[Congressional Record Volume 143, Number 76 (Thursday, June 5, 1997)]
[Senate]
[Pages S5302-S5304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 CHIEF JUDGE KAZEN, U.S. DISTRICT COURT

  Mr. GRASSLEY. Mr. President, In the past few months my Democratic 
colleagues have attempted to paint the picture of a national emergency 
regarding unfilled vacancies in the Federal courts. We hear talk of a 
judicial crisis, of justice suffering at the hands of overworked and 
over-burdened judges, and of the Senate Judiciary Committee creating 
this situation out of political motivation. A recent example is an 
article in the Washington Post which interviewed only one Texas 
district judge who described how he was plowed under with work ever 
since Congress decided to get tough on drug smuggling and illegal 
immigration. And because his district has three open seats, he can't 
keep up with the caseload. Unfortunately this one judge has been used 
in an attempt to reflect some kind of a national crisis. Maybe some 
clarifying remarks regarding the central issues of this article will 
shed some light on this matter.
  As the chairman of the Judiciary Subcommittee on Administrative 
Oversight and the Courts, I sent a comprehensive questionnaire to 
article III judges last year. This extensive judicial survey addressed 
the very concerns raised by the May 15 article in the Washington Post. 
The judge in question was kind enough to respond to the questionnaire, 
as were most of his colleagues. As a matter of fact, 12 out of 17 
active judges over 70 percent of the southern district of Texas 
furnished my subcommittee with detailed replies. Of those 12 judges, 
only 2 other judges complained of an unmanageable caseload and of a 
growing backlog. That means that 9 out of 12 judges found their 
caseloads to be manageable. As a matter of fact, one judge even stated 
that: ``there is absolutely no backlog whatsoever.''
  Of the three judges who did complain of not being able to keep up 
with their workload, one had been on the bench less then 2 years, and 
the other two were the only two judges in the southern district 
involved in extensive outside work activities beyond occasional

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speaking engagements. You would think that before judges complain about 
needing more help, they would be devoting 100 percent of their working 
time and energy to their caseloads. Unfortunately, it appears that is 
not the case here.
  One must also keep in mind the organizational set-up of the district 
in question. The southern district has the highest number of judges in 
all of Texas, one of the highest in the Nation for that matter. Right 
now a total of over 30 active judges, senior judges, and magistrate 
judges are handling cases in that district. All but three of the active 
judges last year found their caseloads were manageable. Therefore, when 
one throws statistics and numbers around, we must be careful how to 
interpret those figures. For example, we must factor in the number of 
cases which are handled by staff attorneys. Prisoner petitions, for 
example, are rarely handled by a judge, but are routinely included in 
caseload statistics. As another Texas judge has told me, once prisoner 
petitions are factored out, the southern district's docket has actually 
decreased, not increased over the last 10 years. In addition, numerous 
judges have contacted me and praised the Prisoner Litigation Reform Act 
as having had a substantial and dramatic impact on the number of 
prisoner filings and as having caused that number to decrease 
enormously. I have asked the judge in question for more information on 
these issues.
  We must also keep in mind that many senior judges are hearing cases. 
In the southern district of Texas there are at least three senior 
judges. In order to be certified, a senior judge must carry, at a 
minimum, a 25 percent caseload. And many senior judges maintain a full 
caseload. Yet, senior judges are not factored into the weighted 
caseload statistics when ascertaining whether new judges are needed. In 
other words, senior judges are not even counted, even though they make 
considerable contributions. Again, beware of the numbers you read in 
the paper.
  As a matter of fact, nationally there are 48 seniors judges certified 
at 25 percent workload, with another 86 senior judges who are doing at 
a minimum at 25 percent workload. In addition, there are 206 senior 
judges certified at a 50 percent or more workload. Now lets add up the 
numbers: if you take 25 percent of the 48 senior judges, 25 percent of 
the additional 85 senior judges, and 50 percent of the 206 senior 
judges, you would have 136 full time judges, which more than makes up 
for the 100 or so vacancies nationwide. Now, while I would agree that 
there may be pockets of districts around the country that need some 
help, the overwhelming majority of the judges in the district named by 
the Washington Post, and across the Nation for that matter, are working 
diligently to serve justice and are doing so with a manageable caseload 
and without a backlog.
  Mr. President, I ask unanimous consent to have the Washington Post 
article printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, May 15, 1997]

               Cases Pile Up As Judgeships Remain Vacant

                         (By Sue Ann Pressley)

       Laredo, Tex.--The drug and illegal immigrant cases keep 
     coming. No sooner does Chief U.S. District Judge George Kazen 
     clear one case than a stack of new cases piles up. He takes 
     work home at night, on weekends.
       ``It's like a tidal wave,'' Kazen said recently. ``As soon 
     as I finish 25 cases per month, the next 25 are on top of me 
     and then you've got the sentence reports you did two months 
     before. There is no stop, no break at all, year in and year 
     out, here they come.
       ``We've already got more than we can say grace over down 
     here,'' he said.
       This is what happens to a federal judge on the southern 
     border of the United States when Washington cracks down on 
     illegal immigration and drug smuggling. It is a situation 
     much aggravated by the fact that the Senate in Washington has 
     left another federal judgeship in this district vacant for 
     two years, one of 72 vacancies on federal district courts 
     around the country.
       As Border Patrol officers and other federal agents swarm 
     this southernmost region of Texas along the Mexican border in 
     ever-increasing numbers, Judge Kazen's docket has grown and 
     grown. He has suggested, so far unsuccessfully, that a 
     judgeship in Houston be reassigned to the Rio Grande Valley 
     to help cope.
       In Washington, where the laws and policies were adopted 
     that has made Kazen's life so difficult, the Senate has made 
     confirmation of federal judges a tedious process, often 
     fraught with partisan politics. In addition to the 72 federal 
     district court vacancies (the trial level), there are 25 
     circuit court vacancies (the appellate level) and two vacant 
     international trade court judgeships across the country, 
     leaving unfilled 99 positions, or 11 percent of the federal 
     judiciary. Twenty-six nominations from President Clinton are 
     pending, according to Jeanne Lopatto, spokeswoman for the 
     Senate Judiciary Committee, which considers nominations for 
     recommendation to the full Senate for confirmation.
       Of those 99 vacancies, 24 qualify as judicial emergencies, 
     meaning the positions have been vacant more than 18 months, 
     according to David Sellers of the Administrative Office of 
     the U.S. Courts. Two of the emergencies exist in Texas, 
     including the one in Kazen's southern district.
       Lopatto said the thorough investigation of each nominee is 
     a time-consuming process. But political observers say 
     Republicans, who run the Senate, are in no hurry to approve 
     candidates submitted by a Democratic president. The pinch 
     is particularly painful here in border towns. The nominee 
     for Brownsville, in Kazen's district, has been awaiting 
     approval since 1995. Here in Laredo, Kazen's criminal 
     docket has increased more than 20 percent over last year.
       ``We have a docket,'' he said, ``that can be tripled 
     probably at the drop of a hat. . . . The Border Patrol 
     people, the Customs people at the (international) bridges 
     will tell you, they don't catch a tenth of who is going 
     through. The more checkpoints you man, the more troops you 
     have at the bridges, will necessarily mean more stops and 
     more busts.''
       And many more arrests are expected, the result of an 
     unprecedented focus on policing the U.S.-Mexican border. 
     Earlier this year, Clinton unveiled a $367 million program 
     for the Southwest for fiscal 1998, beginning Oct. 1, that 
     includes hiring 500 new Border Patrol agents, 277 inspectors 
     for the Immigration and Naturalization Service, 96 Drug 
     Enforcement Administration agents and 70 FBI agents.
       In Kazen's territory, the number of Border Patrol agents 
     already has swollen dramatically, from 347 officers assigned 
     to the Laredo area in fiscal 1993 to 411 officers in fiscal 
     1996. More tellingly, in 1993, agents in the Laredo sector 
     arrested more than 82,000 people on cocaine, marijuana and 
     illegal immigration charges. By 1996, arrests had soared to 
     nearly 132,000, according to data supplied by the INS.
       All of which is keeping Kazen and the other judges here 
     hopping. ``I don't know what the answer is,'' said U.S. 
     District Judge John Rainey, who has been acting as ``a 
     circuit rider'' as he tried to help Kazen out in Laredo from 
     his post in Victoria, Tex. ``I certainly don't see it easing 
     up anytime soon. There still seems to be such a demand for 
     drugs in this country, and that's what causes people to bring 
     them in. Until society changes, we won't see any changes down 
     here.''
       In a letter to Rep. Henry B. Gonzalez (D-Tex.) in February, 
     Kazen outlined the need for a new judge in the Laredo or 
     McAllen division, rather than in Houston, where a vacancy was 
     recently created when then-Chief Judge Norman Black assumed 
     senior status. ``The `border' divisions of our court--
     Brownsville, McAllen and Laredo--have long borne the burden 
     of one of the heaviest criminal dockets in the country, and 
     the processing of criminal cases involves special pressures, 
     including those generated by the Speedy Trial Act,'' he 
     wrote.
       On a recent typical day, Kazen said, he sentenced six 
     people on drug charges and listened to an immigration case. 
     His cases tend to involve marijuana more often than cocaine, 
     he said.
       ``The border is a transshipment area,'' he said. ``The fact 
     is, a huge amount of contraband somehow crosses the Texas-
     Mexican border, people walking through where the river is 
     low, and there are hundreds and hundreds of miles of 
     unpatrolled ranchland.
       ``In some cases,'' Kazen continued, ``we're seeing a 
     difference in the kind of defendant. We're almost never 
     seeing the big shots--we're seeing the soldiers. Once in a 
     while, we'll see a little bigger fish, but we're dealing with 
     very, very smart people. We see some mom-and-pop stuff, too. 
     There was a guy who came before me who had been in the Army 
     umpteen years, and he needed the money, he was going 
     bankrupt, so he did this 600-pound marijuana deal. He said he 
     stood to pick up $50,000, and now he's facing five to 40 
     years.
       ``We see kids 18 and 19 years old,'' Kazen said. ``We see 
     pregnant women. We see disabled people in wheelchairs. This 
     is very, very tempting stuff.''
       In Washington, the argument over court vacancies continues. 
     On April 30, Attorney General Janet Reno told the Judiciary 
     Committee, ``Chief judges are calling my staff to report the 
     prospect of canceling court sittings and suspending civil 
     calendars for lack of judges, and to ask when they can expect 
     help. This committee must act now to send this desperately 
     needed help.''
       In remarks yesterday to the Federal Judges Association 
     meeting in Washington, Reno warned that ``the number (of 
     vacancies) is growing.''
       ``As you are no doubt aware,'' Reno told the judges, ``the 
     level of contentiousness on the issue of filling judicial 
     vacancies has unfortunately increased in recent times.''

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