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Senior Status Quo? Changes to Nevada's Federal Bench Reflect Federal Judiciary's Trend - Increasing Reliance on Senior Judges

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SENIOR STATUS QUO?
CHANGES TO NEVADA’S FEDERAL BENCH REFLECT FEDERAL JuDICIARY’S TREND – INCREASING RELIANCE ON SENIOR JuDGES
BY MARGARET FOLEY, ESQ.
the federal bench of the District of nevada is in the midst of an accelerated generational transformation. Within the space of less than three years, nearly every active district judge has taken or will be taking senior status. During the same brief period, one magistrate judge has retired, and another will retire at the end of 2012.
Judge Roger L. Hunt took senior status in April of 2011, and Judge Philip M. Pro took senior status in December of the same year. In 2012 Judge Kent J. Dawson took senior status in July, and Judge Larry R. Hicks will take senior status in December. Judge James C. Mahan is eligible to take senior status in February 2013. On the Article I scorecard, Magistrate Judge Lawrence Leavitt retired in October 2011, and Magistrate Judge Robert J. Johnston is retiring at the end of this year. Magistrate Judge Robert McQuaid, Jr. has been recalled from retirement, as has Bankruptcy Judge Gregg W. Zive. These judges are, or will be, in good company as they join Judge Lloyd D. George, who took senior status in December 1997; Judge Edward Reed, who became a senior judge in July 1992; and Judge Howard D. McKibben, who took senior status in April 2005. While our local federal judges are reaching these milestones, the process for the nomination and confirmation of new federal judges by Congress continues to be very lengthy and sometimes hampered by political polarization in Congress. There is no telling how soon the rapidly-accumulating judicial vacancies in the District of Nevada will be filled; when a district court judge takes senior status or a magistrate judge retires, a vacancy is created, and new positions are to be authorized based on caseloads.1 For some of the vacancies, no nominee has yet been referred to Congress.2 As a result of these converging trends on the district court bench, the District of Nevada is poised to mirror the Ninth Circuit region as a whole, which in turn parallels the national trend of more and more senior judges on the bench. Across the Ninth Circuit and the country, senior judges and recalled magistrate judges play an increasingly important role in conducting the day-to-day business of the federal courts, presiding over hearings and trials and providing needed administrative services to their courts. For example, the District of Oregon recently held an event recognizing the vital contributions of 13 senior district and circuit court judges, recalled magistrate judges and a retired bankruptcy judge, with a startling record of 150 years of senior service among them. In addition to their other duties, these busy senior judges logged an impressive total of 257 trial hours in fiscal year 2011, including presiding over some of the District of Oregon’s most high-profile cases.3 An investigative report by the University of Pennsylvania Law School candidly observed, earlier this year, that the trend has become so pronounced that, “without a large corps of judges in senior status the federal judiciary would collapse under the weight of its own caseload.”4
District Judge Larry R. Hicks
(will take senior status in December 2012)
Senior District Judge Kent J. Dawson
Senior District Judge Roger L. Hunt
Senior District Judge Howard D. McKibben
Senior District Judge Philip M. Pro
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Nevada Lawyer
October 2012
In an unusual turn of events highlighting the courts’ growing reliance on senior federal judges for administrative needs, the newest director of the national Administrative Office of the U.S. Courts (AOC) in Washington, D.C., Thomas F. Hogan, is himself a senior federal judge from the District of Columbia. He is the first federal judge to hold the AOC director position.5 When interviewed in June, Hogan confessed that he thought he had a good feel for the AOC director job before Chief Justice John Roberts appointed him to the position in October 2011, but that he was later surprised to find out how much he would be working with Congress on legislative matters.6 This legislative connection is critical for securing judgeships and maintaining court services during the present fiscal crisis. In addition to Hogan’s appointment, this past year has also seen the loss of two senior federal judges with record-breaking longevity of service. Ninth Circuit Judge James R. Browning, for whom the Ninth Circuit Court of Appeals’ headquarters in San Francisco is named, passed away on May 6, 2012, after earning the distinction of longest-serving court of appeals judge in the country (50 years). A moving ceremony and video tribute to Browning was held in August at the Ninth Circuit Judicial Conference in Hawaii. Circuit Executive Cathy Catterson gave an emotional speech, choking up a bit as she described her former boss, mentor and friend as a leader who motivated everyone to work harder and hopefully a bit smarter. U.S. Supreme Court Justice Anthony Kennedy recalled Browning as a brilliant and accessible administrator, whose innovations included the creation of the Bankruptcy Appellate Panel, and whose radiant and genuine smile was never far. Also of great note, on January 23, 2012, District Judge Wesley E. Brown, the oldest practicing district judge in the history of the United States, passed away at the age of 104. Brown was on the federal bench for 49 years in the District of Kansas, and reached the uncommon landmark of seeing his former law clerk take senior status from the federal bench in 2008, at which point he continued to maintain his chambers beside Brown’s in the federal courthouse in Wichita. Obviously beloved by the Kansas legal community, Brown’s name prompted an emotional response from a long-time federal prosecutor when she was interviewed about him two
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October 2012 Nevada Lawyer 15
SENIOR STATUS QUO? CHANGES TO NEVADA’S FEDERAL BENCH REFLECT FEDERAL JuDICIARY’S TREND – INCREASING RELIANCE ON SENIOR JuDGES
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years ago, while he was still on the bench. The prosecutor began to cry while talking about Brown’s penchant for gallows humor (he would tell attorneys preparing for long court battles that he might not live to see the cases to completion, and joke that “[a]t this age, I’m not even buying green bananas”). “Sorry,” she said during the interview. “It’s just I can’t imagine practicing without him.”7 After his death, Brown’s memoirs and a local news video, filmed when he was a spry 99 years old, were posted on the District of Kansas website.8 The trend of increasing reliance on senior judges is likely to continue, partly due to the current budgetary uncertainties facing the federal courts. Hogan, the AOC Director, reported that the federal courts’ funding request for Fiscal Year 2013, sought an increase of 3.1percent, the smallest increase on record. Faced with the request, congressional representatives informed Hogan that even that small increase may not be in cards.9 This uncertainty is compounded by the virtual freeze on court funding for operations that have been in place for the last two years. Along with many other federal government functions, the judiciary faces the looming possibility of significant spending reductions if the drastic sequestration deficit reduction plan under the Budget Control Act goes into effect in 2013, which might happen if the president and Congress do not first agree to an alternative deficit reduction plan.10 As Ninth Circuit Chief Judge Alex Kozinski told the District of Oregon’s group of judges, “We all know how the wheels of justice turn slowly, but they might well grind to a halt without the help of our senior and recalled judges. I thank all of you for your ongoing efforts.”11 In the District of Nevada, we are, and hopefully will continue to be, fortunate enough to have a talented and dedicated group of judges to shoulder the District of Nevada’s workload during uncertain budgetary times. In addition to performing essential court functions, senior judges provide mentorship and advice for new judges. As Judge James Holderman of the Northern District of Illinois observed in his own district, the new judges, “seek out the sage advice of these seasoned judges,” each of whom “possesses a great deal of wisdom and experience collected through many years of service.”12 These efforts are especially appreciated when we consider that senior federal judges are eligible to retire with full pay, but instead choose to continue working essentially for free.13 Last year, before taking senior status himself, Pro pointed out (undoubtedly with a grin) the simple truth that senior judges are “found money.”14
Thank you and congratulations to our new and soonto-become senior judges in the District of Nevada.
maRGaRET FOlEy is serving her third year as a Ninth Circuit federal lawyer representative for the District of Nevada and is an incoming member of the Ninth Circuit Lawyer Representatives Coordinating Committee. She is an attorney at Lewis Brisbois Bisgaard & Smith, practicing in the areas of municipal defense, professional liability and appeals.
Nowhere is this lack of authorization more apparent in the District of Nevada than in the bankruptcy court. Nevada has four bankruptcy judges but qualifies for up to ten based on its caseload. 2 Office of the Circuit Executive, Ninth Circuit Court of Appeals, Ninth Circuit Current and Future Vacancy Table, last updated Aug. 2, 2012. 3 2011 U.S. Cts. Ninth Cir. Ann. Rep. at 41. 4 Stephen B. Burbank, S. Jay Plager, and Gregory Ablavsky, Leaving the Bench 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, Univ. of Penn. Law School Public Law and Legal Theory Research Paper Series, Research Paper No. 12-31 (2012) at 115-16. 5 Admin, Off. of the U.S. Cts., Third Branch News, Interview: AO Director Discusses Challenged Facing Judiciary, June 7, 2012, at http://news.uscourts.gov (hereinafter “Interview”). 6 See id. 7 A.G. Sulzberger, At 103, a Judge Has One Caveat: No Lengthy Trials, New York Times, Sep. 16, 2010, at http:// www.nytimes.com. 8 See www.ksd.uscourts.gov/judge-wesley-e-brown-19072012. I cried when watching the video, and you might too. 9 At least one commentator has taken a critical view of Congress’s actions in creating reliance on senior judges instead of authorizing an adequate number of judges and confirming their nominations. See Kelly J. Baker, Note, Senior Judges: Valuable Resources, Partisan Strategists, or Self-Interested Maximizers?, 16 J.L. & Pol. 139, 145 (2000) (discussing criticism that senior status permits Congress to avoid politically difficult choices) (cited in Burbank, Plager, and Ablavsky, Leaving the Bench, supra at note 3, at 116). 10 See Interview, supra at note 4, at 2. 11 2011 U.S. Cts. Ninth Cir. Ann. Rep. at 41. 12 Admin, Off. of the U.S. Cts., Third Branch News, Senior Judges: Essential Volunteers Helping Federal Courts, Aug. 2006, at http://news.uscourts.gov. 13 2011 U.S. Cts. Ninth Cir. Ann. Rep. at 2. See also Admin, Off. of the U.S. Cts., Third Branch News, Senior Judges: Essential Volunteers Helping Federal Courts, Aug. 2006, at http://news.uscourts.gov. 14 Carri Geer Thevenot, “Senior Status” Judges to Keep on Ruling, Las Vegas Review Journal, Aug. 8, 2011, at http:// www.lvrj.com. Judge Pro, if you are still on the bench when you are 99 years old, I promise to read your memoirs and possibly cry too. 1
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Nevada Lawyer
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