The crisis in the number of cases is very real: the number of cases per active judge in the counties rose from an average of 148 in 1971 to 324 in 2017. No new seats have been added to the appellate courts for 30 years. "The problem is, over time, the appellate courts didn't join their ranks as quickly as appeals were initiated," Merritt McAlister, a professor of justice administration at the University of Florida College of Law, told Bloomberg Law.
There are ways the courts themselves could encourage more judges to advance to the higher status, court observers say. One problem noted by Duke University professor of law Marin K. Levy is that higher status judges "may not be considered equal to an active judge" and are being pushed aside for their offices change or have to be listed last in statements. There is a perceived loss of status for these individuals who were judges and therefore found themselves in somewhat rare life positions for much of their professional lives. Levy's answer is to improve her lot. They still receive the same salary and have more autonomy over their case numbers, but in some circles they have less influence. They cannot vote on administrative matters for the courts in the second, third and fifth circuits. They stand behind active judges in the DC, Third, Fourth, and Eleventh circles for preferred seating, and in the Third and Fourth circles they are last listed by opinions and orders. You cannot sit on en-banc panels for cases that have been sent back for review in any of the circuits. This is one reason why judges have been cited in polls as key to their opposition to assuming senior status.
One change the Judicial Conference could make is to allow judges to attend en banc rehearsals. That would be "a huge incentive," former Third Circle Judge Thomas I. Vanaskie told Bloomberg Law. It would also help allow them to keep their offices and weigh administrative issues, he said. "We should look for ways to encourage judges to rise to higher status. I think it's important to maintain your stature," Vanaskie said. "If the stature had been retained, I might have stayed. I don't know," he added.
In filling these positions, Biden has given priority to identifying nominees. Biden's team reached out to Democratic senators in December, urging them to receive their candidates as soon as possible, informing them that they would expect future nominations for vacancies within 45 days of the vacancy being announced. Biden also stressed that he wanted judicial candidates with diverse demographic, personal, and professional backgrounds. He wants a bank with more women, more people of color, more judges with criminal backgrounds and public defenders. "With regard to US District Court positions, our particular focus is on nominating individuals whose legal experience has historically been underrepresented at the Bundesbank, including individuals who are defense lawyers, civil rights advocates, and legal aid attorneys, and individuals who are Americans in any way represent life, "was the letter from Biden's team.
Two Colorado senators, Michael Bennet and John Hickenlooper, appear to have not read the memo. You recommended Regina Rodriguez, a partner in the WilmerHale law firm, for opening a district court. Yes, she is a latina. But she is a corporate attorney with an extensive corporate defense portfolio that includes "defending McDonalds in a racial discrimination case in 2006 and defending the office of former Republican Senator Ben Nighthorse Campbell in an age-discrimination case the previous year." Her track record is really pretty miserable when it comes to representing the little guy. That said, she really doesn't have it. She fought a suit for Dianon Systems brought in by a client who had an unnecessary prostate removal due to a botched biopsy result. She has represented Eli Lilly and a nutritional supplement company against patients bringing claims of misleading advertising claims that have caused harm.
Bennet and Hickenlooper likely added their name to the mix because it was nominated by then-Republican Senator Cory Gardner and Bennet back in 2016, when McConnell blocked President Obama's nominations. But that was it. Now Biden has specifically called for a different type of nomination because after Trump there are many in the bank who will be looking for Corporate America. This could be Bennet's laziness, he had all the documents on hand and didn't have to do a new search for a candidate. Whatever the reason, it is an overt and arrogant disregard for Biden's expressed wishes.
The as yet undecided question about the nominations rests with Senator Dick Durbin, the new chairman of the Judiciary Committee, and whether he will honor the blue Republican slip-ups. Under Senator Lindsey Graham, the Democrats were not given the courtesy to consider their candidates for home state magistrate court. This made it easier for Graham, McConnell, and Trump to fill the all-important appeals court with 54 extreme and often unqualified appellate judges, as well as dozens of them in the district court. Under President Obama, Republicans often refused to give their consent, and when the Democrats took over the Senate, then-Chairman Patrick Leahy let them get away with it. These places remained free.
Some Senate Democrats don't want that to happen again. Senator Sheldon Whitehouse was open to a panel discussion on Justice in January. He says Durbin should honor Democratic blues on Circuit nominees "because that was our tradition," and end them there. "[D] Republicans, as far as I'm concerned, have completely waved their right to claim blue panties for county courts, so I wouldn't pay any attention to them." That's the standard Republican phrase, he said. So doing this again is the "logical position".
"If we give the Republican senators blue slip again, progressive minds will explode by the tens of thousands across the country," added Whitehouse. That is true enough, but not the most salient point. The reason heads would explode is because they would be counterproductive and harmful. The courts need to be balanced, Trump's influence watered down and the courts filled.