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Senior Judges Fill The Void Left By Rampant Vacancies

By Ed Beeson | March 9, 2018, 10:44 PM EST

When older federal judges step down from active duty in the Western District of Pennsylvania, chances are they’re not headed straight to the golf course or the mild weather of Florida. Chances are, they’re headed back to the courtroom instead.

The Pittsburgh-based court is one of many around the nation that finds itself relying on the work of senior-status judges to get through the lean times hitting the bench. Nearly 150 judgeships in the lower courts are vacant, almost three times as many as there were three years ago. The shortfall has left numerous courts in a state of emergency as they try to juggle growing caseloads with fewer and fewer full-time hands on deck.

The problems are particularly acute in Western Pennsylvania. While not an official “judicial emergency” — a designation given to lengthy vacancies and those in especially busy districts — there are only four active judges on a bench that Congress intended to hold 10, and there’s a surging criminal docket destined to grow with the government’s crackdown on the opioid epidemic.

Chief Judge Joy Flowers Conti, who has had to grapple with challenges like staffing a courthouse in faraway Erie that’s been without a permanent district judge since 2013, said she couldn’t do it without the court’s senior judges, who are taking nearly full caseloads and running criminal trials when needed.

“They are performing yeoman work for the court, much more than they have to,” Judge Conti told Law360.

“If I didn’t have that assistance, I don’t know what we would do. We are in a very stressful time right now.”

Going on senior status is often seen as an off-ramp into judicial retirement. It’s supposed to let federal judges who’ve hit a certain age and number of years of service cut back on the amount of cases they’re hearing without having to give up the robe and gavel entirely.

But at a time when vacancies remain stuck in the triple digits, senior judges are helping to fill the void. They have taken on a greater share of the federal caseload in recent years, and in courts that are especially short-handed, their work has been indispensable.

“Having senior judges to help us is really a safety valve,” Judge Conti said.

Volunteer Army

Help is likely on the way for the Western District of Pennsylvania. The Trump administration has nominated three judges to fill vacancies that have been open since 2013. If confirmed, they would bring the court’s complement of full-time active judges to seven.

But before long, the resource crunch will be back. The court is slated to have two more vacancies by June 2019, including the seat occupied by Judge Conti, who is taking senior status in December.

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Other chief judges are facing challenges of their own. In the Southern District of Florida, for instance, Chief Judge K. Michael Moore’s court is down by five active judges, and no one has been formally nominated to fill their spots. And the next vacancy or two could be just around the corner, he said.

“As we are trying to fill these five vacancies, we currently have five other active judges on our court that are already eligible to go senior,” Judge Moore said in an interview. He is one of the eligible judges, although he has no plans to take senior status. But he can’t be sure of everyone else.

“The other four judges, they could call me up today and say, ‘Hey, I have decided to go senior tomorrow,’” he said.

Taking senior status allows older judges to modify their workload as they see fit. Some famously continue on with a full caseload even into their 90s, while others cut down to a third or less. There’s no requirement that senior judges do anything at all, experts note. But they need to maintain about a quarter of the workload of their full-time peers, which could include administrative work, in order to retain staffed chambers.

To qualify for senior status, judges must meet the so-called Rule of 80. Their age and years of service to the bench must add up to 80, and they must be at least 65. They also must have put in at least 10 years as a federal judge before going senior.

As it stands, about 575 judges are now on senior status, according to the Federal Judicial Center. But not all of them are still hearing cases. Just under 400 maintained staffed chambers in 2016, data from the Administrative Office of the U.S. Courts shows. The administrative office estimates that they typically take on about 15 percent of the federal courts’ workload in a given year.

There are signs this is on the rise. The number of senior district judges with staff has surged over the past two decades, from 255 in 1995 to 399 in 2016, according to the administrative office. Likewise, the number of criminal and civil case terminations these judges have handled has nearly doubled over that same period, reaching more than 72,000 in 2016.

Experts say much of this increase in senior judges may be due to a 1990 bill that created 74 new district court judgeships. The number of senior district judges especially swelled between 2000 and 2010, around the time that many of these new judges would have likely been eligible to retire.

Senior judges also might be staying on the bench longer than they have in the past. Some chief judges told Law360 that it’s possible some senior judges are putting off full retirement out of concern about the workload and vacancies facing their court.

The growth on the circuit courts has been more modest over the past two decades. There’s typically been just over 80 senior judges sitting on appeals panels in a given year, and in most years they’ve participated in roughly 18 to 22 percent of cases on their own court, according to the administrative office’s data. However, last year, the participation went up to 23.6 percent of appeals cases.

Not reflected in these data points are some of the specific ways in which senior judges fill in judicial gaps.

“One of the great values of judges in senior status is they are much more flexible and capable to be assigned to different courts in a circuit,” said Stephen Burbank, a University of Pennsylvania Law School professor.

“Without them, the federal judiciary would be paralyzed,” he said.

All of this comes without much of a price, chief judges and others note. That’s because the work senior judges do is essentially volunteer. Judicial pensions are such that retired judges receive an annuity equal to their salary on the bench. The only thing they don’t receive, financially speaking, are the occasional cost-of-living adjustments and other modest perks for staying on the job.

“We get paid the same whether we retire or not,” said Senior Judge Frederic Block of the Eastern District of New York. “Basically, the public is getting my services for nothing.”

The public is not the only beneficiary. The senior judges themselves get to stay on as long as they want in a job that for many is as a much a way of life as it is a profession.

“They don’t have to go from an on-switch to an off-switch,” said Judge Moore of the Southern District of Florida. “They can continue to contribute.”

View From the Bench

Judge Block has nothing but great things to say about the dozen years he’s been a senior judge in Brooklyn. An appointee of President Bill Clinton, he assumed senior status in 2005 after presiding over trials resulting from the infamous riots in Crown Heights and against the alleged mob boss Peter Gotti.

“My life has been expanded in ways. Not only have I not retired or cut back, I’ve actually augmented the quality and quantity of my workload,” Judge Block said in a recent interview.

“That’s not normally understood by the public, that you can be an active senior judge.”

As a senior judge, Block has penned books, written music and traveled extensively. It’s that last point that the judge says has been one of the best parts of his job.

Because he’s no longer a member of the active judiciary, he’s available to fill in on courts that need an extra hand. They include the Ninth Circuit and district courts in Illinois, New Orleans and New Mexico.

“And wherever we go, they think we are smart because we are from Brooklyn,” he said.

This fall, Judge Block will preside over a major murder trial in Utah, he said, because the entire bench there had to recuse itself for one reason or another. He has also heard cases on the district court in Arizona, which is awaiting confirmation votes to fill two seats that have been vacant for the past year and a half.

“I fill in because their next judges are stuck in the Congress and they needed some help,” he said.

Call for Help

Judge Ron Clark, who until last month was the chief of the Eastern District of Texas, recently found himself pressed between two matters needing to be dealt with right away.

Running a chronically short-handed court, he had few options.

“They didn’t teach me in law school how to split myself in half,” Judge Clark said.

But he could call down the hall, to the chambers of Senior Judge Thad Heartfield. And with that, he had the extra set of hands he needed to keep the wheels of justice turning.

“Having a senior judge on the court gives you that flexibility,” he said.

Judge Clark himself took senior status at the end of February, bringing the number of vacancies on his court up to four. Each of these empty seats is considered a judicial emergency, partly due to the extensive amount of work demanded of each judge. The Administrative Office of the U.S. Courts says each judge had a weighted caseload in 2016 that was about twice the national average.

Although three nominees to his court were named in late January, Judge Clark says there is reason to be concerned that the combination of such workloads and unfilled vacancies will sway the decisions of judges who are pondering whether they should take senior status.

“When you start looking at the huge caseloads, I think a number of judges probably do think, ‘I might as well go ahead and retire, and if I want to work, I’ll do something else,’” he said.

“It’s like Sisyphus pushing the rock up the mountain.”

Judge Conti said she has heard the same from friends on the bench, that they would rather retire than take senior status because of the workload. She herself worries about how much of the workload at overburdened courts is being shifted onto senior judges.

“It’s really not fair to these people, but they know if they don’t help out, we would be crippled,” she said.

So far, there’s no sign that senior judges are heading to the exits. Judge Block, for one, remains sanguine about the work demands on him at age 83.

“Right now, I’m still a glutton for punishment, but I sort of like it,” he said.

“If the good lord gives me the opportunity to do it, then when I won’t be able to do it anymore is anybody’s guess. But so far, so good.”

Ed Beeson is a feature reporter for Law360 who also wrote about the scope of the president’s opportunity to reshape the circuit courts. Follow him on Twitter. Editing by Jocelyn Allison, Jeremy Barker and Jill Coffey.