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October 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Magistrate Judges Are Effective, Flexible Judiciary Resource

Judge Dennis Cavanaugh has chaired the Judicial Conference Committee on the Administration of the Magistrate Judges System since 2006. He was a U.S. magistrate judge for the District of New Jersey from 1993 to 2000, when he was appointed to the federal bench as a U.S. district judge in the District of New Jersey.

Judge Dennis M. Cavanaugh (D.N.J.)

The Federal Magistrates Act celebrates its 40th anniversary this month. What did the Act accomplish? The Federal Magistrates Act was enacted in 1968 to replace the United States commissioner system, which had been in place for about 175 years. Commissioners had been used in the courts to try petty offenses and conduct preliminary proceedings in criminal cases. The Act created a new judicial officer who could not only do the work of the commissioners, but also perform many other duties, helping the district courts cope with growing caseloads. And from the earliest years in office, the new judicial officers—magistrates, as they were called then—were recognized as valuable resources in civil as well as criminal cases.

What is the role of magistrate judges today in the federal court system? How has it changed in 40 years? The role of magistrate judges has evolved in a number of ways. First of all, Congress has acted repeatedly to enhance the authority of magistrate judges, to clarify their judicial status, and to improve the system’s overall effectiveness. In response to early challenges to the authority of magistrate judges to handle various types of proceedings, Congress amended the 1968 Act a number of times: in 1976 to explicitly authorize magistrate judges to conduct evidentiary hearings, and then in 1979, to expressly authorize them to enter final orders disposing of civil cases with the consent of the parties. Also, limited contempt authority was authorized in 2000.

In addition to the direct effect of legislation specifically enhancing and clarifying the scope of magistrate judges’ authority, the federal courts have responded to the overall growth in caseload by using magistrate judges to meet the particular demands of their changing caseloads. For example, in recent years many courts have assigned an increasing number of felony guilty plea proceedings to magistrate judges.

Congress also has acted to improve the salary and retirement benefits of magistrate judges and to promote the recruitment and appointment of highly qualified individuals. In 1990, Congress changed the title from magistrate to United States magistrate judge, making it clear that these are judicial officers to be addressed as judge or magistrate judge.

Magistrate judges are adjuncts to the Article III district judges. Full-time magistrate judges serve an eight-year term and they may be reappointed for successive terms. They are appointed by the district judges in each district.

Time Line in the Evolution of the Magistrate Judges System



The Federal Magistrates Act (the Act) is signed into law by President Lyndon Baines Johnson on October 17.


The Judicial Conference authorizes 83 full-time magistrate positions, 450 part-time magistrate positions and 13 combination clerk-magistrate or referee in bankruptcy-magistrate positions to replace over 700 commissioners.


The Judicial Conference establishes the magistrates system in five pilot districts: District of Columbia, New Jersey, Virginia Eastern, California Southern, and Kansas.

By July 1, the magistrates system is fully operational, replacing the commissioner system in all district courts.

District courts utilize their magistrate judges in different ways. Why is that?

Probably one of the most significant aspects of the system is its flexibility. Congress granted broad statutory authority to magistrate judges, but it gave the district courts wide latitude as to their utilization to address local needs and conditions. District courts utilize magistrate judges differently for many reasons, including the varying caseload demands and the mixes of cases, differences in court culture, different views on the most effective role of magistrate judges, and sometimes to benefit from the particular skills of incumbent magistrate judges. In New Jersey, for example, one of the primary roles of our magistrate judges is conducting settlement conferences, and they’ve become very effective in settling cases.

There’s no ideal or specific model for magistrate judge utilization, however, the Judicial Conference and the Magistrate Judges Committee do encourage extensive utilization of magistrate judges. In fact, the Committee has summarized its views in a paper called “Suggestions for the Utilization of Magistrate Judges,” which we make available to judges and others in the district courts.

Do the district courts have sufficient magistrate judges? Has the Judiciary’s cost-containment efforts affected the need for magistrate judges? I believe there are sufficient magistrate judges in most courts. Basically, the districts make a request when they believe that their caseload and other factors call for more magistrate judges. Once the AO’s Magistrate Judges Division receives a request for a new magistrate judge position, an attorney there conducts a survey of the district by visiting the district to discuss the matter with various judges and others in the court. They talk to the chief judge, other district judges, and the magistrate judges about utilization, caseload information including the court’s per judgeship statistics, and other topics affecting the court, including court governance. They see just how the court operates and then evaluate the court’s request based on Judicial Conference criteria to determine whether to recommend the requested position.

That survey is submitted to our committee and then I, as chair, assign each request to a committee member, and that judge reports on the request to the whole committee. We look at this with a strict eye to the criteria that we know the court has to meet. Then, after full discussion, we make a determination whether we should recommend to the Judicial Conference that it approve the new position.

Time Line in the Evolution of the Magistrate Judges System



The Act is amended to authorize magistrates to hear and determine non-case-dispositive motions, and to hear case-dispositive motions and prisoner cases, and issue findings and recommended dispositions.


Chief Justice appoints the first magistrate to serve on a Judicial Conference committee.


The Act is amended to authorize magistrates to try civil cases with consent of the parties and to order entry of judgments, to expand their criminal jurisdiction to include all misdemeanor cases, to establish a merit selection process for magistrates and to authorize law clerks for magistrates.

The Act is amended to authorize the recall of retired magistrates.

In 2004, when we were facing an unprecedented budget crisis, the Judiciary launched a comprehensive cost-containment campaign, and our committee—at that time under former chair Judge Nina Gershon (E.D.N.Y. )—responded to the mandate for cost containment. We continue to do so today. Under normal circumstances, we don’t consider new magistrate judge positions at our December meetings; we only consider them at our June meetings. But of course, our job is not merely to do our part to control the budget, it is also to meet the needs of the Judiciary, and although we certainly look at each request with a stringent application of the criteria that justify the needs, if a district needs and justifies a new position, we certainly recommend that it be approved. While the number of requests for additional magistrate judge positions has declined significantly in the past few years, the number of magistrate judges overall continues to grow as the result of the growth in the district courts’ caseloads, as well as the increased recognition by district judges of the role that magistrate judges play and the value they are to the courts.

Congress hasn’t passed an omnibus judgeship bill since the early 1990s. With few new Article III judgeships, are magistrate judges filling the gaps in workload?

The Duties of Magistrate Judges

Last fiscal year, U.S. magistrate judges disposed of a total of 948,086 matters in the courts. The chart illustrates how their workload contribution to the U.S. district courts breaks down.

The largest number of matters are felony preliminary proceedings, which include search and arrest warrants, summonses, initial appearances, preliminary examinations, arraignments, detention hearings, and bail reviews. Felony pretrial matters disposed of by U.S. magistrate judges include motions, evidentiary hearings, pretrial conferences, probation/supervised release hearings, and guilty plea proceedings. Prisoner litigation includes reports and recommendations in state and federal habeas corpus cases, civil rights cases, and evidentiary hearings. Other civil matters include motions, pretrial conferences, settlement conferences, evidentiary hearings, Social Security appeals, and special masterships. Magistrate judges also handle civil consent cases, which may include a trial, and misdemeanor/petty offense cases.

Of course the Judiciary doesn’t have control over the creation of Article III judgeships. As a result, the creation of magistrate judge positions is essentially a self-help mechanism available to the federal Judiciary. However, magistrate judges and district judges are not fungible. Magistrate judges’ authority is constrained by constitutional and statutory limits. For example, magistrate judges don’t have felony trial authority. They can fully adjudicate a civil case, but only upon consent of the parties. So while magistrate judges can’t, and shouldn’t, take the place of district judges, they can and do serve to supplement each court’s available judicial resources.

In some of the border courts, the number of immigration-related misdemeanor cases has skyrocketed. What has been the impact on the magistrate judges in these districts? Certainly the impact of the recent increased prosecution of misdemeanor cases in U.S. courts on the Mexican border has been tremendous. In the first six months of 2008, in the five southwestern border courts, magistrate judges disposed of over 32,000 misdemeanor immigration cases. That’s almost as many as they disposed of in all of 2007. In several locations, magistrate judges are processing up to one hundred immigration defendants at a time, conducting initial appearances, plea proceedings, and sentencing proceedings for those defendants at one court sitting. The huge growth in the misdemeanor workload, along with continued growth in the number of felony preliminary proceedings handled routinely at these locations, has resulted in several border courts asking for authorization of additional magistrate judges. The Magistrate Judges Committee has already recommended authorizing two of these additional positions in one district and will be considering several additional requests from other border courts at our upcoming meetings.

Time Line in the Evolution of the Magistrate Judges System



The Act is amended to link the salary of a full-time magistrate to 92 percent of the salary of a district judge. A new retirement is system established providing a full salary annuity at age 65 with 14 years of service.


The Act is amended to eliminate the consent requirement in most petty offense cases to permit oral consent in Class A misdemeanor cases and mandate that all appeals of magistrate judge decisions in civil consent cases be to the courts of appeals.

The title of office is changed by statute to United States magistrate judge.

A magistrate judge and a bankruptcy judge now attend Judicial Conference sessions. What role do magistrate judges play in court governance at the local, circuit, and national levels? A magistrate judge and a bankruptcy judge were first invited to attend the Judicial Conference in a non-voting, observer capacity a few years ago by the late Chief Justice Rehnquist, and Chief Justice Roberts has continued the practice. The current magistrate judge representative is Magistrate Judge Robert B. Collings (D. Mass.). The Federal Judicial Center Board includes a magistrate judge member and the majority of Judicial Conference committees have at least one magistrate judge member. Most circuit judicial councils now invite a magistrate judge to participate in their meetings as a non-voting representative. In their own districts, many magistrate judges have been invited to attend judges’ meetings; they are appointed to court committees; and otherwise share in governance and policy-making activities. The Magistrate Judges Committee strongly favors magistrate judge involvement and participation in court governance activities.

Like everyone else, magistrate judges want to be kept apprised of what is going on in the Judiciary. There’s a lot of administrative work in running the federal court system, and I think magistrate judges have a lot to offer at all levels. I know there are discussions about courtroom sharing and other things that will affect magistrate judges, and it’s very important for district judges to hear what magistrate judges have to say about these issues because we don’t always have the same perspective on the district level. Like anything else, the more people and different perspectives involved, the better the decision. They are an indispensable part of the Judiciary, and they have a lot to add.

What do you see for the future of the magistrate judges system? Within statutory and constitutional parameters, I believe that magistrate judges will continue to be authorized to exercise a broad range of authority. Innovation in the utilization of magistrate judges will probably, and hopefully, continue. It will be driven by increasing caseloads and the need to maximize the effectiveness of magistrate judge utilization overall.

I’m hopeful that we can make strides towards greater diversity in the magistrate judge system, which the Magistrate Judges Committee strongly encourages. I also believe the stature and responsibilities of the office of magistrate judges will continue to attract very high-caliber applicants. And I expect that magistrate judges will continue to play an important role as an effective and flexible judicial resource in addressing critical workloads and challenges, as for example, the way magistrate judges have been heavily utilized to meet the massive influx of criminal cases in the southwest border courts that we just discussed.

Time Line in the Evolution of the Magistrate Judges System


The Act is amended to expand magistrate judge contempt authority to eliminate the consent requirement in all petty offense cases and to expand magistrate judge authority in cases involving juveniles.


The Judicial Conference agrees to invite one magistrate judge, selected by the Chief Justice, to attend Judicial Conference sessions in a non-voting capacity.