Judicial delay: stark reality of vacant benches

With nearly 12 percent of all federal judge positions vacant across the United States, there is no doubt among legal analysts that the efficiency of the courts is suffering.

But is the perpetual high judicial vacancy rate eroding the quality of justice in America?

For the most part, the nation's judges are trying to take up the slack. They are relying on semi-retired judges pressed back into service and in some cases employing innovative case-management techniques to avoid a judicial meltdown.

But as the White House and the US Senate prepare for perhaps the most contentious and drawn-out battle yet over judicial nominees and the direction of the courts, the costs of a chronically undermanned judiciary are coming into sharper focus.

It is a price that will be paid in large part by ordinary Americans.

Because the US Constitution guarantees a speedy trial to criminal defendants, criminal cases must be given preference by judges. As a result, civil cases - such as discrimination suits, product-liability claims, and contract disputes - are routinely postponed so a judge can devote his or her full attention to the most pressing cases.

It now takes almost two years for the average civil case filed in federal court to simply get to trial. Since 1995, the number of civil cases pending for at least three years has more than doubled.

"It is quite true that justice delayed is justice denied," says Carlton Carl of the Association of Trial Lawyers of America in Washington.

"If there is, for example, a legitimate claim against an insurance company and the insurance company can delay for 10 years ... basically the injured person is forced to wait," he says. "An injured person may have to mortgage his or her house to pay medical bills, or sell the house, or go bankrupt."

Still high quality?

Allan Ashman of the Hunter Center for Judicial Selection at the American Judicature Society in Chicago views the issue from a different perspective. "Given the heavy workload that all our federal and state judges face, it certainly puts an extra burden on the judges," he says. "But it doesn't mean necessarily that the work they are doing on individual cases suffers."

"We aren't getting less justice. It is just not being processed as quickly as it might be," Mr. Ashman says.

The impact of vacant judgeships isn't being felt just in civil cases. Some courts are struggling to keep pace with a huge volume of criminal cases.

For example, each of the five federal districts along the US-Mexico border is being inundated with a flood of prosecutions of drug traffickers and smugglers in the wake of a massive investment by Congress to beef up border-enforcement efforts.

The problem is that while Congress provided funds for more agents who are now making more arrests, lawmakers did not anticipate the need for more federal judges for the inevitable trials.

As a result, federal prosecutors are rejecting the vast majority of cases because there just aren't enough judges.

"We are desperately outmanned and underfunded," Royal Furgeson, a federal judge in the western district of Texas, told members of Congress in late March. "Last year, the Border Patrol alone made 1,644,000 apprehensions along the Southwest border. Yet, less than 1 percent of those cases were prosecuted," Judge Furgeson said.

The Judicial Conference of the United States, an organization of all federal judges, has asked Congress to authorize six additional permanent and four temporary judgeships for the courts of appeals, and 23 additional permanent judgeships and 21 temporary judgeships in the district courts. Of those totals, nine new permanent judges and nine temporary judges would be assigned to the Southwest border districts.

What Furgeson didn't mention in his testimony is that four of the five Southwest Border districts have existing vacancies among federal judge seats that the Senate could fill right now.

Three seats are open in Arizona, two seats are unfilled in New Mexico, two seats are open in the Southern District of Texas, and by late June two seats will be open in western Texas.

All nine of these open seats are classified by the Judicial Conference as "judicial emergencies."

Any district court receiving in excess of 600 new cases filed per judge is considered an emergency. The totals are 978 per judge in the Southern District of California, 950 per judge in west Texas, 801 in New Mexico, 643 in Arizona, and 613 in the Southern District of Texas.

Political football

The broad issue of judicial emergencies and whether or not the courts are facing a potential crisis has long been a political football in the Senate.

During the Clinton administration, some Republican senators worked hard to prevent the president from appointing judges who might shift the ideological balance of the courts toward the left. Now, some Democrats are expected to work just as hard to prevent President Bush from trying to shift the balance toward the right.

"The significance of these vacancies and emergencies apparently shifts with the political winds," says Thomas Jipping, director of the Center for Law and Democracy at the conservative Free Congress Foundation in Washington.

"One has to look carefully at the claim of crisis and who is making the claim," says Sarah Binder, a political scientist at George Washington University. "When Clinton was proposing judicial nominees, it was generally Republican senators from those circuits and those districts who said, 'We don't need more federal judges. The ones who are there can carry the load,' " Ms. Binder says. "But now that there is a Republican in the White House, those same senators feel quite fine about filling those seats."

(c) Copyright 2001. The Christian Science Monitor