Senior judges keep 9th Circuit courthouses open
The pile of unread magazines and novels on her bedside table is Judge Betty Fletcher’s only regret in letting retirement elude her.
Fletcher, who turns 88 this month and relies on a walker to navigate airports and courthouse corridors, retired a dozen years ago yet still works full time, on what is known as senior status, for the U.S. 9th Circuit Court of Appeals. She travels throughout the court’s nine-state region for hearings and spends seven days a week poring over foot-high stacks of written filings.
As federal courts stagger under the weight of mounting caseloads and vacant judgeships go unfilled for years, senior judges like Fletcher have come to the rescue, especially in the 9th Circuit, where they shoulder a third of the legal load.
“It’s kind of a double whammy,” Fletcher said of the courts that have had no new judgeships added in 21 years and that have declining numbers of active judges because of partisan posturing in Congress. 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.
“I’m not a gardener and I’m not a housekeeper,” Fletcher says of her lack of interest in more traditional retirement pursuits. “The only thing I would do is more reading for pleasure if I had the time.”
The diminutive white-haired Washington state native says she loves the work and wants to help in this time of crisis. Fletcher also wants to keep sounding the voice that led President Carter to make her a federal judge 32 years ago.
“I think I bring a set of values and viewpoints to the court, and there is little enough of that now,” she says, alluding to the ideological divide that has emerged on the reputedly liberal court with the conservative appointments of the last administration. “The Carter appointees are pretty much diminished.”
Another 9th Circuit senior working harder than he has to is Judge John T. Noonan, appointed to the court by President Reagan in 1985. But he dismisses the notion that he stays active to defend the ground gained in recent years by appointees of Republican presidents.
“I’ve always thought of myself as fairly much in the middle and I think the court has a spectrum of judges now,” said Noonan, 84. He said he doesn’t feel particularly burdened carrying about 75% of an active judge’s caseload as he still finds time to write books, including a volume on Shakespeare’s spiritual sonnets coming out in May.
Judge Dorothy W. Nelson, another Carter appointee who took senior status 16 years ago, was back on the bench at the Pasadena courthouse on Wednesday, less than two weeks after her husband of 60 years died. She has carried a 75% caseload throughout her supposed retirement and has spent “the other 75% of my time” at the Western Justice Center she founded for mediation and conflict prevention.
“I feel a responsibility to the litigants,” said Nelson, 82. “The courts are not for the judges, and they are not for the lawyers. They are for the people who have real grievances that need to be heard.”
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.
“We’d be sunk without them,” Dwyer said of the seniors. “I often joke that I’m shipping out vitamins and giving out orange juice along with the assignments.”
Even with the senior reinforcements, active judges on the 9th Circuit still sit on nearly twice the number of panels as those on the other 11 federal appeals courts, according to statistics kept by the Administrative Office of the U.S. Courts.
Nationwide, seniors handle 21% of the federal judiciary’s work, said David Sellers, an assistant director of the federal court agency.
The deaths of two 9th Circuit seniors in February and the resignation of another at the start of this year sent a reminder to the court that relying on the largesse of retirees isn’t a long-term strategy for dealing with a swollen caseload.
Judge Cynthia Holcomb Hall, who died of cancer at age 82, and Judge David R. Thompson, who died at 80 after suddenly falling ill, heard cases until shortly before they died and left several pending. Judge Thomas G. Nelson, 74, an appointee of the first President Bush who had been on senior status for seven years, resigned from the court in January because of ill health, said Dwyer.
Thirteen of the circuit’s seniors are over 80, and seven of the 26 active judges are well past the point at which their age and years of service make them eligible to retire. Former Chief Judge Mary M. Schroeder announced last week that she would take senior status next year and urged the administration to nominate a replacement swiftly in light of the court’s burgeoning workload.
“Certainly as people age, the ability to depend on them to provide regular, ongoing work may become more questionable,” Sellers said of the aging community of judges. Noting that federal judges haven’t had their pay raised for more than 20 years except for occasional cost-of-living adjustments and that their enthusiasm is probably flagging for dockets dominated by drug, immigration and death penalty cases, Sellers warned that “we may get to the stage where some number of senior judges just decide they are going to walk.”
A bill repeatedly introduced in Congress since the mid-1990s would expand the judiciary by 63 judges, including five for the 9th Circuit. That 17% increase would not keep pace with the rising caseload in busy areas such as the 9th Circuit.
Brookings Institution scholar Russell Wheeler noted that the bill has languished for years while the federal caseload soared with immigration and drug cases, rarely getting a hearing and facing lawmakers now openly hostile to any expansion of the federal payroll. Whether active or retired, circuit judges earn $184,500 a year and their district court colleagues make $174,000.
Yet nearly half of the 95 vacant judgeships have been labeled “emergencies” by the judicial administration agency, including 14 in the 9th Circuit region, based on the number of filings and how long each seat has been empty. In Arizona, the entire federal district has been proclaimed an emergency, a rare move made when courts are so backed up that they can’t meet the demands of the 1974 Speedy Trial Act, which requires bringing criminal defendants to trial within 70 days of being charged.
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.
Stopgap as the seniors might be, they are the only resource under the courts’ control.
“The circuit could not function without those active senior judges,” Arthur Hellman, a University of Pittsburgh law professor, said of the 9th Circuit.
But he warns of the unsustainable status quo of judges working well into their 80s.
“It’s a looming problem that will reach a period, probably fairly soon, where the percentage of help you can get from seniors is substantially reduced,” Hellman said. “Then the court will really be in trouble.”
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