While Republicans and the White House dawdle on uncontroversial judicial nominations, real people suffer from delayed dockets and understaffed courts.
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."
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.
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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.
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.
The Middle District today is so understaffed, its current judges so overwhelmed by their relentless workload, that the Chief Judge of the 3rd U.S. Circuit, the federal appeals panel which covers Pennsylvania and other mid-Atlantic states, has authorized trial judges from the Eastern District of Pennsylvania to cross over and help their colleagues in the Middle District. But it's not like the Eastern District has it much better. There are now six judicial vacancies there (five judges have in the past few years taken senior status). President Obama has yet nominated no one -- no one -- to replace those Eastern District trial judges.
Washington talks ceaselessly about the slow pace of judicial nominations. But few advocates are able to cite specific examples of what judicial vacancies mean for the American people, for litigants like Rabbi Wasserman, who look to the courts to resolve disputes. Part of the reason for this is prudence -- current litigants I spoke with for this article were reluctant to publicly complain about how long it is taking their federal civil cases to be resolved. No one wants to tick off their judge. But that doesn't mean such delays aren't real -- and pervasive. I ended up asking a federal judge himself to detail the cost of judicial vacancies.
"Inevitably, what it leads to is extra time to decide almost any motion that is filed," Judge Jones told me. "... [T]he federal courts are stacked up with motions to dismiss and motions for summary judgment which are very fact specific and require a great deal of time. When you have fewer judges, and the judges who are in service have more motions, everything is delayed." The judge calls it the "justice delayed syndrome" and it impacts individuals like the rabbi as well as large corporations who must factor into their business plans the "uncertainty" inherent in long, drawn-out litigation.
Rebecca Kourlis, a former justice of the Colorado Supreme Court and now executive director of the Institute for the Advancement of the American Legal System, is even more blunt. "Vacancies in the judiciary create holes in the judicial system," Kourlis told me last week, "and civil cases are the most likely to fall through those holes. What this means is that civil cases suffer increased continuances and delays and the possibilities of changing judges in mid-stream. For civil litigants, this means untenable disruptions to their lives and businesses, the possibility of increased costs, and overall, a breach of the promise of access to justice."
For this piece, I picked the "judicial emergency" in the Middle District of Pennsylvania to make a point. Although I have been a strident critic (see accompanying box) of the Republican use of the Senate filibuster to keep bipartisan-approved nominees off the bench, there is no denying that the Obama Administration has in many cases made a bad situation worse by failing to quickly nominate judges when vacancies occur. There is simply no excuse, for example, for the length of time it took the White House to appoint Mannion and Brann to help fill the void in the Middle District. None.
Sen. Toomey, the Pennsylvania Republican, refused comment for this story. His Democratic counterpart, Sen. Bob Casey, would say only that both sides "need to come together to fill these critical positions" and that "the real-life consequences of delay are unacceptable." Both men, it is fair to say, don't want to say anything publicly to tick off the Republican leadership in the Senate, leadership which already has announced to the world that it intends to confirm no more of President Obama's federal appellate nominees by invoking what's become known as the "Thurmond Rule."
The story of the Middle District is one of basic governance. It's about the executive branch and the legislative branch failing to perform its constitutional function of ensuring a viable judicial branch. It's about politicians in Washington failing or refusing to provide to the American people -- in the Middle District of Pennsylvania, for example -- one of the most elemental services a government can provide to the governed -- functioning courts of law. It's a disgrace that those old judges in Pennsylvania have to work like that. It's even more of a disgrace that Congress and the White House can't timely agree on their replacements.
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