FACT SHEET | February 7, 2011

Judicial Vacancy Crisis

Judicial vacancies in our federal courts are reaching historic highs.  There are currently 104 vacancies on federal district and circuit courts, forty-nine of which are determined to be judicial emergencies by the non-partisan Administrative Office of the U.S. Courts, which means there are simply not enough judges on the bench to do the work of the district or the circuit. This means justice and fairness is delayed-and often denied- for those in need, from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift injunction of corporate environmental polluters to small business owners seeking protection from unfair and anti-competitive practices.

The Department Of Justice's Office Of Legal Policy Estimates That One-Half Of The Federal Bench Will Be Empty Within 10 Years If Confirmation Rates Do Not Improve.With each new vacancy, more and more Americans will wait years for the most basic opportunity to seek justice. Even today, the average civil litigant must wait nearly two years for a jury trial, and this wait grows even longer if their case is appealed.[Center for American Progress, 1/3/11]

Litigants Are Being Forced To Wait Months And Years Before Their Cases Are Heard.  In 2009, for civil litigants with trials, the average median time from filing to trial was over 2 years (25.3 months). As judicial vacancies have been rising, so too have the delays for litigants.  [Administration Office of the U.S. Courts, Judicial Caseload Profile, 2009]   

• Columnist: Americans “Ought To Be Livid” By Long Delays For A Fair Trial. One columnist recently wrote of the judicial vacancy crisis, “Those who ought to be livid are ordinary citizens for whom justice delayed is indeed justice denied. Criminal defendants are guaranteed a speedy trial, but long lines of civil cases waiting for a trial date only get longer” [Seattle Times, 9/30/10]

Federal Court Caseloads Are Growing While Judicial Vacancies Persist. “In 2010, nearly all major areas of the federal judiciary had larger caseloads. Filings of bankruptcy petitions climbed 14% to nearly 1.6 million. Filings in the U.S. district courts grew 2% to 361,323 in response to a 2% increase in civil case filings (totaling 282,895) and criminal case filings (totaling 78,428)… Civil filings in the U.S. district courts rose 2%, increasing by 6,498 cases to 282,895… Filings of petitions for bankruptcy totaled 1,596,355, a 14% increase over the previous year’s filings and the highest number received since 2005.” [2010 Year-End Report on the Federal Judiciary, 12/31/10]

In 111^th Congress, Average Circuit Court Nominee Waiting 163 Days for Consideration. In the last Congress, the Senate's average consideration of a district court judge took 104 days, while the average circuit court nominee took 163 days. [People for the American Way, 1/25/11]

USA TODAY: Judicial Delays Impact Businesses, Environmental Disputes. In 2010, USA Today reported, “There are consequences to the judicial delays. The overwhelming majority of federal civil and criminal cases end in lower courts and never reach the Supreme Court. That means judges at these trial and appeals court levels shape much of the nation's law -- from business concerns to environmental disputes to gay rights.” [USA Today, 6/16/10]

“If You Can’t Get Into a Courtroom… Justice Suffers.” “It stands to reason that if you can't get into a courtroom, if the docket is too packed for your case to be heard promptly, or if the judge lacks sufficient time to address the issues raised, justice suffers. This will directly affect thousands of ordinary Americans—plaintiffs and defendants—whose liberty, safety, or job may be at stake and for whom justice may arrive too late, if at all. In some jurisdictions, civil litigants may well wait two to three years before going to trial.” [Slate, 9/27/10]

Judges and Officials from Both Parties Recognize the Impact of the Vacancy Crisis

GOP Judges: Senate Must Fill Vacancies To Help Deal With Immigration, Drug & Bankruptcy Cases. In November 2010, seven Republican-appointed federal judges from the largest federal circuit in the country, representing 9 western states, signed a letter urging the Senate to take action on judicial vacancies. They wrote that their case-load “is heavily impacted by increased immigration enforcement, drug interdiction activities, prison litigation, bankruptcy and environmental cases… In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges.” [U.S. Court of Appeals for the 9^th Circuit Letter, 11/15/10]

Chief Justice John Roberts: Judicial Vacancies Create “Acute Difficulties.” In his 2010 year-end report, Supreme Court Chief Justice John Roberts wrote that the problem of judicial vacancies “has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.” [2010 Year-End Report on the Federal Judiciary, 12/31/10]

Career Federal Prosecutors: Courts “Cannot Function Effectively” With Judicial Vacancies.The National Association of Assistant United States Attorneys, a group of career Federal prosecutors, wrote to Senate leaders in December 2010 saying that, "Our federal courts cannot function effectively when judicial vacancies restrain the ability to render swift and sure justice." [Sen. Leahy Statement, 2/2/11]

U.S. Attorney General: “Men And Women Who Need Their Day In Court Must Stand In Longer And Longer Lines.”U.S. Attorney General Eric Holder wrote in 2010, “Last year, 259,000 civil cases and 75,000 criminal cases were filed in the federal courts, enough to tax the abilities of the judiciary even when it is fully staffed. But today there are 103 judicial vacancies -- nearly one in eight seats on the bench. Men and women who need their day in court must stand in longer and longer lines.  The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years -- the slowest pace of confirmations in history -- fully half the federal judiciary will be vacant by 2020. As Justice Anthony Kennedy recently noted, the "rule of law is imperiled" if these important judicial vacancies remain unfilled.” [Washington Post, 9/28/10]

American Bar Association: During Judicial Vacancy Crisis, “Civil Proceedings Are Put Off.”  In July 2010, ABA President Carolyn B. Lamm said, “Our courts are already terribly strained at the federal level because of the caseload and the workload, and when you’re a hundred justices down…that’s a big gap.  We have speedy trial rules that require them to put criminal cases first.  As a result, all of the civil proceedings are put off and there is a real gap in terms of a significant delay as a result of the vacancies. It is edging toward a crisis not to have a full bench.” [ABA, 7/12/10]

Examples of Courts in Crisis, and Their Impact on American Families and Communities

In Texas, Drug Cases “Continue Piling Up” While Key Posts Remain Vacant. “Cases in the Western District of Texas, which includes San Antonio and Del Rio, have been climbing steadily in recent years. In fiscal 2001, some 7,423 cases were filed, but in fiscal 2010 the district recorded 10,495 new case filings. The increase in the Western District, which stretches along the U.S.-Mexico border all the way to El Paso, where drug trafficking is heavy, has been fueled largely by criminal cases. Last year, 7,491 new criminal cases were filed, compared with 4,161 in 2001. The district has two vacant federal district court posts, including one in San Antonio and another in El Paso. Overall, Texas has seven federal judicial vacancies… Meanwhile, new drug cases continue piling up in districts along the border.” [San Antonio Express-News, 1/7/11]

In Colorado, Vacancies Impact Businesses Waiting for Civil Rulings, As Well as Rural and Tribal Communities. Describing judicial vacancies in Colorado last year, Sen. Mark Udall said, “Judicial understaffing in Colorado has a real impact on the residents and businesses in our state. As the caseload increases for each judge, more and more time must be devoted to criminal cases - this is because of the Constitutional guarantee of a speedy trial. But as time and energy shifts to clearing the criminal docket, the civil docket suffers. It continues to become increasingly difficult to schedule a trial in Colorado as the backup grows longer. This increased caseload has a significant impact on our rural and tribal communities around the state as well.” [Udall Press Release, 7/29/10]

DPC