His mini-vacation didn't work out so well. As a federal judge on a busy California court in Fresno, O'Neill works up to 75 hours a week and at least one full day every weekend -- and that's just to keep up with his regular caseload. He ended up leaving town but worked the entire holiday weekend: finishing orders that needed to get out, taking care of administrative matters and responding to staff lawyers to keep cases moving along.
"Every single day that I was gone, I was issuing orders from out of state," O'Neill said. "Nobody does that. Nobody should have to do that."
For many district and circuit court judges, going to work means doing their job -- plus the jobs of other judges who are supposed to be there, but aren't. That's because federal courts are full of vacancies that aren't being filled by the Senate, and Congress hasn't created new judgeships in many states for decades, despite skyrocketing caseloads.
Litigants are waiting years for their civil cases to be heard because criminal cases take precedence. Judges are struggling with burnout. And many courts are relying on semi-retired judges just to stay afloat.
The Huffington Post talked to half a dozen federal judges about how court vacancies and the lack of new judgeships affect their workloads. All of them said they feel like they're underwater and desperately need more judges, but at the same time, they aren't comfortable calling out Congress for failing to do its job. Many didn't feel it appropriate for a judge to weigh in on legislative or political matters. So their situations don't change.
"For the most part, we've just resigned ourselves that this is our fate and there's nothing we can do about it," said Judge Morrison England Jr., the chief judge of the U.S. District Court for the Eastern District of California, which includes O'Neill's Fresno division. "We've complained. We've begged. We've cajoled. We've done everything you can humanly do to try to get additional judgeships."
England runs one of the most strained court systems in the country. The Eastern District is massive, encompassing more than half of California's 58 counties. There's a seat in the Fresno division that's been vacant for more than 1,000 days, and that court been so slammed that England has had to started assigning judges from elsewhere in the district to come in and help.
But even if that vacancy gets filled, it's not enough. On average, a federal judge takes between 500 and 600 cases each year. Judges on England's court have more than 1,000. It would take six new judgeships on the Eastern District court to bring down the workload to an average level, according to a 2015 review of courts and their caseloads by the Judicial Conference, the federal courts' policy-making organization.
"What happens is you have to keep pushing civil cases further out. They've already been waiting sometimes three to four years," England said. "I get concerned when cases are so old. Memories are fading; people are no longer around. It's not serving anyone trying to get justice."
The last time Congress passed a major judgeship bill was in 1990. Since then, there's been a 39 percent increase in filings at district and circuit courts but only a 4 percent increase in judgeships. The Judicial Conference recommended in March that Congress create 77 more judgeships for district courts and five more for circuit courts to keep up with current workloads. Lawmakers haven't passed anything.
Beyond creating new judgeships, the Senate is barely keeping up with filling the 67 existing vacancies. Since Republicans took control of the Senate in January, they've only let six of President Barack Obama's judicial picks get confirmation votes. By contrast, when President George W. Bush was in his seventh year in office and Democrats controlled the Senate, they had confirmed 29 by this point.
Republicans came up with all kinds of ways to block Obama's judicial nominees when they were in the minority, too. Many simply refused to recommend nominees to the White House for vacancies in their home states -- preventing the nomination process from even beginning. They filibustered noncontroversial nominees, used procedural tactics to delay votes and even blocked their own nominees to prevent Obama from chalking up confirmations.
The Constitution requires the president to fill court vacancies and the Senate to vote on a president's picks. But the GOP calculation is that Obama will be gone after 2016, at which point a Republican could end up in the White House. If GOP senators can hold out until then, they can give Republican-picked judges lifetime jobs on the federal bench.
The problem is, when court seats go unfilled, cases get seriously delayed and regular people suffer. In a civil case, that means someone suing an employer for discrimination will wait years to go before a judge. In a criminal case, that means defendants can finish their jail terms before their case is even resolved.
Remarkably, all of the judges HuffPost talked to emphasized how much they enjoy the actual work they do. There are certainly perks to the job. It's a lifetime gig. It pays well (at least $200,000 a year). People respect them and they make decisions that can affect thousands or even millions of lives.
They're just spread way too thin.
"Most judges love their jobs. The reason they stick around is because they still want to be doing it," said Judge Kimberly Mueller, who serves on England's court. "At the same time, I'm one judge who would tell you it's not the pinnacle of justice for me to have 1,000 cases. Or for the litigants."
One way that courts are squeaking by is by leaning on senior status judges. These are semiretired judges who could leave at any time with a full salary. Many volunteer to stick around to help take on cases, typically a lighter load than they used to handle.
Keith Watkins is the chief judge for the U.S. District Court for the Middle District of Alabama. He's also the only active judge on the court. The other two seats are empty, and senior judges are voluntarily covering those slots. Both of those seats are judicial emergencies, meaning the workload exceeds 600 cases or is between 430 to 600 for more than 18 months.
"It doesn't affect my morale so much, but it might affect my wife's because I work so much," Watkins said. "I knew this would be a tough job, but I didn't know I would be the chief judge and the only judge."
Until the Senate fills those vacancies, Watkins said he's open to getting help from judges on other courts who may not have as heavy a load as he does.
"I was at a conference and one judge said they were looking for things to do," he said. "Maybe they'll want to come here in the winters? We have a lot of good golf."
England lamented how much chief judges have to ask of semiretired judges, some of whom are working largely out of sympathy for their colleagues.
"It's like, 'I don't want to leave everyone. I know how hard you're working,'" said England. "It's not fair. They're coming to work every day for nothing. They would get the same pay without coming."
As vacancies go unfilled and cases pile up, senior judges, too, are being stretched thin. On England's court, for example, some senior judges are carrying 100 percent of their former caseload. Even those who cut back to 50 percent are still taking on more than 500 cases -- more than the average amount for active judges.
Judge Philip Martinez of the U.S. District Court for the Western District of Texas, another busy court, said his senior judge carries 5 percent fewer cases than the active judges. His court has had a vacancy on it for more than 225 days.
"We are the beneficiaries of his work ethic," Martinez said of his senior judge. "That's more than many judges across the nation."
The Western District court covers more than 92,000 square miles of Texas and seven divisions, including El Paso, where Martinez works. There are five active judges and one senior judge in his division, and all of them -- including the senior judge -- are taking turns covering the docket for a remote court in Pecos. It's Martinez's turn this month. He has to spend a week in Pecos while juggling his workload in El Paso, three hours away. He's managing the heavy caseload for now, he said, but he worries about the toll it may be taking on colleagues.
"There is a challenge to morale and burnout," he said. "We are fortunate beyond measure that we have so many senior judges that provide assistance."
Judge Jerome Simandle, the chief judge for the U.S. District Court for the District of New Jersey, said his court depends on the help of its eight senior judges. The court is supposed to have 17 active judges on it, but there are only 13.
"Having four vacancies out of 17 positions -- if this goes on for a longer period of time, we will just run out of ways to keep up," said Simandle. "This has hit New Jersey particularly hard because we're one of the busiest major courts to begin with."
It's not hopeless. There are judicial nominees pending in the Senate for about two dozen court vacancies. The Senate could easily confirm any of them this year. One of them is Dale Drozd, a nominee for the vacancy on O'Neill's court. He passed the Judiciary Committee in June and is ready for a confirmation vote. Republican leaders just need to schedule it.
Senators could also accelerate the process by submitting nominees to the White House for vacancies in their home states. Watkins, the Alabama Middle District judge, said he knows the White House has names for possible nominees for the two vacancies on his court, though he doesn't know where they stand in the process.
It's an unpredictable path for nominees once they've been submitted to the Senate. On a whim, a single senator can block a nominee by refusing to turn in a so-called blue slip to the Judiciary Committee, a Senate tradition that gives senators the final say in advancing a nominee from his or her home state. Senate leaders can also hold up a nominee indefinitely by refusing to schedule a confirmation vote.
"It's an elaborate dance but a totally unscripted dance, kind of like Napoleon Dynamite," Watkins said.
If Congress doesn't pick up the pace in filling out the judiciary, federal courts may not be able to rely on senior judges' goodwill forever. As judges take on more and more cases, some are getting so burned out they may be ready to leave as soon as they hit retirement and decline to keep working as a senior judge.
O'Neill is among those ready to bail. He's said he plans to step down the moment he reaches retirement age in 2020 and expects as much from other judges on his court. The turning point for him was getting cancer last year. He has since kicked it, but said it made him reevaluate his priorities.
"You sit back and realize that working these 60- to 75-hour weeks is not the best thing to do in life. You've got family, you've got children and grandchildren," O'Neill said. "When I get to February 2020, I am gone."
But it didn't sound like an easy decision. He said he worries about the people who go before the courts "who have no place else to go" and end up losing a business or not getting justice in a discrimination case because it ultimately took too long.
"That's the biggest issue for me and most of us on the bench," O'Neill said. "But this is what happens long-term when you don't give people the help they absolutely need."
Original Article
Source: huffingtonpost.com/
Author: Jennifer Bendery
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