[Congressional Record Volume 148, Number 42 (Tuesday, April 16, 2002)]
[Senate]
[Pages S2691-S2692]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  VACANCY CRISIS IN THE SIXTH CIRCUIT

  Mr. McCONNELL. Mr. President, as the Senate is aware, we are facing a 
vacancy crisis in the Federal courts with over 11 of the Federal 
judgeships open.
  This crisis is even worse at the appellate level where almost 19 
percent of the appellate court judgeships are vacant. That means that 
one out of every five seats is empty.
  Nowhere is the problem felt more acutely than in my home circuit, the 
Sixth Circuit Court of Appeals, which consists of Michigan, Ohio, 
Kentucky, and Tennessee. We have an astonishing 50-percent vacancy 
rate. Half of the seats of my home circuit are empty.
  I would like to take a little time to discuss what that means to the 
people who live in Michigan, Ohio, Kentucky, and Tennessee--the people 
who make up the Sixth Circuit.
  We have a chart of the Sixth Circuit--Michigan, Ohio, Kentucky, and 
Tennessee. There are 16 total seats on the Sixth Circuit. There are 
eight sitting judges representing, of course, a 50-percent vacancy. The 
President has sent up seven nominees for the eight vacancies. To date, 
there have been no hearings on any of those nominees.
  The practical effect of that is each judge is having to dispose of 
many more cases. As the chart shows, according to the Administrative 
Office of the Courts, the average number of cases that active-status 
judges on the Sixth Circuit are having to dispose of has increased by 
46 percent in the last 5 years.
  As a result of this vacancy rate, the dispositions per active judge 
have gone up 46 percent since 1996--a 46-percent increase--to 535 
matters per judge.
  From just 1996 to 2001, the average number of cases each Sixth 
Circuit judge is deciding has increased by almost half--50 percent.
  Let us take a look at this chart and the dramatic increase in 
decision time.
  Why this matters is that with Sixth Circuit judges having to dispose 
of many more cases, this results in a dramatic increase in the length 
of time for an appellate decision to be rendered. In fact, according to 
the Administrative Office of the Courts, the Sixth Circuit is ranked 
next to last among all Federal circuits in median time for disposition 
of an appeal.
  The national average is 10.9 percent. In Sixth Circuit, it is 15.3 
percent, which is 40 percent as a result of the eight vacancies that we 
have.
  It is not just the Sixth Circuit is next to last--someone has to be 
next to last--but that the deviation from the national average is so 
great.
  Specifically, as my third chart shows, in 1994, when there were no 
vacancies, the Sixth Circuit was about 1 month slower in processing 
appeals than the national average, about 10 percent slower.
  By the time of the first vacancy in the following year, 1995, the 
Sixth Circuit was a little over 2 months slower than the national 
average, or about 17 percent slower than the national average.
  But by last year when there were eight vacancies, the Sixth Circuit 
was almost 4\1/2\ months slower than the national average, which 
translates into a full 40 percent below average.
  There is no question that the significant number of vacancies has had 
an impact on litigants in the Sixth Circuit.
  What that means is that in other circuits, if you file your appeal at 
the beginning of the New Year, you get your decision by about 
Halloween. But in the Sixth Circuit, if you file your appeal at the 
same time, you are forced to wait until Easter of the following year to 
get your case resolved.

[[Page S2692]]

  These are alarming statistics. To put a human face on it, let me read 
some comments from judges and practitioners.
  Ohio Attorney General Betty Montgomery has said that numerous death 
penalty appeals before the Sixth Circuit are experiencing prolonged 
delays. For example, the appeal of Michael Beuke has not been acted on 
in more than 2 years, and Clarence Carter has had a motion pending 
before the Sixth Circuit for 3 years.
  These are death penalty appeals.
  Federal district Judge Robert Holmes Bell described the Sixth Circuit 
as in a ``crisis'' because of the vacancies. He added, ``We're having 
to backfill with judges from other circuits who are basically 
substitutes. You don't get the same sense of purpose and continuity you 
get with full-fledged court of appeals judges.'' Even with 
``backfilling,'' the Sixth Circuit still takes more than 40 percent 
longer than the national average to resolve cases.
  Cincinnati Attorney Elizabeth McCord, as of the end of last year, had 
been waiting 15 months just to have oral argument scheduled for her 
client's appeal in a job discrimination suit. In the interim, her 
client died. According to the Cincinnati Post, delays like this have 
become ``commonplace'' because vacancies have left the court ``at half-
strength and have created a serious backlog of cases.''
  Mary Jane Trapp, president of the Ohio Bar Association, said 
``Colleagues of mine who do a lot of Federal work are continuing to 
complain (about the delays). When you don't have judges appointed to 
hear cases, you really are back to the adage of `justice delayed is 
justice denied.' ''
  The purpose of my discussion is not to point fingers or to lay blame. 
My friend, the chairman--and he is my friend--knows how warmly I feel 
about the way he handled the district court vacancies in my State. I 
have repeatedly said how much I appreciate his actions in this regard, 
and I will continue to do so.
  The point of my discussion is simply to underscore the problem facing 
my constituents in Kentucky and the citizens in the other States in the 
Sixth Circuit. I also feel compelled to discuss this problem because I 
don't see any indication of progress.
  The President has nominated outstanding individuals to fill seven of 
the eight vacancies on the Sixth Circuit. And I am hopeful that he will 
soon fill that last vacancy. Yet, unfortunately, no hearings have been 
scheduled--not a single one--for any of these seven nominees, even 
though two of those nominees--Jeffrey Sutton and Deborah Cook, both 
from Ohio--have been before the Senate for almost a full year, and have 
not even had a hearing.
  We are talking about a substantial amount of time:
  John Rogers, from the Commonwealth of Kentucky, has been waiting for 
119 days.
  Henry Saad, Susan Neilson, and David McKeage from Michigan have now 
been waiting 160 days.
  Julia Gibbons from Tennessee has been waiting for 190 days. And both 
Jeffrey Sutton and Deborah Cook from Ohio have now been waiting 343 
days.

  We are talking about well-qualified nominees. For example, Jeffrey 
Sutton graduated first in his law school class, has served as solicitor 
for the State of Ohio, and has argued over 20 cases before the U.S. and 
State Supreme Courts. Deborah Cook has been a well-respected justice on 
the Ohio Supreme Court for 8 years.
  But the nominee, obviously, I know best--in fact, the only one I 
really know--is Professor John Rogers from my own State of Kentucky. He 
has taught law for almost a quarter of a century at the University of 
Kentucky College of Law. He has twice served in the Appellate Division 
of the Department of Justice, once as a visiting professor.
  He has served his country as a lieutenant colonel in the U.S. Army 
Reserves. He was elected to Phi Beta Kappa at Stanford University 
during his junior year. He graduated magna cum laude from the law 
school at the University of Michigan, where he was elected to the Order 
of the Coif. He is clearly an outstanding selection by the President of 
the United States.
  The Sixth Circuit is in dire need of the services of the fine lawyers 
such as Professor Rogers whom President Bush has nominated. I hope the 
Senate can make some reasonable progress on accommodating the court's 
urgent needs because it is important to remember when you have a 
circuit that is 50 percent vacant, this has a direct impact on 
litigants. Justice is being delayed and, therefore, denied in the Sixth 
Circuit. That has a direct bearing on the people who live in Michigan, 
in Ohio, in Kentucky, and in Tennessee.
  It is still not too late for us to address this problem. I hope we 
will do it in the coming months because we genuinely have a crisis in 
the courts, and, particularly, we have a crisis in the Sixth Circuit.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Carnahan). The Senator from Wisconsin.

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