When Judgeships Go Unfilled

Brian McNicoll
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Posted: Feb 17, 2016 12:01 AM
When Judgeships Go Unfilled

Saturday’s unfortunate passing of Supreme Court Justice Antonin Scalia has shined a light on a critical issue facing the next president: our nation’s aging federal judiciary.

With three Supreme Court judges born in the 1930s still on the bench, the next president will have the opportunity to remake the Supreme Court for a generation or more. Marco Rubio, Ted Cruz and other candidates have promised judges who will uphold the Constitution as written. Hillary Clinton said she has a lot of litmus tests – abortion among them – for her nominees, and Bernie Sanders would remake the judiciary in his own unique way. 

President Obama has put his stamp on the courts. He has chosen nominees based more on ethnic backgrounds than legal theories, and the Senate – even in these rancorous times – largely has gone along.  

As a result, as of the fall of 2014, he had had more than 280 federal judges confirmed, including Supreme Court justices Elena Kagan and Sonia Sotomayor. When he took office, 10 of the 13 circuit courts of appeal had Republican majorities. Today, nine have Democratic majorities.

But, for a variety of reasons, the court system operates nowhere near full capacity. As of last summer, 54 of the 678 district court judgeships – about 8 percent – were vacant. And that’s just enough to be a fairly significant problem.

It means higher caseloads for sitting judges, more rushed courts, more legal work that has to be redone and more use of senior judges – retired judges who continue to serve to cover the shortfalls – by courts nationwide. 

Consider just one of these senior judges. At 85, Thomas Griesa should be reading sonnets to local schoolchildren or putts at Westchester Country Club. Instead, he is reading – and rereading – documents in a variety of highly complex, multidimensional court cases in New York. 

Griesa, who has been on the bench for 40 years, now presides over one of the Justice Department’s most high-profile and complex cases. U.S. v. Prevezon Holdings involves $14 million in Manhattan real estate, a bank account in the Netherlands allegedly funded with ill-gotten gains, potential graft at the highest levels of Russian society and already one person convicted in absentia and another posthumously. The case file alone has 14,000 pages.

This would be a daunting case for any judge, but it has been especially tough on Judge Griesa.

At times during the proceedings, he has forgotten attorneys’ names and who they represent and admitted to “not reading everything that is given” to him. He asked the attorneys what is the “usual practice in a civil case.” This is a civil asset forfeiture case, rather than a criminal case, in part because of the complexity of the evidence.

He also inexplicably reversed his own decision to have the chief lawyer for the defense – whose last name really is Moscow – removed for conflict of interest. He said he thought he had enough information to make a decision but later decided he didn’t and asked the attorneys to file new briefs. 

If Judge Griesa were in, say, the Western District of Louisiana, this might not be a problem. But he operates in what is supposed to be the most financially sophisticated court in the nation. These cases are not uncommon in this court; indeed, they are its meat and potatoes.

As voters, we need to treat this as the critical campaign issue it ought to be. We need to ask candidates not only what kind of judges they would appoint – the answers there are fairly predictable – but what they will do to ensure the judiciary is adequately staffed in both the short and long terms.

We need our next president to commit to addressing these vacancies, developing a pipeline of judicial talent and returning our courts to full strength. 

Mistakes clearly are being made here. Billions of dollars of other peoples’ money are involved. 

This is not a criticism of Judge Griesa. You have to hand it to him: He is working every day to attempt to meet a critical national need in a position few are qualified to fill. 

But it is to say we don’t ask 85-year-olds to perform the most complex tasks of any other profession, and we ought not do so in the legal arena. And the next president needs to make this a priority.