Congress and the Pending Comprehensive Judgeships Legislation
	By CARL TOBIAS
	Wednesday, September 30, 2009

Today, the United States Senate's Judiciary Committee will conduct a hearing on Senate Bill 1653. If enacted, the Federal Judgeships Act of 2009 would authorize the creation of 63 additional federal appellate and district court judgeships.

Congress last passed comprehensive judgeships legislation back in 1990, and federal civil and criminal appellate and district caseloads have increased substantially over the two decades since then. The bill would address this situation, enabling the federal courts to expeditiously, inexpensively, and equitably resolve the cases that now crowd their growing dockets.

The bill is not only vital, but long overdue, and should certainly be passed.

The Pressing Need for a Comprehensive Federal Judgeships Law

Congress has authorized 179 appellate and 678 district court judgeships for the federal system. However, lawmakers have failed to pass a thorough judgeships bill since President George H. W. Bush signed comprehensive legislation on judgeships in 1990.

Since then, the magnitude and complexity of federal civil and criminal filings have dramatically increased. Appeals have risen by 42 percent and district court cases have increased by 34 percent. This significant docket growth has undermined the ability of federal appeals and district courts to decide cases swiftly, economically and fairly.

Burgeoning dockets have imposed substantial pressure on courts -- especially judges, but also clerks and court staff. Courts' crowded dockets have also frustrated the efforts of attorneys and parties, who must compete for scarce judicial resources and often wait years for a resolution. Complex and growing criminal prosecutions demand that some jurists hold no civil trials at all. Accordingly, many parties wait interminably for their civil trials and numerous districts suffer from enormous civil backlogs. Increasing numbers of appeals and multiple judicial openings have even forced the U.S. Courts of Appeals for the Sixth and Ninth Circuits to postpone oral arguments.

At the Judicial Conference's Recommendation, Comprehensive Legislation Has Been Introduced and Is Pending

In March, these phenomena prompted the Judicial Conference of the United States to recommend that Congress authorize 63 new judgeships. The federal courts' policymaking arm premises these suggestions on conservative estimates of judicial case and workloads; it's possible that in the future, additional judgeships will be needed. For now, though, 63 would be a great start toward remedying a serious, lingering problem.

On September 8, Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee Chair, introduced Senate Bill 1653, which had 17 sponsors and cosponsors -- not one of whom, unfortunately, was a Republican. The legislation would authorize the establishment of 12 additional appellate judgeships and 51 new district court judgeships.

The judgeships are spread throughout the nation, but many will be in the West. For example, the bill authorizes five new judgeships for the U.S. Court of Appeals for the Ninth Circuit and five each for the Northern, Eastern, and Central Districts of California.

At the upcoming hearing on the bill, Judiciary Committee members will probably explore the general need for additional judgeships and the specific necessity for them in particular appellate and district courts. Although the Conference's recommendations are based on conservative projections of work and case loads, it can be difficult to accurately predict how those measures will fluctuate over time.

The Role Politics Plays Here

For example, a new presidential administration's changed view on a specific policy in an area, such as immigration law, or on priorities for federal court prosecutions can significantly affect dockets.

Moreover, numerous senators believe that the creation of additional judgeships may not be warranted by case or workloads or the expense. Several years ago, each new judgeship was estimated to cost a million dollars. However, this is relatively inexpensive when compared with other governmental expenditures. A number of business interests, such as Microsoft, support the legislation because it would reduce litigation delay and save resources.

Many Republican senators will also be reluctant to establish new judgeships for a Democratic President to fill. Indeed, Senator Mitch McConnell (R-Ky.), the Minority Leader, has suggested that the legislation, if passed, should only become effective four years after the bill's enactment.

However, McConnell's position ignores the reality that cases cannot wait four years, and that the Judicial Conference has stated that the seats are needed today. McConnell also breaks with the tradition of bipartisanship in this area. For example, Democrats supported the 1990 bill that enabled George H. W. Bush to appoint more judges, while Republicans favored the 1978 legislation that permitted President Jimmy Carter to name additional judges. Finally, Congress has deferred somewhat to the Judicial Conference's judgment on the need for more judgeships, although it is political factors, such as a divided government, that have prevented the enactment of a comprehensive bill in the many years since 1990.

At today's Judiciary Committee hearing, Members of Congress should thoroughly and carefully scrutinize whether docket increases require the creation of additional judgeships, generally and for particular courts. If work and caseloads do indeed warrant more judges -- as seems very likely in light of the backlogs courts are experiencing – then Congress should expeditiously pass legislation.

Carl Tobias is the Williams Professor at the University of Richmond.