To Serve Litigants and Justice, the Judiciary Needs More Judges

Vol. 35, Number 7—July 2003

To Serve Litigants and Justice, the Judiciary Needs More Judges

The federal courts need more judges, a representative of the Judicial Conference last month told the House Judiciary Subcommittee on the Courts, the Internet and Intellectual Property. Despite efforts to deploy judges with maximum effectiveness, current workload needs cannot be met with current resources.

Judge Dennis Jacobs (2nd Cir.) appeared before the subcommittee to request 57 new judgeships: 11 additional judgeships in the U.S. courts of appeals and 46 additional judgeships for the U.S. district courts. Jacobs is the chair of the Judicial Conference Committee on Judicial Resources, which is responsible for all issues of human resource administration, including the need for Article III judgeships.

"The Conference does not recommend (or wish) indefinite growth in the number of judges," Jacobs said. "The Long Range Plan for the Federal Courts recognizes that growth in the Judiciary must be carefully limited to the number of new judgeships that are necessary to exercise federal court jurisdiction. However, as long as federal court jurisdiction continues to expand, there must be sufficient numbers of judges to serve litigants and justice." According to Jacobs, the Conference, in fact, has requested far fewer judgeships than the caseload increases would suggest are now required.

William O. Jenkins, Jr., Director of Homeland Security and Justice Issues, General Accounting Office, and Professor Arthur D. Hellman of the University of Pittsburgh School of Law also testified at the hearing. GAO questioned Conference methodology in formulating requests for new appellate judgeships. Hellman strongly supported the judgeship request, but urged the Conference to consider modifications that will allow for broader participation by the legal community in the formulation of judgeship requests.

The GAO has released a report on the relative accuracy of weighted case filings and adjusted case filings as a measure of the case-related judge workload. The chair of the subcommittee, Representative Lamar Smith (R-TX), requested the report earlier this year. In the report, GAO stated that district court weighted case filings are a reasonably accurate measure of workload, but that the accuracy of court of appeals case-related workload measure cannot be assessed. Because case-weights are about 10 years old, GAO recommended that the Conference update the district court case weights and develop a methodology for measuring case-related workload of court of appeals judges. A Judiciary study is currently underway to update the case weights used in the district court biennial judgeship surveys.

A survey of Article III judgeship needs is conducted every two years by the Conference, Jacobs told the subcommittee. The final recommendations are based on a number of factors, including caseload statistics, the number of senior judges and their level of activity, magistrate judge assistance, geographical factors, unusual caseload complexity, temporary or prolonged caseload increases or decreases, use of visiting judges; and any other factors that might have an impact on resource needs.

"Caseload statistics furnish the threshold for consideration," Jacobs said, "but the process entails a searching and critical look at the caseload in light of many other considerations and variables, some of which are subjective and all of which are considered together."

One of the factors affecting the workload in the district courts is the change in the nature of criminal business. "Since 1991, the conviction rate for criminal defendants has grown from 82 percent of all defendants to 90 percent in 2003," Jacobs told the subcommittee. "Thus even without an increase in the district court caseload, there has been an increase in workload attributable to sentencing." In 2003, there were 70,585 sentencing hearings.

Another factor is the number of defendants receiving terms of supervised release following a prison term. District court judges now monitor these defendants and review potential violations of the terms of release — approximately 15,000 hearings were conducted in 2003.

Since the last comprehensive judgeship bill in 1990, filings in the courts of appeals as of March 2003 had grown 41 percent, while case filings in the district courts rose 29 percent. Jacobs noted that the national average caseload per three-judge appellate panel has reached 1,090, the highest ever.

The district courts in which the Conference is recommending additional judgeships (viewed as a group) have seen a growth in weighted filings per judgeship from 453 in 1991 to 600 in March 2003. That is 574 per judgeship, taking into account the 15 judgeships added on July 15, 2003. The standard used by the Conference as its starting point in the district courts is 430 weighted filings per judgeship. Without the assistance of senior and visiting judges at the appellate level, and senior, visiting, and magistrate judges in the district courts, the federal courts would not have been able to manage the workload increases, Jacobs cautioned, and requested the subcommittee to give "full and favorable consideration" to the Judicial Conference judgeship recommendations.

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