Senate logjam on judicial confirmations creates judge shortage in Nevada

By Karoun Demirjian

Monday, Feb. 18, 2013 | 2 a.m.

This past week, the U.S. Senate confirmed its first federal district court judge of the 113th Congress.

One judge down. Just 69 more vacancies — including three in Nevada — to go.

For the past few years, political and procedural standoffs have stymied President Barack Obama’s attempts to get dozens of his nominees’ bids approved in the Senate, leaving dozens of gaping holes on benches across the country.

But in few states has the situation reached such a fever pitch as it has in Nevada, where three of the state’s seven seats on the federal bench have become vacant in the past year.

Seasoned lawyers say it’s the most troubling federal court crisis they’ve seen in Nevada in decades. And, they warn, it’s a crisis with real consequences.

“It’s a terrible disservice to the citizens,” said Steve Morris, a civil defense attorney with 43 years’ experience before the federal courts in Nevada. “It may make politicians feel good to block or impede these nominations ... but it doesn’t make good sense to hold up the appointment of qualified judges who are going to be serving a lot more people than the politicians.”

One consequence comes down to numbers: When there are just four full-time District Court judges on hand to do the amount of work that was intended to be handled by seven, the system is more susceptible to backlogs.

“When you’re low on judges, it’s just going to take longer for everyone to get through,” said Anne Traum, who runs the appellate legal clinic at UNLV's Boyd School of Law. “That affects all cases, but especially civil cases.”

Criminal cases take precedence over civil cases as a matter of constitutional law: The right to a speedy trial is guaranteed under the Sixth Amendment, which doesn’t apply to civil cases.

The obligation to act first on criminal cases all but guarantees that individuals and companies hoping to bring intellectual property issues, employee discrimination cases, breach-of-contract disputes and other civil lawsuits before the federal courts are in for either a very long wait or an undesirably expedited proceeding.

“I think they really have done everything they possibly can do to structure their workload and defer or send matters to the U.S. magistrate judges to handle,” said Kathleen England, a plaintiff’s attorney who specializes in employee discrimination cases and used to head up the State Bar of Nevada. “But right now, with our federal District Court being three active full-load judges short, it is really hard to get anything tried.”

England described situations in which judges are issuing pretrial rulings to dismiss employment discrimination cases “where the plaintiff doesn’t even get a chance to come into court” because, she believes, “they don’t have enough time to spend on the smaller, single-individual plaintiff cases.”

“Knowing it’s going to take them a long time and they’re going to suffer more damage before they get a resolution ... that deters some people (from bringing cases forward),” England added.

According to U.S. courts data, both the backlog of cases and the federal caseload-per-judge in Nevada have increased over the past five years.

On Sept. 30, 2007, there were 3,685 cases pending before U.S. District Court in Nevada. On Sept. 30, 2012, there were 4,364.

The per-judgeship caseload also increased over the same period, from 526 cases at the end of September 2007 to 623 at the end of September 2012. Just 19 of the 94 federal court districts across the country have a heavier per-judgeship caseload.

“The workload here is disproportionately high,” Morris said. “It isn’t that the judges are unresponsive, but the caseload is so great from the time of filing to the time of trial, all the interim steps related to a case are stretched out and take more time.”

But the data from the federal courts don't even tell the entire story.

The federal court calculates the caseload per full-time judgeship, not per full-time judge actually serving on the bench. If the pending caseload were calculated across the number of full-time judges on the bench, it would skyrocket to 1,090 cases per judge, well above what it takes to be classified as a judicial emergency.

What keeps the U.S. court system from declaring a judicial emergency in Nevada (though such a declaration was in effect briefly last year) is that several of Nevada’s retired judges are working overtime to make up the gaps until new judges are confirmed.

When federal judges retire, they don’t retire completely, but step down into “senior status” — a sort of judicial reserve that allows them to be called up when times are tight.

“If these judges were actually to retire-retire, that would be a huge burden on everyone,” Traum said. “They’ve been fortunate to have these judges carry some kind of caseload. ... They’re dependent on their help just to keep the wheels turning.”

But although the rules of retirement are bailing Nevada district courts out of an official emergency, they may also be prolonging the problem of judicial vacancies.

The three judicial nominees whom Obama named to fill Nevada’s open seats are in various stages of the confirmation process.

Jennifer Dorsey, who was first nominated in September 2012 to take over Judge Larry Hicks’ seat in Reno, has not had a confirmation hearing before the Senate Judiciary Committee.

Andrew Gordon, who was nominated at the same time as Dorsey to fill Judge Kent Dawson’s seat, was approved by the committee last week but has not been scheduled for a confirmation vote.

Elissa Cadish, who was first nominated in 2011 to fill Judge Philip Pro’s seat in Las Vegas, has been stuck in limbo while Nevada Sens. Harry Reid and Dean Heller wrestle over her fitness for the job, a dispute that stems from an opinion she wrote several years ago about the Second Amendment and the individual right to bear arms.

Of the three, Gordon stands the best chance of being confirmed: He is third on the list of committee-approved judge nominees waiting for a full-Senate confirmation, and if all goes according to plan, that could come as early as March.

Reid and Heller say they are “still talking” about Cadish.

But at any time, Nevada could be hit with a fourth vacancy: Judge James Mahan of Las Vegas is eligible to retire this year.

“If these positions aren’t filled, we could be going back to the situation we were in when the federal bench was much smaller,” Morris said. “When I started practicing, there was one federal judge, and he handled every case. ... Now we have 10 or 20 times the population, but we don’t have 20 federal judges.”

The state population has grown tenfold since the federal government decided Nevada needed a second, permanent federal district judge seat to handle the caseload of a growing state. That was 1961. Nevada earned one more judge each decade, and then a windfall of three judges during the later years of the Clinton administration, bringing the total to seven.

Since Nevada’s last federal judgeship was authorized in 2000, the state’s population has grown by nearly 50 percent — and as the population rises, so does the number of case filings. Between 2007 and 2012, civil case filings went from almost 2,500 per year to more than 2,900. Criminal felony filings jumped to 700 per year from about 400 per year.

Nevada judges are clearly trying to work through those cases faster. Trials are taking longer — but since the vacancies have opened up, fewer cases are getting to trial. Meanwhile, since 2007, judges have cut down the time it takes them to review and dismiss the cases they do dispose of by about 10 percent.

But lawyers say that’s no solution to a vacancy problem.

“With a full load of judges ... they would have more time. There would be more hours in the day,” England said. “You wouldn’t want your air traffic controller to be overtired and stressed. You don’t want your surgeon tired and stressed and operating on your brain. No one wants people in positions of authority to operate under those conditions — they want the system to make sure that the person who is making decisions is fully able to do so without the stress of over-work or anything else.”