Assessing judgeship needs in the federal courts of appeals: policy choices and process concerns.

• Author: Hellman, Arthur D.

In March 2003, the Judicial Conference of the United States, the policymaking body of the federal judiciary, requested that Congress create eleven new judgeships for the federal courts of appeals. This recommendation could not have come as a surprise to anyone. No new federal appellate judgeships have been created for almost fifteen years; since then, caseloads have continued to climb. But one aspect of the recommendation might have aroused some puzzlement. The Conference based its request, in part, on a workload measure known as "adjusted filings." Four courts of appeals were included in the request--but there was no mention at all of the two courts with the highest adjusted filings in the nation, the Fifth Circuit and the Eleventh Circuit.

This omission raises two questions, one obvious and one that lurks below the surface. The obvious question is: Why is the Judicial Conference not seeking additional judgeships for courts which, by its own standard, would appear to need them more acutely than any other? Pursuit of this inquiry leads to the second question: Does the process used by the Judicial Conference in formulating its recommendations provide sufficient information to enable Congress to carry out its responsibility for creating judgeships when needed?

Those questions are the principal focus of this Essay. However, before turning to them, it will be helpful to explain why the Judicial Conference request is justified as far as it goes. That in turn will require some discussion of a report by the General Accounting Office that expresses concerns about the standard used by the Conference in formulating its recommendations.

The Essay has two purposes. First, I hope to promote an informed debate among the judges and lawyers of the Fifth and Eleventh Circuits over the policies adopted by those two courts of appeals to deal with their increased caseloads. Second, I seek to persuade the Judicial Conference that opening up the process by which it assesses judgeship needs will benefit not only Congress but also the judiciary.

1. THE JUDICIAL CONFERENCE REQUEST

   The Judicial Conference asked Congress to create eleven new judgeships for the federal courts of appeals: one for the First Circuit, two for the Second Circuit, one for the Sixth Circuit, and seven for the Ninth Circuit (five permanent, two temporary). (1) A bill has been introduced in the Senate to implement this request. (2) At this writing, no bill has been introduced in the House. (3) However, in June 2003 the Subcommittee on Courts, the Internet, and Intellectual Property of the House Judiciary Committee held an oversight hearing on "The Federal Judiciary: Is there a Need for Additional Federal Judges?" (4) At that hearing, Judge Dennis Jacobs, the chair of the Judicial Conference Committee on Judicial Resources, urged the Subcommittee to "give full and favorable consideration to the draft bill submitted by the Judicial Conference" to implement the request. (5)

   I too believe that Congress should move speedily to enact the Judicial Conference recommendations into law. There are two reasons for this conclusion. First, the process followed by the Judicial Conference assures that a request will not be submitted to Congress unless there is strong evidence of the need for additional judgeships in a particular circuit. Second, my own studies of the federal appellate courts leave no doubt in my mind that additional judgeships are warranted. Indeed, the Judicial Conference request may understate the need.

   1. The Judicial Conference Process

      As Judge Jacobs explained in his testimony at the House hearing, the Judicial Conference does not request additional appellate judgeships solely on the basis of any formula, nor is it sufficient that a particular court of appeals believes that new judgeships are needed. Rather, the Judicial Conference follows an elaborate process involving multiple stages of review and a variety of criteria both quantitative and non-quantitative. The process is generally referred to as the "Biennial Survey of Judgeship Needs."

      Judge Jacobs provided a concise summary of the Biennial Survey process:

      (1) Each court of appeals seeking an additional judgeship submits a detailed justification to the Subcommittee on Judicial Statistics.

      (2) The Subcommittee reviews and evaluates the request and prepares a preliminary recommendation.

      (3) The preliminary recommendation is sent to the requesting court for comment and to the appropriate circuit judicial council for review.

      (4) The response from the court and the recommendation of the judicial council are reviewed by the Subcommittee in the light of updated caseload data.

      (5) The Subcommittee prepares recommendations for the Committee on Judicial Resources.

      (6) The Committee's recommendations are submitted to the Judicial Conference for final approval and transmission to Congress. (6)

      A key element in the Biennial Survey is the statistical standard of 500 adjusted filings per three-judge panel. The adjustment reflected in this standard is twofold. First, reinstated cases are subtracted from the total. Second and more important, pro se appeals are counted as one-third of a case. (7) Unless adjusted filings total 500 or more per panel, the Judicial Conference will not recommend new judgeships for a court. But a high level of adjusted filings will not, by itself, support a recommendation. As Judge Jacobs told the House subcommittee, the standard is "the starting point in the process, not an end point." (8)

      I will have more to say about the Biennial Survey process in Part III, (9) but one point deserves mention here. In testimony before another House Judiciary subcommittee in 2002, Judge Jacobs reported that in the judgeship needs survey of 2000, the various federal courts requested a total of seventy-eight additional judgeships (some permanent, others temporary). But in the course of the various stages of review, "that number was eventually reduced to the sixty-three initially recommended by the Judicial Conference in July 2000." (10) This means that almost one out of five judgeships requested by the individual courts did not make it through the review process to the request submitted to Congress." This strikes me as strong evidence that the review process is serious and rigorous. (12)

      Further evidence can be found in the documentary material that the Judicial Conference furnished to Congress in support of its requests. (13) The detailed analysis of caseload trends, court practices, and available judgepower instills confidence that the recommendations are justified. For example, in explaining the recommendation for seven additional judgeships for the Ninth Circuit, the Judicial Conference acknowledged the extensive contribution of the court's twenty-one senior judges, but pointed out that the majority of these judges were "75 years of age or older, including seven that [were] at least 80 years old." (14) The report thus made clear that the Ninth Circuit currently has more judgepower than its authorized allocation might suggest--but that this condition could not be expected to continue long into the future. (15)

   2. Justifications for the Request and the GAO Study

      In concluding that the Judicial Conference request for eleven new appellate judgeships is fully warranted, I also rely on my own research into the work of the federal courts of appeals. No new judgeships have been created for any federal court of appeals since 1990. During that time, federal appellate caseloads have continued to grow. For example, from 1991 through 2002, filings nationwide increased from 43,027 to 57,555. (16) In concrete terms, this means that four appeals are being filed today for every three that were filed when Congress last created new judgeships. Federal appellate judges were not underworked fifteen or twenty years ago, and it would seem almost self-evident that caseload growth on this scale must require additional judgepower.

      Against this background, the General Accounting Office (GAO), in a report published in May 2003, raised some questions about the statistical methods used by the Judicial Conference in formulating its requests for new appellate judgeships. (17) The report focused on two aspects of the Judicial Conference approach: the weight of one-third given to pro se appeals and the use of 500 "adjusted filings" per three-judge panel as the base standard. (18)

      With respect to the first point, it is true that the Judicial Conference did not carry out empirical research to determine the judge time required by pro se cases as distinguished from counseled appeals. In an ideal world with no limit on resources, such an undertaking would no doubt be valuable. But in the real world of limited resources, I do not think it is necessary. When an appeal is filed by a lawyer on behalf of a client, professional norms as well as ethical obligations generally assure that the appeal will have sufficient merit to require more than a de minimis amount of judge time. That assurance is lacking when an appeal is filed by a litigant (generally a non-lawyer) acting for himself. The three-to-one ratio applied by the Judicial Conference strikes me as a reasonable (if unscientific) effort to quantify the difference.

      Moreover, we do have some empirical data about the relative demands on judge time of pro se and counseled cases. A few years ago, the Federal Judicial Center (FJC), the research arm of the federal judiciary, carried out a study of case management practices for the Commission on Structural Alternatives for the Federal Courts of Appeals (White Commission). (19) In contrast to the statistical tables issued by the Administrative Office of United States Courts (AO), the FJC did offer some detailed breakdowns of pro se and counseled cases. Two are of particular interest in the context of case weighting.

      One of the most time-consuming responsibilities of an appellate judge is writing an opinion for publication. (20) The Federal...