[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
   FEDERAL JUDICIARY: IS THERE A NEED FOR ADDITIONAL FEDERAL JUDGES?

=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON COURTS, THE INTERNET,
                       AND INTELLECTUAL PROPERTY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 24, 2003

                               __________

                             Serial No. 30

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary





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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

    Subcommittee on Courts, the Internet, and Intellectual Property

                      LAMAR SMITH, Texas, Chairman

HENRY J. HYDE, Illinois              HOWARD L. BERMAN, California
ELTON GALLEGLY, California           JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia              RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
SPENCER BACHUS, Alabama              MAXINE WATERS, California
MARK GREEN, Wisconsin                MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
MELISSA A. HART, Pennsylvania        ROBERT WEXLER, Florida
MIKE PENCE, Indiana                  TAMMY BALDWIN, Wisconsin
J. RANDY FORBES, Virginia            ANTHONY D. WEINER, New York
JOHN R. CARTER, Texas

                     Blaine Merritt, Chief Counsel

                          Debra Rose, Counsel

                         David Whitney, Counsel

              Melissa L. McDonald, Full Committee Counsel

                     Alec French, Minority Counsel



                            C O N T E N T S

                              ----------                              

                             JUNE 24, 2003

                           OPENING STATEMENT

                                                                   Page
The Honorable Lamar Smith, a Representative in Congress From the 
  State of Texas, and Chairman, Subcommittee on Courts, the 
  Internet, and Intellectual Property............................     1
The Honorable Howard L. Berman, a Representative in Congress From 
  the State of California, and Ranking Member, Subcommittee on 
  Courts, the Internet, and Intellectual Property................     2
The Honorable Melissa A. Hart, a Representative in Congress From 
  the State of Pennsylvania......................................     8

                               WITNESSES

Judge Dennis Jacobs, United States Court of Appeals for the 
  Second Circuit of New York
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Mr. William O. Jenkins, Jr., Director, Homeland Security and 
  Justice Issues, General Accounting Office
  Oral Testimony.................................................    20
  Prepared Statement.............................................    22
Mr. Arthur D. Hellman, Professor of Law, University of Pittsburgh 
  School of Law
  Oral Testimony.................................................    55
  Prepared Statement.............................................    56

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Howard L. Berman, a 
  Representative in Congress From the State of California, and 
  Ranking Member, Subcommittee on Courts, the Internet, and 
  Intellectual Property..........................................     3
Letter to the Honorable Howard L. Berman from Chief Judge 
  Consuelo B. Marshall...........................................     5

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress From the State of Michigan..........    75
Prepared Statement of the Honorable Doug Bereuter, a 
  Representative in Congress From the State of Nebraska..........    75
Prepared Statement of the Honorable Tom Osborne, a Representative 
  in Congress From the State of Nebraska.........................    82
Prepared Statement of the Honorable Lee Terry, a Representative 
  in Congress From the State of Nebraska.........................    82
Prepared Statement of the Honorable Steve King, a Representative 
  in Congress From the State of Iowa.............................    83
Prepared Statement of the Honorable Stevan E. Pearce, a 
  Representative in Congress From the State of New Mexico........    83


   FEDERAL JUDICIARY: IS THERE A NEED FOR ADDITIONAL FEDERAL JUDGES?

                              ----------                              


                        WEDNESDAY, JUNE 24, 2003

                  House of Representatives,
              Subcommittee on Courts, the Internet,
                         and Intellectual Property,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 2:05 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Lamar Smith, 
(Chair of the Subcommittee) presiding.
    Mr. Smith. The Subcommittee on Courts, the Internet, and 
Intellectual Property will come to order.
    Today's oversight hearing is on the Federal Judiciary: Is 
There a Need for Additional Federal Judges?
    The Subcommittee will review the proposal of the Judicial 
Conference of the United States for the creation of new Federal 
judgeships and the methodology upon which the proposal is 
based. The Judicial Conference biennially reviews the judgeship 
needs for all U.S. Courts of Appeal and U.S. District Courts. 
The Conference then submits its recommendations to Congress.
    Today's hearing will focus on the Conference's March 2003 
recommendations.
    The Conference recommends that Congress create positions 
for 11 new Courts of Appeal judges, 46 new District Court 
judges, and to make permanent 5 temporary District Court 
judges. In developing judgeship recommendations, the 
Conference, through its committee structure, reviews District 
Court needs based in large part on the standards adopted in 
1993 related to the caseload of judges. Every case filed in a 
District Court is assigned a weight. The weight represents the 
average amount of judge's time the case is expected to require. 
In Courts of Appeal nearly every case filed is assigned a 
weight of one because it is assumed that all cases have an 
equal impact on judges' workloads. When the annual weighted 
case filings per authorized judgeship in each court reach a 
certain level, the conference may consider requesting 
additional judgeships for that court.
    The Conference also takes into account additional criteria 
that may influence judgeship needs, including senior judge and 
magistrate judge assistance, geographical factors and unusual 
caseload complexity.
    In March I sent a letter to the Government Accounting 
Office requesting that it determine if the weighted and 
adjusted case filing systems accurately calculate the workload 
of judges. In its report the GAO concluded that while the 
methodology used to develop the weights for District Court 
filings produced valid results, the weights were adopted in 
1993 and based on data collected as long as 15 years ago. The 
GAO cautions that changes since 1993 may have affected whether 
the weights continue to be a reasonably accurate measure of the 
average time burden on District Court judges.
    The Conference's Subcommittee on Judicial Statistics has 
approved a plan for updating its methodology, but the GAO has 
two concerns with the new approach. First, it would rely on 
data from two different case management data systems so it will 
be difficult to integrate the data from the two systems into 
reliable and useful analysis. Second, the plan will not require 
judges to actually document time spent on a case. Because of 
this, the GAO feels any assessment of case weights would not be 
objective.
    With regard to judgeship needs on Courts of Appeal, the 
adjusted filings measure adopted in 1996 is similar to a 
measure the GAO reviewed in 1993. Neither measure is based on 
any data involving the actual judge time required by different 
types of cases in the Courts of Appeal.
    In 1993 the GAO recommended that the Conference improve its 
workload measure for the Courts of Appeal specifically by 
requiring judges to document how they spend their time on 
cases. The GAO concluded that, quote, ``Given the importance 
and cost of Federal judgeships, this would be a good investment 
to ensure that the workload measures that are used to support 
judgeship requests are reasonably accurate and based on the 
best data available using sound research methods,'' end quote.
    My conclusion is that after 10 years it is disappointing 
that an accurate and objective methodology has not been 
developed by the Conference, especially considering the 
important work of Federal judges.
    The gentleman from California, Mr. Berman, is recognized 
for his opening statement.
    Mr. Berman. Thank you, Mr. Chairman, and I ask unanimous 
consent that my entire statement be included in the record, 
along with a letter from the Chief Judge of the Central 
District of California, Judge Consuelo Marshall.
    Mr. Smith. Without objection, both the opening statement 
and the letter to which you have referred will be made a part 
of the record, as will the opening statements of any Member of 
this Committee, as will the full written testimony of all of 
our witnesses today as well.
    Mr. Berman. Well, Mr. Chairman, I'm pleased that you have 
decided to explore whether there is a need for creating new 
judgeships. The Judicial Branch understands things that 
Congress might not intuit on its own. For instance, the 
Judicial Branch recognizes that not all Federal courts are 
created equal, and some may have needs that are not adequately 
reflected in the methodology employed by the Judicial 
Conference.
    In the District Court for the Central District of 
California, which happens to cover my congressional district, 
is one such Federal Court. Chief Judge Consuelo Marshall 
informs me that in recommending one new permanent and two new 
temporary judgeships for the Central District, the Judicial 
Conference took into account compelling factors unique to the 
Central District. The Central District is the largest of the 94 
Federal Districts in the Nation, serving a population of 17 
million people. However, the Central District has only 27 
authorized judgeships, meaning there is less than 1 judge for 
every 630,000 residents. Compare this to the Southern District 
of New York, which has 28 authorized judgeships serving a 
population of 4,871,000, or 1 judge for every 174,000 
residents, a tremendous disparity.
    Size is not the only thing that distinguishes the Central 
District. The Central District deals with more than its share 
of extremely complex cases. As Chief Judge Marshall states, our 
District handles many of the most complex criminal prosecutions 
in the country including business crimes, public corruption, 
gang-based RICO conspiracies and international narcotics and 
money laundering conspiracies. A large percent of the court's 
civil docket is comprised of intellectual property, antitrust, 
RICO and environmental cases. Such complex cases clearly take 
far more of a court's time than the average case. The 
methodology used by the Judicial Conference to make judgeship 
recommendations takes many of these complexities into 
consideration, but may not reflect all relevant factors. For 
example, Judge Marshall notes that under the current Judicial 
Conference methodology, large multiparty civil cases are given 
the same weight as single plaintiff and single defendant cases.
    In conclusion, Mr. Chairman, I think many Federal Courts 
like the Central District of California, have serious needs for 
additional judgeships. I look forward to working with you, the 
GAO, and the Judicial Conference to determine the appropriate 
number the appropriate number of new judgeships for the Central 
District and other courts across the Nation, and I yield back 
the balance of my time.
    [The prepared statement of Mr. Berman follows:]
Prepared Statement of the Honorable Howard L. Berman, a Representative 
                in Congress From the State of California
    Mr. Chairman,
    I am pleased that you have decided to explore whether there is a 
need for creating new judgeships.
    Recently, as a late substitute for Chairman Sensenbrenner, I gave 
remarks before the American Academy of Arts and Sciences on the 
appropriate relationship between the judicial and legislative branches 
of government. The crux of my remarks was that it is appropriate for 
Congress to exercise its jurisdiction over administration of the 
judicial branch, but not appropriate to regulate the judicial function 
itself.
    Determination of the appropriate number of federal judgeships is 
within the appropriate jurisdiction of Congress. While the number of 
judgeships clearly has an effect on the workload of existing judges, 
congressional control over the number of judgeships does not interfere 
with the exercise of the judicial function itself.
    I commend you, Mr. Chairman, for recognizing this, and 
commissioning the GAO study before us today. This study will assist the 
Subcommittee and Congress in making a reasoned decision when 
determining whether to create new judgeships.
    That does not mean Congress should exercise its jurisdiction 
without consulting the courts. In fact, I believe Congress should defer 
as much as possible to the courts in determining the number of federal 
judgeships. Clearly, the judicial branch is best situated to examine 
the strains that case loads place on the ability of judges to provide 
timely, well-reasoned opinions. Since the Judicial Branch is the expert 
in this area, we should start with a bias in favor of their judgeship 
recommendations.
    The judicial branch understands things that Congress might not 
intuit on its own. For instance, the judicial branch recognizes that 
not all federal courts are created equal, and some may have needs that 
are not adequately reflected in the methodology employed by the 
Judicial Conference.
    The District Court for the Central District of California, which 
happens to cover my congressional district, is one such federal court. 
Chief Judge Consuelo Marshall informs me that, in recommending one new 
permanent and two new temporary judgeships for the Central District, 
the Judicial Conference took into account compelling factors unique to 
the Central District.
    The Central District is the largest of the 94 federal districts in 
the nations, serving a population of 17 million people. However, the 
Central District has only 27 authorized judgeships, which means that 
there is less than one judge for every 630,000 residents. Compare this 
to the Southern District of New York, which has 28 authorized 
judgeships serving a population of 4, 871,000, or one judge for every 
174,000 residents.
    Size is not the only thing that distinguishes the Central District. 
The Central District deals with more than its share of extremely 
complex cases. As Chief Judge Marshall states, ``Our district handles 
many of the most complex criminal prosecutions in the country, 
[including] business crimes; public corruption; gang-based RICO 
conspiracies; and international narcotics and money-laundering 
conspiracies. . . . A large percentage of the court's [civil] docket is 
comprised of intellectual property, antitrust, RICO, and environmental 
cases.''
    Such complex cases clearly take far more of a court's time than the 
average case. The methodology used by the Judicial Conference to make 
judgeship recommendations takes many of these complexities into 
consideration, but may not reflect all relevant factors. For example, 
Chief Judge Marshall notes that, under the current Judicial Conference 
methodology, ``large multi-party civil cases [are] given the same 
weight as single plaintiff and single defendant cases.''
    In conclusion, Mr. Chairman, I think many federal courts, like the 
Central District of California, have serious need for additional 
judgeships. I look forward to working with you, the GAO, and the 
Judicial Conference to determine the appropriate number of new 
judgeships for the Central District and other courts across the nation.
    I yield back the balance of my time.

    [The letter of Chief Judge Marshall follows:]
    
    
    
    
    
    
    Mr. Smith. Thank you, Mr. Berman.
    I do want to thank the Members who are present, both for 
their attendance and for their interest in such an important 
subject today, and as I mentioned a while ago, their opening 
statements will be made a part of the record.
    Let me introduce our witnesses. Our first witness is the 
Hon. Dennis Jacobs, Judge of the United States Court of Appeals 
for the Second Circuit of New York. Judge Jacobs was appointed 
in 1992. He received his BA from Queens College at the City 
University of New York and his MA and JD from New York 
University.
    Our next witness is William O. Jenkins, Jr., Director of 
Homeland Security and Justice Issues at the Government 
Accounting Office. Mr. Jenkins has been with the Government 
Accounting Office since 1979. He received his BA magna cum 
laude from Rice University, and his MA and Ph.D. in public law 
from the University of Wisconsin at Madison.
    Our last witness is Professor Arthur D. Hellman of the 
Pittsburgh School of Law. Professor Hellman is a renowned 
scholar with expertise in the areas of Federal Courts and 
constitutional law. Professor Hellman received his BA magna cum 
laude from Harvard University, and his JD from Yale Law School.
    We welcome you all, but before we go to your testimony I 
would like to recognize the gentlewoman from Pennsylvania, Ms. 
Hart, for any comment she may have about any witness who may be 
here.
    Ms. Hart. Don't worry, it's positive. Thank you, Mr. 
Chairman. I appreciate it. I don't want to take up a lot of 
time, but it is always very gratifying, as a Member of the 
House to have someone I know have the opportunity to come here 
and address a Committee and share his or her expertise, and we 
are so lucky today. I am a graduate of the University of 
Pittsburgh School of Law, and I am friends with our witness, 
Arthur Hellman. He has been very well respected, as I know 
firsthand both as a student at the law school and also, 
obviously, within the community.
    One thing that is important to note, and aside from the 
wonderful degrees list and his accomplishments and the books he 
has authored, is the fact that he is a great guy, very involved 
in the community, and somebody who has an interest in the 
political process. As we know, too often people are very busy, 
especially in academia, and don't take as much of an interest 
in what we do here as Art Hellman does, and I want to thank him 
for that and welcome him in joining us today to share with us 
his views on this issue.
    Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Ms. Hart.
    Judge Jacobs, we'll begin with you, if we may.

   STATEMENT OF JUDGE DENNIS JACOBS, UNITED STATES COURT OF 
           APPEALS FOR THE SECOND CIRCUIT OF NEW YORK

    Judge Jacobs. Mr. Chairman, Members of the Subcommittee, 
I'm Dennis Jacobs, Circuit Judge for the Second Circuit of 
Appeals and Chair of the Judicial Conference Committee on 
Judicial Resources.
    That committee is responsible for all issues of human 
resource administration in the U.S. Courts of Appeals and the 
District Courts, including the need for Article III judges and 
support staff. I'm here today to provide information about 
outstanding judgeship needs and the process by which the 
Judicial Conference of the United States ascertains those 
needs.
    On March 20 the Director of the Administrative Office of 
the U.S. Courts transmitted to the President of the Senate and 
to the Chairmen of the House and Senate Judiciary Committees, a 
bill containing the recommendations of the Judicial Conference 
to create the judgeships that the Chair has summarized earlier. 
For many of these courts the recommendations reflect needs that 
have arisen or have become acute since the last comprehensive 
judgeship bill was enacted in 1990. In developing these 
recommendations for additional Circuit and District judgeships, 
the Conference uses a formal systematic and rigorous process. 
The Judicial Conference conducts a new survey of judgeship 
needs every 2 years and we go through the same process each 
time.
    Each court that requests an additional judgeship submits a 
detailed justification to my committee's Subcommittee on 
Judicial Statistics. And after review of that submission, the 
subcommittee sends preliminary recommendations to the courts 
and to the appropriate circuit judicial councils and solicits 
views. The subcommittee then reviews the responses received 
from the Court and the recommendations of the judicial council 
in the light of updated caseload data and submits its 
recommendation to the full committee. The recommendations of 
the Committee on Judicial Resources are then provided to the 
Judicial Conference. The judgeships proposed in the draft bill 
were given final approval by the conference. A more detailed 
description of the process and the standards used is included 
in my prepared statement.
    The Judiciary has conscientiously taken measures to reduce 
our requests to Congress for additional judgeships, and among 
the measures we have taken are requests for temporary rather 
than permanent judgeships where that suffices, services of 
senior judges and magistrate judges, intercircuit and 
intracircuit assignment of judges, the use of alternative 
dispute resolution, the use of new technology such as video 
conferencing, rigorous standards for evaluating judgeship needs 
so that we don't ask unless we need, and recommendations that 
vacancies not be filled in courts with consistently low 
workload. As part of the judgeship survey, courts requesting 
additional judgeships are questioned about their efforts to 
make use of all available resources.
    Notwithstanding all these efforts, the workload needs in 
many courts cannot be met with the present complement of 
judges. Since the last comprehensive judgeship bill was 
enacted, workload has increased fairly relentlessly. No new 
circuit judgeship has been created since 1990, yet filings from 
then to March of this year in the Courts of Appeals have grown 
by 41 percent. The national average caseload for a 3-judge 
panel has reached 1,090, the highest ever. Since 1990 District 
Court filings rose 29 percent and in that time 34 additional 
district judgeships have been created in response to particular 
exigencies in particular districts. But even so, the average 
nationwide weighted filings per judgeship stands at 523, which 
is well above the Conference standard for considering 
recommendations for additional judgeships. This overall average 
is high. In the courts as to which judgeships are requested, in 
the draft bill the situation is downright alarming. As of March 
2003 all but three of those courts had weighted filings in 
excess of 500 per judgeship, 8 of these courts had per 
judgeship filings exceeding 600.
    The Conference recognizes that there cannot be indefinite 
growth in judgeships. The long-range plan for the Federal 
Courts emphasizes that growth must be limited to the number of 
new judgeships that is necessary to exercise Federal 
jurisdiction. The Conference has a demonstrated commitment to 
controlling growth and has requested far fewer judgeships than 
the caseload increases would justify.
    On behalf of the Judicial Conference, I request that this 
subCommittee give full and favorable consideration to the draft 
submitted by the Judicial Conference. I am grateful for your 
willingness to consider this issue in this hearing, and I will 
be happy to respond to any questions you may have.
    [The prepared statement of Judge Jacobs follows:]
               Prepared Statement of Judge Dennis Jacobs
    Mr. Chairman and members of the Subcommittee, I am Dennis Jacobs, 
Circuit Judge for the Second Circuit Court of Appeals and Chair of the 
Judicial Conference Committee on Judicial Resources. That Committee is 
responsible for all issues of human resource administration, including 
the need for Article III judges and support staff in the U.S. courts of 
appeals and district courts. I am here today to provide information 
about the judgeship needs of the courts and the process by which the 
Judicial Conference of the United States (the ``Conference'') 
ascertains those needs.
    Every other year, the Conference conducts a survey of judgeship 
needs of all U.S. courts of appeals and U.S. district courts. The 
latest survey was completed in March 2003. Consistent with that survey, 
the Conference recommended that Congress establish 57 new judgeships in 
the courts of appeals and district courts. The Conference also 
recommended that five temporary district court judgeships created in 
1990 be established as permanent positions. Appendix 1 contains the 
particular recommendation as to each court.
    For many of the courts, the recommendations reflect needs developed 
since the last comprehensive judgeship bill was enacted, in 1990. Every 
two years since then, the Conference has submitted to Congress 
recommendations on the numbers of additional Article III judgeships 
required in the judicial system.
                             survey process
    In developing recommendations for consideration by Congress, the 
Conference (through its committee structure) uses a formal process to 
review and evaluate Article III judgeship needs. The Committee on 
Judicial Resources and its Subcommittee on Judicial Statistics manage 
these reviews; the final recommendations on judgeship needs are adopted 
by the Conference itself. Before a recommendation is transmitted to 
Congress, it undergoes consideration and review at six levels within 
the Third Branch, by: 1) the judges of the court making a request; 2) 
the Subcommittee on Judicial Statistics; 3) the judicial council of the 
circuit in which the court is located; 4) the Subcommittee, in a 
further and final review; 5) the Committee on Judicial Resources; and 
6) the Conference. In the course of the 2003 survey, the courts 
requested 80 additional judgeships, permanent and temporary. Fifteen 
new judgeships were created in the 21st Century Department of Justice 
Appropriations Authorization Act. Our review procedure reduced the 
number of judgeships recommended by the Conference to 57.
    In the course of each judgeship survey, all recommendations made in 
the prior survey are re-considered, taking into account the latest 
workload data, changes in the availability of resources, and 
adjustments to guidelines for evaluating requests. In some instances, 
this review prompts adjustments to previous recommendations.
                     judicial conference standards
    The recommendations developed through the review process described 
above are based in large part on a numerical standard based on 
caseload. These standards, provided at Appendix 2, are not in 
themselves indicative of each court's needs. They represent the 
caseload at which the Conference may begin to consider requests for 
additional judgeships--the starting point in the process, not an end 
point.
    Caseload statistics must be considered and weighed with other 
court-specific information to arrive at a sound measurement of each 
court's judgeship needs; circumstances that are unique, transitory, or 
ambiguous may result in an overstatement or understatement of actual 
burdens. The Conference process therefore takes into account additional 
factors, including: the number of senior judges, their ages and level 
of activity; magistrate judge assistance; geographical factors, such as 
the number of places of holding court; unusual caseload complexity; 
temporary or prolonged caseload increases or decreases; use of visiting 
judges; and any other factors noted by individual courts (or identified 
by the Statistics Subcommittee) as having an impact on resource needs. 
Courts requesting additional judgeships are specifically asked about 
their efforts to make use of all available resources. (See Appendix 3.)
    For example, the standard used by the Conference as its starting 
point in the district courts is 430 weighted filings per judgeship. But 
in every district court as to which the Conference recommended an 
additional judgeship in March 2003, the workload is at 489 weighted 
filings and above. In all but three of those district courts, weighted 
filings per judgeship exceed 500.
    In the courts of appeals, the starting point used by the Conference 
is 500 adjusted filings per panel. In 2003, four circuits exceeded 900 
adjusted filings per panel; even so, two of these courts did not 
request an additional judgeship. The case mix in the circuits in which 
additional judgeships are recommended differs significantly from the 
case mix in the circuit courts that did not request additional 
judgeships. For example, criminal and prisoner petition appeals were 
approximately 60 percent of all appeals filed in the Fifth and Eleventh 
Circuits (which did not seek additional judgeships), but only about 35 
percent in the Second and Ninth Circuits (which did). In each circuit 
court as to which the Conference has recommended additional judgeships, 
the caseload levels substantially exceed the standard, and other 
factors bearing on workload have been closely considered.
    In short, caseload statistics furnish the threshold for 
consideration, but the process entails a searching and critical look at 
the caseloads in light of many other considerations and variables, some 
of which are subjective and all of which are considered together.
                    background-caseload information
    The last comprehensive judgeship bill for the U.S. courts of 
appeals and district courts was enacted in 1990.\1\ Public Law 101-650 
established 11 additional judgeships for the courts of appeals and 74 
additional judgeships for the district courts. Since that time, 
caseloads in the courts of appeals and the district courts have 
continued to rise.
---------------------------------------------------------------------------
    \1\ As part of the Judiciary's appropriation for fiscal years 2000 
and 2001, and as part of the Department of Justice authorization bill 
in fiscal year 2003, the Congress created 9, 10, and 15 judgeships, 
respectively.


    By March 2003, filings in the courts of appeals had grown by 41 
percent (Chart 1), while case filings in the district courts rose 29 
percent (civil cases were up 22 percent while criminal felony filings 
rose 73 percent) (Chart 2). Although Congress created 34 additional 
judgeships in the district courts in recent years in response to 
particular problems in certain districts, no additional judgeship has 
been created for the courts of appeals. As a result, the national 
average caseload per three-judge panel has reached 1,090--the highest 
ever. Were it not for the assistance provided by senior and visiting 
judges, the courts of appeals would not have been able to keep pace, 
particularly in light of the number and length of vacant judgeships.


    Even with the additional district judgeships, the number of 
weighted filings per judgeship in the district courts has reached 523--
well above the Judicial Conference standard for considering 
recommendations for additional judgeships. I have provided at Appendix 
4 a more detailed description of the most significant changes in the 
caseload since 1991.
    One important factor bearing on workload in the district courts, 
which may not be obvious from the caseload data, is the change in the 
nature of the criminal business. Since 1991, the conviction rate for 
criminal defendants has grown from 82 percent of all defendants to 90 
percent in 2003. Thus even without an increase in the district court 
caseload, there has been an increase in workload attributable to 
sentencing. In 2003, there were 70,585 sentencing hearings. This burden 
is intensified by the Sentencing Guidelines, which require more of a 
judge's time than discretionary sentencing did in the past.
    Another factor that increases workload on criminal cases is the 
number of defendants receiving terms of supervised release following a 
prison term. The Sentencing Reform Act of 1984, which authorized 
sentences of supervised-release, imposed on district judges and 
magistrate judges responsibilities for a class of defendants who 
previously were the responsibility of the United States Parole 
Commission. Monitoring these defendants and reviewing potential 
violations of the terms of release are functions now performed by the 
district court. A large majority of defendants under supervision of the 
Federal Probation System are now serving terms of supervised release, 
so judges must now conduct hearings whenever these defendants violate 
the terms of their supervision. The incremental workload associated 
with supervised release is reflected in the weighted filings 
information used to support the need for additional judgeships, but 
that data has been folded in only recently. So the recommendations 
understate this additional workload burden of the district courts. We 
do know, however, that district court judges conducted approximately 
15,000 such hearings in 2003. Again, without the assistance of senior 
and magistrate judges (and visiting judges), the district courts would 
not have been able to manage the workload increases.
    Although the national figures provide a general indication of 
system-wide changes, the situation in courts where the Conference has 
recommended additional judgeships is much more dramatic. For example, 
there are eight district courts with caseloads exceeding 600 per 
judgeship. The district courts in which the Conference is recommending 
additional judgeships (viewed as a group) have seen a growth in 
weighted filings per judgeship from 453 in 1991 to 600 in March 2003 
(or 574 per judgeship taking into account the 34 newly created 
judgeships)--an increase of 32 percent (Chart 3).


    The national data and the combined data for courts requesting 
additional judgeships provide general information about the changing 
volume of business in the courts. The Conference's recommendations are 
not, however, premised on this data concerning courts as a group. 
Judgeships are authorized court-by-court rather than nationally; so the 
workload data most relevant to the judgeship recommendations are those 
that relate to
    each specific court as to which the Conference has recommended an 
additional judgeship.
    Appendix 1 contains summary information about the numbers of 
additional judgeships recommended by the Conference for each court. The 
Legislative Affairs staff of the Administrative Office of the U.S. 
Courts has previously provided to each member of the Judiciary 
Committee the detailed justifications for the additional judgeships in 
each court. This material is too voluminous to attach as an appendix to 
this statement.
    Over the last 20 years, the Judicial Conference has developed, 
adjusted, and refined the process for evaluating and recommending 
judgeship needs in response to both judiciary and congressional 
concerns. The Conference does not recommend (or wish) indefinite growth 
in the number of judges. The 
Long Range Plan for the Federal Courts (Recommendation 15) 
recognizes that growth in the judiciary must be carefully limited to 
the number of new judgeships that are necessary to exercise federal 
court jurisdiction. However, as long as federal court jurisdiction 
continues to expand, there must be a sufficient number of judges to 
properly serve litigants and justice. The Conference is perennially 
attempting to balance the need to control growth and the need to seek 
resources that are appropriate to the workload. In an effort to 
implement that policy, we have requested far fewer judgeships than the 
caseload increases would suggest are now required.
    On behalf of the Judicial Conference, I request that this 
Subcommittee give full and favorable consideration to the draft bill 
submitted by the Judicial Conference to establish 11 additional 
judgeships for the U.S. courts of appeals and 46 additional judgeships 
for the U.S. district courts.

                               APPENDIX 1


                               APPENDIX 2

           judicial conference process for courts of appeals
    At its September 1996 meeting, on the recommendation of the 
Judicial Resources Committee, which consulted with the chief circuit 
judges, the Judicial Conference unanimously approved a new judgeship 
survey process for the courts of appeals. Because of the unique nature 
of each of the courts of appeals, the Conference process involves 
consideration of local circumstances that may have an impact on 
judgeship needs. In developing recommendations for courts of appeals, 
the Conference takes the following general approach:

        A.  Courts are asked to submit requests for additional 
        judgeships provided that at least a majority of the active 
        members of the court have approved submission of the request; 
        no recommendations for additional judgeships are made without a 
        request from a majority of the members of the court.

        B.  Each court requesting additional judgeships is asked to 
        provide a complete justification for the request, including the 
        potential impact on its own court and the district courts 
        within the circuit of not getting the additional judgeships. In 
        any instance in which a court's request cannot be supported 
        through the standards noted below, the court is requested to 
        provide supporting justification as to why the standard should 
        not apply to its request.

        C.  The Conference considers various factors in evaluating 
        judgeship requests, including a statistical guide based on a 
        standard of 500 filings (with removal of reinstated cases) per 
        panel and with pro se appeals weighted as one third of a case. 
        This caseload level is used only as a guideline and not used to 
        determine the number of additional judgeships to recommend. The 
        Conference does not attempt to bring each court in line with 
        this standard.

    The process allows for discretion to consider any special 
circumstances applicable to specific courts and recognizes that court 
culture and court opinion are important ingredients in any process of 
evaluation. The opinion of a court as to the appropriate number of 
judgeships, especially the maximum number, plays a vital role in the 
evaluation process, and there is recognition of the need for 
flexibility to organize work in a manner which best suits the culture 
of the court and satisfies the needs of the region served.
         judicial conference process for district court reviews
    In an ongoing effort to control growth, in 1993, the Conference 
adopted new, more conservative criteria to evaluate requests for 
additional district judgeships, including an increase in the benchmark 
caseload standard from 400 to 430 weighted cases per judgeship. 
Although numerous factors are considered in looking at requests for 
additional judgeships, the primary factor for evaluating the need for 
additional district judgeships is the level of weighted filings. 
Specifically, the Conference uses a case weighting system \1\ designed 
to measure judicial workload, along with a variety of other factors, to 
assess judgeship needs. The Conference reviews all available data on 
the caseload of the courts and supporting material provided by the 
individual courts and judicial councils of the circuits, and takes the 
following approach in developing recommendations for additional 
district judgeships:
---------------------------------------------------------------------------
    \1\ ``Weighted filings'' is a mathematical adjustment of filings, 
based on the nature of cases and the expected amount of judge time 
required for disposition. For example, in the weighted filings system 
for district courts, each student loan civil case is counted as only 
0.031 cases while each cocaine distribution defendant is counted as 
2.27 weighted cases. The weighting factors were developed on the basis 
of time studies conducted by the Federal Judicial Center on cases filed 
between 1987 and 1991.

        A.  A level of weighted filings in excess of 430 per judgeship 
        is used as a starting point for considering requests; this 
        caseload level is used only as a guideline and not used to 
        determine the number of additional judgeships to recommend. The 
        Conference does not attempt to bring each court in 
---------------------------------------------------------------------------
        line with this standard.

        B.  The caseload of the individual courts is reviewed to 
        determine if there are any factors present to create a 
        temporary situation that would not provide justification for 
        additional judgeships. Other factors are also considered that 
        would make a court's situation unique and provide support 
        either for or against a recommendation for additional 
        judgeships.

        C.  The Conference reviews the requesting court's strategies 
        for handling judicial workload, including a careful review of 
        each court's use of senior judges, magistrate judges, and 
        alternative dispute resolution, in addition to a review of each 
        court's use of and willingness to use visiting judges. These 
        factors are used in conjunction with the caseload information 
        to decide if additional judgeships are appropriate, and to 
        arrive at the number of additional judgeships to recommend for 
        each court.

        D.  The Conference recommends temporary judgeships in all 
        situations where the caseload level justifying additional 
        judgeships occurred only in the most recent years, or when the 
        addition of a judgeship would place a court's caseload close to 
        the guideline of 430 weighted filings per judgeship. The 
        Conference sometimes relaxes this approach in the case of a 
        small court, where the addition of a judgeship would drop the 
        caseload per judgeship substantially below the 430 level. In 
        some instances the Conference also considers the pending 
        caseload per judgeship as a factor supporting an additional 
        temporary judgeship.
                                 ______
                                 

                               APPENDIX 3

                 actions to maximize use of judgeships
    In addition to the conservative and systematic processes described 
in pages 1-5 for evaluating judgeship needs, given the current climate 
of fiscal constraint, the judiciary is continually looking for ways to 
work more efficiently without additional resources. As a part of the 
normal judgeship survey process or as a separate initiative, the 
judiciary has used a variety of approaches to maximize the use of 
resources and to ensure that resources are distributed in a manner 
consistent with workload. These efforts have allowed us to request 
fewer additional judgeships than the increases in caseload would 
suggest are required. Among the more significant methods in use are:
    (1) Surveys to review requests for additional permanent and 
temporary judgeships and extensions or conversions of temporary 
judgeships to permanent: As described previously, surveys are conducted 
biennially of all Article III judgeships needs. To reduce the number of 
additional judgeships requested from Congress, the Judicial Conference 
has adopted more conservative criteria for determining when to 
recommend creation of additional judgeships in the courts of appeals 
and district courts.
    (2) Recommending temporary rather than permanent judgeships: 
Temporary, rather than permanent, judgeships are recommended in those 
instances where the need for additional judgeships is demonstrated, but 
it is not clear that the need will exist permanently.
    (3) Development of a process to recommend not filling vacancies: In 
March 1997, the Judicial Conference approved a process for reviewing 
situations where it may be appropriate to recommend elimination of a 
district judgeship or that a vacancy not be filled. The Judicial 
Conference includes this process in its biennial surveys of judgeship 
needs for recommending to the Executive and Legislative Branches that 
specific vacancies be eliminated or not be filled. A similar process 
has been developed and is in use for the courts of appeals.
    (4) Use of senior judges: Judicial officer resource needs are also 
met through the use of Article III judges who retire from active 
service to senior status. Most senior Article III judges perform 
substantial judicial duties; over 375 senior judges are serving 
nationwide.
    (5) Shared judgeships: Judgeship positions have been shared to meet 
the resource needs of more than one district without the cost of an 
additional judgeship.
    (6) Intercircuit and intracircuit assignment of judges: To furnish 
short-term solutions to disparate judicial resource needs of districts 
within and between circuits, the judiciary uses intercircuit and 
intracircuit assignments of Article III judges. This program has the 
potential to provide short-term relief to understaffed courts.
    (7) Use of magistrate judges: Magistrate judges serve as adjuncts 
to the district courts, supplementing the work of the Article III 
judges. Use of magistrate judges on many routine court matters and 
proceedings allows for more effective use of Article III judges on 
specialized court matters.
    (8) Use of alternative dispute resolution: Since the late 1970s and 
with increasing frequency, courts use various alternative dispute 
resolution programs such as arbitration, mediation, and early neutral 
evaluation as a means of settling civil disputes without litigation.
    (9) Use of technology: The judiciary continually explores ways to 
help align caseloads through technological advancements, where judges 
can assist other districts or circuits without the need to travel.
                                 ______
                                 

                               APPENDIX 4

               caseload changes since last judgeship bill
    With the creation of 34 additional district court judgeships, the 
total number of authorized district court judgeships has increased 5 
percent since 1991; court of appeals judgeships have not increased. 
Since the last comprehensive judgeship bill was enacted for the U.S. 
courts of appeals and district courts, the numbers of cases filed in 
those courts have grown by 41 percent and 29 percent, respectively. 
Specific categories of cases have seen dramatic changes over the last 
12 years, some increasing and some decreasing significantly. Following 
is a summary of the most significant changes.
U.S. COURTS OF APPEALS (Change in authorized judgeships: 0)

          The total number of appeals filed has grown by more 
        than 17,600 cases since 1991.

          Appeals of decisions in civil cases from the district 
        courts have increased 25 percent.

          The most dramatic growth in civil appeals has been in 
        prisoner appeals where case filings are up 63 percent since 
        1991; this growth has occurred in matters involving both state 
        and federal prisoners.

          Appeals of criminal cases have risen moderately since 
        1991, increasing 13 percent overall.

          The number of appeals involving administrative agency 
        decisions has fluctuated over the last several years, but is 
        now more than three times the number filed in 1991, with most 
        of that increase occurring in the past year. The increase in 
        2003 resulted from dramatic increases in the Ninth and Second 
        Circuits in the number of appeals related to deportation 
        orders.

          Original proceedings rose from 609 in 1991 to 3,659 
        in 2003. The Antiterrorism and Effective Death Penalty Act, 
        enacted April 1996, requires prisoners to seek permission from 
        courts of appeals for certain petitions. Data for these types 
        of proceedings were not reported until October 1998. Between 
        1999 and 2003, original proceedings filings rose 8 percent.
U.S. DISTRICT COURTS (Change in authorized judgeships: +5%)
            CIVIL CASELOAD

          Total civil filings rose 22 percent from 1991 to 
        2003, although the number of civil cases filed in 2003 was 6 
        percent below the number filed in 1997.

          The increase in civil filings resulted primarily from 
        cases related to personal injury product liability (125%), 
        social security (114%), civil rights (103%), copyright, patent 
        and trademark (62%), and prisoner petitions (32%).

          Personal injury product liability filings rose 200 
        percent from 1991 to 1997 due primarily to breast implant cases 
        and a large number of cases filed in the Middle District of 
        Louisiana related to an oil refinery explosion. Personal injury 
        product liability filings began to decline in 1998 and had 
        fallen to nearly 1991 levels by 2001. In 2002, these cases more 
        than tripled due to a large number of plaintiffs seeking relief 
        in the expectation that new laws may be enacted making it more 
        difficult to file cases related to injuries involving asbestos. 
        A significant increase in filings involving the anti-
        cholesterol drug Baycol also contributed to the increase. 
        Filings declined significantly in 2003, as asbestos filings 
        fell sharply to below the number filed in 1991, but remained at 
        twice the number filed in 2001.

          Some of the increases in civil filings resulted, in 
        part, from legislative actions:

            civil rights filings increased steadily after the 
        Civil Rights Act of 1990 was enacted. Filings rose from 19,892 
        in 1991 to 43,278 in 1997, but have since decreased slightly.

            prisoner petitions increased through the first half 
        of the 1990's, rising 61 percent between 1991 and 1996. The 
        increase was due primarily to a 57 percent increase in prison 
        civil rights cases, although habeas corpus petitions were also 
        higher. Prison litigation reform was enacted in 1996, and 
        prison civil rights cases have since fallen 40 percent and are 
        now below 1991 levels. Habeas corpus petitions, on the other 
        hand, have increased 46 percent and are now nearly twice the 
        number filed in 1991. Overall, prisoner petitions increased 32 
        percent between 1991 and 2003.

          Filings related to social security fluctuated 
        considerably between 1991 and 1996, but have risen sharply 
        since 1999 and are now 114 percent above the number of cases 
        filed in 1991. The recent increases in social security filings 
        have resulted from a change in the processing of backlogged 
        cases by the Social Security Administration.

          Copyright, patent, and trademark cases filed rose 
        every year between 1991 and 2000, with the exception of a small 
        decline in 1995, increasing 68 percent in that time. Since 
        2000, filings have declined 4 percent due to a 16 percent drop 
        in trademark cases.

          Most of the significant decreases in filings from 
        1991 to 2003 occurred in case categories that have a relatively 
        small number of cases. The most significant exception is 
        recovery of overpayments and enforcement of judgments cases. 
        Recovery cases rose sharply between 1995 and 2000, but have 
        since fallen sharply and are now approximately 7,000 cases 
        below the number filed in 1991. Other significant decreases 
        occurred in personal injury cases not related to product 
        liability--down 3,700 filings, forfeiture and penalty filings--
        down 3,400 filings, and property foreclosures which fell 1,900 
        filings.
            CRIMINAL FELONY CASELOAD

          Since 1991, the number of criminal felony case 
        filings has increased 73 percent and the number of felony 
        defendants is 54 percent higher. After fluctuating between 1991 
        and 1994, criminal filings have steadily increased in the last 
        nine years. Just since 1994, criminal felony case filings are 
        up 87 percent.

          The largest increase by far has been in immigration 
        filings, which rose from 2,000 in 1991 to 14,476 in 2003.

          Firearms filings fluctuated between 1991 and 1997, 
        but have risen 166 percent just since 1997 and are currently 
        120 percent above 1991 levels.

          Drug-related filings increased 56 percent and 
        defendants charged with drug offenses rose 34 percent.

          Although filings related to fraud fluctuated over the 
        years, they have increased 37 percent from 6,029 to 8,248.

          Most of the significant decreases in filings occurred 
        in offense categories that have a relatively small number of 
        cases.

    Mr. Smith. Thank you, Judge Jacobs.
    Director Jenkins.

 STATEMENT OF WILLIAM O. JENKINS, DIRECTOR, HOMELAND SECURITY 
         AND JUSTICE ISSUES, GENERAL ACCOUNTING OFFICE

    Mr. Jenkins. Mr. Chairman and Members of the Subcommittee, 
I am pleased to be here today to discuss the results of our 
review and assessment of the case-related workload measures the 
Judicial Conference had adopted for District Court and Courts 
of Appeals Judges, weighted case filings and adjusted case 
filings respectively.
    In assessing the needs for additional judgeships the 
Judicial Conference begins with these quantitative workload 
measures and relies on them to be reasonably accurate measures 
of case-related judge workload. Whether they are in fact 
reasonably accurate measures depends in turn on the soundness 
of the methodology used to develop them. In assessing judgeship 
needs the Judicial Conference also considers a variety of other 
information, such as temporary increases or decreases in case 
filings specific to individual courts. I wish to emphasize that 
our analysis and my testimony are limited to an assessment of 
the workload measures themselves. The scope of our work did not 
include how the Judicial Conference used these workload 
measures and other information to develop its current request 
for additional District and Courts of Appeals judgeships.
    The case-related workloads measure is used for District 
Courts and Courts of Appeals recognized to different degrees, 
that the time demands on judges are largely a function of the 
number and complexity of the cases on their dockets. Some cases 
take more time than others. Generally each case filed in a 
District Court is assigned a case weight based on the subject 
matter of the case. The weight represents the relative national 
average amount of judge time the case would be expected to 
require. A case with the weight of 2.0, for example, would be 
expected to take twice as much judge time as a case with the 
weight of 1.0. Criminal felony cases are assigned on a per 
defendant basis. Total weighted filings for a District is the 
sum of weights of all cases filed in the District during a 
year. Weighted filings per authorized judgeship is the total 
weighted filings divided by the number of authorized 
judgeships. Generally the Judicial Conference considers 
weighted case filings of 430 or more per authorized judgeship 
as an indicator that a District Court may need one or more 
additional judgeships.
    As approved in 1993, weighted filings are a reasonably 
accurate measure of District Judge case related workload. The 
methodology used to develop the weights included a valid 
sampling procedure, used actual case-related judge time from a 
sample of about 12,000 cases to develop the weights, and 
included a measure, standard errors, of the statistical 
confidence in the final weight for each case type. The weights 
are now 10 years old and changes in case characteristics and 
case management may have affected how accurately the weights 
continue to measure the judge time required for a specific 
volume and mix of cases.
    The Subcommittee on Judicial Statistics has approved a 
research design for updating the current weights that would not 
require a new time study. Although the design appears to offer 
the benefit of reduced judicial burden, potential cost savings 
and reduced calendar time to develop the new weights, we are 
concerned that it would not be possible to objectively, 
statistically assess the accuracy of the weights resulting from 
the study. In developing the new weights, estimates of non-
courtroom judge time, the majority of time judges spend on most 
cases, would be based on the results of an introduced set of 
structured, guided discussions among groups of experienced 
District Court Judges, about 124 in all.
    The accuracy of the time estimates resulting from these 
discussions is dependent upon the experience and knowledge of 
the participating judges and the accuracy and reliability of 
the judges' recall about the time required for various case 
processing events in different types of cases. These consensus 
data cannot be used to develop an objective, statistical 
measure of the accuracy of the new case weights. We believe 
that any new case weight study should permit a statistical 
estimate of the accuracy of the new case weights, weights on 
whose accuracy the Judicial Conference will rely in assessing 
future judgeship needs.
    For the Courts of Appeals, adjusted case filings is the 
principal quantitative case-related workload measure the 
Judicial Conference uses to assess the need for additional 
judgeships. The Conference considers 500 adjusted filings for a 
three-judgeship panel as an indicator that one or more 
additional judgeships may be needed. Adjusted filings basically 
assumes that all cases filed in a Court of Appeals have an 
equal effect on judges' time with two exceptions. First, cases 
refiled and approved for reinstatement are not included in 
adjusted filings. They are deducted from the total. Second, pro 
se cases, those in which one or both parties are not 
represented by counsel, are essentially weighted at one-third 
of other cases.
    The current Courts of Appeals workload measure is based on 
data from existing statistical reporting systems and is not 
based on any empirical data about the actual judge time that 
different types of cases may require. The adjusted case filings 
measure principally reflects a policy decision regarding the 
level of appellate court case filings as appropriate for 
assessing judgeship needs. We found no empirical bases on which 
to assess the potential accuracy of adjusted filings as a 
measure of the case-related workload of appellate judges.
    In commenting on our report, the Chair of the Judicial 
Resources Committee noted that the workload of Courts of 
Appeals Judges entail important factors that have defied 
measurement, including significant differences in the case 
processing procedures for Courts of Appeal. We recognize that 
developing a more discriminating case-related workload measure 
would not be easy, but we also believe there is a need for a 
workload measure whose accuracy can be objectively and 
empirically assessed.
    That concludes my statement, Mr. Chairman. I would be 
pleased to answer any questions you or Members of the 
Subcommittee may have.
    [The prepared statement of Mr. Jenkins follows:]
             Prepared Statement of William O. Jenkins, Jr.
   General Accuracy of District and Appellate Judgeship Case-Related 
                           Workload Measures
    Mr. Chairman and Members of the Subcommittee:
    I am pleased to be here today to discuss the results of our review 
and assessment of case-related workload measures for district court and 
courts of appeals judges.\1\ Biennially, the Judicial Conference of the 
United States, the federal judiciary's principal policymaking body, 
assesses the judiciary's needs for additional judgeships.\2\ If the 
Conference determines that additional judgeships are needed, it 
transmits a request to Congress identifying the number, type (courts of 
appeals, district, or bankruptcy), and location of the judgeships it is 
requesting. In assessing the need for additional district and appellate 
court judgeships, the Judicial Conference considers a variety of 
information, including responses to its biennial survey of individual 
courts, temporary increases or decreases in case filings, and other 
factors specific to an individual court. However, the Conference's 
analysis begins with the quantitative case-related workload measures it 
has adopted for the district courts and courts of appeals-weighted case 
filings and adjusted case filings, respectively. These two measures 
recognize, to different degrees, that the time demands on judges are 
largely a function of both the number and complexity of the cases on 
their dockets. Some types of cases may demand relatively little time 
and others may require many hours of work.
---------------------------------------------------------------------------
    \1\ We recently testified on the methodology used to develop the 
case-related workload measure for bankruptcy judges. See U.S. General 
Accounting Office, Federal Bankruptcy Judges: Weighted Case Filings as 
a Measure of Judges' Case-Related Workload, GAO-03-789T (Washington, 
D.C.: May 22, 2003). This testimony is available on GAO's Web site at 
www.gao.gov.
    \2\ The Chief Justice of the United States presides over the 
Conference, which consists of the chief judges of the 13 courts of 
appeals, a district judge from each of the 12 geographic circuits, and 
the chief judge of the Court of International Trade. The Conference 
meets twice a year.
---------------------------------------------------------------------------
    My statement is based on our recent report, which you requested, on 
the relative accuracy of weighted case filings and adjusted case 
filings as a measure of the case-related workload of district and 
courts of appeals judges, respectively.\3\ Whether weighted case 
filings and adjusted case filings are reasonably accurate measures of 
case-related judge workload rests on the soundness of the methodology 
used to develop these measures. My statement and our report are based 
on the results of our review of documentation provided by the Federal 
Judicial Center (FJC) and the Administrative Office of the U.S. Courts 
(AOUSC) and interviews with officials in each organization. The scope 
of our work did not include how the Judicial Conference used these 
case-related workload measures to develop its current judgeship request 
for district court and courts of appeals judgeships. My statement 
includes the following major points:
---------------------------------------------------------------------------
    \3\ U.S. General Accounting Office, Federal Judgeships: The General 
Accuracy of the Case-Related Workload Measures Used to Assess the Need 
for Additional District Court and Courts of Appeals Judgeships, GAO-03-
788R (Washington, D.C.: May 30, 2003). This report is available on 
GAO's Web site at www.gao.gov.

          The district court weighted case filings, as approved 
        in 1993, appear to be a reasonably accurate measure of the 
        average time demands that a specific number and mix of cases 
        filed in a district court could be expected to place on the 
        district judges in that district. The methodology used to 
        develop the case weights was based on a valid sampling 
        procedure, developed weights based on actual case-related time 
        recorded by judges from case filing to disposition, and 
        included a measure (standard errors) of the statistical 
---------------------------------------------------------------------------
        confidence in the final weight for each weighted case type.

          The case weights, however, are about 10 years old, 
        and the data on which the weights are based are as much as 15 
        years old. Changes since 1993, such as the characteristics of 
        cases filed in federal district courts and changes in case 
        management practices, may have affected whether the 1993 case 
        weights continue to be a reasonably accurate measure of the 
        average time burden on district court judges resulting from a 
        specific volume and mix of cases.

          The Judicial Conference's Subcommittee on Judicial 
        Statistics has approved a research design for updating the 
        current case weights, and we have some concerns about that 
        design. The design would include limited data on the time 
        judges actually spend on specific types of cases. The proposed 
        design would not include collecting actual data on the 
        noncourtroom time that judges spend on different types of 
        cases. Estimates of the noncourtroom time required for specific 
        types of cases would be based on estimates derived from the 
        structured, guided discussions of about 100 experienced judges 
        meeting in 12 separate groups (one for each geographic 
        circuit). These noncourtroom time estimates are likely to 
        represent the majority of judge time used to develop the new 
        case weights. The accuracy of case weights developed on such 
        consensus data cannot be assessed using standard statistical 
        methods, such as the calculation of standard errors. Thus, it 
        would not be possible to objectively, statistically assess how 
        accurate the new case weights are--weights on whose reasonable 
        accuracy the Judicial Conference will rely in assessing 
        judgeship needs in the future.

          Adjusted case filings, the principal quantitative 
        measure used to assess the case-related workload of courts of 
        appeals judges, are based on available data from standard 
        statistical reports from the courts of appeals. The measure is 
        not based on any empirical data about the judge time required 
        by different types of cases in the courts of appeals. The 
        measure essentially assumes that all cases filed in the courts 
        of appeals, with the exception of pro se cases--those in which 
        one or both parties are not represented by an attorney--require 
        the same amount of judge time. On the basis of the 
        documentation we reviewed, there is no empirical basis on which 
        to assess the accuracy of adjusted filings as a measure of 
        case-related workload for courts of appeals judges.

          Whether the district court case weights are a 
        reasonably accurate measure of district judge case-related 
        workload is dependent upon two variables: (1) the accuracy of 
        the case weights themselves and (2) the accuracy of classifying 
        cases filed in district courts by the case type used for the 
        case weights. If case filings are inaccurately identified by 
        case type, then the weights are inaccurately calculated. 
        Because there are fewer categories used in the courts of 
        appeals workload measure, there is greater margin for error. 
        AOUSC said that its staff took a number of steps to ensure that 
        individual cases were assigned to the appropriate caseweight 
        category. These are described in appendix 1. We did not 
        evaluate how effective these measures may be in ensuring data 
        accuracy.
  district court weighted case filings, as approved, are a reasonably 
            accurate measure of case-related judge workload
    The demands upon judges' time are largely a function of both the 
number and complexity of the cases on their dockets. Some types of 
cases may demand relatively little time, and others may require many 
hours of work. To measure the case-related workload of district court 
judges, the Judicial Conference has adopted weighted case filings. The 
purpose of the district court case weights was to create a measure of 
the average judge time that a specific number and mix of cases filed in 
a district court would require. Importantly, the weights were designed 
to be descriptive not prescriptive--that is, the weights were designed 
to develop a measure of the national average amount of time that judges 
actually spent on specific types of cases, not to develop a measure of 
how much time judges should spend on specific types of cases. Moreover, 
the weights were designed to measure only case-related judge workload. 
Judges have noncase-related duties and responsibilities, such as 
administrative tasks, that are not reflected in the case weights.
    With few exceptions, such as cases that are remanded to a district 
court from the courts of appeals, each civil and criminal case filed in 
a district court is assigned a case weight. Each case filed in a 
district court is assigned a case weight based on the subject matter of 
the case. The weight of the overall average case is 1.0. All other 
weights were established relative to this national average case. Thus, 
a case with a weight of 0.5 would be expected to require on average 
about half as much judge time as the national average case, and a case 
with a value of 2.0 would be expected to require on average about twice 
as much judge time as the national average case. Case weights for 
criminal felony defendants are applied on a per defendant basis.\4\ For 
example, the case weight for heroin/cocaine distribution is 2.27. If 
such a case involved two defendants, the court would be credited with a 
weight of 4.54--two times the assigned case weight of 2.27. Of course, 
the actual amount of time a judge may spend on any specific case may be 
more or less than the national average for that type of case.
---------------------------------------------------------------------------
    \4\ The weights do not include nonfelony criminal cases, which are 
generally the responsibility of magistrate, not district, judges.
---------------------------------------------------------------------------
    Total weighted filings for a district are determined by summing the 
case weights associated with all the cases filed in the district during 
the year. Weighted case filings per authorized judgeship--is the total 
annual weighted filings divided by the total number of authorized 
judgeships for the district. For example, if a district had total 
weighted filings of 4,600 and 10 authorized judgeships, its weighted 
filings per authorized judgeship would be 460. The Judicial Conference 
uses weighted filings of 430 or more per authorized judgeship as an 
indication that a district may need one or more additional judgeships. 
Thus, a district with 460 weighted filings per authorized judgeship 
could be considered for an additional judgeship.
    The Judicial Conference approved the use of the current district 
court case weights in 1993. The weights are based on a ``case-tracking 
time study,'' conducted between 1987 and 1993, in which judges recorded 
the amount of time spent on each of their cases included in the study. 
The study included about 8,100 civil cases and about 4,200 criminal 
cases. Overall, the weighted case filings, as approved in 1993, are a 
reasonably accurate method of measuring the average judge time that a 
specific number and mix of cases filed in a district court would 
require. The methodology used to develop the case weights was 
reasonable. It used a valid sampling procedure, developed weights based 
on actual case-related time recorded by judges from case filing to 
disposition, and included a measure (standard errors) of the 
statistical confidence in the final weight for each weighted case type.
Current Case Weights about 10 Years Old
    The case weights are almost 10 years old, and the time data on 
which they were based are as much as 15 years old. Changes since the 
case weights were finalized in 1993, such as changes in the 
characteristics of cases filed in federal district courts and in case 
management practices, may affect how accurately the weights continue to 
reflect the time burden on district court judges today. For example, 
since 1993, new civil causes of action (such as telemarketing issues) 
and criminal offenses (such as new terrorism offenses) needed to be 
accommodated within the existing case-weight structure. According to 
FJC officials, where the new cause of action or criminal offense is 
similar to an existing case-weight type, the weight for the closest 
case type is assigned. Where the new cause of action or criminal 
offense is clearly different from any existing case-weight category, 
the weight assigned is that for either ``all other'' civil cases or 
``all other'' criminal cases.
Concerns about the Research Design for Updating the District Court Case 
        Weights
    The Subcommittee on Judicial Statistics of the Judicial 
Conference's Committee on Judicial Resources has approved the research 
design for revising the current case weights, with the goal of having 
new weights submitted to the Resources Committee for review in the 
summer of
    2004. The design for the new case weights relies on three sources 
of data for specific types of cases: (1) data from automated databases 
identifying the docketed events associated with cases; (2) data from 
automated sources on the time associated with courtroom events for 
cases, such as trials or hearings; and (3) estimated time data from 
structured, guided discussion among experienced judges on the time 
associated with noncourtroom events for cases, such as reading briefs 
or writing opinions.
    Although the proposed methodology appears to offer the benefit of 
reduced judicial burden (no time study data collection), potential cost 
savings, and reduced calendar time to develop the new weights, we have 
two principal concerns about the research design--the challenge of 
obtaining reliable, comparable data from two different automated data 
systems for the analysis and the limited collection of actual data on 
the time judges spend on cases.
    The design assumes that judicial time spent on a given case can be 
accurately estimated by viewing the case as a set of individual tasks 
or events in the case. Information about event frequencies and, where 
available, time spent on the events would be extracted from existing 
administrative data bases and reports and then used to develop 
estimates of the judge--time spent on different types of cases. For 
event data, the research design proposes using data from new technology 
(the Case Management/Electronic Case Filing System) that is currently 
being introduced into the court system for recording case management 
information. However, not all courts have implemented the new system, 
and data from the existing and new systems will have to be integrated 
to obtain and analyze the event data. FJC researchers, who would 
conduct the research, recognize the challenges this poses and have 
developed a strategy for addressing the issues, which includes forming 
a technical advisory group from FJC, the Administrative Office of the 
U.S. Courts, and individual courts to develop a method of reliably 
extracting and integrating data from the two case management systems 
for analysis.
    Second, the research design does not require judges to record time 
spent on individual cases. Actual time data would be limited to that 
available from existing reports on the time associated with courtroom 
events and proceedings for different types of cases. However, a 
majority of district judges' time is spent on case-related work outside 
the courtroom. The time required for noncourtroom events would be 
derived from structured, guided discussions of groups of 8 to 13 
experienced district court judges in each of the 12 geographic circuits 
(about 100 judges in all). The judges would develop estimates of the 
time required for different events in different types of cases within 
each circuit, using FJC-developed ``default values'' as the reference 
point for developing their estimates. These default values would be 
based in part on the existing case weights and in part on other types 
of analyses. Following the meetings of the judges in each circuit, a 
national group of 24 judges (2 from each circuit) would consider the 
data from the 12 circuit groups and develop the new weights.
    The accuracy of judges' time estimates is dependent upon the 
experience and knowledge of the participating judges and the accuracy 
and reliability of the judges' recall about the time required for 
different events in different types of cases--about 150 if all the case 
types in the current case weights were used. These consensus data 
cannot be used to calculate statistical measures of the accuracy of the 
resulting case weights. Thus, it will not be possible to objectively, 
statistically assess how accurate the new case weights are--weights on 
whose accuracy the Judicial Conference will rely in assessing judgeship 
needs in the future.
    A time study conducted concurrently with the proposed research 
methodology would be advisable to identify potential shortcomings of 
the event-based methodology and to assess the relative accuracy of the 
case weights produced using that methodology. In the absence of a 
concurrent time study, there would be no objective statistical way to 
determine the accuracy of the case weights produced by the proposed 
event-based methodology.
   adjusted case filings: accuracy of courts of appeals case-related 
                  workload measure cannot be assessed
    The principal workload measure that the Judicial Conference uses to 
assess the need for additional courts of appeals judges is adjusted 
case filings. We found that adjusted case filings are based on data 
available from standard statistical reports for the courts of appeals. 
The measure is not based on any empirical data about the judge time 
required by different types of cases in the courts of appeals.
    The Judicial Conference's policy is that courts of appeals with 
adjusted case filings of 500 or more per three-judge panel may be 
considered for one or more additional judgeships. Courts of appeals 
generally decide cases using constantly rotating three-judge panels. 
Thus, if a court had
    12 authorized judgeships, those judges could be assigned to four 
panels of three judges each. In assessing judgeship needs for the 
courts of appeals, the Conference may also consider factors other than 
adjusted case filings, such as the geography of the circuit or the 
median time from case filings to dispositions.
    Adjusted case filings are used for 11 of the 12 courts of appeals. 
It is not used for the Court of Appeals for the D.C. Circuit. A FJC 
study of that court's workload determined that adjusted case filings 
were not an appropriate means of measuring the court's judgeship needs. 
The court had a high proportion of administrative agency appeals that 
occurred almost exclusively in the Court of Appeals for D.C. and were 
more burdensome than other types of cases in several respects--e.g., 
more independently represented participants per case, more briefs filed 
per case, and a higher rate of case consolidation.\5\
---------------------------------------------------------------------------
    \5\ The Conference did not request any judgeships in 2003 for the 
D.C. Court of Appeals.
---------------------------------------------------------------------------
    Essentially, the adjusted case filings workload measure counts all 
case filings equally, with two exceptions. First, cases refiled and 
approved for reinstatement are excluded from total case filings.\6\ 
Second, two-thirds of pro se cases--defined by the Administrative 
Office as cases in which one or both of the parties are not represented 
by an attorney--are deducted from total case filings (that is, they are 
effectively weighted at 0.33). For example, a court with 600 total pro 
se filings in a fiscal year would be credited with 198 adjusted pro se 
case filings (600  0.33). The remaining nonpro se cases would be 
weighted at 1.0 each. Thus, a court of appeals with 1,600 case filings 
(excluding reinstatements)--600 pro se cases and 1,000 nonpro se 
cases--would be credited with 1,198 adjusted case filings (198 
discounted pro se cases plus 1,000 nonpro se cases). If this court had 
6 judges (allow two panels of 3 judges each), it would have 599 
adjusted case filings per 3-judge panel, and, thus, under Judicial 
Conference policy, could be considered for an additional judgeship.
---------------------------------------------------------------------------
    \6\ Such cases were dismissed for procedural defaults when 
originally filed, but ``reinstated'' to the court's calendar when the 
case was later refiled. The number of such cases, as a proportion of 
total cases, is generally small.
---------------------------------------------------------------------------
    The current court of appeals workload measure represents an effort 
to improve the previous measure. In our 1993 report on judgeship needs 
assessment, we noted that the restraint of individual courts of 
appeals, not the workload standard, seemed to have determined the 
actual number of appellate judgeships the Judicial Conference 
requested.\7\ At the time the current measure was developed and 
approved, using the new benchmark of 500 adjusted case filings resulted 
in judgeship numbers that closely approximated the judgeship needs of 
the majority of the courts of appeals, as the judges of each court 
perceived them. The current courts of appeals case-related workload 
measure principally reflects a policy decision using historical data on 
filings and terminations. It is not based on empirical data regarding 
the judge time that different types of cases may require. On the basis 
of the documentation we reviewed, we determined that there is no 
empirical basis for assessing the potential accuracy of adjusted 
filings a measure of case-related judge workload.
---------------------------------------------------------------------------
    \7\ U.S. General Accounting Office, Federal Judiciary: How the 
Judicial Conference Assesses the Need for More Judges, GAO/GGDN93N31 
(Washington, D.C.: Jan. 29, 1993).
---------------------------------------------------------------------------
                            recommendations
    In our report, we recommended that the Judicial Conference of the 
United States

          update the district court case weights using a 
        methodology that supports an objective, statistically reliable 
        means of calculating the accuracy of the resulting weights; and

          develop a methodology for measuring the case-related 
        workload of courts of appeals judges that supports an 
        objective, statistically reliable means of calculating the 
        accuracy of the resulting workload measure(s) and that 
        addresses the special case characteristics of the Court of 
        Appeals for the D.C. Circuit.

    In a May 27, 2003, letter to GAO, the Chair of the Committee on 
Judicial Resources said that the development of the new case weights 
will use substantial data already collected and that our report did not 
reflect the sophisticated methodology the FJC had designed for the 
study nor acknowledge the substantial increased costs and time involved 
in a time study that was likely to offer little or no added value for 
the investment. The letter also noted that the workloads of the courts 
of appeals entail important factors that have defied measurement, 
including the significant differences in the courts' case processing 
techniques. The Deputy Director of FJC, in a May 27, 2003, letter 
agreed that the estimated data on noncourtroom judge time in the new 
study would not permit the calculation of standard errors. However, the 
integrity of the resulting case-weight system could still be evaluated 
on the basis of adherence to the procedures that will be used to gather 
the data and promote their reliability.
    We believe that our analysis and recommendations are sound and that 
the importance and costs of creating new Article III federal judgeships 
requires the best possible case-related workload data to support the 
assessment of the need for more judgeships.
    That concludes my statement, Mr. Chairman, and I would be pleased 
to answer any questions you or other Members of the Subcommittee may 
have.
                                 ______
                                 

                               APPENDIX 1

 quality assurance steps the judiciary takes to ensure the accuracy of 
                 case filing data for weighted filings
    Whether the district court case weights are a reasonably accurate 
measure of district judge case-related workload is dependent upon two 
variables: (1) the accuracy of the case weights themselves and (2) the 
accuracy of classifying cases filed in district courts by the case type 
used for the case weights. If case filings are inaccurately identified 
by case type, then the weights are inaccurately calculated. Because 
there are fewer categories used in the courts of appeals workload 
measure, there is greater margin for error. The database for the courts 
of appeals should accurately identify (1) pro se cases, (2) reinstated 
cases, and (3) all cases not in the first two categories.
    All current records related to civil and criminal filings that are 
reported to the Administrative Office of the U.S. Courts (AOUSC) and 
used for the district court case weights are generated by the automated 
case management systems in the district courts. Filings records are 
generated monthly and transmitted to AOUSC for inclusion in its 
national database. On a quarterly basis, AOUSC summarizes and compiles 
the records into published tables, and for given periods these tables 
serve as the basis for the weighted caseload determinations.
    In responses to written questions, AOUSC described numerous steps 
taken to ensure the accuracy and completeness of the filings data, 
including the following:

          Built-in, automated quality control edits are done 
        when data are entered electronically at the court level. The 
        edits are intended to ensure that obvious errors are not 
        entered into a local court's database. Examples of the types of 
        errors screened for are the district office in which the case 
        was filed, the U.S. Code title and section of the filing, and 
        the judge code. Most district courts have staff responsible for 
        data quality control.

          A second set of automated quality control edits are 
        used by AOUSC when transferring data from the court level to 
        its national database. These edits screen for missing or 
        invalid codes that are not screened for at the court level, 
        such as dates of case events, the type of proceeding, and the 
        type of case. Records that fail one or more checks are not 
        added to the national database and are returned electronically 
        to the originating court for correction and resubmission.

          Monthly listings of all records added to the national 
        database are sent electronically to the involved courts for 
        verification.

          Courts' monthly and quarterly case filings are 
        monitored regularly to identify and verify significant 
        increases or decreases from the normal monthly or annual 
        totals.

          Tables on case filings are published on the 
        Judiciary's intranet for review by the courts.

          Detailed and extensive statistical reporting guidance 
        is provided to courts for reporting civil and criminal 
        statistics. This guidance includes information on general 
        reporting requirements, data entry procedures, and data 
        processing and reporting programs.

          Periodic training sessions are conducted for district 
        court staff on measures and techniques associated with data 
        quality control procedures.

    AOUSC did not identify any audits to test the accuracy of district 
court case filings or any other efforts to verify the accuracy of its 
electronic data by comparing the electronic data to ``hard copy'' case 
records for district courts. Within the limited time for our review, 
AOUSC was unable to obtain information from individual courts to 
include in its responses. We have no information on how effective the 
procedures AOUSC described may be in ensuring that the data in the 
automated databases were accurate and reliable means of assigning 
weights to district court case filings.

                               ATTACHMENT




















































    Mr. Smith. Thank you, Director Jenkins.
    Professor Hellman?

STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF 
                    PITTSBURGH SCHOOL OF LAW

    Mr. Hellman. Thank you. I want to thank Congresswoman Hart 
for those generous comments, and I also want to thank the staff 
for assistance that they have provided.
    My comments today will concentrate of the Federal Courts of 
Appeals because those are the courts that I know best, but much 
of what I have to say also applies to the District Courts. I 
will begin by answering the question posed in the title of the 
hearing: ``Is There a Need for Additional Federal Judges?'' The 
answer is yes, there is a need, and a good place to start in 
meeting that need is with the request submitted by the Judicial 
Conference that you have described and that Judge Jacobs has 
described.
    I support the Judicial Conference request for two reasons. 
First, I believe that the process followed by the Judicial 
Conference does assure that a request will not be submitted to 
Congress unless there's strong evidence of a need for 
additional judgeships in that particular court. Judge Jacobs 
has outlined that process and the administrative office has 
provided to each Member of the Judiciary Committee an in-depth 
analysis of each of the court included in that request.
    Second, my own studies of the Federal appellate courts 
leave no doubt in my mind that additional judgeships are 
warranted. Judge Jacobs presented some of the caseload data. In 
concrete terms, one way of seeing this is that four appeals are 
being filed today for every three that were being filed when 
Congress last created new judgeships for the appellate courts. 
Now, Federal appellate judges were not under worked 15 or 20 
years ago, and it would seem almost self evident that caseload 
increases on that magnitude would require additional judge 
power. So I do support the Conference request.
    Where I part company with the Conference is in expressing 
concern about something that is missing from the request. The 
two Courts of Appeals that have the highest adjusted filings, 
per judge filings also, are the Fifth and Eleventh Circuits, 
and the Fifth, Mr. Chairman, your own circuit. Judges in those 
circuits are deciding cases at the rate of 750 or more each 
year. In the Eleventh Circuit filings have almost tripled since 
the Court was created almost two decades ago, but the Court 
still has the same 12 judgeships that it had then. But there is 
no mention of either of those courts in the Judicial Conference 
submission. The reason lies in an important aspect of the 
Judicial Conference process. The Subcommittee on Judicial 
Statistics that you have heard about today will not recommend 
any additional judgeships for a Court of Appeals unless a 
majority of the active judges submit a request. If additional 
judgeships appear to be justified by the workload statistics, 
but no judges are requested, the Court is required to explain 
its position, but as far as I am aware, that explanation is 
final, it is not subject to review by any entity within the 
Judicial Conference, and it is not public.
    Now, the Fifth and Eleventh Circuits have for some years 
taken the position that they do not want to become larger than 
they already are. I think that position is misguided, and in my 
statement I have explained why. But my main concern here today 
is not with the merits of that position but with the process. I 
don't think that process serves Congress as well as it could, 
and I don't think it serve the Judiciary very well either.
    I've offered two principal suggestions, first that the 
process should be made more public with an opportunity for 
participation by members of the legal community, and second, a 
negative response by a majority of the active judges on the 
court should not stand as an absolute barrier to any 
consideration of further judgeships. I think that making the 
process more open and allowing broader participation would give 
Congress more information that it needs, it would give the 
judges more information that they should have, and also, I 
think that by involving the legal community in the formulation 
of the judgeships requests, the Courts can build a constituency 
that will help them in the many battles that they have to fight 
today.
    So, in conclusion, I agree with Judge Jacobs in urging the 
subCommittee to support the modest request approved by the 
Judicial Conference. I would also urge the Conference to 
consider modifications of its process that will allow for 
broader participation in the formulation of judgeship requests 
because I do think that a more open process will benefit both 
Congress and the Judiciary.
    Thank you, and I look forward to questions.
    [The prepared statement of Mr. Hellman follows:]
                Prepared Statement of Arthur D. Hellman
    Mr. Chairman and Members of the Subcommittee:
    Thank you for inviting me to express my views at this important 
oversight hearing on ``The Federal Judiciary: Is There a Need for 
Additional Federal Judges?'' In my comments today, I will concentrate 
on judgeship needs in the federal courts of appeals, because those are 
the courts that I know best. However, I will also address the 
methodological issues raised by the May 30, 2003 report from the United 
States General Accounting Office.
    By way of personal background, I am a professor of law and 
Distinguished Faculty Scholar at the University of Pittsburgh School of 
Law. I have been studying the operation of the federal appellate courts 
for more than 25 years, starting in the mid-1970s, when I served as 
Deputy Executive Director of the Commission on Revision of the Federal 
Court Appellate System (Hruska Commission).
    Since my days at the Hruska Commission, I have organized and 
participated in many other studies of the federal appellate courts. In 
the late 1980s I supervised a distinguished group of scholars in 
analyzing the innovations of the Ninth Circuit and its court of 
appeals. Not long after that, I was selected by the Federal Judicial 
Center to carry out a study of unresolved intercircuit conflicts 
requested by Congress in the Judicial Improvements Act of 1990. More 
recently, I served on the Ninth Circuit Court of Appeals Evaluation 
Committee appointed by Chief Judge Procter Hug, Jr. Of course, in my 
testimony today I speak only for myself; I do not speak for any court 
or other institution.
    Part I of this statement sets forth my views on the judgeship 
request endorsed by the Judicial Conference of the United States (JCUS 
or Judicial Conference) at its meeting in March 2003. Part II discusses 
what is perhaps the most striking feature of the request: the omission 
of any mention of the Fifth and Eleventh Circuits, the courts of 
appeals with the highest per-judgeship filings in the nation. Part III 
offers suggestions for improving the process by which the Judicial 
Conference formulates the judgeship recommendations that it submits to 
Congress.
                   i. the judicial conference request
    On March 18, 2003, the Judicial Conference of the United States, 
the policy-making body of the federal judiciary, asked Congress to 
create 57 new Article III judgeships--11 for the courts of appeals and 
46 for the district courts. I support this request and urge the 
Subcommittee to act favorably upon it. I will discuss separately the 
judgeship needs of the two sets of courts.
A. Judgeships for the courts of appeals
    The Judicial Conference has requested 11 new judgeships for the 
federal courts of appeals: 1 for the First Circuit, 2 for the Second 
Circuit, 1 for the Sixth Circuit, and 7 for the Ninth Circuit (5 
permanent, 2 temporary). I support this request for two reasons. 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 the 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 Dennis G. Jacobs has explained, 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, who is the chair of the Judicial Conference Committee 
on Judicial Resources, has described the process in several forums, and 
I will not go over the same ground here. However, one point is worth 
emphasizing. In his statement to the Subcommittee on the Constitution 
in the 107th Congress, Judge Jacobs reported that in the judgeship 
needs survey of 2000, the various federal courts requested a total of 
78 additional judgeships (some permanent, others temporary). But in the 
course of the various stages of review, ``that number was eventually 
reduced to the 63 initially recommended by the Conference in July 
2000.'' This means that almost 1 out of 5 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.
    Further evidence can be found in the documentary material that the 
Judicial Conference has furnished to Congress in support of its 
requests. The detailed analysis of caseload trends, court practices, 
and available judgepower instills confidence that the recommendations 
are justified.
            2.  Justifications for the request and the GAO study
    In concluding that the Judicial Conference request for 11 new 
appellate judgeships is fully warranted, I also rely on my own research 
on 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. In concrete terms, this means that 4 appeals are being filed 
today for every 3 that were filed when Congress last created new 
judgeships. Federal appellate judges were not underworked 15 or 20 
years ago, and it would seem almost self-evident that caseload growth 
on this scale would require additional judgepower.
    Against this background, the General Accounting Office (GAO), in a 
report submitted to Chairman Smith on May 30, 2003, raised some 
questions about the statistical methods used by the Judicial Conference 
in formulating its requests for new appellate judgeships. These deserve 
brief comment.
    The GAO report focuses on two aspects of the Judicial Conference 
method: 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.
    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 3:1 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). In contrast to the statistical tables issued by the 
Administrative Office of United States Courts (A.O.), the FJC did offer 
some detailed breakdowns of pro se and counseled cases. Two are of 
particular interest in the context of case weighting.
    As this Subcommittee is aware from its oversight hearing last 
summer, one of the most time-consuming responsibilities of an appellate 
judge is writing an opinion for publication. The Federal Judicial 
Center study indicates that in 1998, only 4% of pro se appeals received 
a published opinion, while 38% of counseled cases did so. 
Interestingly, the percentage for pro se appeals varied widely among 
the circuits. One circuit, the Fourth, appears to have a policy of not 
publishing opinions in pro se cases. At the other end of the spectrum, 
two circuits (the D.C. and Seventh Circuits) published opinions in 9% 
of pro se cases.
    Another useful proxy for judge time is oral argument. The FJC study 
tells us that 57% of the counseled appeals received oral argument in 
1998, while only 6% of the pro se cases did so. (The report does not 
give the figure for pro se appeals, but it can be calculated from the 
data that are included.) Here too there was wide variation among the 
circuits, with Judge Jacobs's circuit, the Second, allowing oral 
argument in almost one-third of the pro se cases.
    Based on this information, the weight of one-third for pro se cases 
certainly seems justified. Indeed, one might argue that pro se cases 
should be discounted even more. However, for several reasons, I do not 
suggest this step. First, as already noted, the circuits vary greatly 
in their treatment of pro se cases. It would not be desirable to 
penalize circuits that are more generous in allocating time to pro se 
appeals. Second, further discounting of pro se appeals might become a 
self-fulfilling prophecy, leading judges (even unconsciously) to pass 
too hurriedly over some appeals that after further study would be seen 
to have merit. Finally, appearances matter. The judiciary should take 
care not to give the impression that one class of litigants is being 
accorded second-class status. (Even the current weighting may have that 
effect, but the very fact that the available data would justify heavier 
discounting gives some legitimacy to the practice.)
    The second focus of the GAO study is the baseline figure of 500 
adjusted filings per three-judge panel. In response, Judge Jacobs has 
pointed out that ``all of the requests for additional circuit 
judgeships are for courts in which adjusted filings per panel are 583 
and higher.'' Thus, the workloads of the four courts ``transcend any 
deviations that superior fine-tuning could correct.''
    I agree with Judge Jacobs's observation, but I am not certain that 
it fully addresses the concern expressed by the GAO report. The GAO 
appears to be saying, not simply that the standard could be made more 
precise, but that ``there is no empirical basis for assessing'' whether 
the standard is accurate at all. In other words, the GAO seems to be 
asking: Why 500 adjusted filings per three-judge panel? Why not 400? 
Why not 600?
    The GAO itself offers part of the answer:

        At the time the current measure was developed and approved, 
        using the new benchmark of 500 adjusted case filings resulted 
        in judgeship numbers that closely approximated the judgeship 
        needs of the majority of the courts of appeals, as the judges 
        of each court perceived them. The current court of appeals 
        case-related workload measure principally reflects a policy 
        decision using historical data on filings and terminations.

Perhaps more to the point, the benchmark resulted in judgeship numbers 
that closely approximated the actual allocations for most of the 
circuits.
    In my view, the use of a historically based approach is quite 
defensible. Traditionally, Congress has been reluctant to expand the 
Article III judiciary any more than necessary. No new appellate 
judgeships have been created for more than a decade. Under these 
circumstances, it would make little sense for the Judicial Conference 
to come up with requests that deviated sharply from existing 
allocations. For example, if the Judicial Conference were to assert 
that one or more circuits should have double the number of judgeships 
they now have, its request would be met with incredulity. At the same 
time, in view of the substantial increase in volume of appeals over the 
last two decades, it would be equally incredible to say that the 
regional circuits are overstaffed.
            3.  Assessing the appellate baseline
    In supporting the request for additional appellate judgeships, I do 
not rely on the historical approach alone. Although the available data 
are not as complete or detailed as one would like, they do allow us to 
get a good sense of what the JCUS standard means in practice. Viewing 
the standard in this way, I am confident that the Judicial Conference 
has indeed taken a conservative approach in assessing court requests 
for new positions.
    As it happens, the circuit whose workload most closely approximates 
the JCUS starting-point is my own circuit, the Third. In 2002, the 
Third Circuit's adjusted filings were 529 per panel--about 5% more than 
the level that would allow consideration of a request for new 
judgeships. (In fact, the Judicial Conference has not recommended any 
additional judgeships for the Third Circuit. The court will remain a 
court of 14 active judges.)
    The 2002 Judicial Caseload Profile shows that the court's adjusted 
filings of somewhat more than 500 per panel translated into 381 
terminations on the merits per active judge. ``Terminations on the 
merits'' comprise the cases actually decided by the judges after oral 
argument or submission on the briefs. The figure thus excludes 
procedural terminations that require no judicial action. Further, this 
particular statistic does not count participations by senior judges and 
visiting judges. It is thus a useful starting-point for considering 
what the baseline means as a measure of the day-to-day responsibilities 
of the judges in regular active service.
    We know from other A.O. data that the Third Circuit issues a 
published (i.e. precedential) decision in about 16% of its merits 
decisions. (Here and elsewhere in this analysis, numbers have been 
rounded.) This translates to about 60 cases per active judge. Most 
cases, of course, are decided by three-judge panels, with one judge 
writing the opinion for the court. If we assume that the active judges 
participate in a roughly equal basis in the court's work, we can 
calculate that each active judge would be responsible for authoring 20 
opinions and reviewing 40 opinions written by other judges. In fact, a 
Westlaw search yields almost precisely those numbers--20 authored 
opinions and 64 participations per judge in ``reported'' cases.
    What about the other 84% of the decisions? The court distinguishes 
between counseled and pro se appeals. Starting on January 1, 2002, non-
precedential opinions in counseled cases have been posted on the 
court's web site and made available to Westlaw and Lexis. A Westlaw 
search indicates that in the course of that first year under the new 
procedure, each active judge participated in an average of 150 
counseled cases that yielded a written non-precedential decision.
    Finally, there are the unpublished decisions in pro se appeals. It 
appears that in the course of a year an active judge will participate 
in the adjudication of 170 such cases. The A.O. describes these as 
``reasoned'' dispositions, which are defined as ``opinions and orders 
that expound on the law as applied to the facts of each case and that 
detail the judicial reasons upon which the judgment is based.'' Only a 
handful of the Third Circuit's dispositions on the merits are issued 
``without comment.''
    With this information, we can begin to measure the individual 
judges' labors that correspond to the Judicial Conference benchmark of 
500 adjusted filings per panel. To do this, we must first take account 
of the judges' obligations other than the disposition of argued and 
submitted cases. These include committee work, Judicial Conference 
activities, motions, and petitions for rehearing en banc. Let us assume 
that each judge spends the equivalent of three weeks each year on these 
activities. (That is probably a conservative estimate.) Each judge will 
also sit on an oral argument calendar during seven weeks of the year; 
those weeks will be largely unavailable for other judicial activities. 
Finally, let us assume that each judge will take two weeks of vacation. 
This leaves no more than 40 weeks for work on argued and submitted 
cases. For purposes of analysis, it is helpful to divide these 40 weeks 
into 20 two-week periods.
    In each two-week period, the judge must complete a substantial 
opinion ``for publication.'' At the Subcommittee hearing last June on 
unpublished appellate opinions, Judge Alex Kozinski of the Ninth 
Circuit Court of Appeals described the intense, in-depth work that goes 
into the writing of a published opinion:

        A published opinion must set forth the facts in sufficient 
        detail so lawyers and judges unfamiliar with the case can 
        understand the question presented. At the same time, it must 
        omit irrelevant facts that could form a spurious ground for 
        distinguishing the opinion. The legal discussion must be 
        focused enough to dispose of the case at hand, yet broad enough 
        to provide useful guidance in future cases. Because we normally 
        write opinions where the law is unclear, we must explain why we 
        are adopting one rule while rejecting others. We must also make 
        sure that the new rule does not conflict with precedent, or 
        sweep beyond the questions fairly presented.

While some opinions will require only a few days' work, others will 
require much more than that. And because the court publishes an opinion 
in only one-sixth of its cases, there is no chaff--no routine 
affirmances to bring down the average.
    In the course of the two-week period, the judge must also give 
close attention to 2 other precedential cases in which another panel 
member is writing the opinion. Even without the burden of authorship, 
the responsibilities are substantial. Each participating judge must 
examine the relevant materials, both legal (precedents, legislative 
history, scholarly commentary, and the like) and factual (particularly 
the record of the proceedings in the lower court). Each judge must 
think carefully about the issues and their implications for future 
cases. And each judge must do his or her best to assure that the 
opinion articulates the holding and the rationale in a way that lawyers 
and other judges can understand and apply.
    Finally, the judge must also participate in about 16 cases that 
will not become precedential. In these cases, the judge need not worry 
about the precise phrasing of the opinion or the implications of the 
ruling for the future development of the law. But we would certainly 
want the judge to study the law and the record in sufficient depth to 
be confident that the outcome is correct and that the panel has not 
overlooked prejudicial error or unfairness in the court below.
    The numbers in this analysis are not precise. But they are solid 
enough to justify the conclusion that the Judicial Conference baseline 
of 500 adjusted filings per panel is at least reasonable. Indeed, if 
anything, it may err on the side of underestimating judgeship needs. 
According to the Federal Judicial Center study, the Third Circuit is 
one of only three circuits that hear oral argument in less than half of 
the counseled appeals. And the Third Circuit is second lowest in the 
percentage of counseled cases that are decided by published opinion. To 
the extent that these percentages reflect the pressure of caseloads, 
one might argue that the addition of one or two judges would enable the 
court to better serve the legal community of the circuit.
B.  Judgeships for the federal district courts
    The Judicial Conference has recommended a total of 46 new 
judgeships for the federal district courts. Here too the request is 
grounded in an elaborate and rigorous process that promotes a high 
degree of confidence in the product. And here too, a review of the 
supporting material submitted to the members of the Judiciary Committee 
makes clear that the JCUS Subcommittee on Statistics dug deeply into 
the numbers and closely investigated the non-quantifiable factors that 
bear on judgeship needs.
    Although I have not studied the district courts as I have the 
courts of appeals, I share Judge Jacobs's skepticism about how much can 
be gained through rigorous fine-tuning of the case weighting system. 
For one thing, the ``nature of suit'' codes can be only rough proxies 
for judge time nationwide. Habeas corpus cases, for example, may be 
more time-consuming in one district than another because of variations 
in state post-conviction practices. Further, efforts to fine-tune the 
standard would aim at a moving target. To take one recent illustration, 
the changes made by Congress this year in child pornography laws and 
sentencing procedures may well affect the amount of time judges will 
have to spend on a variety of criminal cases.
C.  A better approach
    For the reasons I have given, I agree with Judge Jacobs that fine-
tuning the standards for adjusted filings (for the courts of appeals) 
and weighted filings (for the district courts) is not likely to assist 
Congress in determining whether to create new Article III judgeships. 
At the same time, I think that the system does not serve Congress as 
well as it could do. What is needed is not greater precision in the 
statistics, but rather a wider range of non-quantitative information, 
including the views of lawyers and other citizens. In Part III of this 
statement I offer some suggestions for modifying the process used by 
the Judicial Conference in formulating its judgeship recommendations. A 
more open process, I believe, will provide significant benefits to the 
judiciary as well as to Congress.
                        ii. the missing circuits
    To anyone who follows the work of the federal courts of appeals, 
the most striking aspect of the Judicial Conference request is 
something that is not there--a recommendation for new judgeships for 
the Fifth and Eleventh Circuits. In all four courts of appeals on the 
Judicial Conference list, as Judge Jacobs has pointed out, adjusted 
filings are well above the minimum of 500. The figures range from a low 
of 583 (in the Sixth Circuit) to a high of 870 (in the Ninth 
Circuit).\1\ But if we look at the Fifth Circuit, we find that adjusted 
filings in 2002 were just short of 1000--double the baseline for 
consideration of a judgeship request. And in the Eleventh Circuit, 
adjusted filings totaled an astounding 1112 per panel. (These figures 
represent my own calculations, based on the Judicial Conference 
formula.)
---------------------------------------------------------------------------
    \1\ The figures are given in the chart attached to the press 
release issued by the Administrative Office on March 18, 2003, 
announcing the Judicial Conference judgeship request.
---------------------------------------------------------------------------
    To give you some sense of what these figures mean, the most 
conservative of the Judicial Conference appellate recommendations is 
the request for the Second Circuit. With 2 additional judges, and 
assuming no increase in the volume of appeals, the Second Circuit's 
adjusted filings would drop to 614 per panel.\2\ Under that standard, 
the Fifth Circuit would be entitled to as many as 28 judgeships rather 
than the 17 it has now. Under that same standard, the Eleventh Circuit 
could grow from 12 active judges to 22, almost doubling its size. Yet 
the Judicial Conference did not recommend a single additional judgeship 
for either court.
---------------------------------------------------------------------------
    \2\ This is the figure given in the detailed justification material 
that the Administrative Office has provided to each member of the 
Judiciary Committee.
---------------------------------------------------------------------------
    The absence of a request for the Eleventh Circuit is particularly 
remarkable. The Eleventh Circuit was created in 1981 when Congress 
divided the former Fifth Circuit into two new circuits. At that time 
the Eleventh Circuit was a court of 12 judgeships and 2,556 filings. 
Today, the Eleventh Circuit is still a court of 12 judgeships. But 
filings are now 7,472--almost three times what they were when the court 
was established. Yet the Eleventh Circuit is not even mentioned in the 
Judicial Conference submission.
    The explanation for this apparent anomaly lies in an important 
aspect of the Judicial Conference process that I have not yet 
mentioned. The Subcommittee on Judicial Statistics--the body that 
initiates the Biennial Survey--will not recommend any additional 
judgeships for a court of appeals unless a majority of the active 
judges of the court submit a request. If additional judgeships appear 
to be justified by workload statistics, but no judgeships are 
requested, the court is required to explain its position, but as far as 
I am aware, that explanation is final and is not subject to review by 
any entity within the Judicial Conference. Further, it appears that one 
recognized explanation is that the court is opposed to adding judges 
notwithstanding its increased workload.
    My understanding is that the Fifth and Eleventh Circuits have for 
some years taken the position that they want to remain ``small,'' or 
perhaps more accurately that they do not want to become larger than 
they already are. Under the existing Judicial Conference system, that 
determination stands as an absolute bar to any recommendation by the 
Judicial Conference for new judgeships, no matter how strongly the 
Judicial Conference's own standard might suggest that at least some new 
positions are needed.
    The judges of the two circuits have offered several reasons why 
they resist expanding the size of their courts. Primary among these is 
the concern that adding judges will lead to a decline in the 
``coherence and uniformity of the law.'' A leading proponent of this 
view is the former chief judge of the Eleventh Circuit, Judge Gerald B. 
Tjoflat. Judge Tjoflat believes that as a court grows larger, ``the 
clarity and stability of the circuit's law suffers.'' That, in turn, 
``increases litigiousness and complicates the disposition of cases.'' 
\3\
---------------------------------------------------------------------------
    \3\ Gerald B. Tjoflat, More Judges, Less Justice, A.B.A. J., July 
1993, at 70-71.
---------------------------------------------------------------------------
    For two reasons, I am skeptical about this line of argument. First, 
over the last decade and a half, I have carried out extensive empirical 
research on the largest of the federal appellate courts, the Ninth 
Circuit. This research does not support the claim that the Ninth 
Circuit Court of Appeals has been unable to maintain consistency in its 
decisions. Nor does it validate the criticisms of the Ninth Circuit's 
``limited en banc court,'' unique among the federal courts of appeals. 
I particularly call your attention to the study summarized in my 
article, Precedent, Predictability, and Federal Appellate Structure, 60 
U. Pitt. L. Rev. 1029, 1088-1100 (1999).
    Yet even if this research is not persuasive, I believe that the 
judges' position is problematic for a more fundamental reason. The 
judges' concern is focused on what has been called ``the law-declaring 
function of appellate courts.'' \4\ That function is certainly 
important; indeed, I have devoted much of my academic career to 
studying it. Nevertheless, that function is secondary. The primary 
function of the federal courts of appeals is to do justice--and to be 
seen as doing justice--in the individual cases and controversies that 
come before the court.
---------------------------------------------------------------------------
    \4\ Commission on Structural Alternatives for the Federal Courts of 
Appeals, Final Report 47 (1998).
---------------------------------------------------------------------------
    I fear that the judges of the Fifth and Eleventh Circuits, in their 
zeal to protect the law-declaring function of their courts, may not be 
giving sufficient attention to the effect of their policy on the 
quality of appellate decision making. As the Commission on Structural 
Alternatives for the Federal Courts of Appeals (White Commission) 
recognized in its Final Report, there comes a point when the 
streamlining of procedures begins to compromise ``the appearance of 
legitimacy of the appellate process [and] the quality of appellate 
justice.'' \5\ When individual judges are deciding cases at the rate of 
750 or more each year--as is happening in the Fifth and Eleventh 
Circuits--one must wonder whether that point has been reached.\6\
---------------------------------------------------------------------------
    \5\ Id. at 25.
    \6\ The figures given in the Federal Court Management Statistics 
for 2002 are 758 for the Fifth Circuit and 843 for the Eleventh 
Circuit. The Fifth Circuit's figure is almost exactly double what it is 
in the Third Circuit. Part I(A) (3) of this statement examines what the 
Third Circuit figure means in practice.
---------------------------------------------------------------------------
    I have no doubt that the judges of the Fifth and Eleventh Circuits 
believe that they are giving adequate attention to the cases and have 
not compromised any of the essential functions of an appellate court. 
But I am not confident that judges can necessarily recognize when they 
have gone too far in relying on procedural shortcuts or when they have 
begun to delegate responsibilities that they should be undertaking 
themselves. For example: Do the judges too readily accept the drafts of 
precedential opinions prepared by their law clerks? Do panel members 
sign on to the authoring judge's opinion without carefully scrutinizing 
the statements of law or the rationale? Do the second and third judges 
on a screening panel defer too much to the judge who initially reviewed 
the case? These are not lapses that occur overnight. Change is gradual 
and incremental, as judges imperceptibly find themselves adopting 
practices that they would have rejected when caseload pressures were 
less exigent.
    Is there any way of determining whether judges on a particular 
court of appeals have gone too far in delegating the performance of 
Article III functions? I do not think we will find any ``smoking gun.'' 
But one possible indicator is the ratio of central staff attorneys to 
active judges. On this point the Federal Judicial Center report 
provides the most recent information available. That report indicates 
that most of the circuits have 1 or 2 staff attorneys for each active 
judge. Two circuits do not follow this pattern. The Fifth Circuit, with 
17 authorized judgeships, employs 55 staff attorneys at court 
headquarters in New Orleans. The Eleventh Circuit, with only 12 
authorized judgeships, employs a total of 41 staff attorneys. The ratio 
of staff attorneys to judgeships in both circuits is thus more than 3 
to 1.
    It would be wrong to jump to conclusions based on this one set of 
data, but there is more. First, I assume that the judges have their 
full complement of ``elbow clerks;'' currently, each active judge may 
hire 4 clerks to work in the judge's chambers. Thus, the 12 active 
judges of the Eleventh Circuit are supervising, directly or indirectly, 
a corps of almost 90 law clerks and staff attorneys. Second, the Fifth 
and Eleventh Circuits rank among the lowest in the percentage of 
counseled cases that receive oral argument.
    I recognize that there may be circumstances, not reflected in case 
management data, that make the volume of appeals more manageable in the 
Fifth and Eleventh Circuits than an equivalent volume would be 
elsewhere in the nation. Perhaps the docket is more homogenous in 
subject matter, so that the judges encounter a higher proportion of 
cases with familiar issues than do their counterparts in other 
circuits. Perhaps there is less disagreement among the judges, so that 
panel members need spend little time in writing dissents, negotiating 
the language of majority opinions, or exchanging memos on whether to 
rehear cases en banc.
    These hypotheses are appropriate subjects for research. But even if 
these circumstances exist, I must admit to some doubts that they would 
adequately explain the extremely high per-judge disposition rate in the 
Fifth and Eleventh Circuits. Further, some members of the two courts 
have voiced concerns similar to those I have expressed. In 1992, Judge 
(now Chief Judge) Carolyn Dineen King of the Fifth Circuit acknowledged 
that ``the sheer volume [of cases] has had an adverse impact on the 
number of decisions that we can fairly claim have been fully considered 
and understood.'' \7\ In 1997, then-Chief Judge Joseph W. Hatchett of 
the Eleventh Circuit described in detail the consequences of the 
procedures adopted by his court and concluded that ``litigants of this 
circuit would be better served if this court had [2 or 3 more] active 
judges.'' \8\
---------------------------------------------------------------------------
    \7\ Hon. Carolyn Dineen King, A Matter of Conscience, 28 Hous. L. 
Rev. 955, 958 (1991). Although the article has a publication date of 
1991, it is based on a speech delivered in 1992.
    \8\ Hon. Joseph W. Hatchett, 1997 State of the Circuit Address at 
11 (on file with author).
---------------------------------------------------------------------------
    Nevertheless, I am not suggesting that Congress should take 
immediate action to create additional judgeships for these courts. What 
I do suggest is that the issue should be the subject of public 
discussion. The Biennial Survey of Judgeship Needs conducted by the 
Judicial Conference provides a perfect opportunity--or rather, it would 
do if the process were more open.
                    iii. process and accountability
    The omission of the Fifth and Eleventh Circuits Courts of Appeals 
from the Judicial Conference judgeship request is troubling in itself. 
What makes it more so, in my view, are issues of process and 
accountability.
    The Fifth and Eleventh Circuits have opted, quite self-consciously, 
to deal with caseload growth by accepting ever-increasing workloads for 
individual judges and by cutting back on the traditional elements of 
the appellate process. That is as much a policy choice as deciding 
whether or not to divide the Ninth Circuit.\9\ The latter issue has 
been the subject of public debate for many years. Law review articles, 
news stories, and op-ed pieces have focused on every aspect of the 
Ninth Circuit's work. Less than a year ago, this Subcommittee held a 
hearing on the Ninth Circuit Court of Appeals Reorganization Act. In 
contrast, the counterpart issues in the Fifth and Eleventh Circuits 
remain invisible. The policy decision by those courts to remain 
``small'' has occasioned virtually no public discussion and almost 
certainly is unknown to the vast majority of lawyers and other 
interested citizens in the region.
---------------------------------------------------------------------------
    \9\ Judge King put the matter more strongly. She said: ``[W]hen 
Congress acquiesces in a decision by a court not to add judges and 
when, by any normal measures, more judges are needed, Congress is 
itself making a decision as to the kind of justice that the court will 
dispense.'' King, supra note 7, at 962.
---------------------------------------------------------------------------
    I recognize that the high profile of the Ninth Circuit results to 
some degree from controversies that have nothing to do with judicial 
administration. But I also believe that the absence of debate about the 
Fifth and Eleventh Circuits can be attributed in part to the process 
followed by the Judicial Conference of the United States in formulating 
the judgeship requests that it submits to Congress. There are two 
aspects of the process that are problematic in isolation; they are even 
more so when one considers their combined effect.
    First, the process takes place entirely within the confines of the 
judiciary. For example, the request for 7 additional judgeships for the 
Ninth Circuit Court of Appeals was considered by the members of that 
court, by the Judicial Council of the Ninth Circuit (a body that is 
composed only of judges), and by the Judicial Conference of the United 
States and its committees. No one else had an opportunity to express 
views, to question assumptions, or to seek additional justifications or 
explanations for the conclusions reached at the various stages of the 
process. Until the Judicial Conference issued its press release on 
March 18, 2003, only a handful of people outside the judiciary knew 
that a recommendation was being considered. Even then, no details were 
forthcoming. Although the Judicial Conference supported its 
recommendation with a cogent, in-depth analysis, almost no one has seen 
that documentation.
    Second, under the current system, if a majority of the active 
judges of a circuit prefer to keep their court `small,'' that 
determination stands as an absolute barrier to any consideration of the 
possible need for new judgeships for that court. This ``triggerlock'' 
manifests itself in several ways. If a court, in response to the 
initial query from the Statistics Subcommittee, requests no additional 
judgeships, the trail of documentation ceases. Not only is there no 
public discussion; there is no discussion even within the Judicial 
Conference and its committees. The impressive compilation of data and 
analysis that accompanies a recommendation for new judgeships has no 
counterpart for the circuits that do not seek new judgeships, whether 
or not the Judicial Conference standard suggests that new judgeships 
are warranted.
    A particularly unfortunate aspect of the current system is that if 
a majority of the judges on a court do not initiate a request for 
additional judgeships, Congress has no opportunity to hear from members 
of the court who take a different view. For example, Judge Carolyn 
Dineen King of the Fifth Circuit made clear in 1992 that she thought 
her court needed additional judges.\10\ Since that time, adjusted 
filings in the Fifth Circuit have increased more than 12%.\11\ Almost 
certainly, Judge King continues to believe that additional judgeships 
are needed for her court.\12\ But there is no hint of that view in the 
materials the Judicial Conference submitted to Congress.
---------------------------------------------------------------------------
    \10\ See King, supra note 7, at 962.
    \11\ It is not possible to use the current formula to calculate 
adjusted filings before 1993 because that is the first year in which 
the Administrative Office published data on pro se appeals. Adjusted 
filings in the Fifth Circuit increased 12% from 1993 to 2002.
    \12\ As it happens, Judge King is now chair of the Judicial 
Conference's executive committee. In March 2003, she offered some 
telling comments in support of the Conference's recommendations for 
additional appellate judgeships. She noted that circuit judges must 
often write 225 to 250 opinions a year; they must also sign on to 
another 450 opinions authored by other panel members. The judges can 
carry such a workload, Judge King said, only by ``heavy reliance on 
staff and by writing shorter opinions, often a one-line opinion saying 
`affirmed.' '' Under those circumstances, she added, holding judges 
accountable is difficult. See David F. Pike, Judicial Conference 
Requests Help for Busy Bench Officers, Daily Journal, Mar. 19, 2003. 
The figures cited by Judge King suggest that she was referring to her 
own court.
---------------------------------------------------------------------------
    I believe that a more open process would provide more of the 
information that Congress should have to effectively carry out its 
responsibility for creating judgeships when needed. A more open process 
would also aid the judiciary in achieving its policy objectives.
    I offer two principal suggestions. First, the process should be 
made more public, with an opportunity for participation by interested 
members of the legal community. Second, a negative response by a 
majority of active judges on a court of appeals to the initial query 
from the Subcommittee on Statistics should not stand as an absolute 
barrier to consideration of new judgeships for court.
    Here is a sketch of how a revised process might work. The 
description refers to the formulation of judgeship requests for the 
courts of appeals. However, the proposal could be modified for use at 
the district court level also.
    1. A provisional response. The process would begin, as it does 
today, with a request from the Subcommittee on Statistics asking 
individual courts to evaluate their need for additional judgeships or 
for the filling of vacancies. Each court would prepare its response, as 
is done now. However, instead of sending a final response to the 
Subcommittee, the court would prepare a draft response. The draft would 
be posted on the court's web site along with an announcement inviting 
comments from bar associations and interested citizens.
    2. Explanatory material. To supplement its draft response, the 
court would post (or link to) material that would help outsiders to 
assess the court's provisional conclusions. This material would 
include:

          a description of the Judicial Conference process, 
        including the numerical standard and other criteria used in 
        evaluating court requests;

          information about the workload and case management 
        practices of the particular circuit;

          the comparative statistical profiles that are now 
        made available to the courts to help in formulating their 
        requests; and

          other comparative data that would give members of the 
        legal community a perspective on the practices of the 
        particular circuit.

But most of the material would be explanatory. Thus, if the court is 
requesting additional judgeships, it would provide the justification, 
included the anticipated consequences for the judiciary and for 
litigants if the request is not met. In the unlikely event that the 
court's request is not supported by the standard of 500 adjusted 
filings, the court would explain why the standard is inapplicable.
    If the court's workload statistics appear to justify an increase in 
the number of judgeships, but the court is not requesting any new 
positions, the court would set out the factors that influenced its 
decision. For example, are the contributions of senior or visiting 
judges so extensive as to offset the excessive workload? Do statistics 
overstate the true burdens on the judges because of the nature of the 
cases? Or does the court oppose any increase in size, irrespective of 
other considerations?
    3. Inclusion of competing views. If the judges are divided in their 
views, both positions should be reflected in the court's response. I 
would not insist that the court identify the judges taking the 
competing positions, or even that it give the numerical division. (My 
own preference would be to provide that information, but I can 
understand why judges might view this as personalizing the 
controversy--for example, if the chief judge is a member of the 
minority within the court.)
    4. Opportunity to comment. Interested persons and organizations 
would be given 60 days, perhaps 90 or even 120, in which to submit 
their comments. Ideally, comments would be posted on the court's web 
site as they are received, so that others can agree or disagree.
    5. Final response. At the end of the comment period, the court 
would reconsider its position in light of the comments and formulate a 
final version of its response. This final version (including minority 
views within the court) would go to the Statistics Subcommittee along 
with a summary of the comments received. This material too would be 
posted on the court's web site. Thereafter, the process would follow 
the course it does today, with two important differences.
    6. No ``triggerlock.'' First, the absence of a request supported by 
a majority of the active judges would not necessarily stand as an 
absolute barrier to consideration of a possible recommendation for 
additional judgeships. For example, if adjusted filings are well above 
the standard, and a substantial minority within the court believes that 
additional judgeships are needed, a recommendation might be 
forthcoming. I doubt this would happen often, but it is at least 
possible that the minority's arguments will be more persuasive (to the 
Judicial Conference or to Congress) than those of the majority.
    7. Public announcements. Second, the conclusions and 
recommendations at each later stage of the Judicial Conference process 
would be posted on the web sites of the particular court and of the 
Federal Judiciary. Even though there would be no formal opportunity for 
further comment, there is no reason why interested members of the legal 
community should not know how the Judicial Conference is dealing with 
these important issues. Further, on rare occasions, outsiders may have 
useful information or insights that will assist the Conference at the 
next step of the process.
    I can anticipate three objections to this proposal. First, it will 
be said that a public comment period would prolong the process through 
which judgeship requests are developed. That is probably true, though 
it may be possible to compress some existing stages and thus keep the 
schedule close to what it is today. In any event, Congress has not been 
acting on judgeship requests every two years, or even every four years. 
If the consequence is to establish a three- or four-year cycle, that 
may be no more than bowing to reality. Unexpected surges in caseload in 
particular courts can always be dealt with through special requests and 
court-specific legislation, as in the 2002 Department of Justice 
Authorization Act.
    Second, it will be argued that very few members of the legal 
community have any interest in the details of judgeship needs. Perhaps 
so, but the value of comments lies not in their quantity but in their 
quality. Bar associations in several circuits have an admirable history 
of thoughtful participation in debates over court structure and 
process. Moreover, a paucity of comments could itself be significant. 
Specifically, if lawyers of the Fifth and Eleventh Circuits, after 
being fully informed about how their courts of appeals have chosen to 
cope with the demands of increased caseload, voice no objection, 
Congress might well view that as strong evidence that the status quo is 
acceptable.
    Third, it may be said that the proposed system would add to the 
burdens of the judges who take part in the process. But the principal 
changes involve publicizing material that is already prepared for a 
limited audience and listening to comments from interested persons 
outside the judiciary. These strike me as rather modest burdens.
    On the other side of the balance, I believe that making the process 
more open and allowing broader participation would have three important 
benefits.
    First, Congress would get more of the information that it needs to 
effectively carry out its constitutional responsibilities for the 
administration of justice in the federal courts. This information would 
not be limited to the consideration of judgeship requests; it would 
also aid Congress in dealing with a wide range of legislative issues, 
including modification of court structure and allocation of resources.
    Second, the judges would get information that would help them in 
making the policy judgments that fall within the province of the 
judiciary. Judgeship requests implicate every aspect of court 
operations, particularly the use of non-Article III personnel and the 
various forms of interaction with litigants, lawyers, and citizens. 
Comments from the legal community on a court's provisional response to 
the Statistics Subcommittee would illuminate these issues and assist 
the courts in designing rules and internal operating procedures.
    Finally, by involving the legal community in the formulation of 
judgeship requests, the courts can build a constituency that will help 
them in gaining support for their initiatives in Congress. For example, 
the documentation that the Judicial Conference has submitted in 
connection with its judgeship recommendations stands as a powerful 
argument for additional resources. I am confident that local bar 
associations and others in the legal community would use their 
influence to assist the judiciary in securing those resources--if they 
knew about the need and had participated in the process that led to the 
requests.
                             iv. conclusion
    I share the view expressed in the Long Range Plan for the Federal 
Courts that ``[t]he growth of the Article III judiciary should be 
carefully controlled so that the creation of new judgeships, while not 
subject to a numerical ceiling, is limited to that number necessary to 
exercise federal court jurisdiction.'' But the caseload of the courts 
continues to grow, and Congress continues to add to their jurisdiction. 
If we wish to maintain the quality of the justice administered by the 
courts, there is no alternative but to create some new judgeships. I 
urge the Subcommittee to support the modest request approved by the 
Judicial Conference in March 2003. I also urge the Conference to 
consider modifications of its process that will allow for broader 
participation in the formulation of judgeship requests. A more open 
process will benefit not only Congress but the judiciary itself.
                                 ______
                                 
                           executive summary
I. The Judicial Conference Request
    The Judicial Conference of the United States has asked Congress to 
create 11 new judgeships for the federal courts of appeals (as well as 
46 judgeships for the district courts). This request deserves the 
support of the Subcommittee for two reasons. 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 the particular court. Second, my research on 
the work of the federal appellate courts leaves no doubt in my mind 
that additional judgeships are warranted.
    A report submitted by the General Accounting Office (GAO) suggests 
fine-tuning the measure of ``adjusted case filings'' used by the 
Judicial Conference in formulating judgeship recommendations. In my 
view, however, what is needed is not greater precision in the 
statistics, but rather a wider range of non-quantitative information, 
including the views of lawyers and other citizens.
II. The Missing Circuits
    The two courts of appeals that have the highest adjusted filings 
are those of the Fifth and Eleventh Circuits. However, the Judicial 
Conference has not requested a single new judgeship for either court. 
The explanation is that the Conference will not recommend any 
additional judgeships for a court of appeals unless a majority of the 
active judges of the court submit a request.
    The Fifth and Eleventh Circuits have steadfastly resisted any 
increase in the size of their courts. Instead, they have opted to deal 
with caseload growth by accepting ever-increasing workloads for 
individual judges and by cutting back on the traditional elements of 
appellate adjudication. This is a policy choice that runs the risk of 
compromising ``the appearance of legitimacy of the appellate process 
[and] the quality of appellate justice.'' But it is a policy choice 
that has occasioned almost no public discussion.
III. Process and Accountability
    The process now used by the Judicial Conference in formulating its 
judgeship recommendations is not as useful to Congress as it could be. 
First, the process should be made more public, with an opportunity for 
participation by interested members of the legal community. Second, a 
negative response by a majority of active judges on a court of appeals 
to the initial query from the Subcommittee on Statistics should not 
stand as an absolute barrier to consideration of new judgeships for 
court. A more open process would provide significant benefits to the 
judiciary as well as to Congress.

    Mr. Smith. Thank you, Professor Hellman.
    Judge Jacobs, let me direct my first question to you, and 
it is this: wouldn't it be a good idea for the Judicial 
Conference to implement the methodology recommended by the GAO, 
and take into more consideration the actual time spent on cases 
by judges, the so-called judge time. That's the methodology 
that they recommended so far that's not actually been followed 
by the Judicial Conference, and I'm wondering if that's 
something we could hope to expect?
    Judge Jacobs. Well, as I understand the critique of the 
GAO, it doesn't bear upon the present request. It bears upon 
how we are going to go about reframing and reforming and 
updating our workload statistics in the future. I believe that 
the salient critique of the GAO of the data that has been 
relied upon to arrive at the recommendations contained in the 
draft bill, is that the data is old, that the study, the time 
study that was used to generate those numbers----
    Mr. Smith. In regard to the District Judges they made the 
point that it was just old. In regard to the appellate judges 
they made the point that it wasn't objective and wasn't 
reliable.
    Judge Jacobs. Yes. I would be happy to address the circuit 
judge issues as well, if you like. It has been a perennial goal 
to try to find some way of adjusting workloads or counting for 
workloads within Circuit Courts of Appeals, and it seems to me 
you're certainly entitled to an answer of why we have not done 
so. It's not just that it's difficult. The difficulty of any 
given appeal doesn't really turn on the nature of the case. It 
turns more on the fact that there is an issue for appeal. An 
extremely complex, difficult, vexed issue that is the subject 
of a circuit split can easily arise (indeed, can just as easily 
arise) in what might otherwise be deemed a garden variety 
challenge to a drug conviction as it can in an antitrust case, 
which would entail tremendous efforts in the district court, 
but not tremendous efforts in the circuit court.
    In the circuit court the level of activity that any given 
appeal entails depends much more on whether there is a district 
court opinion, for example, and how good that opinion is. In my 
circuit I'm happy to say it's usually quite good indeed, though 
not always. It depends on whether the question presented on the 
appeal is the subject of settled law. Has our circuit decided 
the question, or is it a circuit split on the other hand? Are 
we weighing in or creating a circuit split. It depends on the 
likelihood of there being an en banc created by it. It depends 
on whether members of the panel agree, and I think the key 
thing about--that explains, I hope, why it really isn't 
feasible in my view to give particular cases particular weight 
based on the type of appeal it is, that is to say, on the 
underlying case.
    Mr. Smith. Thank you, Judge Jacobs.
    Director Jenkins, two questions really. Are you persuaded 
by what Judge Jacobs says as far as it being more complex and 
taking into consideration more things than just the actual time 
spent by judges on particular cases?
    And my second question is, what did you think of Professor 
Hellman's suggestion for a more open process?
    Mr. Jenkins. With regard to the Courts of Appeals, it is 
more complex than a single judge deciding a case in a district 
court. The district court, I would point out however, that the 
district court case weights to an extent do take account of 
differences in the way that the district courts handle cases. 
Some, for example, district courts use magistrates more 
extensively than others, and that's reflected in the amount of 
time that was recorded in the study. So indirectly, the amount 
of time that district judges spend on cases, it does reflect 
differences in case processing within the 94 districts. It is a 
little bit more complex I think within the Courts of Appeals. 
They vary tremendously, for example, in how they use staff 
attorneys and the extent to which they use oral argument. Those 
kinds of things definitely do affect judge time. It is, 
however, from my perspective and our perspective as an 
institution, difficult to understand why something more precise 
than adjusted case filings has not been developed. It's very 
difficult, as we say, neither the Judiciary nor we have a means 
of assessing how accurate that measure is. It may be very 
accurate, it may be very inaccurate. There's simply no way to 
know how accurate that is as a case related workload measure 
for the Courts of Appeals.
    Mr. Smith. Thank you, Director Jenkins. In a few minutes 
I'll ask again my question about your comments on Professor 
Hellman's recommendation, but let me come back to that a little 
bit later on.
    The gentleman from California, Mr. Berman, is recognized 
for his questions.
    Mr. Berman. Thank you very much, Mr. Chairman.
    Judge Jacobs, you touched on it, but I would like you to 
develop it a little bit more. The methodology for the circuit 
courts count every case except pro se cases equally, should I 
understand it. The methodology for the district courts assigns 
cases a wide variety of values based on the time consumed in 
hearing those cases. Explain a little more the different 
methods for determining case loads. Wouldn't an Appeals Court 
typically spend more time on a case that raised constitutional 
issues than on one that challenged a trial court's finding of 
fact under a standard that gives tremendous deference to the 
trial court?
    Judge Jacobs. Yes. I think that there are different 
standards, and levels of deference certainly involve different 
levels of work. But I think that the nature of the record is a 
very important thing. In the District Courts you could almost 
weigh the difference between different kinds of cases. You 
could use a wheelbarrow to bring in a complex contracts case. 
You might need a building, a floor, to house the documents from 
an antitrust case, and the district judge must deal with 
lawyers for each of these parties, must deal with (sometimes) 
myriad issues of evidence, myriad issues concerning the jury 
charge, and so forth. And so the complexity of cases suggested 
by type is a distinct and predictable variable for district 
judges.
    For circuit judges, the question itself, the appellate 
question, can be bedeviling whether it is a antitrust case or a 
sentencing in a drug case, or almost anything else. It's very, 
very difficult to tell.
    And I should add one other thing, which is that in coming 
up with case weights for circuit courts, there's an additional 
problem. Everything I listed is a problem that every circuit 
court would experience. But there are very big differences 
between circuit courts. It's often said that the D.C. Circuit 
has a special and unusual case mix, which I think is true 
mainly because they take a lot of administrative cases that 
involve the construal of new regulations and often in things 
that involve huge filings from the Federal Energy Regulatory 
Commission and other things, but the circuit courts differ one 
from the other in many other ways. They differ because we all 
sit on panels. And because we sit on panels, it matters if the 
Court is ideologically divided. It matters if the judges get 
along with each other, frankly; and there are other 
considerations like that that are very important, and that 
affect how judges arrive at a just result in each case. Some 
courts have many en banc proceedings. My court, for example, 
has very few.
    Very large courts, for example, may proceed where one judge 
may not sit with another judge for a whole year, whereas in 
smaller courts like the First Circuit or the Second Circuit, we 
all sit with each other, and we all know each other, and we all 
deal with each other, and we all understand each other better.
    I hope that's not a disjointed response to your probing 
question.
    Mr. Berman. No. One last question.
    As I understand the weighted caseload methodology employed 
by the Judicial Conference, it gives large, multiparty civil 
cases the same weight as a single plaintiff and single 
defendant cases. Should the caseload methodology, again for the 
district judges, be altered to account for these differences, 
or does the Judicial Conference use some other mechanism to 
take these differences into account?
    Judge Jacobs. Well, there are of course some huge cases 
that involve thousands and thousands of plaintiffs, and we will 
usually look case by case at matters like that to see whether 
this is a district in which many such cases are arising. But 
it's sometimes worth keeping in mind that you can have hundreds 
of plaintiffs represented by one counsel. And you can have many 
defendants and have the same interest: They're from the same 
industry; they are fighting the same issues. It is often one of 
the signal responsibilities of a district judge to try to 
organize a large case so that it does not monopolize the time 
of a court. It is true that with certain kinds of civil cases, 
we're looking at an average, and an average will take in cases 
that are simpler, both because the issue is simpler and because 
the issue is more complicated in cases in which there may just 
be one party on each side, in cases in which there are multiple 
parties.
    Mr. Berman. Mr. Chairman, I am concluded. I am resisting 
the temptation to explore the impact on judicial caseload from 
class action and medical malpractice legal reform. I don't know 
if----
    Mr. Smith. It would be minimal, I'm sure, Mr. Berman. Thank 
you, Mr. Berman.
    The gentlewoman from Pennsylvania, Ms. Hart, is recognized 
for her questions.
    Ms. Hart. I'm actually interested in the proposal that 
Professor Hellman has to change the system, and I had a chance 
to read through a little bit of the longer testimony. I'm 
interested in knowing, I guess, first of all, the whole issue 
of getting a majority of the members of that circuit to 
actually request an additional judge. Is that actually the 
requirement as it is that everyone follows? I see nodding.
    Judge Jacobs. Yes.
    Ms. Hart. That's the case actually now as it is.
    Judge Jacobs. Yes.
    Ms. Hart. So that--I'm going to paint a scenario because 
I'm a political person. Say, for example, you have a circuit 
full of Democrats. Okay, say you have a circuit full of 
Republicans and the President is a Democrat. Could it be, could 
it ever happen that the judges might perhaps not want an 
additional judge while that person is President?
    Judge Jacobs. I don't think so, and the reason is, with due 
respect, that Congress creates--has a comprehensive judgeship 
bill so rarely. I know that in my court we voted to add two 
judges to our ranks some years ago when the President was a 
Democrat. We adhere to it now that the President is a 
Republican. I don't think it's possible to have that kind of 
fine tuning because the process takes a long time and 
notoriously----
    Ms. Hart. Because at the time it was urgently proposed. You 
mean the process to actually have that judge happen takes----
    Judge Jacobs. Yes, yes.
    Ms. Hart. Like how long on the average from the time that 
it's first discussed to the time that it would actually happen?
    Judge Jacobs. Well, we operate in 2-year cycles.
    Ms. Hart. Okay.
    Judge Jacobs. On the other hand, most of the judgeships 
that we are seeking have been sought for several 2-year cycles. 
Unless there is a--there have been 34 judgeships created in 
recent years, and that has reduced the need, but I have seen--
and I've been at this now for about 6 years--I have seen no 
oscillation between whether a court wants more people or 
doesn't want more people based on the partisan affiliation of 
the judges (who are none of them supposed to have any partisan 
affiliation anyway).
    Ms. Hart. Would either one of the other witnesses have any 
comment on that? Professor Hellman?
    Mr. Hellman. I would like to add something. I agree with 
Judge Jacobs on that. In fact, some evidence of that, one of 
the circuits that is most strongly opposed and one of the 
judges who's most strongly opposed to adding judgeships is now 
former Chief Judge Wilkinson of the Fourth Circuit, and he took 
that position when President Clinton was in office, and he 
continued to take the position now.
    So I should emphasize that I don't think that the present 
system is the result of any kind of political considerations. I 
think specifically to the Fifth and Eleventh Circuits, I think 
the judges of those circuits sincerely believe that their way 
of doing things is fine, and that they don't need the 
judgeships.
    So I disagree from the outside with that judgment, and my 
suggestion is that it would be good if more people could see 
and hear here why they think this.
    Ms. Hart. That makes sense. On that issue, I'm always in 
favor of more openness and I think your idea just 
intellectually is a smart way to go, but also in light of the 
fact that we are working on things that would change 
jurisdiction or increase the burden to the courts, for example, 
the class action reform that we just passed here in the House. 
Is that perhaps another maybe more compelling reason to go with 
another--more input I guess from the public.
    First I guess, before I go with that question, would either 
of the other two witnesses be opposed to an idea that would 
include more public input in the process?
    Mr. Jenkins. We don't have any opinion on that.
    Ms. Hart. Okay.
    Judge Jacobs. I've had some discussions on this provocative 
subject with Professor Hellman and I think it may be very 
useful to solicit views of bar associations on this subject, 
possibly within the context of this otherwise jam packed 2-year 
process, but possibly independently.
    Ms. Hart. Okay. Since you both answered it the way I was 
hoping, I will have no further questions.
    Thanks, Mr. Chairman.
    Mr. Smith. Thank you, Ms. Hart.
    The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman.
    And I was sitting here waiting to ask the question about in 
terms of the request, have you anticipated the expanded 
jurisdiction that various proposals which have been passed by 
the House would mean in terms of the caseload? And let me 
direct that to Judge Jacobs.
    But in addition to that, I'll follow up on something that 
Congresswoman Hart spoke about, and I tend to agree with 
Professor Hellman. I mean the issue here really is rather than 
a majority of justices required before a request is submitted, 
I would hope that there would be different criteria that prompt 
and timely justice would be the criterion as opposed to, you 
know, for whatever reasons judges may or may not think it 
appropriate, I mean, I would hope that the system is there to 
serve the consumer as opposed to the judges. That's just simply 
an observation, and I would support the suggestion by Professor 
Hellman. Maybe myself and Congresswoman Hart can discuss it 
later.
    But you know, we've been passing out of this particular 
Committee, despite objections by the Judicial Conference, a 
number of pieces of legislation. The most recent was alluded to 
by both the Ranking Member and Ms. Hart, the so-called Class 
Action Reform Act. In terms of your current request, presuming 
that the statute, the bill that has been passed through the 
House is enacted into law, I dare say there would be 
considerable expansion of Federal jurisdiction. We know what's 
happening in terms of the federalization of criminal laws. I 
think there was a task force that was chaired by the firmer 
Attorney General, Mr. Meese, that really decried that trend. 
Are we getting ourselves into a situation where the workload--I 
forgot who it was--maybe it was you, Judge Jacobs, that talked 
about, we're here, we know that there is a finite number. Well, 
I'm beginning to wonder is there a finite number? You know, we 
continue expanding your jurisdiction, I would, again using the 
criteria of prompt and speedy and timely justice, I would 
anticipate you're back here on a rather frequent basis. If you 
could comment.
    Judge Jacobs. Surely. I mean, clearly expansions of Federal 
jurisdiction impose new burdens on the Federal Courts. It's 
very difficult to predict when that will kick in. It's 
difficult to predict which courts would be affected. It may be 
that the class action reform will work in such a way as to 
impose, pinpoint, tremendous burdens on individual courts or it 
may result in some spread out burden over many courts. We tend 
to--well, we always evaluate judgeship needs in terms of 
historical data. It may be recent history, but it is the past, 
and certainly it is the universal view among Federal judges 
that expansions of Federal jurisdiction should be done 
carefully and thoughtfully because it tends to increase the 
number of----
    Mr. Delahunt. But your current request is not anticipatory, 
I take it?
    Judge Jacobs. No, it is not, Congressman.
    Mr. Delahunt. Thank you.
    Mr. Smith. Thank you, Mr. Delahunt.
    I just have another question or two to ask you, and I'm not 
sure who to direct it to. Perhaps, Director Jenkins, I'll start 
with you, but also ask Judge Jacobs or Professor Hellman to 
comment as well.
    As I understand it, around the country today there are 
around I think 47 vacancies that are unfilled for Federal 
Judges. Has that been factored into the recommendations of the 
Judicial Conference, or should they be, or have they been?
    Judge Jacobs. They are not, because what we look at when we 
look at case weights, is the weight of filed cases per 
judgeship, whether it's filled or not filled. If one were to 
look at the caseloads in courts in need of new judges and 
consider what the weighted filings would be, if the present 
vacancies continued----
    Mr. Smith. I thought the weight filings were based upon the 
total authorized judges which would have included the 
vacancies.
    Judge Jacobs. Yes, it does. It includes the vacancies.
    Mr. Smith. As soon as those vacancies are filled, suddenly 
your average caseload is going to go down.
    Judge Jacobs. No, because the--each judgeship is not the 
judge filling the seat. It is the seat either filled by a judge 
or awaiting an arrival.
    Mr. Smith. Okay, I see. Any other comments, Director 
Jenkins, on that?
    Mr. Jenkins. Well, it's true, and I think it's appropriate 
that they do it the way they do, which is the number of 
statutorily authorized positions is what these numbers are, 
whether they're filled or not, because it is useful I think in 
terms of looking at the effect on the courts of not filling 
vacancies, to look at the weighted case filings per active 
judgeship. That shows what the burden is on those judges that 
are actually handling the cases, that are there to work on the 
cases. But in terms of requesting additional judgeships, I 
think the way that they do it is correct because what they 
should be looking at is if we had all these positions filled, 
what would the workload be on the courts? And that is what they 
do.
    Mr. Smith. Thank you, Director Jenkins.
    Judge Jacobs, a question I've been concerned about. Does 
the Judicial Conference try to do anything about--what's the 
euphemism--underachieving Federal judges? Some Federal judges 
work harder than other Federal judges, and we've all seen that 
and been aware of that. Is there anything done to try to 
increase the productivity of Federal Judges who perhaps are not 
performing at a level the Judicial Conference would like?
    Judge Jacobs. We don't have data on that. I'm not sure how 
I'd go about developing that data. I tend to be surrounded by 
judges who work hard because they love their work and are 
immersed in it and enjoy it thoroughly. And, you know, I'm here 
seeking more judges for my court, but I love every minute of 
what I do.
    Mr. Smith. My question wasn't a reflection on either you or 
people you know.
    Judge Jacobs. Of course.
    Mr. Smith. It was on observations of attorneys around the 
country, that not every Federal judge necessarily is working as 
hard as might be hoped.
    Judge Jacobs. I believe that in the courts that we're 
talking about here where the workloads are very heavy, I would 
think there's a very substantial amount, speculation, but I 
would think there's a very substantial amount of community 
pressure by other judges for everybody to carry their load plus 
some more. Whether there are judges around the country who get 
to the golf links now and then, I don't know because I don't 
play golf, but I don't think that that impacts much on the 
particular needs that we're identifying here where the courts 
are as busy as can be.
    Mr. Smith. Thank you, Judge Jacobs.
    Let me end, Professor Hellman, with a very non-serious 
question, and it is this: that last week I was leaving work, 
heading to McLean, VA, crossing the 14th Street Bridge, and I 
happened to be following a car, about a 10-year-old Buick that 
had several bumper stickers on it. One bumper sticker is one I 
have never seen before, would not have been able to imagine if 
given many years, and I was going to ask you to comment on it. 
The bumper sticker read: ``Save America. Close Yale Law 
School.'' [Laughter.]
    Mr. Hellman. I think that's one that I had better not 
comment on. You may be seeing more of them though.
    Mr. Smith. That was the first one. Like I said, couldn't 
imagine it, and was surprised to see it. But anyway, I'll let 
it go at that, and you're not requested to reply any more than 
you already have.
    Let me thank all three of you for your contributions today 
and for helping us as we go forward with a new judge bill. We 
appreciate your being here. We also appreciate your expertise 
and your contribution. So thank you all.
    We stand adjourned.
    [Whereupon, at 2:52 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    We meet here today at a time when we are employing more full-time 
federal judges then at any other time in our nation's history. In fact, 
we currently have the lowest number of vacancies on the court in 13 
years. I find it interesting that after years of blocking moderate 
Clinton appointees, the Republicans are now attempting to steam roll 
through Congress a series of controversial right wing appointments onto 
the federal bench. I have always supported improving the federal court 
system. But, I want to ensure that the Judicial Conference's work is 
not used as a tool by the Republicans to pack the federal courts with 
right wing ideologues.
    The public has been made to believe that the Democrats are to blame 
for the vacancies in the federal courts in effort to avoid debate about 
highly controversial nominees. The reality of the matter is that 
Republicans were actually responsible for using political tactics to 
create these vacancies. In the last two years, 123 of the President's 
judicial nominees will have been confirmed. By contrast, during the six 
and one-half years that the Republicans controlled the Senate under 
President Clinton, the Senate averaged only 38 confirmations a year. 
Indeed, Republicans blocked up or down votes on more then 60 of 
President Clinton's judicial nominees. Now that the Senate has filled 
60% of the vacancies in the federal court, I will not tolerate 
Republicans efforts to try to speed through highly-conservative 
judicial nominees by placing blame on the Democrats.
    I would also hope that if we do need to create more federal 
judgeships that we make sure we are addressing a real need. The GAO 
report has raised some questions about the methodology used by the 
Judicial Conference. I understand that the Judicial Conference is 
currently working on updating its research design. It would be valuable 
for us to allow them some time to improve their methodology before we 
consider adding more federal judgeships.
    In this highly politicized climate we need to be weary of attempts 
to transform the federal judiciary. We need to ensure that our 
judiciary maintains its independence and never becomes the pawn of a 
political party. The importance of yesterday's affirmative action 
decisions illustrates this point. With this in mind, I hope that we can 
work together to gain a greater understanding of the needs of our 
federal judicial system. This hearing provides a valuable opportunity 
for us to work towards finding the most accurate way to assess the need 
for additional judges.

                              ----------                              

Prepared Statement of the Honorable Doug Bereuter, a Representative in 
                  Congress From the State of Nebraska
    Chairman Smith, Ranking Member Berman, and Members of the 
Subcommittee: Thank you for the opportunity to submit testimony today 
for this hearing on the Judicial Conference judgeship recommendations. 
Of course this is a very important and even critical issue to my state 
of Nebraska.
    Nebraska has one Federal District Court temporary judgeship that is 
scheduled to expire in November 2003. On the first day of the 108th 
Congress I introduced legislation (H.R. 29) to make that temporary 
judgeship permanent which would represent a fourth judge for Nebraska. 
In addition, as you know, the Judicial Conference has recommended that 
this action be taken. The Senate recently passed legislation that 
included Nebraska in the list of judgeships to be made permanent.
    Nebraska is experiencing a rapidly increasing problem with 
methamphetamine that mostly is being prosecuted on the Federal level. 
In fact, I would say that methamphetamine use has become a plague in my 
state. As a result, the already great burden on our Federal court 
system is becoming more and more difficult. For example, according to 
numbers for the year 2002 from the Judicial Conference Administrative 
Office--Statistic Division, on the national level 36 percent of cases 
activated are related to drugs. In Nebraska, that number is 64 percent. 
Within the 8th Circuit, the next highest percent of drug related cases 
is in the Iowa-South District with 49.7 percent. According to District 
of Nebraska records, 75 percent of defendants charged with a drug crime 
are charged in methamphetamine related offenses. This problem is only 
getting worse.
    It is interesting to note that in total cases activated, Nebraska 
is tied for second most within the 8th Circuit with the Missouri-West 
District with 754 cases each, with only the Missouri-East District 
having more at 1,096. In 2001, Nebraska had 635 activated cases. In 
fact, Nebraska has experienced a 19 percent growth rate in the number 
of case activations in 2002.
    In the event that the District of Nebraska loses the temporary 
judgeship, the weighted filings per judgeship for 2002 would be 724 
filings while, as you know, the threshold for the weighted filings per 
judgeship for requesting a new judge is 430. Even including the 
temporary judgeship, the weighted filings in 2002 were 543 cases.
    I have attached a few charts that I think clearly show how critical 
the fourth judge is to the Nebraska District. With the growing number 
of overall cases facing the Nebraska District and the growing crime 
level related to methamphetamine manufacture, trafficking and use, it 
is imperative that the temporary judgeship be made permanent.
    In closing, I urge the Subcommittee include the provisions of H.R. 
29 in any legislation regarding changes in Federal judgeships. Thank 
you again for this opportunity to submit testimony on this important 
issue.

                              ATTACHMENTS










 Prepared Statement of the Honorable Tom Osborne, a Representative in 
                  Congress From the State of Nebraska
    Chairman Smith, Ranking Member Berman, and Members of the 
Subcommittee:
    Thank you for allowing me the opportunity to submit testimony for 
today's hearing on the need for additional federal judges. Currently, 
Nebraska has three permanent and one temporary District Court Judge. If 
the temporary judgeship is not made permanent by November 20, 2003, the 
judgeship will expire after the first vacancy on the bench, so this is 
an urgent matter for the people of Nebraska.
    Caseloads for U.S. district judges in Nebraska have climbed 
steadily largely because of an increasing number of criminal cases, 
particularly those related to drug trafficking. In fact, criminal cases 
have more than doubled since 1995. Like many other states in the 
Midwest, Nebraska has been plagued in recent years by an influx of 
methamphetamine (meth), and criminal cases involving meth represent 66 
percent of Nebraska's drug docket, compared to the national average of 
14.5 percent.
    The influx of meth in Nebraska will continue to cause the criminal 
caseload to increase. In 2001, the number of meth defendants increased 
by 88 percent. Interstate 80, which runs the length of the state of 
Nebraska, is one of the primary transit routes used for drug 
trafficking across the central United States. This has contributed to 
Nebraska being ranked second in the number of high-level drug 
trafficking defendants indicted and convicted in the Central Region, 
which includes 12 states.
    This substantial increase in Nebraska's criminal trials leaves 
Nebraska's federal judges with extremely heavy caseloads. In fact, 
Nebraska's judges carry a heavier criminal caseload than judges in New 
York City, Chicago, and Los Angeles. This fourth judgeship is 
critically important to Nebraska, and without it, criminal cases will 
move more slowly and handling civil cases will become increasingly 
burdensome.
    My colleague from Nebraska, Mr. Bereuter, has introduced H.R. 29, 
to convert Nebraska's temporary judgeship for the district of Nebraska 
to a permanent judgeship. I am pleased to be an original cosponsor of 
this legislation and would appreciate H.R. 29 being included in any 
legislation the Subcommittee considers regarding federal judgeships. 
The Senate has already passed legislation that included Nebraska in the 
list of judgeships to be made permanent and I am hopeful the House will 
do the same.

                              ----------                              

  Prepared Statement of the Honorable Lee Terry, a Representative in 
                  Congress From the State of Nebraska
    Mr. Chairman, thank you and the rest of the members of the 
Subcommittee for considering legislation that would make the current 
temporary judgeship in Nebraska permanent. Nebraska currently has three 
permanent Federal District Court judgeships in addition to one 
temporary judgeship that is due to expire with the first vacancy after 
November 2003.
    Mr. Chairman, Nebraska's Federal District Courts handle a heavy 
caseload, not unlike many Federal District Courts nationwide. However, 
Nebraska Federal District Court judges' criminal caseloads ranked them 
9th of 94 Federal district courts as of September 2001. To help put 
this in perspective, the same study ranked the criminal caseloads of 
the Southern District of New York, which includes Manhattan and the 
Bronx, 79th of 94. Furthermore, the four active judges in Nebraska 
ranked 29th nationally in terms of trials completed. This means that 
Nebraska judges try an average of 23 cases per judge.
    Due to Nebraska's increasing caseload, the Judicial Conference of 
the United States has recommended that Nebraska's temporary judgeship 
be made permanent. The Judicial Conference uses a weighted filing 
determination to determine which temporary judgeships should be made 
permanent. Currently, the District Court in Nebraska has over 480 
weighted filings per judge, well above the Judicial Conference standard 
for requesting additional judgeships. Mr. Chairman, it is estimated 
that the loss of the temporary judgeship in Nebraska would raise the 
average of weighted filings per judge to more than 600, creating more 
aggravation for our already overburdened judges.
    These numbers mean nothing unless they are put into a real life 
context. Mr. Chairman, Nebraska is a rural state and the judges must 
travel long distances in order to try cases. For example, judges in 
Omaha must travel almost 600 miles four times a year to conduct two-
week jury sessions. Additionally, magistrates are sent out one month 
prior to the judge's arrival to conduct pretrial conferences on all 
cases pending trial. All this travel takes its toll on these judges and 
forces them at times to use the services of judges from other 
districts.
    Mr. Chairman, in addition to these rankings and mandatory travel 
our current judges may not be willing to serve much longer. Of the 
three permanent Federal district court judges, two are almost 80 years 
old and carry approximately 100 cases each. I think it is fair to say 
that these judges will not be able to maintain such caseloads for much 
longer. The third permanent judge will be eligible to retire in May of 
2004 and since the authorization for the temporary judgeship expires in 
November 2003, this judge cannot be replaced unless this authorization 
is made permanent or extended.
    I cannot stress enough the need to make this temporary judgeship 
permanent. I hope that the information I have provided is useful and I 
would like to once again thank you and the rest of the members of the 
subcommittee for your time and consideration of this important matter.

                              ----------                              

  Prepared Statement of the Honorable Steve King, a Representative in 
                    Congress From the State of Iowa
    Mr. Chairman, I come before you today to bring attention to a 
situation affecting my district. The Northern District of Iowa is in 
need of an additional judge to help deal with the deluge of 
methamphetamine related cases in Iowa. Iowa has a serious meth problem. 
We need to bring offenders to justice.
    As you may know, methamphetamine is a serious and growing problem 
in Iowa and across the nation. Drug cases, which comprise 49 percent of 
the criminal caseload, have increased 99 percent since 1999. This is 
due to the creation of two Organized Crime Drug Enforcement Task 
Forces, resulting in increased prosecutions of meth cases. An 
additional judge is needed to adjudicate these cases in a timely 
manner.
    Not only are meth related cases on the rise, but other cases are 
also overburdening the case load. There is an urgent need for an 
additional judgeship for the Northern District of Iowa. An additional 
judge is needed due to increased criminal filings, a high trial rate 
and a very high number of contested sentencing hearings per judgeship. 
The Judicial Conference has recognized this need and has recommended an 
additional temporary judgeship for the Northern District of Iowa.
    Given the insistence of various Committee members that any new 
judgeships will be authorized based on objective data, not political 
considerations, I believe the data which support the need for an 
additional judge is compelling. Overall filings have risen 35 percent 
since 1999. Criminal filings have more than doubled since 1999 to 
nearly 164 per judgeship. During the 2001 calendar year, the median 
time from filing to disposition for both civil and criminal cases was 
well above the national average. Completed trials have doubled in the 
past two years to more than 50 per judgeship in 2001, the highest total 
in the nation and more than twice the national average.
    As you can see, the Northern District of Iowa has demonstrated a 
need for an additional judge. I ask for your consideration of their 
request.
    Thank you, Mr. Chairman.

                              ----------                              

Prepared Statement of the Honorable Stevan E. Pearce, a Representative 
                in Congress From the State of Nex Mexico
    Mr. Chairman, Ranking Member Berman and Members of the 
Subcommittee, thank you for the opportunity to offer this statement on 
behalf of the Second Congressional District of New Mexico. I commend 
you, along with Chairman Sensenbrenner and Ranking Member Conyers for 
the commitment to ensure our constitutional duty as Members of Congress 
is fulfilled vigilantly and prudently.
    The main concern I wish to convey to the Subcommittee today is the 
urgency for additional Federal District Judgeships in the United States 
District Court of New Mexico, specifically in the Las Cruces federal 
courthouse.
    Crushing caseloads, unique geographical factors and the exhaustion 
of judicial resources manifests a desperate judicial situation. In 
March 2003, the Judicial Conference presented its recommendations for 
additional judgeships to Congress. Data from the Conference indicates 
the District has the fourth highest total criminal caseload per 
judgeship in the nation. This translates into 739 weighted cases per 
judgeship--46 percent higher than the national average and 72 percent 
higher than the standard the Conference uses to indicate the need for 
additional judgeships. Since 1996, the criminal caseload has increased 
by 150 percent. Moreover, Chief U.S. District Judge for the New Mexico 
District James A. Parker reports that since the Conference study was 
conducted, the number has risen to 784 weighted cases per judgeship. 
What is so alarming is the fact that the weighted criminal caseload per 
judgeship has dramatically increased despite the authorization of an 
additional judgeship in December 2000.
    The exceptional caseload is primarily attributed to the 
geographical factors unique to the District and other border Districts. 
Immigration and narcotics cases are almost exclusively driving the 
increase--placing an extraordinary burden on the Las Cruces federal 
courthouse, which is just 50 miles away from the U.S.-Mexico border. In 
fact, two-thirds of all criminal cases in the District are now 
processed in Las Cruces. Immigration prosecutions currently account for 
85 percent of all criminal cases in the District. Additionally, the 
amount of time in which these cases are adjudicated is increasing 
simultaneously with the caseload as the immigration cases predominantly 
require interpretation.
    Due to the already high strain on judges in the Albuquerque and 
Santa Fe courts, the District has been unable to assign a permanent 
District Judge in Las Cruces. However, the court's need for additional 
judgeships in Las Cruces is not indicative of a lack of willingness on 
behalf the District Judges to actively address the increased caseload. 
While the District has made strident efforts, it has begun to exhaust 
all judicial resources. One option employed to handle the enormous 
caseload in Las Cruces is assigning rotating duties to District Judges 
from Albuquerque and Santa Fe. This means judges and their staffs must 
travel more than 450 miles round trip during the week, face 
extraordinary caseloads and return to their Chambers on the weekends to 
compensate for the time lost to duty in Las Cruces. Chief Judge of the 
New Mexico District James Parker completes this rotation in Las Cruces 
frequently and estimates he spends at least twelve hours per day on 
cases. Constant long travel and unusually long hours on cases are 
obviously wearing on the judges who must perform this duty.
    The District also utilizes Magistrate Judges in Las Cruces to 
manage the crushing caseload. Magistrate Judge Lourdes Martinez is 
eager to assist with the District caseload, but states that, even 
though Magistrate Judges cannot hear felony trials or sentence 
defendants convicted of felony-level crimes, just handling pre-
indictment pleas for the District requires Magistrate Judges to be on 
the bench everyday and every weekend of the year.
    Many of the judges relied upon to handle the Las Cruces caseload 
are 10th Circuit Court of Appeals Judges or District Judges from other 
jurisdictions in the United States. U.S. District Judge William 
Sessions, assisting from Burlington, VT, spent two weeks in Las Cruces 
during February 2003 and concluded that Las Cruces is in desperate need 
of more than one full-time Article III judgeship. Within only two days, 
Judge Sessions sentenced more than 50 people. Judge Sessions has never 
seen a caseload as high as Las Cruces' in the eight years he has been 
on the bench.
    U.S. District Judge Monti Belot, who has assisted in Las Cruces 
from Wichita, Kansas on three different occasions as late as April 
2003, states there is no question there is a need for additional 
Article III judgeships in Las Cruces. Judge Belot contends there is no 
way to appreciate the volume of work and how well the Clerk's Office, 
U.S. Marshals, Public Defenders and U.S. Attorneys work together to 
handle the crushing caseload unless one actually sees it themselves.
    The 21st Century Department of Justice Appropriations Authorization 
Act created one additional temporary judgeship for the District, who 
will reside in Las Cruces effective July 15, 2003. However, the 
Conference estimates the temporary judgeship will only reduce the 
District's caseload to 633 weighted cases per judgeship. Furthermore, 
as evidenced from the rotating duty and visiting judges' experiences, 
it would be a daunting task to have only one District Judgeship 
managing the entire criminal docket in Las Cruces. With the constant 
increase in cases, having only one District Judgeship in Las Cruces 
would not eliminate the need for judges to travel from other areas.
    The Conference has recommended two permanent judgeships and one 
temporary judgeship for the District. The Conference contends the 
additional judgeships will decrease the weighted filings per judgeship 
to 470 from 739, bringing the District on parity with the rest of the 
Districts in the United States, and Las Cruces on parity with the rest 
of New Mexico in terms of caseload. I believe the current situation in 
the District illustrates the wisdom of including the recommended 
additional judgeships for the District in legislation the Judiciary 
Committee might approve. I appreciate the opportunity to bring to your 
attention the lack of judicial resources in my Congressional District 
and applaud the Subcommittee's eagerness to review the federal 
judgeship issue.

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