The crisis in caseloads is very real, with caseloads per active judge in the circuits increasing from an average of 148 in 1971 to 324 in 2017. There haven’t been new seats added to appeals courts in 30 years. “The problem is that over time the courts of appeal have not added to their ranks at quite the rate that appeals have been filed,” Merritt McAlister, a professor at the University of Florida College of Law who studies judicial administration told Bloomberg Law.
There are ways in which the courts themselves could encourage more judges to step into senior status, court watchers say. One problem Duke University Law Professor Marin K. Levy identifies is that judges in senior status “might not be perceived to have equal status with an active judge,” and are somewhat pushed aside, having to move offices or be listed last on opinions. There’s a perceived loss of status for these people who have been judges and thus in somewhat rarified lifetime positions for huge chunks of their professional lives. Levy’s answer is to improve their lot. They still get the same salary and they have more autonomy over their caseloads, but in some circuits they have less clout. They can’t vote on administrative matters for the courts in the Second, Third, and Fifth Circuits. They are behind active judges in the D.C., Third, Fourth, and Eleventh circuits in getting preferred seating, and in the Third and Fourth Circuits are listed last on opinions and orders. They can’t sit in en banc panels for cases sent back for rehearings in any of the circuits, which is one reason judges have indicated in surveys as key to their resistance to take senior status.
One change the Judicial Conference could make is to allow judges to participate in en banc rehearings. That would be a “tremendous inducement” former Third Circuit judge Thomas I. Vanaskie told Bloomberg Law. Allowing them to keep their offices and weigh in on administrative issues would also help, he said. “We should be looking for ways to encourage judges to take senior status. I think maintaining their stature is important,” Vanaskie said. “If stature would have been maintained, maybe I would have stayed. I don’t know,” he added.
As far as filling those vacancies go, Biden has prioritized identifying nominees. Biden’s team reached out to Democratic senators in December, requesting that they get their nominees in ASAP and informing them that going forward, they expected nominations for vacancies within 45 days of the vacancy being announced. Biden also stressed that he wants judicial nominees who come from diverse demographic, personal, and professional backgrounds. He wants to see a bench with more women, more people of color, more judges with backgrounds in criminal defense and who served as public defenders. “With respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life,” the letter from Biden’s team read.
Two senators, Michael Bennet and John Hickenlooper from Colorado, apparently didn’t read the memo. They’ve recommended Regina Rodriguez, a partner at corporate law firm WilmerHale, for a district court opening. Yes, she’s a Latina. But she’s a corporate lawyer, with a bulky corporate defense portfolio that includes “defending McDonald’s in a racial-discrimination lawsuit in 2006 and defending the office of former Republican senator Ben Nighthorse Campbell in an age discrimination suit the year prior.” Her track record really is pretty abysmal when it comes to representing the little guy. Meaning she really hasn’t. She fought a suit for Dianon Systems brought by a client who underwent an unnecessary prostate removal because of a botched biopsy result. She’s represented Eli Lilly and a dietary supplement company against patients bringing suits for misleading promotional claims that resulted in harm.
Chances are, Bennet and Hickenlooper put her name in the mix because she had previously been nominated by then Republican Sen. Cory Gardner and Bennet in 2016, when McConnell was blockading any nominees from President Obama. That was then, though. Now Biden has specifically called for a different kind of nominee, because after Trump there are plenty on the bench who will be looking out for corporate America. This could be laziness on Bennet’s part, he had all the paperwork handy and didn’t have to conduct a new search for a nominee. Whatever the reason, it’s a blatant and arrogant disregard of Biden’s expressed wishes.
The still undecided question on nominations rests with Sen. Dick Durbin, the new chair of the Judiciary Committee, and whether he will honor blue slips from Republicans. Under Sen. Lindsey Graham, Democrats were not extended the courtesy of having their home-state circuit court nominees considered. That made it easier for Graham, McConnell, and Trump to pack the all-important appeals court with 54 extreme and often unqualified appellate judges, along with dozens of the same in the district court. Under President Obama, Republicans often refused to provide their blue-slip approval and when Democrats held the Senate, then-Chair Patrick Leahy let them get away with it. Those seats remained vacant.
Some Senate Democrats don’t want that to happen again. At a January panel discussion about the judiciary, Sen. Sheldon Whitehouse was frank. He says Durbin should honor blue slips from Democrats on circuit nominees “because that’s been our tradition,” and end it there. “[T]he Republicans, as far as I’m concerned, have utterly waved their rights to have any claim to a blue slip for circuit courts, so I wouldn’t pay any attention to them.” That’s the standard Republicans set, he said. So doing so again is the “logical position.”
“If we go back to giving Republican senators circuit court blue slips, progressive heads are going to explode all across the country by the tens of thousands,” Whitehouse added. That’s true enough, but not the most salient point. The reason heads would explode is because it would be counterproductive and harmful. The courts have to be balanced, Trump’s influence diluted, and the courts filled.