Judge Nina Gershon was appointed to the U.S. District Court for the Eastern District of New York in 1996. She previously had served as a U.S. magistrate judge in the Southern District of New York from 1976 to 1996. Gershon was named chair of the Judicial Conference Committee on the Administration of the Magistrate Judges System in 2003.

Q: Since 1991, the number of full-time magistrate judges has grown from 329 to 495. Why the growth in the system?

A: The growth in the number of magistrate judges is the result of two principal factors: first, the continuing growth in the district courts' caseloads and second, the increasing recognition by district judges of the valuable role that magistrate judges can play in fulfilling the courts' responsibilities to address that caseload.

Q: What are recalled magistrate judges and why and how do courts use them?

A: Recalled magistrate judges are those who have retired and are receiving an annuity, but who choose to continue their judicial service at a court's request.  With circuit council approval, a magistrate judge is recalled for a specified interval, receiving for that period the difference between his or her annuity and the current salary of a magistrate judge position.  In general, recall can be a great way for a court to get the assistance of an experienced magistrate judge at relatively little cost, and perhaps even avoid the need for an additional position.  The district court can assign to a recalled magistrate judge the same types of work assigned to regular magistrate judges.

Q: Has the role of a magistrate judge changed in the last 10 years?  How do courts use their magistrate judges?

A: The role of the magistrate judge continues to develop.  One of the beauties of the magistrate judge system is its flexibility.  Each court can decide, for example, whether to emphasize consent jurisdiction, and how to do so; whether to use magistrate judges for pretrial motions in criminal cases; whether to assign all civil case management functions to the magistrate judges; or whether some particular combination of assignments is best for that district.

In recent years, some courts have increasingly assigned magistrate judges to conduct felony guilty plea proceedings, adjudicate civil cases with litigant consent, and hold settlement conferences.  Ultimately, a magistrate judge's role depends upon the needs of his or her particular court at a particular time. 

In the beginning of the system, the concern was the acceptance of the position by both the bar and the Article III bench.  Today, I think I can say with assurance that the magistrate judges' role is accepted by both to a high degree.  Indeed, the acceptance of the importance of the position to the federal judicial system is reflected in the astonishingly high quality of applicants, and of course, new appointments. 

The challenge today is to continue to work out the optimally effective utilization of the magistrate judges.  Available on the J-Net is the Magistrate Judges  Committee's Suggestions for Utilization of Magistrate Judges, which describes some assignment techniques that courts have found efficient and effective.

Q: How has the use of alternative dispute resolution (ADR) affected the work of magistrate judges?

A: Of course, magistrate judges themselves engage in mediation and settlement efforts. I consider this one of the most significant and efficient uses of their time and talents because of their unique institutional posture within the court. The magistrate judge has the authority, the knowledge of the case, the judgment and neutrality, without the complication of being the ultimate decision-maker, to be extremely effective in bringing civil cases to amicable resolution. Of course, many courts also use other forms of ADR. There is no reason for a court not to have many options available.

Q: What role do magistrate judges play in court governance, in their own districts, and in their circuits?

A: Magistrate judges, appropriately, play an increasing role in court governance.  They serve on district court committees, sometimes even as chairs.  In my own court, a magistrate judge chairs our Local Civil Rules Committee and another heads our ADR programs. Nine of the 12 regional circuits invite a magistrate judge to attend circuit council meetings as a non-voting member.  Even among the few circuits that do not extend such an invitation, most have magistrate judges serving on circuit committees.

Q: At the next Judicial Conference meeting, for the first time, a magistrate judge and a bankruptcy judge will attend as non-voting members. Why was this change made?

A: Magistrate judges now serve on 15 Judicial Conference committees, and the Judicial Conference at its March session approved the recommendation of the Magistrate Judges Committee and the Bankruptcy Committee that a magistrate judge and a bankruptcy judge be invited to attend future sessions in a non-voting capacity. 

This change was recommended both in recognition of the contributions of these types of judges to the federal judicial system and to encourage collegiality among all judges.  The Chief Justice has now selected two highly experienced and distinguished judges to attend and I look forward to seeing them at the Conference.

Q: Can magistrate judges substitute for Article III judges at the district court level? With the rising court caseload and no new Article III judgeships, wouldn't this be a reasonable course?

A: While magistrate judges have a significant role in helping district courts fulfill their responsibilities, they are not a substitute for Article III judges.  For example, although 28 U.S.C. § 636(c) allows a court to assign a civil case to a magistrate judge for full adjudication, litigant consent is required. This provision, moreover, makes no mention of any similar authority in felony cases.  Also, the distinctiveness of magistrate judges' role can be seen in their many traditional assignments, such as felony preliminary proceedings and civil pretrial management.  In fact, district courts need both types of judges.  We all hope that vacancies on the district court will be filled and that the new judgeships, which the Judicial Conference has documented are needed, will be authorized by Congress.

Q: A number of magistrate judges go on to become district judges. In fact, you were formerly a magistrate judge.  How has that influenced your view of an Article III  judge's responsibilities, and does it change the way you work with magistrate judges in your own court?

A: Yes, I was a magistrate judge for 20 years in the Southern District of New York, before I was appointed a district judge, almost eight years ago, in the Eastern District of New York.  My experience as a magistrate judge has certainly affected my view of an Article III judge's responsibilities as well, of course, as my view of a magistrate judge's responsibilities. Both have the responsibility to think about, and continually rethink, the issue of efficient utilization of magistrate judges and the relationship between the work of the two types of judges, especially in these budget-challenged times. The statute creating the magistrate judge system deliberately provided for flexibility.

Many courts accepted the authorization to experiment seriously and this has resulted in unexpected and highly effective innovations, especially in the area of consent jurisdiction. I also think it is the responsibility, especially of the Article III judges, to reach out and encourage regular, collegial communication.  In small districts, this seems to happen as a matter of course. In larger, urban districts, formalization of communication may be needed to be sure that the magistrate judges' experience and insight are not ignored. 

I think it is up to the district judges to seek out the views of the magistrate judges, who may be—although they should not be—reluctant to volunteer their ideas. I encourage the district judges to set a high standard of collegiality.  I hope that, as a former magistrate judge, I am doing so.