Considering comprehensive federal judgeships legislation

Congress last enacted comprehensive judgeships legislation in 1990, and federal civil and criminal appellate and district caseloads have grown significantly since then. Because the bill would permit the federal judiciary to promptly, economically, and fairly decide the increasing cases, Congress should seriously consider the legislation. 
 
Congress has authorized 179 appellate and 678 district court judgeships for the federal system. However, lawmakers have adopted no thorough judgeships bill since President George H. W. Bush signed comprehensive legislation on judgeships in 1990.
 
Since then, the number and complexity of federal civil and criminal filings have substantially increased. Appeals have grown by 40 percent and district court matters have expanded by nearly that many. These dramatic rises have eroded the federal courts’ ability to resolve cases expeditiously, inexpensively, and fairly.
 

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Escalating cases have imposed great pressure on courts --  particularly judges, but also clerks and court staff.    Burgeoning dockets have also complicated the efforts of counsel and litigants, who compete for scarce judicial resources and can wait years for case disposition.  Complex and expanding criminal prosecutions mean that certain jurists conduct no civil trials.   Thus, many parties wait interminably for civil trials and numerous districts experience huge civil backlogs.  Growing appeals and numbers of judicial vacancies have even required the U.S. Courts of Appeals for the Sixth and Ninth Circuits to postpone oral arguments.
 
In March, these considerations led the U.S. Judicial Conference to recommend that Congress authorize 70 new judgeships. The federal courts’ policymaking arm bases these proposals on conservative projections of judicial case and work loads.
 
On July 30, Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee Chair, and Senator Chris Coons (D-Del.), the subcommittee chair, introduced Senate Bill 1385. The legislation would authorize the creation of five more appellate judgeships and 65 additional district court judgeships.
 
The judgeships are spread throughout the nation, but many will be in the West. For example, the bill authorizes four more judgeships for the Ninth Circuit, six for the District of Arizona, five for the Northern District of California, six for the Eastern District, and ten for the Central District.
 
At the hearing, Judiciary Committee members will likely evaluate the general necessity for new judgeships and the need for them in specific appellate and district courts. The Conference premises recommendations on conservative work and case load estimates, but fluctuations over time complicate accurate predictions.
 
For instance, a presidential administration’s evolving perspective on policy in a field, such as antitrust or immigration law, or on priorities for federal prosecutions in areas, such as drugs, can substantially affect caseloads.
 
Numerous senators may also think that the approval of more judgeships might not be required by case or work loads or warranted by the cost. One new judgeship costs approximately a million dollars. However, this is comparatively inexpensive when contrasted to other federal expenditures. Moreover, the sequestration’s detrimental impact on the federal courts makes new judgeships even more pressing. Many corporate interests support the bill, as it would decrease litigation delay and conserve resources.
 
Republican senators could also be concerned about creating judgeships that a Democratic President would fill. Indeed, when similar 2009 legislation was introduced, Senator Mitch McConnell (R-Ky.), the Minority Leader, urged that the bill, if adopted, should only take effect four years after its passage.
 
However, that view disregards the fact that litigants and attorneys cannot wait, and that the Judicial Conference has called for the judgeships now. McConnell also ignores the custom of bipartisanship in creating judgeships. For instance, Democrats favored the 1990 legislation that permitted George H. W. Bush to confirm additional judges, while Republicans supported the 1978 bill that allowed President Jimmy Carter to appoint more judges. Lawmakers have also deferred somewhat to the Judicial Conference’s expertise on the need for new judgeships, although political concerns such as divided government, have blocked a thorough  bill’s adoption. Finally, Republicans’ ostensible concern that they will create many new judgeships which a Democratic president will fill is unrealistic, given the nearly 80-judgeship vacancy rate that has persisted over an unprecedented four year period.

At today’s Judiciary Committee hearing, senators should carefully analyze whether case growth warrants establishment of new judgeships, generally and for specific courts. If work and case loads do require more judges, Congress should promptly enact the bill.

Tobias is the Williams Chair in Law at the University of Richmond School of Law.