The Hold Up – Transcript

May 3, 2016

It’s an election year — which is already pretty rough going — and then in February, Justice Antonin Scalia died. And in a split second, there was a rare opening on the US Supreme Court. More like a black hole. Senate Republicans immediately declared that they would not hold hearings or vote on anyone President Obama nominated to fill the vacancy. That it’s up to whoever is elected President in November to fill the seat on the Highest Court.  

It’s not an isolated incident… it’s actually happening all over the US and there are dozens of unfilled seats in federal courts across the country. Ashley Cleek reports.

Keith Watkins says he never wanted to be a federal judge. For almost three decades he was a country lawyer, in a small town in Alabama. He did family law, some criminal cases, some cases involving farmers. He chose not to run to be a state judge, cause he didn’t like the politics of elections — instead, he just practiced law and played some golf and spent weekends on a lake, fishing.

Then one morning, when he arrived at his office, there was a note from his secretary – a missed call from Senator Richard Shelby.

Watkins needed to talk to him anyway – one of his friends had his eye on an open federal judgeship  and he was supposed to put in a good word.

WATKINS: So I called him and he answered. I said, “I was going to call you.” He said, “Oh, what about?”

It’s obvious that this is a story that Watkins tells a lot…

WATKINS: I said, “That opening in the Middle District.”

In fact, Senator Shelby said, that’s what he was calling about, too – he wanted to nominate Watkins for that spot on the federal district court.

WATKINS: There’s the phone message..

Watkins pulls a worn piece of paper out of his wallet. It’s been folded so many times — the blue ink is smudged and faded  – you can only barely make out the time and date — 8:30 am, April 22nd 2005.

WATKINS: I keep it in my wallet. That was the first I had an inkling ever of being any kind of a judge. Much less a federal district judge.

Within eight months, Watkins was nominated, confirmed, and installed as a judge on the U.S. District Court for the Middle District of Alabama in Montgomery.  

Now it’s ten years later and we’re sitting in his office at the courthouse. Watkins is 64. He has trim, white hair and a face that slips easily from generous to skeptical. Art books on the coffee table hint that Watkins has other interests — even a life — outside his courtroom.

On the opposite wall, behind his desk, his judge’s robe hangs in a black dry cleaning bag

A lot has changed in the decade since Watkins was appointed.

WATKINS: When I came to this hall, there were six district judges on this hall.

So, there was Watkins and two other district judges — plus there were three older judges who had taken senior status — so they still heard some cases, just not as many.

WATKINS: As I speak right now, there is only one.

Meaning — only him. In 2011, Watkins became Chief Judge. Two years later, another judge took senior status. Then, in 2015, the other judge suddenly resigned. Which left Watkins as the sole District Judge on the bench.

WATKINS: I am the only judge, and I am the chief judge, and we have to serve 7 years, but I am going to have to serve longer, mostly likely.

Watkins says he refuses to live his life by the numbers. Cause, frankly, the numbers are pretty depressing. He is responsible for about 500 cases a year — about 200 more than he used to have. He has two senior judges who help him, but currently one is recovering from surgery and the other says he is soon retiring — after more than three decades on the bench.

Watkins and his law clerks are in a bind. They work round the clock — on lunch breaks, on New Year’s Eve, but the cases keep coming. Plus, Watkins explains, he’s a public servant, so he also has to go to dinners and make speeches, and talk with members of the press — like me.

WATKINS: I feel like I need to do those things cause the court has to appear normal to the outside world, even though things are really abnormal inside, it’s my job to keep a sense of normalcy and not to draw attention to the court.

Our interview hits the 30 minute mark and Watkins’ assistant Pat Newkirk knocks on the door…

WATKINS:Come in…What?

NEWKIRK: In five minutes, you need to be in court.

WATKINS: Ok, call down there and tell Anne I am going to be late.

NEWKIRK: You want to meet with probation beforehand, right?

WATKINS: My robes up here…don’t let me forget it…

NEWKIRK: I’ll take it down — How much longer?

WATKINS: Thirty minutes —

NEWKIRK: Really?

And the fact that Watkins is the only judge in this district, when there should be three judges — combined with a high number of cases and the fact that there has been a vacancy for more than two years — means that Watkins’ district is now considered a federal judicial emergency. Which is all to say: too many cases, not enough judges.

Watkins needs help now. Which is why he spent the morning drawing up a list of federal judges – in Washington and Iowa and New York – who he can call and ask for help….

WATKINS: I have to stop for 5 days and call 30 judges and have long conversations with them, explain who I am and why I am calling. Some I know, some I don’t. And make a sales pitch…

The pitch is simple — take a few Alabama cases — not too many, not forever. Just for a little while. Watkins always promises to give visiting judges good, meaty cases that are interesting and complex. He just needs a pinch hitter, a judicial foster parent. And it’s not that unusual for judges to moonlight in other courtrooms. But, it’s still tough for Watkins to admit he can’t handle the growing caseload and reach out for help.

WATKINS: And I am going to get it. So the work is going to get done.

Watkins is by no means alone. There are currently 28 judicial emergencies all across the country

BANNON: I started looking into federal judicial vacancies because I felt there really wasn’t a lot of attention to how these vacancies were impacting the courts…

This is Alicia Bannon. She’s Senior Counsel in the Democracy Program at the Brennan Center for Justice at NYU. She’s written papers about the judicial emergencies and follows what’s happening in the federal courts.

All these vacancies and emergencies — they didn’t  happen overnight.

BANNON: So, the way that historically the confirmation process has worked has been through a collegial process. The senate is a body that has a lot of rules

So many rules. The process of becoming a federal judge is incredibly formal — after all, it’s written in the Constitution. It happens slightly differently in each state, but the general steps are: the President comes up with a list of nominees and consults the two Senators from that state. Then, the nominees are referred to the Senate Judiciary Committee, and the committee checks with the Senators — did they ok this? Once the committee gets their approval — they hold a hearing and vote and pass their recommendation on to the full Senate. Then the Senate debates and votes to confirm by simple majority.

It’s a process with a lot of gears and moving parts — and it’s easy for them to get rusted by politics.

Back in the 1980’s under President Ronald Reagan, it took just three months for judges to be nominated, voted on, and confirmed. But over the years, that time and the number of vacancies has increased.

BANNON: If you look at how long it’s taken judgeships to get filled the numbers keep creeping up, The median time to fill a trial court vacancy used to be three months under the Clinton years. Then it was 5 months under the Bush years. Now it’s more than 7 months in the Obama years. And that’s just the median.

At this point, some judgeships have been vacant for two or three years. One in North Carolina has been empty for more than a decade.

In 2000, which was President Bill Clinton’s final year in office, there were 80 vacancies21 of which were judicial emergencies.  In Bush’s final term, in 2008, there were 46 vacancies and only 17 emergencies. Currently, at the end of Obama’s administration, there are 84 vacancies —  28 of which are emergencies.

Bannon says that some of the current slowdown is because back in 2008, there were a ton of vacancies and President Obama was initially slow to nominate judges. But now, Bannon says, the number of vacancies — and the amount of time it takes to fill them — has become increasingly political.

Since January 2015, when the current Congress convened – of the 63 nominations to the federal courts, the Senate has confirmed just 17 judges, a lower rate than both the Bush and Clinton administrations.

BANNON:The starkest and most troubling is this consistent pattern of Senate obstruction. Because we have not seen substantive criticism of the nominees and ultimately the nominees get confirmed but after a very lengthy laborious process that leaves the courts understaffed and incapable of doing their jobs.

In 2014, Bannon spoke to judges and lawyers around the country about judicial vacancies. Judges complained to her that cases were being delayed — by months or even years. Some judges worried about burnout. Others said that high caseloads meant they weren’t able to spend enough time on individual cases.

BANNON: To me on a personal level those stories were maybe the most troubling, because it suggested that the quality of justice was being impacted by the vacancies. So not only are cases taking a longer time, but we might not be getting  the same attention from judges that we should expect and deserve to get.

So, I started calling around too….


RECEPTIONIST: Judge Clark’s chambers. Yes ma’am, hang on, just one second…

Judge Ron Clark is chief judge of the U.S. District Court for the Eastern District of Texas. His district is supposed to have eight judges, but currently there are only five judges and three empty seats. It’s another judicial emergency.

Yet Judge Clark says that even with fewer judges, they are disposing of more cases a year — about 100 more than they did 15 years ago. How?

CLARK: Well, if you try to call one of us on a Saturday, you might as well just call the chambers. If you are looking around the parking lot at night, you’ll probably see the district judge’s car there. It just takes a lot more work.

The federal judges in East Texas have been working at a state of emergency for a while.

DAVIS: If you are working longer hours than is healthy, whether you are a journalist or a judge, again it’s going to affect the quality of what you are doing. It’s going to affect your personal life.

That’s Judge Leonard Davis. He was a judge in the Eastern District of Texas from 2002 to 2015. Davis says, during his tenure, there were vacancies and backlogs and the judges in his district were under pressure to get through more cases quickly.

DAVIS: It’s going to affect the kind of job you do. A judge needs to be not exhausted and not stressed out. Not feeling under pressure all of the time. He needs to be able to be deliberate and thoughtful in his decision making process and not hurried or scattered or panicked.

Today, the federal judges in East Texas have a caseload that is two to three times what the Administrative Office of Courts considers ‘a full load.’

The vacancies on federal courts put sitting judges in a frustrating position. Davis says when he was chief judge of the Eastern District of Texas, he would travel to Washington regularly to talk to White House staff and his Senators about the district and the growing strain on the judges.

DAVIS: All a chief judge can do — we don’t have lobbyist, we don’t contribute to political campaigns, we don’t have political clout to you know make things happen. All we can do is make our needs known and hope the other branches of government will take care of the judiciary and I think they do. But I think they are very slow in doing it a lot of the time.

I called around to lawyers in Alabama and Texas too — to see how the vacancies were affecting their work. Some said they hadn’t noticed delays. Or they didn’t think the delays were due to the vacancies, but just a hallmark of the U.S. Justice system.

Henry Penick mostly does civil law — class action lawsuits, employment discrimination, and insurance cases. I met up with him at his office in Birmingham. He says this slowdown is real and painful.

PENICK: Justice delayed is justice denied because the  first rule of federal rule of civil procedure — and those are the rules that gets the case in and out of court — is to get the case to the court as swiftly, as economically, and as justly as possible.

But, Penick says, that’s not happening right now.

Penick says the courts in Alabama used to have a reputation as no-nonsense, hyper efficient. Once, he says, he argued a case when he had laryngitis because the judge wouldn’t grant him extra time.

Now, Penick says, delays stretch out and cases take two to three times longer than they used to.

PENICK: I had one case — it was against one of the major telecom companies…

Penick was representing a woman who claimed she was unjustly fired. And, as is pretty standard in civil cases, the other side filed a motion to dismiss the suit  — it’s called a ‘motion for summary judgement’ — basically telling the judge, ‘look there is no case here.’ Penick filed a response to the motion and sent it to the judge.

If the judge agreed with the motion for summary judgement, the case would be over. But if the judge dismissed the motion, then Penick and the other lawyer would start preparing for trial. This is all normal. But normally, Penick says, the waiting period is three to four months.

The four month mark passed. Penick’s client got anxious.

PENICK: She’s calling: “Have you heard from the judge?” “No, I haven’t.” Call back again, “Have you heard from the judge?” “No, I haven’t.” The thing about federal judges is — there’s this old saying, there’s god, there’s angels, and then there’s federal judges, so nobody can tell them when to rule.

After a year, the judge finally responded. And the case moved forward.

PENICK: Here’s the conundrum — if a judge is overworked or overloaded with cases — either one of two things is going to happen. Either that judge is going to get bogged down and the case is going to get delayed and people houses are at stake, cars are at stake, lives are at stake. Or the judge will hastily dispose of the cases. Why? Cause the judge is overworked and understaffed. It’s a lose-lose situation.

Penick says when he looks at the vacancies on his local court and this current fight over filling the seat on the US Supreme Court, he thinks the senators in power just don’t get how these delays affect people in their states.

PENICK: The people who are in charge of approving the nominations and seeing that these nominations go through the process without unusual or inordinate delay, for the most part they probably have not felt the sting of injustice that occurs when litigants cannot get their case through court in a swift and just fashion. If they had felt that sting they would be more motivated to approve the candidates that are still out there on the vine waiting to be approved to fill federal vacancies

Back in his office at the U.S. District Court in Montgomery, Judge Watkins says there’s still no movement to fill the two empty seats on his court. There are no nominations — much less a Senate vote.

WATKINS: It’s not cooking, obviously. The pan is cold. So, we are just taking our shoes off and waiting.

Watkins knows his Senators — he’s on a first name basis with both of them. Senator Shelby, who asked Watkins to be a judge back in 2005, is still Alabama’s Senator. And there’s Senator Jeff Sessions, who sits on the Senate’s Judiciary Committee. When Watkins goes to D.C., he’ll check in with both of them.

WATKINS: And if they ask me a question, I am going to answer it. But I am not going to whine. I can’t be involved in the politics of it, and I certainly can’t go up to a senator and fuss with him about my situation, nobody wants to hear a whiner. We have our big boy britches on, we have to do the job. I have done a lot of whining to you, but I am not going to whine to the senators.

Instead, what Watkins has done is steal time from his personal life. He says his wife and grandkids get priority, but that he missed Christmas with his brother last year because of work. Now he just doesn’t do much outside the courthouse. The day before, he says, he was glad because he’d been able to spend an hour planting collards and sweet potatoes.

WATKINS: I have a garden and I have a barn and I piddle.

He no longer plays golf or goes fishing. In fact, he is selling his boat this very afternoon. Watkins didn’t think this is what his life would look like at  64.

WATKINS: I didn’t plan to be working this hard at this age, but you can’t plan some things. It’s a very rewarding job…despite the other.

This is where our conversation stops.

WATKINS: I need to grab two files and go downstairs.

Cause he’s already given me an hour of his time — and who knows how he will make that up.

For Life of the Law, I’m Ashley Cleek.

This episode of Life of the Law was reported by Ashley Cleek and edited by Annie Avilés with sound design and production by Jonathan Hirsch. We had production assistance from Alyssa Bernstein, and Kirsten Jusewicz-Haidle. Rob Speight was our engineer.  Music by Blue Dot Sessions. Special thanks to the many federal judges who took time out of their very busy schedules to talk to us.

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I’m Nancy Mullane. Thanks for listening.