News abounds on the political and ideological ramifications of the record pace of White House nominations and Senate confirmations for the federal judiciary. This accelerated confirmation process marks a dramatic reversal from just last year, when judicial vacancies hit an all-time high.
Politics notwithstanding, litigants need to consider the practical effects of this record shift in judicial appointments on the vast majority of disputes, where ideology and partisanship are not factors. More capacity will accelerate case schedules impacting litigants who have grown accustomed to — and in some cases have depended on — the often slow pace resulting from clogged case dockets.
Now that the federal bench is gaining significant additional capacity, how will this change litigation strategies, forum selection, and costs? And will the new additions to the judiciary reflect the diversity of the United States?
As a whole, these questions hang over litigants whose approach to federal litigation developed in a judicial system frequently lacking adequate capacity to handle its overall caseload.
Judicial Appointments by the Numbers
No longer affected by filibuster rules, the Senate has confirmed 32 federal court nominees (excluding U.S. Supreme Court Justice Neil Gorsuch) — the most ever at this point in an administration’s first term. Half of these judges are now serving in the courts of appeal, while the other half fill district court vacancies. According to the Administrative Office of the U.S. Courts, nearly 70 nominees are pending, which, if confirmed — as many judicial observers believe likely — will make a significant dent in the current total of 149 vacancies across appellate and district courts.
"The increasing opportunity to move cases more quickly through the courts should not be lost on attorneys"
Even so, the numbers still show the nation’s federal court system is far from operating at optimum capacity. As of April 2018, the U.S. Administrative Office of the Courts classified 72 federal court vacancies as “emergencies.” Compounding the crunch, government data show 44 percent of federal judges are now eligible for senior status.
Replenishing the Judiciary Is Mission-Critical
“Politics aside, the impact of quickly filling vacant judicial seats will reverberate through the entire federal court system,” says Joseph W. Hatchett, a former Eleventh Circuit Court of Appeals chief judge and co-chair of Akerman’s Appellate Practice.
“Having a full court staffed with judges will be good for the American judicial system,” says Hatchett. “I’m happy to see the Senate appointing judges quickly.”
After having served for four years on the Florida Supreme Court, President Carter appointed Hatchett to the Fifth Circuit Court of Appeals in 1979. He then moved to the Eleventh Circuit after Congress created it in 1981; Hatchett served on that bench until 1999. Along the way, he has achieved many firsts, including as the first African American appointed to the Florida Supreme Court since Reconstruction, and the first ever elected to public office in a statewide election in the South.
72 federal court vacancies are characterized as “emergencies”
U.S. Administrative Office of the Courts
With the rapid increase of the number of cases handled by the federal court system every year, Hatchett notes the need to fill vacancies could not be more glaring. For instance, the Southern District of Florida, which in 2017 saw 11,434 cases filed, currently has five vacancies, among the highest in the country. Hatchett says his former colleagues on the federal bench tell him they have been doing the jobs of two or even three people and welcome more support. Judicial observers note the administration is currently vetting a list of candidates with the final five nominees expected in 2018.
“My former colleagues are glad to see these seats being filled,” Hatchett says.
Judicial Staffing and Litigation Strategies
The vast majority of cases, especially in district court, are fact-based disputes that do not have constitutional or policy implications, says Hatchett.
“Beyond politics, we need a sufficient number of judges to make our courts work,” he says. “Litigants are increasingly turning to alternative dispute resolution, not because it’s necessarily better, but because they can’t wait two or three years to get their cases resolved.”
Judicial vacancies across the federal court system
This is especially true for corporate litigants, who need certainty and timeliness in outcomes, says Hatchett. With time and litigation cost carrying such a heavy influence on the bottom line, the availability of alternative venues to settle disputes provides several concrete advantages, though parties must recognize what the tradeoff is for speedier resolutions.
For instance, when parties resolve disputes via arbitration, the options to appeal an arbitral award are limited, and parties appealing a “wrong” decision face a difficult battle. Examining the pros and cons of arbitration in Law360, Luis A. Perez, co-chair of Akerman’s Latin America and the Caribbean Practice, says, “[A]ppellate review of a final arbitration award is quite limited under the Federal Arbitration Act…” Perez also notes the U.S. Supreme Court in Oxford Health Plans LLC v. Sutter stated, “Courts may vacate an arbitrator’s decision ‘only in very restricted and unusual circumstances.’”
That is why the increasing opportunity to move cases more quickly through the courts should not be lost on attorneys, Hatchett says. The judiciary will become more efficient as vacancies decrease, and disputes will move through district and appellate courts at a faster pace. Most disputes likely will continue to settle, Hatchett says, but “those cases that should go to trial are more likely to do so.
Does the Calculus Change for Forum Selection?
“As judicial vacancies decrease on a district-by-district and circuit-by-circuit basis, the increased capacity of a given bench will be an evolving factor to consider for counsel involved in disputes spanning multiple districts,” said Christopher Carver, a partner in Akerman’s Litigation Practice Group. “As part of any pre-litigation assessment, whether a district is a ‘rocket docket’ or congested carries significant weight, along with other factors, such as the specific court procedures in the different courts. Although rocket docket districts are unlikely to become even faster, districts slowed by sheer lack of an adequate number of judges should become much faster.
“Also, the addition of multiple new faces to a given bench will create uncertainty with respect to the continuation of established norms. New faces will contribute new ideas and may have their own unique procedures, which means that local counsel knowledge, especially with respect to those new faces, will become even more important.”
Judicial Diversity and Fairness
Going beyond mere numbers, many say the new flurry of appointments is making the judiciary even more lacking in comparison to the diversity of the society whose disputes the court system is adjudicating. That is a disturbing trend, Hatchett says, and he hopes the administration focuses on correcting it in filling additional vacancies.
“For the justice system to be perceived as fair, we must also have more minority appointments,” he says.
Hatchett is less concerned with the partisan litmus tests for judges, which have ratcheted up considerably since his confirmation in 1979, when senators asked him just three questions before approving him the same day.
“You can’t take the politics out of politics,” Hatchett says, and the primary issue should be the legal capabilities of the nominees.
“I don’t mind Republicans picking Republicans and Democrats picking Democrats, as long as there is a focus on getting people who have the best qualifications,” he says. “Thorough confirmation hearings remain the best way to ensure appointment of qualified judicial nominees who will serve with integrity.”