LIT COMMENTARY

Hittner may claim to ‘maintain a full docket’ but 5 years later, his templated style of discrimination from the bench is hardly providing access to justice for those before him in his courtroom. He doesn’t write opinions, he dictates with “one liner” judgments. The rule of 80 should be the judges must resign, this open tenure is quite literally, “for the birds”.

Judgeship vacancies translate into delays

Originally Published: June 27, 2015 | Republished by LIT; April 7, 2020

A two-decade brewing problem of growing federal court caseloads amid unresolved judicial vacancies has created backlogs in federal courts in South Texas, among the slowest of the nation’s district courts.

The Southern District of Texas, which stretches from just north of Houston down the Gulf Coast to Mexico and west to Laredo, is one of the nation’s busiest federal dockets. About 8 percent of the federal civil cases in South Texas are unresolved more than three years after filing, which ranks in the slowest third of the nation’s 94 district courts. While that rate is on par with the national average, which is skewed by work-heavy districts like in southern Texas, that means those same dockets are increasingly congested by older cases.

‘Judicial emergencies’

As of mid-June, there were 59 district judgeship vacancies nationwide, largely because the senators of those states have been unable to reach a name together. Fifteen openings have pending federal nominees named.

“Chairs of the Senate Judiciary Committee, both Republicans and Democrats, have had a long-standing practice of respecting the wishes of the home-state senators of judicial nominees. Respect is shown by receiving from both senators a ‘blue slip’ – a blue piece of paper – handed back to the chair of Judiciary. … Unless the chair of the Judiciary Committee receives that blue slip from both of the two senators, the chair usually refrains from holding the hearing and moving forward with the nomination,” said Bruce Moyer, government relations counsel to the Federal Bar Association.

The Southern District of Texas has 19 active district judges, and Sens. John Cornyn and Ted Cruz plan for three vacancies to be filled this year.

Nine judges have taken what is called “senior status.” Of those, four are in Houston: Nancy Atlas, David Hittner, Kenneth Hoyt and Ewing Werlein.

The other five are assigned to other south Texas federal courthouses: Hayden Head, Janis Graham Jack, George Kazen, John Rainey and Hilda Tagle.

Still, South Texas currently has two district court vacancies: One created when Gregg Costa was elevated to the 5th Circuit Court of Appeals in 2014 and another that opened after Jack went on senior status more than four years ago on June 1, 2011 – the second-longest of 27 federal vacancies nationwide that have been deemed “judicial emergencies.”

This year, Alfred Bennett, George Hanks and Jose Rolando Olvera Jr. were confirmed to fill vacancies created by judges who took senior status.

Bennett, a former Texas judge, took Hoyt’s active slot and was confirmed in April. Bennett’s was the first judicial nomination to clear the U.S. Senate since Republicans took over in January. The delays mounted under Democratic control as well, even after Senate rules were changed to ease confirmation of presidential nominations to the lower courts and executive offices.

Median time to trial

Hanks was elevated from a U.S. magistrate judge position in Houston after Atlas assumed senior status. He was confirmed in April, has taken over as the full-time district judge in the Galveston division and reports to work at the island’s federal courthouse.

Olvera, who had been the presiding judge of the 5th Administrative Judicial Region of Texas, was confirmed in May and assumed Tagle’s position.

Senior status judges who are willing to take full dockets help deal with the backlog. With three new jurists in the mix and senior judges still on the job, the dent in the caseloads remains to be seen.

U.S. statistics show that both criminal and civil cases are quicker to complete – from filing to disposition – than the majority of districts.

The average criminal felony case takes five months to wind through the system compared to seven months and two weeks nationwide.

The average South Texas civil case resolves in seven months versus eight months and two weeks nationwide.

South Texas judges are handling heavier criminal felony caseloads than most of their other colleagues nationwide. At the end of 2014, each was assigned roughly 330 criminal felony cases, compared to the national average of 100, which ranked South Texas in the Top 5 districts for the most criminal felony cases.

While overall filings nationwide have changed little in the last half-decade, cases overall in South Texas have declined from 18,788 at the end of 2010 to 14,222 in 2014. And with fewer cases wrapping up, the number of pending cases has hovered consistently around 12,000 since 2010.

Another statistic shows that cases in Houston take fewer months to reach a jury.

Criminal cases can fluctuate, depending on prosecutorial priorities of the U.S. Attorney’s Office and the number of complex cases, such as the recent Riverside Hospital Medicare fraud trials in which defendants have been sentenced in recent weeks – four years after the initial indictments.

Civil cases can spike following natural disasters, such as hurricanes and hail storms, as people challenge their insurance companies in the federal courts.

‘Rule of 80’

It’s not unusual for federal judges who take senior status to make requests about the kinds of cases they handle. Some don’t want the emotional drain of criminal cases. Atlas, for instance, has asked for more patent controversies.

Once a district judge turns 65, she or he can assume senior status when they achieve the “rule of 80:” age plus years of service.

“I could fully retire and still get full salary,” said Hittner, who turns 76 in July, but has maintained a full civil and criminal caseload since assuming senior status a decade ago. “When I took senior status, in effect, it created another judgeship. But since I kept a full caseload, the district gets another judge and the other judges don’t have to divvy up my docket.”

The U.S. Constitution gives so-called Article 3 judges lifetime appointments and pay – regardless of whether they stay on the job.

“All I want to do is try lawsuits,” Hittner said, adding that he’s intellectually stimulated by the interesting cases, astute lawyers and working with law clerks. “It’s very challenging. It’s always something different. I haven’t tired of it. … As long as I can keep doing it, I’ll keep doing it.”

The Federal Bar Association, a membership group of more than 17,000 lawyers who practice in federal court, continues to lobby Congress to create new federal judgeships. The organization championed a bill in 2013 that, if passed, would have added 65 permanent district court judgeships and two dozen temporary ones.

“In criminal cases, the courts have an obligation under the ‘speedy trial act’ to bring a defendant to justice rapidly,” said Moyer. “In the case of civil trials … delays have come about in courts with high caseloads when they have run into vacancies on those same courts that have slowed the speed of civil trials and judgments. For litigants, delays translate into costs.”

“Because no reason or justification for the sentence imposed [by HITTNER], beyond the naked power to impose it…I dissent from the affirmance of a sentence that must be presumed to be UNCONSITUTIONAL and VINDICTIVE.”

U.S. v. Vontsteen, 950 F.2d 1086, 1095 (5th Cir. 1992) pic.twitter.com/2e7IvgJMJR

— LawsInTexas (@lawsintexasusa) April 7, 2020

“The manner in which this hearing was handled convinces us that either (i) Judge Hittner tacitly appointed Klockner’s counsel as prosecutor or (ii) Judge Hittner himself acted as prosecutor. Either constitutes reversible error.”
In re Davidson, 908 F.2d 1249 (5th Cir. 1990) pic.twitter.com/IkUgZeAkPA

— LawsInTexas (@lawsintexasusa) April 7, 2020