federal judges in the last 15 months before his 2004 reelection bid, Wheeler said, “I doubt Obama will do as well, but confirmations are not going to stop altogether.”
Some judicial analysts also lament that the administration hasn’t pushed Congress to expand the federal judiciary, as recommended for more than a decade by the Judicial Conference of the United States. That policymaking body of the federal courts has said the 9th Circuit needs at least five more judges added to its authorized 29 to alleviate its annual caseload of 12,000-plus filings.
The announcement Tuesday that senior Circuit Judge Robert Boochever died at his Pasadena home on Sunday was a sharp reminder of the advancing age of the 9th Circuit bench that relies on its purportedly retired seniors to shoulder much of the case overload. Fifteen of the court’s judges are over 80, including two of the 25 active judges and 13 of its 18 seniors. Last year, a third of the court’s caseload was carried by senior judges.
Since criminal appeals can’t be delayed because of federal laws protecting defendants’ rights, the burden of delays will fall on civil cases, said Kozinski.
“We can ameliorate some of that by relying more heavily on visiting judges, but we’re already doing that quite a bit,” he said, adding that the help available from outside is finite. “Essentially, it’s a zero-sum game, so that when you decrease the number of judges available in the federal system, you necessarily add more delay somewhere. Shifting judges around can help even out the burden, but it can’t make up for judges that just aren’t there.”