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Jax Daily Record Wednesday, Apr. 13, 201112:00 PM EST

Judicial vacancies create a 'crisis' for federal courts


by Joe Wilhelm Jr.

Staff Writers

The federal court system is facing a crisis with pending vacancies, The Jacksonville Bar Association was told Tuesday.

“We presently have a crisis in the federal judiciary in our country,” said Chief Judge Joel Dubina of the 11th Circuit U.S. Court of Appeals.

Dubina told Jacksonville lawyers that Supreme Court Chief Justice John Roberts recently spoke to members of Congress about the crisis.

”At the time I prepared my remarks for you today, there were 104 vacancies pending in the federal judiciary in the United States. That includes District Court positions and Court of Appeals positions,” said Dubina.

There are currently 874 Article III judgeships, which includes the Supreme Court, Court of Appeals, District Courts and the Court of International Trade.

Dubina began his career on the federal bench as a U.S. magistrate judge in 1983 and was appointed as a U.S. district judge in 1986. He was then appointed to the U.S. Court of Appeals for the 11th Circuit in 1990.

“I think there is much blame to go around for this crisis. In my lifetime, President Obama has been the slowest president to make nominations,” said Dubina.

“However, blame also lies with Congress. The Congress has been slow to approve judges, even those who were not controversial,” he said.

The issue recently affected the U.S. District Court for the Middle District of Florida, which is the federal court serving Jacksonville.

U.S. Sen. Bill Nelson and former Sen. Mel Martinez, both of Florida, noticed a vacancy in the Middle District April 30, 2009. The position was filled Nov. 18, 2010.

“Some nominations have now been in limbo for over a year,” said Dubina. “I don’t know what it’s going to take to break this logjam. But something needs to be done,” he said.

“Justice delayed is justice denied and there are only so many hours in the day where a judge, like any other person, can perform quality work.”

Dubina has firsthand knowledge of the slowdown. The 11th Circuit Court of Appeals is down to 10 judges from 12 after Judges Susan Black of Florida and Stanley Birch of Georgia took senior status, which means they handle fewer cases.

Fortunately, he said, the caseload is mirroring the size of the bench. Dubina reported that there has been a decrease in filings in the 11th Circuit Court of Appeals.

“Not withstanding the fact that a high number of judicial vacancies exists, filings in the 11th Circuit Court of Appeals have been on the decline. This is true not only in our court. It is a systemic phenomenon,” said Dubina.

“Mediation and arbitration have played a role. I remember when I was appointed to the 11th Circuit in 1990, Judge (Gerald) Tjoflat had been our chief judge for a short amount of time, and we never saw cases settled. You just didn’t see it, unlike the District Courts.”

The number of cases being settled has surprised Dubina.

“Since its inception, 4,322 cases have been settled in the 11th Circuit through mediation,” said Dubina. “That is an astounding number of cases.”

Money was another reason for the decline, explained Dubina.

“The second reason for the decline in filings might be the hard economic times in which we’ve all be living now for the past three years,” said Dubina.

“It is expensive to litigate in the federal courts and I suspect cases settle rather than go to trial when economic realities are considered,” he said.

Tjoflat, Dubina’s colleague on the U.S. Court of Appeals, introduced him as the speaker at Tuesday’s meeting at the Hyatt Downtown.

“I don’t know anybody on the bench, District Court or the Court of Appeals, who is more versatile than my good friend Joel Dubina,” said Tjoflat.

“There isn’t anything he doesn’t know about litigation in a general sort of a way. I would say that he is a lawyer’s judge in the true sense of the word, so when he is presiding over your appeals, you should know that here is somebody who has worn your moccasins and knows the things that you labor under,” said Tjoflat.

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