It’s bad enough that the 9th United States Circuit Court of Appeals takes the longest time out of all circuit courts to hand down an opinion. With the deaths of, count them, FIVE appeals judges for this circuit, the San Francisco court is bound to face even greater delays in the coming months.
The 9th Circuit Court takes an average of 16.3 months to issue an opinion. All the other circuits average about 11.7 months to do the same.
In addition to the passing of these five judges, two of the 9th circuit judges retired and Chief Judge Mary Schroeder plans to take senior status come December. Senior status is a type of semi-retirement that is available to judges after reaching a specific combination of age and years, also known as the “rule of 80.” Beginning at age 65 a judge can retire or take senior status after performing 15 years of service on the bench, with a possible increase in age up to 70 years and a decrease in service down to 10 years. As “seniors,” judges work part time for full salary and their seats become vacant, awaiting Presidential appointment for new full time judges.
The 9th U.S. Circuit Court of Appeals currently has 29 judgeships, 25 active judges, 21 senior status judges, 4 current vacancies stretching as far back as 2004, and 1 future vacancy, to be vacated December 31, 2011 by Chief Judge Schroeder.
Congress has yet to act on a Judicial Conference, which through its Judicial Resources Committee is supposed to assess the needs of the courts every other year. This is to determine whether a new judgeship needs to be created, based on a number of factors including the number of filings per current judgeship, geography, the current number of senior judges and the mix of cases.
The United States President appoints justices to the federal courts “by and with the advice and consent of the Senate.” President Obama has nominated three judges to the ninth circuit; Justice Morgan Christen, nominated May 18, 2011, Judge Jacqueline Nguyen, nominated September 22, 2011, and appellate litigation partner Paul J. Watford, nominated October 17, 2011. All three of these presidential nominations are still pending, awaiting confirmation. According to University of Pittsburgh law professor Arthur Hellman, the confirmation process is difficult and demanding, and ill-worth the relatively low pay scale associated with the position.
And as the 9th Circuit Court awaits the conclusion of the nomination/confirmation processes and a Judicial Conference to be held, so too could the filings the court is currently holding wait even longer than normal before an opinion can be issued.