June 2009: Will Congress Add More Federal Judgeships?

Washington Watch | June 2009
By Bruce Moyer

If Senate Democrats ultimately achieve the filibuster-proof magic number of 60 votes with the addition of Sen. Arlen Specter to their ranks and Al Franken’s probable win in Minnesota, that newfound power could be used to create a significant number of new federal judgeships. Republicans are not likely to welcome the establishment of more federal judgeships, given their fear that a progressive President might use that authority to name “activist” candidates to the bench.

In March, the Judicial Conference of the United States urged Congress to create 63 new judgeships—12 at the appellate court level and 51 at the district court level. Given the sizable number of relatively young, conservative federal judges that President George W. Bush appointed to the federal bench over the past eight years, the Obama White House will have a tough time transforming the federal bench to its liking. But the new administration’s effort would be leveraged considerably with the creation of five dozen new judgeships, especially a dozen at the appellate court level.

The appellate judgeship recommendations of the Judicial Conference, based largely upon the workload of the courts, would add the following positions: 

  • Five judges to the Ninth Circuit, 
  • Two judges to the Second Circuit, 
  • Two judges to the Third Circuit, 
  • One judge to the First Circuit, 
  • One judge to the Sixth Circuit, and 
  • One judge to the Eighth Circuit

Currently, there are 167 authorized appeals court judgeships. The conference recommended adding 12 appellate judgeships (nine permanent and three temporary). There are 678 authorized district court judgeships. The Judicial Conference recommended adding 51 more district judgeships in 28 judicial districts (38 permanent, 13 temporary, converting five from temporary to permanent, and extending one temporary judgeship). (Temporary means that when the judge appointed retires or dies, the position would not be refilled.) The numbers of judgeships sought by the Judicial Conference are based upon a biennial review that takes into account caseload trends and other factors. The Judicial Conference’s request can be found on its Web site.

Congress has occasionally added district judgeships over the years but has not enacted any comprehensive measures dealing with judgeships or created any new appeals court seats since 1990. The FBA repeatedly has supported the federal judiciary’s requests to Congress for more judgeships.

Revisiting Cameras in the Courts
The issue of whether the federal courts should permit greater camera coverage of their proceedings—particularly in the Supreme Court—is rearing its head once again, even before bills dealing with the issue have been reintroduced in the current Congress. At a recent hearing on the Supreme Court’s funding request for fiscal year 2010, one House lawmaker confronted Justices Breyer and Thomas with the issue of cameras, using his handheld camera to beam comments from the dais live on the Internet, thus giving the justices a preview of how accessible the world is to the courts. But the justices continue to take a skeptical view, with Justice Breyer telling the panel that “oral arguments before the Court represent a very small portion of its work” and expressing concern that broadcasts “could mislead viewers.”

Sessions at the GOP Helm
Sen. Jeff Sessions (R-Ala.) has become the new top Republican on the Senate Judiciary Committee, with Sen. Arlen Specter (D-Pa.) giving up that post as the price for his defection from the GOP ranks. Sessions’ rise will thrust him into the national spotlight when Senate hearings begin on the nomination of Sonia Sotomayor to replace retiring Justice David Souter. Sessions, a hard-line conservative whose 1986 nomination for a federal judgeship was rejected by the Senate, participated in the confirmation hearings of Justice Roberts and Justice Alito.

Sessions’ Judiciary Committee leadership could be short-lived, however. Sen. Charles Grassley (R-Iowa), who has more seniority than Sessions has, could take over the top Republican slot on the Judiciary Committee in the 112th Congress, when Grassley becomes ineligible to continue as the ranking Republican on the Senate Finance Committee because of the GOP’s rules on term limits.

Bruce Moyer is government relations counsel for the FBA.
© 2009 Bruce Moyer. All rights reserved.

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