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Testimony

Testimony: More Judges Needed in Federal Courts

The Brennan Center submitted testimony in support of the Federal Judgeship Act of 2013, legislation that would create much needed judgeships in the federal courts.

Published: September 10, 2013

The Bren­nan Center filed testi­mony today urging Congress to pass the Federal Judge­ship Act of 2013. The bill would create five perman­ent and one tempor­ary circuit court judge­ships, 65 perman­ent and 20 tempor­ary district court judge­ships, and would make perman­ent eight tempor­ary district court judge­ships. The legis­la­tion was the focus of a Senate Judi­ciary Commit­tee hear­ing held today.

Accord­ing to a recent Bren­nan Center study, the lack of federal judges over the last two decades has over­burdened exist­ing judges with unwork­able case­loads, delay­ing justice to millions of Amer­ic­ans who rely on the courts to resolve their disputes. By creat­ing addi­tional judge­ships, the Federal Judge­ship Act of 2013 would ensure the court has the capa­city to fairly and effi­ciently adju­dic­ate cases. 

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Testi­mony of Alicia Bannon
Coun­sel, Bren­nan Center for Justice at NYU School of Law

On S. 1385, Federal Judge­ship Act of 2013
Submit­ted to Senate Judi­ciary Subcom­mit­tee on Bank­ruptcy and the Courts

The Bren­nan Center for Justice at NYU School of Law[1] thanks the Subcom­mit­tee on Bank­ruptcy and the Courts for hold­ing this hear­ing on the Federal Judge­ship Act of 2013 (the “Act”).  The Act would play a vital role in ensur­ing that Amer­ic­ans enjoy mean­ing­ful access to justice in the federal courts, and the Bren­nan Center urges its prompt passage.

Over the past two decades, the federal courts have faced a grow­ing dispar­ity between case­loads and the number of judges on the bench.  These rising judi­cial work­loads burden the admin­is­tra­tion of justice and harm the indi­vidu­als and busi­nesses that rely on the courts to protect their rights and resolve their disputes.  The Federal Judge­ship Act of 2013 repres­ents an import­ant step in address­ing this grow­ing judge gap, ensur­ing that courts have the capa­city to fairly and effi­ciently adju­dic­ate the cases that appear before them. 

The Act would imple­ment the judge­ship recom­mend­a­tions of the Judi­cial Confer­ence of the United States, chaired by Chief Justice John Roberts, which are based on a care­ful analysis of indi­vidual districts’ and circuits’ judi­cial work­loads and case complex­ity.  Follow­ing the Judi­cial Confer­ence’s recom­mend­a­tions, the Act creates five perman­ent and one tempor­ary circuit court judge­ships and 65 perman­ent and 20 tempor­ary district court judge­ships.  It also gives perman­ent status to eight tempor­ary district court judge­ships.

The Bren­nan Center supports the proposed addi­tional judge­ships in both the circuit and district courts, which have both seen dramatic increases in their case­loads since the most recent compre­hens­ive judge­ship bill was enacted in 1990.  Because there has been extens­ive atten­tion to the case­load chal­lenges facing the circuit courts, and because we expect that the subcom­mit­tee will hear substan­tial testi­mony on how the circuit courts are being affected, this testi­mony focuses on the chal­lenges faced by the federal district courts.  In partic­u­lar, we submit this testi­mony to share our research regard­ing judi­cial short­ages in the district courts, and the impact that these short­ages have on access to justice for litig­ants around the coun­try.  We urge the Subcom­mit­tee on Bank­ruptcy and the Courts to approve the Act without delay and to take all neces­sary steps to ensure its prompt consid­er­a­tion by the full Judi­ciary Commit­tee.

I. Break­ing with histor­ical patterns, district courts have not had a major increase in the number of judge­ships since 1990

Since 1990, district courts have exper­i­enced a stark decline in the number of new judge­ships author­ized by Congress.  As reflec­ted in Figure 1, between 1961 and 1990, Congress author­ized major increases to the number of district court judge­ships an aver­age of every six years.  In total, 429 new district court judge­ships were added during this period (includ­ing the creation of new perman­ent and tempor­ary judge­ships and the conver­sion of tempor­ary judge­ships into perman­ent posi­tions), for an aver­age of 14.3 new judge­ships per year. 

In contrast, since the last compre­hens­ive judge­ship act in 1990, district courts have exper­i­enced only minor addi­tions to their ranks.  Congress author­ized nine addi­tional perman­ent judge­ships in 1999 and 10 addi­tional perman­ent judge­ships in 2000.  In 2002, it author­ized eight perman­ent and seven tempor­ary judge­ships, in addi­tion to convert­ing four tempor­ary judge­ships into perman­ent posi­tions.  These 38 new judge­ships over the course of more than twenty years aver­age to only 1.7 new judge­ships per year.  

Figure 1: New District Court Judge­ships, 1960–2013[2]

 

II.    District court judges’ work­loads are grow­ing increas­ingly unman­age­able, imped­ing their abil­ity to effect­ively dispense justice

While the creation of new district court judge­ships has lagged since 1990, judges’ work­loads have increased dramat­ic­ally, leav­ing judges with record case­loads in recent years.  Total filed cases in the district courts have increased by 43 percent since 1992, while total “weighted filings,” the number of filed cases weighted by an estim­ate by the Admin­is­trat­ive Office of the U.S. Courts as to how time-consum­ing they are likely to be, has grown 14.8 percent since 1999 (the earli­est year for which compar­able data is avail­able).[3]  The total number of pending cases has like­wise increased by 40 percent between 1992 and 2013, from 262,805 to 370,067 cases, reflect­ing a grow­ing back­log.

District court judge­ships have not kept pace.  Since 1992, the number of pending cases per author­ized judge­ship has increased by 35 percent.  Estim­ates of the work­load of all sitting judges – includ­ing both active judges and senior judges, who typic­ally work part-time – like­wise shows dramat­ic­ally increas­ing burdens for judges.  As reflec­ted in Figure 2, the aver­age number of pending cases per sitting judge (defined as active judges plus senior judges coun­ted as half-time because of their reduced work­loads) reached an all-time high in 2009.  This figure was higher as of March 31, 2013 than at any point from 1992–2007. 

Figure 2: Aver­age Number of Pending Cases Per Sitting Judge, 1992–2013


 

While the current high level of judi­cial vacan­cies partially explains this high per-judge burden, even if every exist­ing vacancy were filled, the exist­ing work­load per sitting judge would still exceed histor­ical levels, as reflec­ted by the red line in Figure 2.  In contrast, the green line estim­ates what per-judge case­loads would be if all 2009–2013 vacan­cies had been filled and Congress had created 85 addi­tional district court judge­ships (the number of addi­tional perman­ent and tempor­ary judge­ships proposed in the Act).  As Figure 2 demon­strates, author­iz­ing these addi­tional 85 judge­ships is neces­sary to restore the number of pending cases per sitting judge to the level of the late 1990s.

The grow­ing work­load in district courts around the coun­try negat­ively impacts judges’ abil­ity to effect­ively dispense justice, partic­u­larly in complex and resource-intens­ive civil cases, where litig­ants do not enjoy the same “speedy trial” rights as crim­inal defend­ants.  For example, the median time for civil cases to go from filing to trial has increased by more than 70 percent since 1992, from 15 months to more than two years (25.7 months).  Older cases are also increas­ingly clog­ging district court dock­ets.  Since 2000, cases that are more than three years old have made up an aver­age of 12 percent of the district court civil docket, compared to an aver­age of 7 percent from 1992–1999.  For a small company in a contract dispute or a family targeted by consumer fraud, these kind of delays often mean finan­cial uncer­tainty and unfilled plans, putting lives on hold as cases wind through the court system. All too often, justice delayed in these circum­stances can mean justice denied.

These patterns of delay are starkly reflec­ted in the districts for which addi­tional judge­ships are recom­men­ded, many of which lag behind the national aver­age in key metrics.  In the East­ern District of Cali­for­nia, for example, the median time for civil cases to go from filing to trial is almost four years (46.4 months).  This district would receive six addi­tional perman­ent judge­ships and one addi­tional tempor­ary judge­ship under the Act.  In the Middle District of Flor­ida, over 23 percent of the civil docket is more than three years old.  This district would receive five addi­tional perman­ent judge­ships and one addi­tional tempor­ary judge­ship under the Act. 

The federal courts are a linch­pin of our demo­cracy, protect­ing indi­vidual rights from govern­ment over­reach, provid­ing a forum for resolv­ing indi­vidual and commer­cial disputes, and super­vising the fair enforce­ment of crim­inal laws.  In order for judges to perform their jobs effect­ively, however, they must have manage­able work­loads.  The Bren­nan Center urges Congress to promptly pass the Federal Judge­ship Act of 2013, so as to ensure the contin­ued vital­ity of our federal courts.


[1] The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that seeks to improve our systems of demo­cracy and justice.  The Center’s Fair Courts Project works to promote fair and impar­tial courts as a guar­antor of equal justice in Amer­ica’s consti­tu­tional demo­cracy.

[2] See Alicia Bannon, Bren­nan Center for Justice, Federal Judi­cial Vacan­cies: The Trial Courts 6 (2013), avail­able at  http://www.bren­nan­cen­ter.org/public­a­tion/federal-judi­cial-vacan­cies-trial-courts.

[3] Analysis in this section based upon data main­tained by the Admin­is­trat­ive Office of the United States Courts.  Data for 2013 reflects the 12-month period ending March 31, 2013.  See Admin­is­trat­ive Office of the United States Courts, Federal Court Manage­ment Stat­ist­ics, http://www.uscourts.gov/Stat­ist­ics/Feder­al­Court­Man­age­ment Stat­ist­ics.aspx; see also Bannon, supra note 2 at 5–6 (util­iz­ing data through Septem­ber 30, 2012).