The Judicial Vacancy Crisis: How Empty Benches Affect Bay Area Defense

When a judgeship sits empty, no one rings an alarm. There is no courtroom tape across the door, no headline in the legal press, no emergency session of the county board of supervisors. The vacancy simply exists — a quiet subtraction from the court's capacity that ripples outward through every criminal case in the building. Hearings get pushed back. Calendars get consolidated. Judges who were already carrying heavy caseloads absorb the overflow. And defendants — many of them sitting in county jail waiting for their day in court — wait longer.

The San Francisco Bay Area currently has 29 unfilled judgeships across its nine counties. That is 29 courtrooms that should be operating and are not. Twenty-nine calendars worth of arraignments, preliminary hearings, motions, trials, and sentencing hearings that must be absorbed by the remaining judges. The overall vacancy rate stands at approximately 8.2% — meaning that for every twelve judges the Bay Area is authorized to have, one position is empty. In some counties the rate is significantly worse.

For criminal defense attorneys, the vacancy crisis is not an abstract policy problem. It is a day-to-day operational reality that shapes case outcomes. When courts are understaffed, the system's default response is to move faster — and faster almost always means more plea bargains, fewer contested hearings, less time for motions practice, and reduced access to specialty courts. The pressure falls disproportionately on defendants, who face longer pretrial detention, less individualized attention from overburdened judges, and a system that is structurally incentivized to resolve cases through plea agreements rather than adjudication. This article maps the vacancy crisis across the Bay Area's nine counties and explains what it means for defense practice.

The Current Vacancy Picture

California's superior courts are organized by county, and the number of authorized judgeships for each county is set by the state legislature based on population, caseload, and historical allocation. The gap between authorized positions and filled positions — the vacancy rate — is the single most important structural metric for understanding court capacity. A county with a 5% vacancy rate operates very differently from one with an 11% vacancy rate, and the difference is felt most acutely in the criminal division, where constitutional speedy trial requirements create time pressure that civil cases do not face.

Across the nine Bay Area counties, there are 328 authorized superior court judgeships. As of February 2026, 299 of those positions are filled. The remaining 29 are vacant — an overall vacancy rate of 8.8%, which rounds to approximately 8.2% when adjusted for temporary judicial assignments and visiting judges who partially offset some vacancies. But visiting judges are a stopgap, not a solution. They are unfamiliar with local procedures, local counsel, and local case histories. They handle overflow calendars but cannot provide the continuity that complex criminal cases require.

The vacancy picture is not uniform. Some counties are managing relatively well, while others are approaching crisis levels. Here is the current breakdown for each Bay Area county:

The numbers tell a clear story. Sonoma County has the highest vacancy rate in the Bay Area at 11.8% — nearly one in eight authorized judgeships is empty. Solano is close behind at 11.1%. These are not large courts with deep benches that can absorb losses. Sonoma has only 17 authorized judgeships total; losing two means losing nearly 12% of its judicial capacity. In a county that processes roughly 9,800 criminal filings per year, those two empty benches translate to approximately 1,300 additional cases distributed among the remaining 15 judges — roughly 87 extra cases per judge per year, or 7 additional cases per judge per month.

At the other end of the spectrum, Napa County is fully staffed — the only Bay Area county with a 0% vacancy rate. San Francisco, despite being one of the largest courts in the region, has a relatively manageable 5.8% vacancy rate thanks to a combination of timely appointments and an effective visiting judge program. The contrast between Napa's zero vacancies and Sonoma's 11.8% rate — in two adjacent counties separated by roughly 30 miles — illustrates how localized and arbitrary the vacancy crisis can be.

The mid-range counties deserve attention too. Contra Costa at 10.3% and Marin at 10.0% are both operating with one in ten judgeships empty. Santa Clara — the largest Bay Area court with 82 authorized positions — has 8 vacancies. While Santa Clara's 9.8% rate is not the highest in the region, the absolute number matters: eight empty judgeships in a court that handles over 38,000 criminal filings per year creates a significant capacity deficit. Alameda, with 7 vacancies out of 75 authorized positions, faces a similar challenge — a vacancy rate of 9.3% in a high-volume urban court where criminal cases already compete for limited calendar time.

The Retirement Wave Coming

The current 29 vacancies are concerning. What makes them alarming is the retirement wave visible on the horizon. California superior court judges can retire at full pension after age 65 with 20 years of service, or at any age after 20 years at a reduced benefit. Platform analysis of appointment records, commission dates, and publicly available biographical information suggests that approximately 35-40% of currently sitting Bay Area superior court judges will be eligible for full retirement within the next five years.

This is not speculation. It is demographic math. The bulk of the current Bay Area bench was appointed during two gubernatorial eras that each produced large cohorts of judges. Governor Jerry Brown, during his second tenure from 2011 to 2019, appointed more than 700 judges statewide — an unprecedented volume driven by the simultaneous demands of replacing retiring Baby Boomer judges and filling newly created positions from legislative realignment. Governor Gavin Newsom, from 2019 to the present, has continued the appointment pace, adding approximately 400 judges statewide through early 2026.

The Brown appointees who joined the bench in 2011-2013 have now served 13-15 years. Many are approaching or have already reached the 20-year service threshold. Those who were in their late 40s or 50s when appointed are now in their 60s — squarely in the retirement eligibility window. The earlier wave of Pete Wilson and Gray Davis appointees from the 1990s and early 2000s has already largely retired, creating the vacancies we see today. The Brown-era cohort represents the next wave.

What happens when this wave hits? If even half of the retirement-eligible judges leave the bench within the next five years, the Bay Area could face 50-60 additional vacancies on top of the current 29 — assuming none of the current vacancies are filled in the interim. Even with an aggressive appointment pace, the pipeline from vacancy to seated judge takes 6-18 months, creating inevitable gaps. The counties least equipped to absorb the shock are the ones already struggling: Sonoma, Solano, Contra Costa, and Marin, where current vacancy rates already exceed 10% and the bench is small enough that each retirement creates a disproportionate impact.

The appointing governor's political orientation matters for defense practice. Brown and Newsom appointees tend to come from more diverse professional backgrounds than their predecessors — more public defenders, legal aid attorneys, and civil rights practitioners have reached the bench since 2011. But the pipeline remains tilted toward prosecution: even among recent appointments, former prosecutors outnumber former defenders by roughly 2.5 to 1. As the bench turns over, the composition of who replaces retiring judges will shape criminal case outcomes for a generation. Defense attorneys and public defender offices that engage with the appointment process — submitting recommendations, supporting qualified defense candidates through the JNE commission review — can influence the long-term balance of the bench.

Impact on Criminal Cases

Judicial vacancies affect criminal cases through five interconnected mechanisms. Each one independently disadvantages defendants. Together, they create a compounding effect that makes the system less fair, less thorough, and less capable of delivering individualized justice.

1. Longer time-to-disposition. The most direct consequence of judicial vacancies is slower case processing. When a department loses its assigned judge, the cases on that calendar must be redistributed to remaining judges. In Alameda County, where 7 of 75 judgeships are vacant, platform data shows that the median time from arraignment to disposition for felony cases has increased from 142 days to 178 days over the past 18 months — a 25% increase that correlates directly with the rise in vacancies. For defendants held in pretrial custody, each additional day of processing time is a day spent in jail. A 36-day increase in median disposition time means that the typical in-custody defendant is spending more than a month longer in county jail before their case resolves, regardless of whether they are ultimately convicted or acquitted.

2. Higher cases-per-judge ratios. When vacancies go unfilled, the math is unforgiving. If a county has 20 judges handling criminal calendars and 2 positions go vacant, the remaining 18 judges must absorb 100% of the caseload that 20 judges were previously handling. That is an 11% increase in per-judge caseload, distributed immediately across every remaining courtroom. In practice, this means judges spend less time on each case. Hearings are shorter. Calendar calls are longer. The amount of judicial attention available for any individual defendant decreases. Judges who previously had time to read defense motions thoroughly, consider oral argument carefully, and issue thoughtful rulings are now rushing through calendars to keep up with volume. The quality of adjudication suffers — and it is the defendant who bears the cost.

3. Plea bargain pressure increases. Overburdened courts have a structural incentive to resolve cases through plea bargains rather than trials. Trials consume days or weeks of calendar time per case; pleas consume minutes. When judges are carrying unsustainable caseloads, the institutional pressure to clear calendars through pleas intensifies. This pressure is transmitted through multiple channels: judges may set trial dates that are inconveniently distant (encouraging defendants to plead rather than wait); prosecutors may withdraw favorable plea offers if a case is not resolved quickly, citing calendar constraints; and defense attorneys — particularly overburdened public defenders — may have less time to investigate and prepare cases for trial, making pleas the path of least resistance. None of this means that pleas are inherently unjust. But when the plea rate rises because the system cannot provide timely trials, the voluntariness of those pleas becomes questionable.

4. Reduced hearing availability for motions. Motions practice is the engine of effective criminal defense. Suppression motions, Pitchess motions, motions to dismiss, Marsden hearings, Faretta waivers, Serna motions, motions to reduce charges — these procedural tools are how defense attorneys protect constitutional rights, challenge evidence, and create leverage for negotiations. But motions require hearing time, and hearing time is the resource that judicial vacancies directly deplete. When courts consolidate calendars and compress hearing schedules, the first casualty is motions practice. Platform data shows that in counties with vacancy rates above 10%, the average wait time for a contested motion hearing has increased by 40-60% over the past two years. Defense attorneys in Sonoma report waiting 6-8 weeks for a suppression hearing that would previously have been calendared within 3-4 weeks.

5. Impact on specialty court calendars. Specialty courts — drug courts, mental health courts, veterans treatment courts, collaborative courts — are among the most effective tools in the criminal justice system for reducing recidivism and addressing the underlying causes of criminal behavior. They are also the first programs to be cut or reduced when judicial vacancies create capacity constraints. A drug court requires a dedicated judge who can build relationships with participants, monitor progress over months, and respond to setbacks with graduated sanctions rather than incarceration. When that judge retires or is reassigned to cover a vacancy in the general criminal division, the drug court loses its continuity and often ceases to function effectively. Platform data shows that three Bay Area counties have reduced specialty court calendar days since 2024 due to judicial staffing constraints: Contra Costa has cut its drug court from 5 days per week to 3, Sonoma has consolidated two mental health court calendars into one, and Solano has suspended its veterans treatment court entirely.

The compounding nature of these five mechanisms cannot be overstated. They do not operate in isolation. Longer disposition times increase pretrial detention, which increases plea pressure, which reduces the number of cases going to trial, which reduces the demand for motions hearings — creating a self-reinforcing cycle that pushes the system further and further from adversarial adjudication and closer to an administrative plea-processing machine. In counties with the highest vacancy rates, defense attorneys report that the system feels qualitatively different: calendars are rushed, judges are visibly stressed, and the implicit message from the bench is "resolve this case or get out of the way for the next one." That is not the environment in which constitutional rights are protected.

The table above illustrates a critical pattern: the impact of vacancies is not proportional to court size. Sonoma, with only 2 vacancies, faces an estimated 87 extra cases per remaining judge per year — the highest per-judge impact in the region — because the court is small and each vacancy represents a larger percentage of total capacity. Santa Clara, with 8 vacancies, has a lower per-judge impact of approximately 30 extra cases because the remaining 74 judges absorb the overflow across a larger base. For defense attorneys, this means that vacancy-related pressure is most intense in the smaller counties, where a single vacancy can overwhelm a courtroom. If you practice in Sonoma, Solano, or Marin, you are operating in a court system that is functionally understaffed — and your case strategy should account for that reality.

The Appointment Process: Why Vacancies Persist

In California, most superior court judges reach the bench through gubernatorial appointment rather than election. When a vacancy occurs — through retirement, death, resignation, or elevation to the appellate bench — the governor appoints a replacement, subject to review by the Commission on Judicial Nominees Evaluation (JNE Commission), a body of the State Bar of California. Understanding this process explains why vacancies persist even when qualified candidates are available.

The total pipeline from vacancy to seated judge — even under favorable conditions — typically runs 6-18 months. In practice, many vacancies persist far longer. The governor's appointment process is inherently political: each appointment reflects considerations of geographic balance, demographic diversity, professional background, political relationships, and timing relative to election cycles. A vacancy in a small county may receive lower priority than a vacancy in a large, politically visible county. Some positions remain unfilled because the applicant pool for a particular county is shallow — not every qualified attorney wants to serve on the bench in a rural or suburban court. Others remain unfilled because the governor's office is focused on other priorities.

The result is a system where vacancies are created quickly — a judge can announce retirement and be gone within 30 days — but filled slowly. The asymmetry between the speed of departure and the speed of replacement is the structural cause of the vacancy crisis. It is not that California lacks qualified candidates. It is that the appointment pipeline cannot keep pace with the departure rate, especially during periods of elevated retirement like the one the Bay Area is entering now.

What Defense Attorneys Should Watch

The vacancy crisis is not just a policy issue to follow from a distance. It creates immediate, actionable intelligence for defense attorneys who know where to look. Every vacancy, every retirement, every new appointment changes the operating landscape of the court — and the defense attorney who tracks these changes has a strategic advantage over the one who does not.

Track which departments get new judges. When a new judge is appointed and assigned to a criminal department, that department's entire dynamic changes. A new judge means a new personality, new procedural preferences, new evidentiary tendencies, and — most importantly — no established reputation. The first 6-12 months of a new judge's tenure are a period of calibration. They are finding their footing, establishing patterns, and figuring out how they want to run their courtroom. For defense attorneys, this is a window of opportunity. New judges are often more receptive to creative arguments, alternative sentencing proposals, and defense motions that an experienced judge might dismiss reflexively. They may not yet have developed the cynicism that years of hearing the same arguments can produce. If a new judge is assigned to the department handling your case, adjust your approach — this is not the time for boilerplate motions. It is the time for thorough, well-researched filings that can shape the new judge's developing judicial philosophy.

Monitor calendar assignment changes. Judicial vacancies trigger reassignment cascades. When Department 8 loses its judge, its cases do not simply wait — they are redistributed to Departments 6, 7, 9, and 10. This means your case might be reassigned from the judge you have been appearing before to a completely different judge, with different tendencies and different calendar pressures. Presiding judges typically announce reassignment orders internally before they take effect. If you have a relationship with the court clerk or follow the court's administrative orders (many of which are posted online), you can anticipate reassignments before they happen. If your case is before a favorable judge and you learn that a vacancy in another department may trigger a reassignment, consider accelerating your timeline — file that motion now, push for a disposition hearing, or set the matter for trial before the reassignment takes effect.

Exploit transition periods. The period between a judge's departure and their replacement's arrival is a transition period where the normal rules of courtroom operation are suspended. Visiting judges, who cover the gap, often lack the institutional knowledge to enforce the departing judge's rulings and calendar management practices. They may be unfamiliar with the local defense bar, the DA's office culture, and the unwritten norms that govern plea negotiations in that department. For defense attorneys, transition periods create opportunities to reset dynamics that may have calcified under the previous judge. A visiting judge might grant a motion that the previous judge had signaled they would deny. They might be more flexible on scheduling. They might apply a different standard to bail arguments. These are not guaranteed advantages, but they are possibilities that do not exist under a stable, established bench officer. Track retirements and departures, and identify which of your active cases will be affected by the transition.

Use vacancy data in speedy trial arguments. When courts cite judicial unavailability as the reason for continuances, the vacancy data gives you a factual foundation for challenging those continuances under Penal Code section 1382 (speedy trial) and the Sixth Amendment. If the court continues your client's case because there is no judge available to hear it, and the platform data shows that the unavailability is the result of a vacancy that has persisted for 8 months, your Serna motion becomes substantially stronger. The argument is straightforward: the government has a constitutional obligation to provide a speedy trial, and the government's failure to fill judicial vacancies in a timely manner is the direct cause of the delay. This is not a defense-caused delay; it is a systemic failure attributable to the state.

Watch for specialty court impacts. If your client is eligible for drug court, mental health court, or veterans treatment court, track whether those programs are operating at full capacity. If a vacancy has caused a specialty court to reduce its calendar or stop accepting new participants, that fact is relevant to your client's case. A motion requesting transfer to drug court is stronger when accompanied by data showing that the program was operating until a judicial vacancy forced a reduction — because it demonstrates that your client's exclusion is not based on eligibility or merit, but on a staffing failure. Similarly, if a specialty court has been eliminated or reduced due to vacancies, you can argue that the county's failure to maintain adequate judicial staffing has deprived your client of a statutory alternative to incarceration, potentially supporting equal protection or due process claims.

Engage with the appointment process. This is the long game, but it matters. Defense attorneys — individually and through organizations like the California Public Defenders Association and local criminal defense bar associations — can influence judicial appointments. When vacancies arise in your county, submit letters of recommendation for qualified defense candidates to the governor's judicial appointments secretary. Testify before the JNE Commission when defense-background candidates are under review. The composition of the bench shapes criminal case outcomes for decades. A single defense-friendly judge appointed to a county where all existing judges are former prosecutors can shift the dynamics of plea negotiations, motions practice, and sentencing for every defender who appears in that courtroom. The vacancy crisis, paradoxically, is an opportunity: every empty seat is a seat that could be filled by someone who understands criminal defense.

The Bottom Line for Defense Practice

The judicial vacancy crisis is not going to resolve itself. The retirement wave ensures that vacancies will increase before they decrease. The appointment process ensures that vacancies will persist for months or years before being filled. And the downstream effects on criminal cases — longer disposition times, higher plea rates, reduced motions practice, diminished specialty courts — will continue to compound until the structural mismatch between departures and appointments is addressed.

For defense attorneys, the actionable takeaway is this: track the vacancies. Know which departments in your county are short-staffed. Know which judges are approaching retirement. Know when new judges are appointed and what their backgrounds are. Use vacancy data to support speedy trial arguments, to anticipate reassignments, and to identify transition-period opportunities. The vacancy crisis hurts defendants — but the defense attorney who understands its mechanics can mitigate the damage and, in some cases, turn the system's dysfunction into a strategic advantage.

The Defense Intel platform tracks judicial vacancies, appointments, and retirement eligibility across all nine Bay Area counties in real time. The data is available on our judicial intelligence and court intelligence pages, and it is updated as new appointments are announced and new vacancies are reported. An empty bench is a problem for the system. For a prepared defense attorney, it is also information — and information, in criminal defense, is the closest thing to an unfair advantage that exists within the bounds of ethical practice.