Courts Losing Temporary Judgeships, Lose Fight to Manage Workload

Vol. 36, Number 4—April 2004

Courts Losing Temporary Judgeships,
Lose Fight to Manage Workload

Chief Judge David F. Levi looks at the mushrooming caseload in the Eastern District of California and wonders at what point his three senior judges will decide the workload is simply too much for them. Two of the senior judges carry full, but ever-increasing, caseloads at a time in life when most judges reduce their caseloads.

"We're leaning incredibly hard on our senior judges," Levi admits. In Nebraska, Chief Judge Richard Kopf is considering borrowing judges from other courts to handle the mounting load, but with a caseload weighted on the criminal side, it is hard to get judges at the required short notice. These courts, along with the Eastern District of Missouri and the Districts of Kansas and Hawaii, are laboring under a singular handicap—they each have a temporary judgeship and will not be able to fill the next judicial vacancy. This will leave them with a reduced number of authorized judgeships—and fewer judges to handle crushing caseloads.

All five temporary judgeships in the five district courts were created in 1990 by P.L. 101-650. Although the judges appointed to the temporary judgeships have lifetime appointments, legislation creating temporary judgeships usually specifies that the first vacancy in the district after a set date cannot be filled. For the 1990 bill, this time frame was ultimately determined to be 10 years after each temporary judgeship was filled.

In Nebraska, the first vacancy that occurs in the district after November 20, 2003 cannot be filled—and a judge is expected to take senior status in May 2004. This reduces the district's four authorized judgeships by one.

"This will be disastrous for us," said Kopf. "Even with four full-time judges, we're already seventh in the nation in terms of criminal caseload."

The weighted caseload per judgeship in the District of Nebraska currently is 600. With the loss of a single judgeship, the weighted caseload filings per judgeship jumps to 835. The district will have the second highest weighted caseload in the country—beaten only by the Western District of Texas. To put that caseload in perspective, the Judicial Conference has recommended a new judgeship for a district where the weighted caseload is at least 430, slightly higher for smaller districts.

These days the Eastern District of California is, figuratively, holding its breath. Since February 27, 2002, the first vacancy that occurs in the district cannot be filled—and a judge will take senior status in November 2004. Fortunately, he will keep a full caseload. And it truly is fortunate, because the weighted caseload per judgeship in the district, which is now 788, would jump to over 900 if the court loses a judge. Even so the current pace is hard to maintain.

"We've been living with this workload for some time," says Levi. "We can make adjustments for a while, lean on our magistrate judges, ask our senior judges not to cut back. That's for the short term. But after a time, we just wear out."

The situation in the other districts is similar. The District of Kansas and the District of Hawaii have weighted caseloads per judgeship that will be over 600 should they lose a judgeship. Hawaii cannot fill the first vacancy occurring after October 2004 and, since November 2001, Kansas has known it could not fill a vacancy.

The Eastern District of Missouri, with a weighted caseload in the 470s, could not fill the first judicial vacancy after November 20, 2003. In May 2003, a judge in the district became eligible for, but did not take, senior status. Otherwise, the weighted caseload would have jumped to 543.

In March 2003, the Judicial Conference recommended that all five temporary judgeships be converted to permanent. Since that recommendation was made, the weighted caseloads of all the affected districts have gone up. The solution for all five districts would be for Congress to pass legislation making those temporary judgeships permanent. S. 878, passed by the Senate last year and pending in the House, would convert the temporary judgeships in the Eastern District of California and Nebraska to permanent positions.

A more comprehensive solution has been proposed by Senator Chuck Hagel (R-NE) who has introduced S. 2011, a bill to convert all five of the temporary judgeships in the Eastern District of California, the District of Hawaii, the District of Kansas, the Eastern District of Missouri, and the District of Nebraska to permanent judgeships. S. 2011 has been referred to the Senate Judiciary Committee.