Congress Dives Into National Paucity of Federal Judges

Justice delayed is justice denied, a bipartisan group of lawmakers agreed Wednesday while considering the excessive caseloads that plague judges across the United States, particularly in the Ninth Circuit. 

by Brandi Buchman, Court House News, February 24, 2021

WASHINGTON (CN) — The number of cases fought in U.S. lower courts has increased exponentially over the last 30-plus years, but the number of judgeships has not — a disconnect took the focus of House lawmakers on Wednesday. 

“Expanding the lower courts is decades overdue. The consequences of doing nothing are insidious and become downright cancerous,” Georgia Representative Hank Johnson told members of a House Judiciary subcommittee with oversight on the U.S. courts. “When people lose faith in the federal court system’s ability to resolve disputes quickly and justly, the democracy suffers.”

The hearing came three years after the Judicial Conference, a group overseen by Supreme Court Justice John Roberts that shapes policy for the judiciary branch, recommended to Congress that at least five new judgeships be created for the Ninth Circuit U.S. Court of Appeals.

As the nation’s largest appellate court, the Ninth Circuit has just 29 judges covering a massive swath of territory including Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and the Northern Mariana Islands.

New judgeships in the Ninth, the Judicial Conference suggested, could alleviate excessive caseloads for some of the judges in that circuit and simultaneously chip away at an ever-growing backlog of civil and criminal matters.

“The Ninth Circuit… decides over 11,000 appeals each year,” California Representative Darrell Issa remarked on Wednesday.

Because of the deficit in judgeships, however, most cases can take up to two years to be heard in the Golden State.

“If there’s a good example of justice denied because of a delay, the Ninth Circuit is a poster child for it,” Issa said.

Senior U.S. District Judge Larry Burns, who presides in the Southern District of California, echoed the Republican’s assessment. He noted that from 2013 to 2019, the total cases filed in all American courts increased by 13% while in California, alone, the number of cases filed jumped up 10% in the same time period.

“In 16 years, the caseload in my district is up 17% and weighted filings increased by 30%,” Burns said, referring to the metric by which cases are weighted for complexity. “District judges’ weighted caseloads were over 600 cases per judge — way over the national average of 535 cases per judge.”

In Burns’ district alone, the wait time to adjudicate a civil case is about 37 months.

Dozens of civil and human rights groups of varying political stripe have called on Congress to increase judgeships across the U.S. and particularly at the vast Ninth Circuit. Groups like the progressive-leaning organization Demand Justice have asked the House and Senate to take the Judicial Conference’s recommendation even farther.

Were the conference’s recommendation to be implemented, the group noted in a letter to lawmakers last December, it would amount to a roughly 10% increase in judgeships. It added, however, that such small changes would not even begin to address the persistent climb of case filings that have increased 40% since 1990. 

The judicial makeup of California was not the only issue concerning lawmakers. Arizona Representative Greg Stanton noted that the population in his state has grown by about 50% since 2000. Since then, just one federal judge has been added to the bench. 

U.S. District Judge Diane Humetewa, who presides in U.S. District Court for the District of Arizona, called the situation in Arizona dire. The state is fifth in the nation for criminal felony filings and 16th for civil case filings. New judgeships have been recommended with some fervor since 2003, but it has been 19 years since a new judgeship was authorized there.

From 2018 to 2019, Judge Humetewa noted, judges had a weighted caseload of about 800 filings.

“That’s the fifth highest in the country, 86% higher than the general standard of 434 cases per judge or the national average of 535,” Humetewa said.

In recent months, Capitol Hill has felt rumblings of new bipartisan legislation that would help expedite the creation of new judgeships. Talks have largely been on ice, however, as legislators have had their focus trained mostly on the 2020 election, pandemic relief and more recently the Jan. 6 insurrection at the Capitol.

Marin Levy, a professor of law at Duke University, urged Congress Wednesday to act with expediency. According to the Administrative Office of U.S. Courts, just 13 courts of appeal decided more than 50,000 appeals in 2019.

“The courts of federal appeals have become courts of last resort for tens of thousands of litigants,” Levy said.

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