WASHINGTON – U.S. District Judge Richard J. Arcara plans to move to senior status in January, creating a second opening on an unusually busy and delay-plagued federal court at a time when judicial appointments are expected to move through the Senate at a snail’s pace.
Arcara’s move to senior status, which he announced in a letter to President Obama earlier this month, creates the possibility that early next year, the only working district court judges in Buffalo will be older jurists who have opted to move to a status that allows them to enjoy a reduced caseload.
The trouble is, the federal court caseload in the Western District of New York is immense, with the judges collectively handling more criminal cases than their counterparts in the nation’s capital and Cleveland, and with delays for civil trials that are by far the worst in the country.
Arcara stressed in an interview that both he and William M. Skretny, the other federal judge moving to senior status next year, will continue to carry a full caseload if their replacements are not confirmed by the Senate in time. And he said his move, and Skretny’s, will ultimately ease the backlog in the local court, given that both he and his longtime colleague will continue hearing cases along with two new judges.
Still, Arcara expressed unease with the burden the local federal court faces.
“We have an incredibly large caseload,” Arcara said. “We are a very, very busy court for a medium-sized city.”
That’s for sure.
The local U.S. Attorney’s Office filed more criminal cases than its counterparts in places including Washington and Boston in the year ending March 31, 2013, part of a long-term trend that left the Western District of New York with more pending cases as of that date than federal courts in several major cities.
“The overall tenacity of our prosecutors” is one key reason for that big criminal caseload, said William J. Hochul Jr., the U.S. attorney for the Western District.
Citing his office’s aggressive prosecution of gangs in Buffalo and corruption in Niagara County, Hochul said: “I’ve been the beneficiary of a very good office.”
Other factors increasing the workload of the local court include Buffalo’s proximity to the border and a rash of civil cases stemming from the region’s long-term financial struggles.
“We get a lot of immigration and cross-border cases,” said Laurie Styka Bloom, president of the Bar Association of Erie County. “And we have one of the highest bankruptcy rates in the country,” which can sometimes lead to civil action in federal court, Bloom added.
Despite the heavy caseload, criminal cases in the Western District proceed comparatively briskly because they have to. The 1974 Speedy Trial Act sets specific time limits for actions in federal court, forcing criminal cases to move along and take top priority.
There’s no such impetus to action on the civil side, meaning that many children proceed from birth to kindergarten faster than civil cases go from filing to verdict at trials in federal court in Western New York.
The median time interval from filing to resolution in civil trials in the district was more than 5ø years in the year ending March 31, 2013. That’s nearly two years longer than at the second-slowest federal court for civil trials, in the nation’s capital.
“We don’t neglect the Seventh Amendment, the right to a civil trial,” Skretny, the district’s chief judge, said in a Brennan Center for Justice analysis of judicial vacancies that was released this week. “But we tell people, if this is what you want to do, it will take time to get there.”
Of course, the vast majority of civil cases are resolved before trial, and Skretny has worked to speed up the early phases of the civil case process by mandating mediation at the start of each case in hopes of resolving things then and there, Bloom, the bar association president, said.
For that reason, for cases that are resolved before pretrial, the Western District of New York actually operates more quickly than many of its counterparts nationwide.
But long delays are common for civil cases that are not resolved until or after pretrial. For those cases, the median time between filing and resolution was nearly three years – longer than every federal court in the country except for the court in Washington, D.C.
Arcara cited the heavy caseload in explaining why, after 26 years on the bench, he decided to move to senior status.
“I just felt the time is right to do this now,” said Arcara, 74.
His move to senior status, and Skretny’s, will ultimately bring two new judges to the federal bench in Buffalo. And given that both Arcara and Skretny plan on maintaining a significant caseload once they move to senior status and that Judge John T. Curtin still does some court work although he’s been in senior status for years, the appointment of two new judges will significantly ease the burdensome caseload.
“This will help the district a lot,” Arcara said.
Then again, that help is contingent on the consent of the U.S. Senate, which must confirm all federal judicial nominees.
Sen. Charles E. Schumer, New York’s senior senator, has recommended that President Obama nominate Denise O’Donnell, a former U.S. attorney, to replace Skretny. But a tight Senate schedule means it is possible that neither she nor the yet-to-be-selected replacement for Arcara will be confirmed by Arcara’s planned move to senior status Jan. 3 of next year. Skretny, meanwhile, plans to move to senior status in March.
Many judicial nominations now take six to nine months to move through the White House vetting process and then through the Senate, although O’Donnell’s could move more quickly only because Schumer, the third-ranking Senate Democrat and a key player on the Judiciary Committee, has the power to make it move.
Schumer is also expected to recommend Arcara’s replacement, who, sources said, is far less likely than O’Donnell to be in place by the new year.
Then again, if the confirmation of both of Buffalo’s new judges gets pushed into 2015, all bets are off. That’s because Republicans stand a strong chance of regaining control of the Senate in the November election.
If they do, “who knows what will happen to the appointments process,” said Carl Tobias, a law professor at the University of Richmond who keeps close track of the federal judicial system and who alerted The Buffalo News to Arcara’s coming move to senior status.
A new Republican majority may feel it has reason to take revenge on Obama’s judicial nominees.
After all, Democratic Majority Leader Harry Reid last November triggered what’s known in the Senate as the “nuclear option.” Frustrated that Republicans were repeatedly stalling the nominations process, Reed forced through a rules change that said the Senate will approve judicial and executive branch nominees with a simple majority vote, rather than the supermajority of 60 that was previously required.
The move effectively shut Republicans out of the confirmation process, and GOP Minority Leader Mitch McConnell warned at the time there would be consequences for the Democrats.
“You will regret this and you may regret it a lot sooner than you think,” McConnell, of Kentucky, said at the time.
If the Senate stalls on confirming Western New York’s two new federal judges, Arcara and Skretny plan on keeping their usual pace of work to make sure the backlogs and delays don’t get any worse.
“We have a commitment to the court,” Arcara said. “We have been federal judges a long time. There’s no way I’d ever want to do anything that would leave the court not fully staffed.”
A former U.S. attorney in the 17-county Western District, which has courthouses and judges in Buffalo and Rochester, Arcara rose to the bench after President Ronald Reagan nominated him to the court in 1988.
He has presided over several prominent cases since then, including the trial that ended in the 2003 conviction of James C. Kopp for the murder of Dr. Barnett Slepian, an Amherst doctor who performed abortions, as well as the 2005 trial of Robert Rhodes, a Customs and Border Protection agent charged with beating a Chinese national in Niagara Falls.
And even though he plans to move on to senior status, Arcara said he intends to reduce his workload only slightly.
“I love what I do,” he said. “I can’t imagine not being a judge.”