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Press Release

Backgrounder: Judicial Crisis on the Sixth Circuit


United States Court of Appeals for the Sixth Circuit

• The U.S. Court of Appeals for the Sixth Circuit, which has 16 authorized seats, has 4 vacancies. President Bush has nominated 4 well-qualified individuals from Michigan to fill these vacancies. All 4 of these vacancies have been deemed judicial emergencies by the Administrative Office of the U.S. Courts.

• The vacancy rate in the Sixth Circuit is 25%. The confirmation of two judges in late April/early May of this year did fill two of six vacancies, but the Circuit remains overburdened.

• A judicial emergency is defined as any vacancy in a court of appeals where adjusted filings per panel are in excess of 700; OR any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel.

• All four of the Michigan vacancies on the Sixth Circuit have been in existence for more than 18 months and the adjusted filings total 588.

• Only a substantial commitment on the part of the senior judges of the Sixth Circuit, district judges from within the Sixth Circuit, and visiting appellate judges from other circuits has kept the caseload manageable.

• The Sixth Circuit is the third busiest court of appeals, and Chief Judge Boyce Martin has asked Congres to authorize a 17th judge for the court. The court would be overworked even if it had its full complement of 16 judges.

• Among the twelve United States Courts of Appeals, the Sixth Circuit is eleventh in the timeliness of its disposition of cases. Only one Circuit takes longer to issue its opinions.

• The district court judges within the Sixth Circuit have complained that regular duty as substitute judges on the court of appeals has slowed their own trial dockets considerably.

• According to district judge Robert Bell (W.D. Michigan), “ ‘We’re having to backfill with judges from other circuits, who are basically substitutes,’ Bell said. ‘You don’t get the same sense of purpose and continuity you get with full-fledged court of appeals judges.’ . . . . Putting together a federal appeals court case often takes a ‘Herculean’ effort in a short time for visiting district judges. ‘We don’t have the time or the resources that the circuit court has,’ Bell said. ‘You can’t help to conclude that if we had 16 full-time judges with the full complement of staff, that each case might get more consideration—not to say results would be different.’ ” Steven Harmon, Political Bickering Creates Appeals Court Crisis, THE GRAND RAPIDS PRESS, Feb. 21, 2002.

• United States attorneys in Michigan have complained that the vacancy rate in the Sixth Circuit has slowed justice, complicated the ability to prosecute wrongdoers, enabled defendants to commit more crime while awaiting trial, led to less consistency in the court’s jurisprudence, and effectively deprived the United States of en banc review in some cases.

• “In years past, it was the normal practice of the Sixth Circuit that a case would be heard by the Court approximately three months after all briefs were filed, and in most cases an opinion would issue in about three additional months. At present, due to the large number of vacancies on the Court, … it has been taking on average between twelve and eighteen months longer for most appeals to be completed than was the case through most of the 1990s.” Letter from 31 Assistant United States Attorneys in the Eastern District of Michigan to Senator Carl Levin, January 16, 2002.

• “[D]elays in criminal cases hurt the government; the government has the burden of proof, and the longer a case goes on the more chance there is that witnesses will disappear, forget, or die, documents will be lost, and investigators will retire or be transferred.” Letter from 31 Assistant United States Attorneys in the Eastern District of Michigan to Senator Carl Levin, January 16, 2002.

• “In some cases, convicted criminal defendants are granted bond pending appeal. The elongated appellate process therefore allows defendants to remain on the street for a longer period of time, possibly committing new offenses. In addition, the longer delay makes retrials more difficult if the appeal results in the reversal of a conviction.” Letter from 31 Assistant United States Attorneys in the Eastern District of Michigan to Senator Carl Levin, January 16, 2002.

• “[T]he Sixth Circuit has resorted to having more district judges sit by designation as panel members. This practice has contributed to a slowdown of the hearing of cases in the district courts, because the district judges are taken out of those courtrooms. The widespread use of district judges also provides for less consistency in the appellate process than would obtain if full-time Circuit Judges heard most of the appeals.” Letter from 31 Assistant United States Attorneys in the Eastern District of Michigan to Senator Carl Levin, January 16, 2002.

• “In some cases, the small number of judges on the Court has served to effectively deprive the United States of en banc review. … Achieving a unanimous vote of all of those judges of the Court who were not part of the original panel is, as a matter of practice, impossible, and not worth seeking. However, if the Court was at full strength, an en banc review could have been granted with the votes of about two thirds of the active judges who were not part of the original panel.” Letter from 31 Assistant United States Attorneys in the Eastern District of Michigan to Senator Carl Levin, January 16, 2002.

• The objections of the Michigan Senators are wholly unreasonable.

• Michigan’s senators complain that two nominees were left without hearings at the end of President Clinton’s term in 2001.

• They ignore the fact that two nominees were also left without hearings at the end of President Bush’s term in 1993, which means that President Clinton got to appoint the same number of judges to the Sixth Circuit as the number of vacancies that came open during his presidency.

• As these examples illustrate, both parties have left nominations pending at the end of Presidents’ terms. But the effort by Senator Levin and Senator Stabenow to block nominations at the outset of a President’s term is unheard of.

• Five of the Sixth Circuit’s active judges— nearly half —were appointed by President Clinton.

• Editorial opinion in Michigan is overwhelmingly opposed to the tactics being used by Michigan’s senators to block President Bush’s nominees to the federal bench.

• “The Constitution does not give [Sens. Levin and Stabenow] co-presidential authority and certainly does not support the use of the Court of Appeals to nurse a political grudge . . . . [Sens. Levin and Stabenow] have proposed that the president let a bipartisan commission make Sixth Circuit nominations or that Mr. Bush re-nominate the two lapsed Clinton nominations. Mr. Bush has shown no interest in either retreat from his constitutional prerogatives. Nor should he. Movement in this matter should come from Sens. Levin and Stabenow—and, clearly, it should be backward.” THE GRAND RAPIDS PRESS, February 24, 2002.

• “It was wrong for the Senate to fail to act on Clinton’s Michigan nominees. But another wrong won’t make things right for Michigan. Enough is enough. … Senators, it is long past time to fill Michigan’s voids in the hall of justice.” George Weeks, Michigan Senators Create Crisis by Vetoing Judicial Appointees THE DETROIT NEWS, June 30, 2002.