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Wednesday, September 29, 2004

Do We Need More Judges?

The media, the politicians and, well, all of us here at NN tend to focus on current judicial vacancies when discussing who should and should not be appointed, confirmed, filibustered, etc. We talk about judicial emergencies like an entire circuit is on the verge of collapse. We talk about how failure to confirm a nominee may shut down the entire federal court system. But are we missing an even bigger problem? Outside of the (relatively) small number of open seats on the federal bench, is there a need for even more judges?

That was the topic of a hearing last summer of the House Judiciary Committee Subcommittee on the Courts, the Internet, and Intellectual Property. The hearing was convened to discuss the proposal of the Judicial Conference of the United States for the creation of 11 new Courts of Appeal judges, 46 new District Court judges, and to make permanent 5 temporary District Court judges (available here; see pp. 18-20). Among those testifying were Judge Dennis Jacobs (CA2), William O. Jenkins, Jr. from the GAO, law professor Arthur Hellman (Pitt), and Rep. Howard Berman (D-Cal. 28th).

Professor Hellman provided the most thorough and interesting testimony, in not only supporting the Conference's recommendation for creating new judgeships, but also criticizing the failure to push for the creation of even more. In particular, Hellman finds fault with the Fifth and Eleventh Circuits, who voluntarily agree to deal with their growing caseloads by funneling off cases deemed less meritorious to a summary or NOA (no oral argument) calendar for review. According to Hellman, the reliance on staff attorneys and clerks, and the resistance of new judgeships in these circuits, "runs the risk of compromising 'the appearance of legitimacy of the appellate process [and] the quality of appellate justice.'"

By way of numbers, CA5 and CA11 have much higher "adjusted filings" (statistical calculation of cases per judge based on a nationwide appellate baseline) than the other circuits -- indeed, almost twice as many as in the circuits identified by the Conference as requiring additional judgeships. If the recommendations regarding the other circuits were applied to these two circuits, Hellman explained, CA5 would need 28 judges, and CA11 would nearly double in size to 22.

But, alas, the Conference does not recommend an increase in judges unless a particular circuit requests one. And the judges on the Fifth and Eleventh just don't seem to want to grow. I recently had an opportunity to chat with several judges on the Fifth Circuit. While acknowledging that there was a lot of work to be done, they unanimously agreed that it was manageable, and that they didn't want the court to get any bigger. The bigger the court gets, one of the judges explained, the less consistency there would be in the law of the circuit, leading to the undesirable result of more en banc hearings. This view was echoed in the comments of Judge Tjoflat (CA11), reported by Professor Hellman in his testimony. Hellman refutes these concerns by changing the focus to the quality (or lack thereof) of the actual work produced by the circuits:

I have no doubt that the judges of the Fifth and Eleventh Circuits believe that they are giving adequate attention to the cases and have not compromised any of the essential functions of an appellate court. But I am not confident that judges can necessarily recognize when they have gone too far in relying on procedural shortcuts or when they have begun to delegate responsibilities that they should be undertaking themselves. For example: Do the judges too readily accept the drafts of precedential opinions prepared by their law clerks? Do panel members sign on to the authoring judge’s opinion without carefully scrutinizing the statements of law or the rationale? Do the second and third judges on a screening panel defer too much to the judge who initially reviewed the case? These are not lapses that occur overnight. Change is gradual and incremental, as judges imperceptibly find themselves adopting practices that they would have rejected when caseload pressures were less exigent.
Professor Hellman concludes his testimony with a (somewhat) radical proposal to change the process of how we decide whether new judgeships are needed. He says that the Conference should continue to ask the individual circuits if they feel that they need help, but that after the circuit responds, there should be an opportunity for dissenting judges, and the public, to comment on the recommendation before being adopted into the final report transmitted to Congress (in a process similar to administrative "notice and comment" rulemaking).

What do you think? Tell us your opinion in the comments section below this post.

For more on this interesting debate over how to deal with the increasing caseload of the federal judiciary, including anecdotes and views from different circuits, check out what the Greedy Clerks have to say starting with this post and continuing on from there.

(Thanks to GC contributor "JBT33" for the heads-up.)

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