State’s federal judge crisis has a long history

The U.S. Eastern District of California declared a "judicial emergency" this month after years of a recently retired judge warning this would happen. But according to figures posted on the Administrative Office of the U.S. Courts website, the emergency in the district began almost two months earlier, in December.

The U.S. Central District of California has it even worse. It's been in a judicial emergency since 2014. In fact, of the 42 judgeships listed under the judicial emergency category by the federal courts website, 17 are in California.

California also leads a 2019 list from the U.S. Courts Judicial Conference. Of 65 recommended new permanent judgeships, 22 are allocated to the Golden State.

"We're in a very bad place," said Benjamin G. Shatz, a partner with the appellate practice at Manatt, Phelps & Phillips LLP. "The Eastern District has been crying for a long time. Now the Central District is getting close to the same boat. I think it's unprecedented -- the chief judges from these massive districts begging for help."

A series of orders began going out in the Eastern District this month, warning litigants they would be unlikely to schedule oral arguments in some matters, and they could see lengthy delays. Attorneys say there is growing concern about the ability of litigants to obtain justice within a meaningful time frame.

"There are a lot of things that affect peoples' ability to obtain justice and to obtain timely justice," said Erik M. Silber, who chairs the Committee on Access to Justice and Civic Engagement with the California Lawyers Association. "When you meet with the federal bench, you do tend to hear about the problems that are created by having vacancies."

California appears to suffer due to two factors: difficulty filling judgeships and too few jobs to fill in the first place. The former issue is well-known. California's U.S. senators have repeatedly spoken out on the need to fill these jobs.

However, both senators have also issued "blue slip" objections to some of President Donald Trump's nominees.

"Sen. [Dianne] Feinstein understands the critical role of judges in the Eastern District and shares concerns about the current vacancies," her press secretary, Adam Russell wrote in an email responding to the district's judicial emergency. "She and Sen. [Kamala] Harris are working to ensure that qualified, mainstream jurists are confirmed to fill those vacancies."

Manatt partner Gregg T. Nunziata said the politicization of judgeships appears to be spreading.

"Obviously there is an intense partisan battle over the judiciary, and there has been for some time," Nunziata said. "It's gotten more intense over time. Originally it was over the Supreme Court. Eventually it became over the appellate courts, and in recent years the district courts have gotten more caught up in the partisan fights."

Nunziata is a Republican and a former chief nominations counsel to the U.S. Senate Committee on the Judiciary, but he said both sides appear to share the blame. For instance, he noted bipartisan bills to allocate more judges continue to appear in Congress.

But in recent years, under both the Trump and President Barack Obama administrations, those bills have often shared a key feature: They go into effect immediately. In prior decades, such bills were often written to go into effect when the next administration took power, meaning new judgeships were not a surefire way to gain a partisan advantage.

"There's a broad, bipartisan agreement that we need more judges in lots of places in the country, including California," he said. "The problem is that neither political party trusts presidents of the opposite party."

The issue of fewer judges allocated per capita is less talked about. But California appears to suffer more compared to many other states. For instance, the Eastern District of California has about 8.5 million people, about the same as the state of Virginia. But the Eastern District has just six slots for district judges, two of which sit unfilled.

The federal courts websites for Virginia's two districts, meanwhile, list 15 district judges, not counting those on senior status. In other words, even if the Eastern District gets back up to a full roster, it would have a judge for every 1.4 million people while Virginia has one for every 566,000 people.

"Even when these districts are fully staffed, they're still understaffed in reality," Shatz said. "I don't think the staffing of the federal judiciary has ever been much of a priority as part of the federal budget."

Only 12 states show up on the U.S. Courts emergency list. Shatz noted many of these have at least one of two things in common with California: They're big or they've grown quickly in recent decades. Florida and Texas fit both criteria.

Another way of the putting this would be that California might lack federal judges for the same reason Riverside and San Bernardino Counties don't have enough superior court judges: They've grown too fast, and outdated funding formulas and the political process have failed to keep up.

Figures from U.S. Courts appear to back up this idea. In 1960, both California and Virginia had about one district judge per 800,000 people. Each has seen their allocation of district judges at least triple since then, but Virginia's population approximately doubled while California's nearly tripled, with some areas growing even faster.