In Pennsylvania, the Human Costs of Judicial Confirmation Delays

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While Republicans and the White House dawdle on uncontroversial judicial nominations, real people suffer from delayed dockets and understaffed courts.

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The William J. Nealon courthouse in Scranton, Pennsylvania. (Wikimedia Commons)

Daniel Wasserman had seen enough. An Orthodox rabbi affiliated with Shaare Torah Synagogue in a suburb of Pittsburgh, Wasserman had grown tired of state interference with Jewish funeral rituals, ancient and eternal, which require burial within 24 hours and which prohibit embalming. He resented the threats of fines and penalties he was receiving from state officials trying to enforce a 19th-century funeral director's law. He believed he was being singled out for the practice of his religious beliefs.

And so Rabbi Wasserman did what many people do in America when they believe their constitutional rights -- their First Amendment rights, their rights to religious freedom -- are being infringed by state action. He sued the state. On August 6th, in federal district court in Scranton, in the Middle District of Pennsylvania, Rabbi Wasserman's lawyers sought an injunction to preclude state officials from continuing to threaten him for what he considers to be the lawful exercise of his religious beliefs. The lawsuit, his attorneys allege, is designed to:

preserve and restore the historical right of clergy to conduct religious burial and funeral rites free from interference and harassment by the Commonwealth of Pennsylvania and professional, secular funeral directors who serve no health or safety interest.

But justice won't come quickly for Rabbi Wasserman -- if it comes at all. There simply aren't enough federal judges in the Middle District of Pennsylvania to handle his case. U.S. District Judge John Jones, the well-regarded jurist to whom the Rabbi's case was assigned, couldn't get the urgent injunction hearing onto his schedule until late September. The timing didn't discourage the Rabbi but it clearly frustrated the judge. "Obviously when you receive something like this you have to move with some alacrity," Judge Jones told me late last month. "But you can only land so many planes in one hour."

THE DISTRICT

Boundary-wise, the Middle District of Pennsylvania is the largest federal judicial district in the state. It covers the state capital of Harrisburg, which means it is the chief venue for litigation against the state of Pennsylvania. It comprises no fewer than 32 counties, up and down the center of the state, from Adams County to York County, from the state's northern border to New York to its southern border with Maryland, the Mason-Dixon line. There are four courthouses in the district, including one in Williamsport, which is several hours drive away from either Harrisburg or Scranton.

All of this volume and distance would be manageable if the Middle District were fully staffed with federal trial judges. It is not -- and it hasn't been for years. "We are down a third of our active court," Judge Jones says. In March 2009, the first vacancy in the Middle District was created when Judge Richard Caputo (more on him later) took senior status. Another vacancy was created in April 2010, when the Senate confirmed the appellate nomination of U.S. District Judge Thomas I. Vanaskie. Two long years later, just this past May, President Obama nominated two men to fill those posts.

Both Middle District nominees -- Malachy E. Mannion and Matthew W. Brann -- were quickly endorsed by the Senate Judiciary Committee by voice vote, which means there were no substantive objections raised by Republican members of that Committee. Both nominees also have the support of the state's two senators, Democrat Bob Casey and Republican Pat Toomey, who have publicly lobbied their Republican colleagues this year to allow the nominations to come to a vote on the Senate floor. So far, those efforts have failed. But the Senate is expected to take up new judicial nominations in the next week or so.

THE JUDGES

While the Senate fiddles, what's life like for the current judges of the Middle District? Very difficult. Judges frequently have to drive three hours or more a day to handle cases in Williamsport.. The aforementioned Judge Caputo, who is in his early 70s, carries the most cases of any of the judges -- more than 500 civil and criminal combined -- despite his senior status. "He's hanging in because he feels like he is letting the court down if it doesn't, Judge Jones says of his colleague. "Because of the judge he is he won't relent." But compared to some of his other colleagues in the Middle District, however, Judge Caputo is practically a kid. 

Sitting in senior status, picking up the slack for the empty full-time benches, are Judge Edwin M. Kosic, Judge William J. Nealon, Judge Richard P. Conaboy and William W. Caldwell -- all of these men are at least 86 years old. Two other Middle District Judges in senior status -- Judge Sylvia H. Rambo and Judge James M. Munley -- are both over 76 years old. "All have a substantial case load," Judge Jones says, "but we've created this absurdity where we are leaning on aging" and perhaps frail senior judges. Judge Nealon, for example, a remarkable jurist by any standard, has more than 150 cases -- at age 89.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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