Assessing Judgeship Needs in the Federal Courts of Appeals: Policy Choices and Process Concerns

Abstract

In March 2003, the Judicial Conference of the United States, the policymaking body of the federal judiciary, requested that Congress create 11 judgeships for the federal courts of appeals. 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 article. The article examines the Judicial Conference process as well as a recent report by the General Accounting Office that expresses concerns about the standard used by the Conference in formulating its recommendations. The article concludes with suggestions for a more open process - a step that, it is believed, will provide significant benefits to the judiciary as well as to Congress.

Keywords: Judgeships, federal courts of appeals, caseload, appeals