In Chicago, the Northern District of Illinois, five former magistrate judges have been promoted to seats on the district court. In New Jersey, eight former magistrate judges have been appointed to the federal district court, including one who is now on the 3rd U.S. Circuit Court of Appeals. In the Eastern District of Pennsylvania, there has been none. Many members of the bar feel it is about time for a change. Just how extensive the practice of selecting magistrate judges for the district court should become is a subject of ongoing discussion. (The Western and Middle districts of Pennsylvania also have no history of appointing magistrate judges to the federal district court; however because each district has a different political culture and heritage, this article will be confined to the Eastern District.)

Magistrate judges perform all the functions of a district court judge except presiding over felony criminal trials. If all parties to a matter consent, magistrate judges are empowered to handle all facets of a civil case (bench or jury trial) including issuing a final judgment. An appeal from such a final judgment goes directly to the circuit court of appeals. Magistrate Judge Jacob Hart estimates that, considering the high settlement rate of civil cases handled by the district court bench, the magistrate judges of the Eastern District preside over about the same number of actual civil trials as does the district court bench.

So why hasn’t any magistrate judge been selected for the district court bench in the Eastern District? Part of the reason is historical. Until 1968, a U.S. commissioner was available to assist the district court judges. Commissioners had the jurisdiction to try petty offenses committed on federal property, to issue search and arrest warrants, and to set bail for federal defendants. In 1968, the Federal Magistrates Act was enacted by Congress to create a new judicial officer, the U.S. magistrate, who would assume all duties of the commissioners and would conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal case load of the district court judges.

The federal bench was somewhat slow to respond to these changes. Robert DeLuca, an assistant U.S. attorney from 1970-77, and acting U.S. attorney from 1977-78, said that it was his impression that the many federal district court judges in the early years of magistrates were reluctant to view the magistrates as anything more than super commissioners. At one time in the Eastern District, the district court judges issued an order that the magistrates were not to be referred to as “judges” in briefs filed in the district court or in oral arguments before the district court. That order has long since disappeared with no evidence of its existence. In 1979, Congress expanded federal magistrates’ authority to include hearing all misdemeanor cases recognized by the federal criminal code. Magistrates’ titles changed again in 1990, when they became “magistrate judges,” symbolizing the ever-increasing importance of their work.

The growing recognition process has not been without problems. Terrence McCarthy, the first federal public defender in the United States, and who was the federal public defender in the Northern District of Illinois for 40 years, said in the early years of magistrate selection, the political machine process in Chicago was still at work. As a result, some less-than-qualified people became magistrates. In time, quality selection took over and there are many qualified former magistrate judges on the district court bench in Chicago.

Another possible reason for the lack of magistrate judges being promoted to the district court is political. Although magistrate judges are selected by the judges of the district court, candidates for the district court bench are first recommended for selection to the president by U.S. senators of the state who are members of the president’s party.

In Pennsylvania, Sen. Arlen Specter has always played a role in the selection regardless of the administration. Many of the attorneys interviewed for this article stated that in Pennsylvania there has existed a “one bite of the apple theory,” i.e., if a person was selected as a magistrate judge, he or she had had their one bite of the apple, and they would go no further. Many attorneys have related this theory to me, including magistrate judges and former magistrate judges, yet no one has ever confirmed it. Regardless of whether this theory was ever employed, it is still a fact of life that the appointment to the federal district court is part of a political process and the political culture of a district plays a part in the appointment to the district court. In some districts the culture is slow to give consideration of magistrate judges as candidates to the district court. Political culture often varies between districts, even within the same state. It is also a fact of life that people seeking appointment to the district court bench usually participate in the political process, donating money to candidates, and holding fundraisers. Magistrate judges are prevented by judicial ethics from most of the traditional political activities.

Hart, the magistrate judge, said that magistrate judges’ work is the perfect training ground for the district court bench. They handle all phases of federal litigation, except trying federal felonies. They are no longer relegated to the minimal duties of a super U.S. commissioner. Magistrate judges are selected by the district court judges and since the magistrate judges directly serve them, they want magistrate judges who have trial court experience. Hart said this selection process will keep academics and corporate in-house lawyers with little trial experience off the bench. Hart said if it becomes known that the magistrate judge position may be a stepping stone to the federal district court, more and more qualified practitioners will be attracted to the magistrate judge position.

There are attorneys who oppose adopting a tradition that service as a magistrate judge should be an essential step to the district court. Justice Salvatore R. Martoche of the New York Supreme Court, Appellate Division who is also a former federal prosecutor, said that while magistrate judges should be considered as appropriate candidates for the district court, service as a magistrate judge should not become a prerequisite. Such a practice would severely limit the qualified field of potential judges, and would prevent the selection of state trial judges and practicing trial lawyers who bring a great depth and diversity of experience to the bench.

Former Eastern District of Pennsylvania Chief Judge Edward Cahn said it is the duty of the U.S. senators to select candidates for the federal district court bench. He said they should recognize there are different (his emphasis) valuable pools to choose from, magistrate judges and experienced trial practitioners and state court judges. Creed Black, a trial attorney with extensive experience in federal court, said, “I hope that the magistrate judges will receive the same consideration for elevation to the district court that is traditionally given to the best-qualified attorneys in private practice and to outstanding state court judges.”

In Pennsylvania, this selection process is evolving, and should continue to evolve. There are very qualified and experienced magistrate judges who could handle the work of a federal district court judge with ease; however the magistrate judge roster should not become the only place to look for district court judges. The district court bench needs talent from the trial bar and the state trial bench, lest the field of prospective candidates becomes artificially narrowed, as has happened to the current selection process for justices to the U.S. Supreme Court. •

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by e-mail at p.vaira@vairariley.com . Vaira has a blog devoted entirely to Eastern District Practice at petervaira.wordpress.com.