November/December 2009:
FBA Endorses Federal Judgeships Legislation

Washington Watch | November/December 2009
By Bruce Moyer

The Federal Bar Association has endorsed legislation pending in the Senate and the House of Representatives that establishes 63 new judgeships, including 12 appellate judgeships. The Federal Judgeship Act of 2009—introduced in September by Sen. Patrick Leahy (D-Vt.) in the Senate (as S. 1653) and by Rep. Hank Johnson (D-Ala.) in the House (as H.R. 3662)—establishes 12 new judgeships in six courts of appeals and 51 new judgeships in 25 district courts across the country.

Effective upon enactment, the legislation would add nine permanent and three temporary judgeships to the U.S. circuit courts of appeals. The newly created permanent judgeships would include one for the First Circuit, two for the Second Circuit, one for the Third Circuit, one for the Sixth Circuit, and four for the Ninth Circuit. The newly created temporary judgeships would include one each for the Third, Eighth, and Ninth Circuits. The legislation would also add 38 permanent and 13 temporary judgeships to various district courts, convert five existing temporary district judgeships into permanent positions, and extend one existing temporary position.

The Federal Bar Association announced its endorsement of the legislation during a hearing by a Senate judiciary subcommittee on Sept. 30. FBA President Lawrence Baca communicated the FBA’s endorsement to the Senate Subcommittee on the Courts in a letter dated Sept. 29, in which he wrote the following:

Our members tell us time and again of their respect for the diligence and hard work of their federal judges in their attempt to hear and decide cases in a timely manner. But there are limits on how much the bench can accomplish with existing resources. The problem is simply that there are not enough judges. That is why we believe that Congress should promptly exercise its Constitutional authority to create additional circuit and district judgeships consistent with the recommendations of the Judicial Conference of the United States. This should be accomplished comprehensively, not incrementally, and now.

The prospects for congressional passage of the legislation creating new judgeships, notwithstanding its merits, are uncertain. Senate Republicans are unlikely to support the legislation, because it would give President Obama federal court seats to fill, in addition to the considerable number of existing vacancies that remain to be filled. During the last legislative session, a judgeships bill attracted bipartisan support, including the support of six Republicans. That bill, introduced in March 2008, well before the presidential election in November, would have taken effect on Jan. 21, 2009, the day after the new President’s inauguration. The bill introduced in September 2009 would become law immediately after passage, giving President Barack Obama more opportunities to influence the next generation of the judiciary. Sen. Orrin Hatch (R-Utah), one of the co-sponsors of the 2008 bill, indicated that he would consider co-sponsoring the bill again if the effective date were changed to Jan. 21, 2013.

The last comprehensive judgeships bill was passed in 1990, after a Democratic Congress and a Republican President agreed on an immediate increase. Other bills since then also would have been effective immediately. Another hurdle to the establishment of more judgeships is the fact that there currently are 96 vacancies, and opponents of added judgeships have insisted that these vacancies be filled before new judgeships are added.

The number of judicial vacancies in the federal courts is once again reaching levels of concern. In late October, there were 96 vacancies, with the nominations of 19 judicial nominees pending in Congress. The high number of vacancies is attributable to the time the new administration needs to staff up both within the White House and the Justice Department as well as the time required for the nominees to be recruited through home-state senators and for the White House to vet the nominees.

On a different front, the Judicial Conference in June recommended to Congress the establishment of 13 additional permanent bankruptcy judgeships in 10 judicial districts, the conversion of 22 existing temporary bankruptcy judgeships to permanent positions in 15 judicial districts, and the extension of two existing temporary bankruptcy judgeships for five years. A House judiciary panel held a hearing in June on the bankruptcy judgeships request in June and legislation advancing that request is expected to be introduced in the House soon.

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

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