Senate Hearing Held on Bill to Add New Judgeships

The Senate Judiciary Committee's Subcommittee on Bankruptcy and the Courts, chaired by Senator Christopher Coons of Delaware, held a hearing this morning on the Federal Judgeship Act of 2013, a bill to add needed judgeships to the much-overworked federal courts. The bill, was introduced by Senator Coons and Senate Judiciary Committee Chair Patrick Leahy, in response to a formal request from the Judicial Conference of the United States, an arm of the federal courts presided over by Chief Justice John Roberts and charged with setting policy on the administration of the federal courts.

Congress last passed a comprehensive judgeship bill in 1990. Since then, the number of criminal cases pending in district courts has more than doubled from 36,170 to 76,014, while Congress has increased the number of district court judgeships by only 4%. Since federal judges are required to give precedence to criminal cases, this means that they are forced to delay civil cases, often for years. This means long delays for Americans seeking justice in cases involving job discrimination, civil rights, predatory lending practices, consumer fraud, immigrant rights, the environment, government benefits, business contracts, mergers, copyright infringement, and a variety of other areas.

Judge Timothy Tymkovich – the chair of the Judicial Conference's Committee on Judicial Resources and a judge on the Tenth Circuit – testified at length about the detailed method used to ascertain the needs of the nation's courts.

At the hearing Republican Jeff Sessions rejected the Judicial Conference request out of hand, relying on a series of conceptually and logically flawed rationales.

First, citing the expense of fully funding our system of justice, Senator Sessions suggested that Congress only create new judgeships where they are particularly needed. But since the Judicial Conference specifically limited its request to circuits and districts where the need is greatest, it seems that such culling has already been done.

Second, Sessions found several types of cases from 2007 where he said the number of filings then was heavier than in 2011 or 2012, to claim that the actual workload of the federal courts does not justify additional judgeships. "I'm not sure, if we were getting by in 2007, why the judiciary can't get by in 2013?" However, overall, the national judicial caseload profile data shows the number of weighted filings per district court judgeship rising from 477 in 2007 to 526 in the most recent report (the year ending March 31, 2013).

And despite that, the fact is that the courts were not "getting by" in 2007, 17 years after the 1990 judgeship bill. In fact, that year, the Judicial Conference asked Congress to create 67 new judgeships, a request that was not met.

Third and amazingly, Senator Sessions claimed that because many of the existing judgeships are vacant and without nominees, no additional judgeships should be created. To begin with this point is irrelevant, since the Judicial Conference makes its recommendations for more judgeships on the assumption that all the current vacancies will be filled. But on top of that, it's clear that the reason many of these vacancies exist is because of Republican obstruction and slow-walking of the entire judicial confirmation process. Indeed, President Obama has made more nominations than his predecessor President Bush had by this time in his second term, yet has fewer confirmations. By this time in his second term 91% of President Bush's nominees had been confirmed, compared to 78% for Obama. Moreover, of the 42 current district court vacancies without nominees, half are in states with two Republican senators, who are expected to make recommendations on prospective district court nominees to the White House for the president's consideration and another 12 are from states with one Republican senator, whose concurrence on recommendations is typically sought. Surely you can't make it harder to fill existing vacancies on one hand then turn around and cite those vacancies as a reason not to create new judgeships.

Finally, religious right activist Jay Sekulow testified that people might suspect the bill is a partisan effort to allow President Obama to "stack" the courts and that, therefore, the bill should not go into effect until after the next presidential election, and even then be staggered over perhaps 12 years. In response, Judge Tymkovich noted that the Judicial Conference makes its periodic requests for judgeships based only on the need of the nation's courts, and not on who is in the White House. It is also worth noting that the 1990 judgeship bill went into effect immediately, while George H.W. Bush was president, as did a major judgeship bill in 1978 when President Carter was in office.

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