Being a federal judge apparently isn’t the career path it used to be. On that, the Senate Judiciary Committee found bipartisan agreement at a hearing Tuesday on Capitol Hill, where judges spoke about the thankless grind of overwhelming caseloads.
Senator Christopher Coons (D-Del.), who is moving forward on a quixotic bill to add 91 federal judges, said understaffing in the federal judiciary influences the employment decisions of potential judges as well as retirement of sitting judges.
“Senior judges, who are eligible for their pension but agree to forego lucrative outside employment opportunities and continue to hear cases, help fill the gap,” Coons said. “But senior judges are in effect providing charity to our government out of commitment to public service and to their colleagues—they cannot be the foundation of a responsible staffing model.”
Potential judicial nominees aren’t attracted to the bench because judges, these days, can’t provide the level of time they would like to in their cases. “Moreover, and especially in a time of stagnant judicial compensation, they reduce the esprit de corps of the judiciary and make it marginally more difficult to attract the best and the brightest to serve,” Coons said.
Senator Jeff Sessions (R-Ala.) said the senior judges—“for which we are most grateful”—are one of the ways the courts have learned to do more with less. “It’s not a retirement job anymore if anyone ever thought it was,” Sessions said.
U.S. District Judge Sue Robinson described her job in the District of Delaware almost as if it were a recurring nightmare. At the very least, it wasn’t a sales pitch for anyone thinking about wanting to join the federal bench.
In 1991, the year she came to the court and the last time Congress passed a comprehensive judicial staffing increase, there were 37 patent cases filed in Delaware. In the last 11 months, there have been 1,394. She testified that she is double and triple booked for patent trials through 2015, and that does not include criminal trials or other civil cases. She has two clerks for cases that often have dozens of attorneys on them.
“My father was a pilot, and I grew up around airports. I see my job as an air traffic controller. And I see an unending line of airplanes in the flight pattern waiting for their touch-and-go in Delaware on their way to Washington to the Federal Circuit, to tell you the truth,” Robinson told the committee.
That sounds like the stuff that causes tossing and turning, but at least she feels she’s making a difference, right?
“When you have this complex, burdensome process that you do over and over and over again, with dwindling resources, and certainly nobody patting you on the back, the best you can do is get an affirmance by a federal circuit generally on different reasoning than the ones you’ve given them, it gets difficult to feel as though what you’re doing makes a difference,” Robinson testified.
But she also painted the picture of a bleaker future for new judges. “I love my job, but, I almost feel sorry for the judges who are just coming on,” Robinson continued. “At least I’ve grown with this increasing caseload, to be handed it first thing it’s got to be difficult.”
U.S. Circuit Judge Timothy Tymkovich, chair of the federal judiciary’s Committee on Judicial Resources, said the courts have reduced costs, but that can’t continue and hurts the judges work environment.
“These are serious times, and these issues, that lack of support has a real effect on the judiciary,” said Tymkovich of the U.S. Court of Appeals for the Tenth Circuit. “I think it’s a dedicated and really high esprit de corps institution, I’m proud of my colleagues, but it’s become very difficult times for us.”
Sessions shot down the possibility of passing the Federal Judgeship Act of 2013 as it reads now, which asks for the same number of judges the U.S. Judicial Conference requested. Congress doesn’t have the money to fund each judgeship at approximately $1.1 million, Sessions said.
“We’re not going to add 91 federal judges, that’s just not going to happen. I hope you know that and you have to understand that,” Sessions said to Coons. “It’s okay to ask for what you’d like to have, and all of us could. But it’s just not going to happen.”
Sessions did allow for the possibility of adding a smaller number based on need, and he conceded that Delaware sounds like it might qualify.
In the end, adding judges still touches on politics. Jay Sekulow, chief counsel of the American Center for Law and Justice, testified about his group’s concerns that this legislation “invokes an undue amount of partisan influence into the makeup of the federal judiciary.”
Making any new judgeships start after a new president is elected would mean Senators would make their decision on the bill based on judicial need and not who is in the White House, and would reduce the appearance that one side is trying to pack the courts.
“The current plan of the bill basically doubles the number of vacancies pending in the judiciary,” Sekulow said. “Which then becomes a political tool as far as percentages go, but also it looks like, if you were just to talk to the American people about that, it looks like court packing.”
Contact Todd Ruger at email@example.com.