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Justice Delayed: The Urgent Need to Fill Federal Judicial Vacancies

Daily Journal

Oct 28, 2010

By William Hebert and Sheldon Sloan

Access to the courts is a basic right for every citizen of the United States, whether that citizen is a business, a government entity, or an individual. This access is being threatened by the continuing delays in filling judgeships in the U.S. District Courts, especially in California. It's time for Democrats and Republicans to put politics aside and help expedite the appointment and approval of qualified candidates.

The cure for this problem is straightforward - the speedy confirmation or rejection of President Barack Obama's judicial nominees. These nominees deserve a vote, up or down, yea or nay. Whatever happened to "The Gang of 14" - a group of justice-minded U.S. senators on both sides of the aisle who pledged to not filibuster a candidate for political purposes in order to avoid the threatened elimination of the filibuster on judicial nominations? Perhaps it is time again to consider such a change. In any event, the practice of judiciary committee chairs and majority leaders on both sides of the aisle to hold up confirmations for political reasons must give way so the courts may be fully staffed and function smoothly.

Our district court judges must, by law, oversee and help resolve all cases that fall within their jurisdiction. The federal district courts in California and elsewhere play a critical role in our system of justice. They are tasked with resolving some of our most complex disputes, including commercial disputes between domestic and international companies, enforcement of intellectual property rights, managing complex class actions, and resolving disputes over civil and constitutional rights.

The courts' ability to resolve disputes fairly and without undue delay affects the rights of litigants in all sectors of society - from low wage workers and ordinary consumers to the largest corporations. Access to the courts is critical to a properly functioning judicial system and, as importantly, to a properly functioning system of capitalism that depends upon certainty in the allocation of business and property rights. It is self-evident that the greater the number of vacancies on the bench, the more cases that the remaining judges must oversee and bring to resolution.

Cases keep getting filed, whether or not a district court deploys its full complement of judgeships. The more cases each sitting judge must oversee, the longer it takes each case to reach resolution. The longer a case is pending, means that justice in each of our courts is being delayed - in some instances for more than three years - and this delay results in justice being denied. If a litigant cannot get a dispute timely resolved, then promise of our Constitution, to the right to petition government for the redress of grievances rings hollow.

The federal district courts in California are facing a judicial emergency. California's experience reveals that justice is being delayed and denied for thousands of litigants. California has four federal judicial districts: Northern, Eastern, Central, and Southern. In every judicial district in California, the caseloads per judgeship exceed the United States median. Using figures for 2009, which is the most recent available data, the Eastern District of California, which includes Sacramento and the entire Central Valley from Redding to Bakersfield, is one of the most overworked judicial districts in the nation. The United States median weighted civil caseload was 480 per judge. Compare this caseload to the load of the weighted civil average for a judge in the Eastern District and results are astounding. The comparable figure in the Eastern District is 1097 - in other words, 269 percent over the national median. These judges in the Eastern District of California (with one of the highest population growths in the state and the greatest prisoner population in the state) are overseeing over twice as many cases than their brethren around the nation.

And they are working harder than their brethren, as well. Judges in the Eastern District of California resolved 1041 cases per judge during the 12-month period ending June 30, 2009, which ranked them first in the 9th Circuit (which, by the way, is the largest circuit in the country) and second in the nation. This compares dramatically to the 503 terminations per judge among their peers during the same period.

The federal judges in other districts in California are working nearly as hard. Weighted average case filings for the same period ending Sept. 30, 2009 were 607 in the Northern District, 622 in the Central District and 539 in the Southern District.

Despite working hard, our courts are falling further and further behind. In the Eastern District of California, there are 591 civil cases pending three years or more. If you are not a litigator, imagine telling a client as he or she is deciding whether or not to file a case, or is forced to defend a case, that resolution of the case might take more than three years. No individual or business could rationally plan three years in advance about the cost, expense, and eventual resolution - good or bad - of a lawsuit. This is especially true where a company's way of doing business or its livelihood is at stake, as in any cases involving patents, antitrust, unfair business competition and constitutional claims.

There are specific instances in California of long-standing vacancies and unreasonable delays in bringing nominees to the Senate floor for a vote. In the case of the nomination of Magistrate Judge Edward Chen in the Northern District, he was unanimously rated well-qualified by the American Bar Association - the highest rating the ABA confers on judicial nominees. He was favorably voted out of the Senate Judiciary Committee, but his nomination has never been brought to a vote on the Senate floor. While action on his nomination has been delayed 12 months, hundreds of cases that could have been assigned to him have been assigned to already overtaxed and overburdened judges, whose inability to oversee and process so many cases means that California's businesses and people are not gaining access to the courts, as promised by our Constitution.

In the Eastern District of California, U.S. Magistrate Judge Kim Mueller also was rated unanimously well-qualified by the ABA, and was voted out of the Senate Judiciary Committee without a single objection, but was not confirmed before the end of the Senate's last working session and has now unnecessarily waited seven months for a vote by the full Senate on her nomination.

While the Senate delays votes on these judicial nominees, the men, women and business entities needing our federal courts to help resolve their disputes are being denied their day in court. This denial includes the types of civil disputes filed by individuals and businesses alike. Just as justice is blind, so is its opposite: access to justice is blind as well. Republicans and Democrats, men and women, young and old, individuals and businesses, whites and Blacks, Asians and Latinos - everyone suffers.

The Senate needs to act now. We urge the Senate to bring to a vote each of the President's judicial nominees at the earliest possible date in order to secure to our people the right to petition the government to redress grievances and to defend themselves when wrongly and unjustly accused.

William Hebert, a Democrat, is a partner in Calvo & Clark in San Francisco and is the current president of the State Bar. Sheldon Sloan, a Republican, is of counsel to Lewis, Brisbois, Bisgaard & Smith in Los Angeles. He is a past president of the State Bar and of the Los Angeles County Bar. In the 1980s, he was chair of the Federal Judiciary Advisory Panel for the Central District of California for then U.S. Sen. Pete Wilson.

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