Emphasizing that “insufficient resources are diminishing the ability of our federal courts to serve the people and deliver timely justice,” the ABA expressed support this month for S. 1385, a bill to increase the number of authorized Article III judgeships by 10 percent as recommended by the Judicial Conference of the United States.
“Our judicial system is predicated upon the principles that each case deserves to be evaluated on its merits, that justice will be dispensed even-handedly, and that justice delayed is justice denied,” Michael H. Reed, chair of the ABA Standing Committee on Federal Judicial Improvements, told the Senate Judiciary Subcommittee on Bankruptcy and the Courts during a Sept. 10 hearing. “The combination of too few judges and insufficient funding is creating a resource crisis for the federal judiciary,” he said.
S. 1385, the Federal Judgeship Act of 2013, would authorize 70 permanent and 21 temporary judgeships at the district and appellate court levels and would convert eight existing temporary district judgeships into permanent positions. Reed pointed out that the last comprehensive judgeship bill, which created 85 new judgeships, was enacted in 1990. Since then, Congress has added 34 district court judgeships through a piecemeal approach and allowed half a dozen temporary judgeships to expire. As a result, over the past 23 years district courts have experienced a 39 percent increase in filings but only a 4 percent increase in judgeships, and the number of appellate court judges has not changed despite a 34 percent increase in filings.
The increase in the federal judicial caseloads has been fueled in large part by congressional expansion of federal court jurisdiction and national drug and immigration policies that call for and fund enhanced law enforcement efforts, Reed said.
Acknowledging the unlikelihood of passage of S. 1385 in the near future, Reed recommended other steps Congress could take immediately to help the judiciary:
•establish new judgeships in the five district courts singled out by the Judicial Conference for immediate relief: District of Arizona, District of Delaware, Eastern District of California, Western District of Texas, and Eastern District of Texas;
•convert the eight existing temporary judgeships into permanent judgeships or extend them as temporary judgeships for 10 years;
•assure that the judiciary has sufficient resources to handle new responsibilities that result from new legislation;
•make the filling of judicial vacancies a priority, with particular attention to judicial emergencies, and work toward reducing the long-standing 10 percent vacancy rate;
•protect the federal judiciary from future deficit reduction and increase funding for fiscal year 2014 to $6.67 billion, the amount recommended by the Senate Appropriations Committee; and
•hold hearings to explore structures that would facilitate cooperation and discussion of the issues between the judicial and executive branches.
Those appearing on the panel with Reed included Judge Timothy M. Tymkovich, chair of the Judicial Conference Committee on Judicial Resources, which developed the recommendations included in S. 1385 from the most recent survey of the judgeship needs of the courts conducted in March 2013.
He explained that before a judgeship recommendation is transmitted to Congress, it undergoes careful consideration and review at six levels within the judiciary.
“The conference attempts to balance the need to control growth and the need to seek resources that are appropriate to the judiciary’s caseload,” Tymkovich testified. “In an effort to implement that policy, we have requested far fewer judgeships than the caseload increases and other factors would suggest are now required."
Also testifying was Judge Sue Robinson, a judge on the U.S. District Court of the District of Delaware who addressed her court’s need for a new judgeship based on the huge increase in patent case filings.
Jay Alan Sekulow, chief counsel of the American Center for Law and Justice, testified that his group supports the creation of new judgeships when there is a clear and demonstrable need, but he expressed concerns that S. 1385, if enacted before the next presidential election, invokes an undue amount of partisan influence into the makeup of the federal judiciary.
Subcommittee Chairman Chris Coons (D-Del.), who introduced S. 1385 with Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) in July, emphasized during the hearing that “we must not take the judiciary for granted” and that the bill would provide “much-needed relief to our overburdened courts.”