[House Report 108-708]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-708
======================================================================

 
            AUTHORIZATION FOR ADDITIONAL FEDERAL JUDGESHIPS

                                _______
                                

 September 29, 2004.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 878]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(S. 878) to authorize an additional permanent judgeship in the 
district of Idaho, and for other purposes, having considered 
the same, reports favorably thereon with amendments and 
recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendments...................................................     1
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................     4
Committee Consideration..........................................     4
Vote of the Committee............................................     4
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Performance Goals and Objectives.................................     7
Constitutional Authority Statement...............................     7
Section-by-Section Analysis and Discussion.......................     7
Changes in Existing Law Made by the Bill, as Reported............    12
Agency Views.....................................................    15
Markup Transcript................................................    17

                             The Amendments

  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. NEW DISTRICT JUDGESHIPS.

    The President shall appoint, by and with the advice and consent of 
the Senate, the following:
            (1) 1 additional district judge for the northern district 
        of Alabama.
            (2) 1 additional district judge for the middle district of 
        Alabama.
            (3) 3 additional district judges for the district of 
        Arizona.
            (4) 1 additional district judge for the northern district 
        of California.
            (5) 3 additional district judges for the eastern district 
        of California.
            (6) 1 additional district judge for the central district of 
        California.
            (7) 2 additional district judges for the southern district 
        of California.
            (8) 2 additional district judges for the middle district of 
        Florida.
            (9) 4 additional district judges for the southern district 
        of Florida.
            (10) 1 additional district judge for the district of Idaho.
            (11) 1 additional district judge for the western district 
        of Missouri.
            (12) 1 additional district judge for the district of 
        Nebraska.
            (13) 2 additional district judges for the district of New 
        Mexico.
            (14) 3 additional district judges for the eastern district 
        of New York.
            (15) 1 additional district judge for the district of 
        Oregon.
            (16) 1 additional district judge for the district of South 
        Carolina.
            (17) 1 additional district judge for the district of Utah.
            (18) 2 additional district judges for the eastern district 
        of Virginia.
            (19) 1 additional district judge for the western district 
        of Washington.

SEC. 2. CONVERSION OF TEMPORARY TO PERMANENT JUDGESHIPS.

    The existing judgeships for the eastern district of California, the 
district of Hawaii, the district of Kansas, the eastern district of 
Missouri, that were authorized by section 203(c) of the Judicial 
Improvements Act of 1990 (28 U.S.C. 133 note; Public Law 101-650) 
shall, as of the date of the enactment of this Act, be authorized under 
section 133 of title 28, United States Code, and the incumbents in 
those offices shall, as of such date of enactment, hold those offices 
under section 133 of title 28, United States Code, as amended by this 
Act.

SEC. 3. TEMPORARY JUDGESHIPS.

    (a) Appointment.--The President shall appoint, by and with the 
advice and consent of the Senate, the following:
            (1) 1 additional district judge for the northern district 
        of California.
            (2) 2 additional district judges for the central district 
        of California.
            (3) 3 additional district judges for the southern district 
        of California.
            (4) 1 additional district judge for the district of 
        Colorado.
            (5) 1 additional district judge for the middle district of 
        Florida.
            (6) 1 additional district judge for the northern district 
        of Illinois.
            (7) 1 additional district judge for the northern district 
        of Indiana.
            (8) 1 additional district judge for the southern district 
        of Indiana.
            (9) 1 additional district judge for the northern district 
        of Iowa.
            (10) 1 additional district judge for the district of New 
        Mexico.
            (11) 1 additional district judge for the eastern district 
        of New York.
            (12) 1 additional district judge for the western district 
        of New York.
    (b) Vacancies Not Filled.--(1) The first 2 vacancies in the office 
of district judge in the central district of California, occurring 10 
years or more after judges are first confirmed to fill both temporary 
judgeships created in that district by subsection (a), shall not be 
filled.
    (2) The first 3 vacancies in the office of district judge in the 
southern district of California, occurring 10 years or more after 
judges are first confirmed to fill all 3 temporary judgeships created 
in that district by subsection (a), shall not be filled.
    (3) The first vacancy in the office of district judge in each 
district named in subsection (a), other than the central or southern 
district of California, occurring 10 years or more after judges are 
first confirmed to fill the temporary judgeship created in that 
district by subsection (a), shall not be filled.

SEC. 4. CONFORMING AMENDMENTS.

    The table contained in section 133(a) of title 28, United States 
Code, is amended--
            (1) by amending the item relating to Alabama to read as 
        follows:

``Alabama:
    Northern................................................         8 
    Middle..................................................         4 
    Southern................................................       3'';
            (2) by amending the item relating to Arizona to read as 
        follows:

4    ``Arizona..............................................      15'';
            (3) by amending the item relating to California to read as 
        follows:

``California:
    Northern................................................        15 
    Eastern.................................................        10 
    Central.................................................        28 
    Southern................................................      15'';
            (4) by amending the item relating to Florida to read as 
        follows:

``Florida:
    Northern................................................         4 
    Middle..................................................        17 
    Southern................................................      21'';
            (5) by amending the item relating to Hawaii to read as 
        follows:

    ``Hawaii................................................       4'';
            (6) by amending the item relating to Idaho to read as 
        follows:

    ``Idaho.................................................       3'';
            (7) by amending the item relating to Kansas to read as 
        follows:

    ``Kansas................................................       6'';
            (8) by amending the item relating to Missouri to read as 
        follows:

``Missouri:
    Eastern.................................................         7 
    Western.................................................         5 
    Eastern and Western.....................................       2'';
            (9) by amending the item relating to Nebraska to read as 
        follows:

    ``Nebraska..............................................       4'';
            (10) by amending the item relating to New Mexico to read as 
        follows:

    ``New Mexico............................................       8'';
            (11) by amending the item relating to New York to read as 
        follows:

``New York:
    Northern................................................         5 
    Southern................................................        28 
    Eastern.................................................        18 
    Western.................................................       4'';
            (12) by amending the item relating to Oregon to read as 
        follows:

    ``Oregon................................................       7'';
            (13) by amending the item relating to South Carolina to 
        read as follows:

    ``South Carolina........................................      11'';
            (14) by amending the item relating to Utah to read as 
        follows:

    ``Utah..................................................       6'';
            (15) by amending the item relating to Virginia to read as 
        follows:

``Virginia:
    Eastern.................................................        13 
    Western.................................................   4''; and
            (16) by amending the item relating to Washington to read as 
        follows:

``Washington:
    Eastern.................................................         4 
    Western.................................................       8''.

SEC. 5. ADDITIONAL CIRCUIT JUDGES.

    (a) Permanent Judgeships.--The President shall appoint, by and with 
the advice and consent of the Senate, 1 additional circuit judge for 
the first circuit court of appeals, 2 additional circuit judges for the 
second circuit court of appeals, 1 additional circuit judge for the 
sixth circuit court of appeals, and 5 additional circuit judges for the 
ninth circuit court of appeals.
    (b) Temporary Judgeships.--
            (1) Appointment of judges.--The President shall appoint, by 
        and with the advice and consent of the Senate, 2 additional 
        circuit judges for the ninth circuit court of appeals.
            (2) Effect of vacancies.--The first 2 vacancies occurring 
        on the ninth circuit court of appeals 10 years or more after 
        judges are first confirmed to fill both temporary circuit 
        judgeships created by this subsection shall not be filled.
    (c) Number of Circuit Judges.--The table contained in section 44(a) 
of title 28, United States Code, is amended--
            (1) by amending the item relating to the first circuit to 
        read follows:

``First.....................................................       7'';
            (2) by amending the item relating to the second circuit to 
        read follows:

``Second....................................................      15'';
            (3) by amending the item relating to the sixth circuit to 
        read as follows:

``Sixth.....................................................      17'';
        and
            (4) by amending the item relating to the ninth circuit to 
        read as follows:

``Ninth.....................................................      33''.

    Amend the title so as to read:

      A bill to create additional Federal court judgeships.

                          Purpose and Summary

    The purpose of S. 878, as reported by the Committee on the 
Judiciary, is to authorize the creation of certain new U.S. 
circuit and district judgeships (permanent as well as 
temporary) and to convert other temporary judgeships to 
permanent status.

                Background and Need for the Legislation

    The Judicial Conference of the United States 
(``Conference'') reviews biannually the judgeship needs of all 
U.S. courts of appeal and U.S. district courts to determine if 
any of the courts require additional judges to administer civil 
and criminal justice in the Federal court system. The 
Conference then submits its recommendations to the House and 
Senate Committees on the Judiciary. The Conference completed 
its last review in March, 2003, and submitted its 
recommendations to Congress.
    The Conference set a benchmark caseload standard for 
considering judgeship requests at 430 weighted cases per 
judgeship for district courts and 500 adjusted case filings per 
panel for courts of appeal. The Conference process takes into 
account additional criteria that may influence the judgeship 
needs of each court, including senior judge and magistrate 
judge assistance, geographical factors, unusual caseload 
complexity, and temporary caseload increases or decreases.
    Based on these criteria, the Conference's current proposal 
recommends that Congress establish 11 new judgeships in 4 
courts of appeals and 46 new judgeships in 24 district courts. 
The Conference also recommends that five temporary district 
court judgeships created in 1990 be established as permanent 
positions. For many of these courts, the recommendations 
represent needs developed since 1990.

                                Hearings

    The Committee's Subcommittee on Courts, the Internet, and 
Intellectual Property held an oversight hearing on Federal 
judgeship needs on June 24, 2003. Testimony was received from 
three witnesses representing two organizations.

                        Committee Consideration

    On September 9, 2004, the Committee met in open session and 
ordered favorably reported the bill S. 878 with amendments by 
voice vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were no recorded votes during the Committee's consideration of 
S. 878.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee notes that this 
legislation provides new budgetary authority as outlined in the 
Congressional Budget Office estimate printed in the next 
section.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, S. 878, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 29, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 878, an act to 
create additional federal court judgeships.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Rachel 
Milberg, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
S. 878--An act to create additional federal court judgeships.

                                SUMMARY

    S. 878 would authorize 47 additional district court judges 
and 11 additional circuit court judges. Based on information 
from the Administrative Office of the United States Courts 
(AOUSC), CBO estimates that implementing the act would cost 
$225 million over the 2005-2009 period for court staff salaries 
and benefits, supplies, security, and the rent or construction 
of office space to support the additional 58 judges. We also 
estimate that enacting the legislation would increase direct 
spending by $3 million in 2005, by $40 million over the 2006-
2009 period, and by $90 million over the 2006-2014 period for 
the salaries and benefits of the judges that would be 
authorized by the act. Enacting S. 878 would not affect 
revenues.
    S. 878 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on State, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of S. 878 is shown in the 
following table. The costs of this legislation fall within 
budget function 750 (administration of justice).

                 By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
                                        2005   2006   2007   2008   2009
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Budget Authority                 8     87     42     43     45
Estimated Outlays                          8     52     70     50     45
CHANGES IN DIRECT SPENDING
Estimated Budget Authority                 3      7     10     10     10
Estimated Outlays                          3      7     10     10     10
------------------------------------------------------------------------

                           BASIS OF ESTIMATE

    CBO estimates that enacting S. 878 would increase direct 
spending by $90 million over the next 10 years for salaries and 
benefits of the additional district and circuit court judges 
that would be authorized by the legislation. In addition, we 
estimate that implementing the act would cost $225 million over 
the 2005-2009 period for court staff salaries and benefits, 
supplies, security, and the rent or construction of office 
space to support the 58 additional judges, subject to 
appropriation of the necessary amounts. For this estimate, CBO 
assumes that all judges authorized under the bill would be 
approved by the beginning of fiscal year 2007.
Direct Spending
    S. 878 would authorize 47 additional district court judges 
and 11 additional circuit court judges. Because the salaries 
and benefits of such judges are considered mandatory, adding 
more judges would increase direct spending. Under current law, 
district judges receive $158,100 and circuit court judges 
receive 167,600 annually. CBO estimates that enacting the 
legislation would increase direct spending by $3 million in 
2005, $7 million in 2006, and $10 million each year thereafter 
for the salaries and benefits of the additional 58 judges that 
would be authorized under the act. Adjustments in the annual 
salary for judges is subject to future Congressional action.
Spending Subject to Appropriation
    CBO expects that each additional judge authorized by this 
legislation would require the same amount of staff support, 
supplies, security, and office space as current district and 
circuit court judges consume. Based on information from the 
AOUSC, CBO estimates the courts would need to hire an average 
of five support staff for each judge, construct expanded court 
facilities, and rent larger office space to accommodate the 
additional judges and staff. In addition, the courts would be 
required to conduct background checks, purchase lawbook 
subscriptions and furniture, and expand telephone systems. CBO 
estimates that implementing the legislation would cost $225 
million over the 2005-2009 period, and $473 million over the 
2004-2014 period, subject to appropriation of the necessary 
amounts.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    S. 878 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would impose no costs on State, 
local, or tribal governments.

                         PREVIOUS CBO ESTIMATE

    On June 26, 2003, CBO transmitted a cost estimate for S. 
878 as passed by the Senate on May 22, 2003. The Senate version 
of this act would 14 additional district court judges and 36 
additional bankruptcy judges, and the cost estimates reflect 
this difference.

                         ESTIMATE PREPARED BY:

Federal Costs: Rachel Milberg (226-2860)
Impact on State, Local, and Tribal Governments: Melissa Merrell 
    (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2960)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, S. 878 
should facilitate an increase in the number of cases and 
appeals terminated on the merits as well as a reduction in 
pendency times for outstanding cases and appeals. The Committee 
also expects that the averages governing weighted filings per 
judgeship for district courts and adjusted case filings per 
panel for circuit courts will more closely approximate the 
current Conference standards (430 for district courts, 500 for 
circuit courts). If S. 878 is enacted, the Committee will 
closely monitor the data that measures these performance goals 
and objectives for the Federal judiciary.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee find the authority for 
this legislation in article III, Sec. 1 of the Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.

Sec. 1. New District Judgeships. Section 1 creates the 
following permanent U.S. district judgeships.

    Northern District of Alabama (one permanent). Weighted 
filings in this district have remained above the Conference 
standard of 430 for several years and are now at 620 per 
judgeship. Civil rights cases account for nearly one-third of 
its civil cases, and state prisoner petitions have increased by 
29% since 1998. Three years ago, the four senior judges serving 
the district handled more than a fifth of the caseload; all 
four are in their seventies.
    Middle District of Alabama (one permanent). Weighted 
filings for the Middle District have remained above 500 per 
judgeship for several years and now stand at 564. Civil filings 
rank sixth nationally. No senior judges in this court regularly 
take cases, and the court indicates that the judge who recently 
took senior status will handle no more than 75 civil cases per 
year.
    District of Arizona (three permanent). The court's current 
weighted filings, at 608 per judgeship, are ranked 13th 
nationally. Total filings have increased steadily over the past 
several years and have risen 28% since 1997. The district has 
the fourth highest criminal caseload in the nation, two-thirds 
of which relate to drug and immigration prosecutions. In 
addition, the district has five senior judges whose ages range 
from 68 to 83. Three of these judges will retire or 
significantly reduce their caseloads in the near future.
    Northern District of California (one permanent). Weighted 
filings in the Northern District currently exceed 500 per 
judgeship, driven by a high number of securities filings, 
higher than average multi-defendant cases, and a reduction in 
senior judges. Of the seven senior judges, one only handles 
circuit cases, two have since retired, and the remaining four 
range in age from 68 to 80.
    Eastern District of California (three permanent). Weighted 
filings in this district have averaged more than 600 per 
judgeship since 1997 and currently stand at 614. Civil filings 
per judgeship are the fourth highest nationally and the 
criminal caseload increased 65% between 1993 and 1997. Five 
senior judges assist the court and close more than a quarter of 
all cases. Four of the five are 70 or older.
    Central District of California (one permanent). The Central 
District's weighted filings exceed 500 per judgeship. The 
District ranks ninth nationally in civil filings per judgeship, 
and firearms cases have more than doubled since 1999. Vacant 
judgeship months have remained high in the recent past. Four of 
the senior judges are over 80, and three active judges are now 
eligible for senior status.
    Southern District of California (two permanent). The court 
has the highest overall caseload, criminal filings, and 
supervised release hearings per judgeship nationwide, in 
addition to the heaviest weighted filings per judgeship 
(1,068). Of the five senior judges who serve the district, four 
range in age from 70 to 88 and the fifth recently became 
inactive.
    Middle District of Florida (two permanent). The court's 
weighted filings far exceed the Conference standard of 430. 
During the mid to late 1990's, filings in the Middle District 
grew at a rate of 29% for civil disputes and 34% for criminal 
cases. Six senior judges, ranging in age from 67 to 86, closed 
11% of the court's cases. Two of the senior judges may retire 
within the next 2 years.
    Southern District of Florida (four permanent). Weighted 
filings for the Southern District average 657 per judgeship, 
the eighth highest total nationally. Overall filings have risen 
78% since 1994, and civil and criminal filings remain well 
above the respective national averages. Vacancies have harmed 
court operations in the past, and the five senior judges, each 
in his seventies, carries a significant caseload.
    District of Idaho (one permanent). Weighted filings per 
judgeship in Idaho have increased by 58% since 1995 and stand 
at 504 per judgeship. The court has no senior judges and one of 
the two active judges is eligible for senior status. The court 
has also stated that the distance judges are required to travel 
from duty stations to divisional offices has a substantial 
impact on their ability to fulfill their obligations.
    Western District of Missouri (one permanent). The Western 
District's weighted filings total 581 per judgeship. Increased 
civil rights cases and firearms and drug prosecutions have 
offset declines in prisoner petitions, student loan cases, and 
Social Security filings. Only two of the five senior judges who 
assist the court take cases and both are over 75.
    District of Nebraska (one permanent). Weighted filings per 
judgeship stood at 492 (14% higher than the Conference 
threshold) but have increased to 656 following expiration of 
the temporary judgeship earlier this year. The two senior 
judges serving the district (ages 76 and 77) closed 18% of all 
cases terminated in 2001. One of the court's active judges, who 
is seriously ill, is eligible to take senior status this year.
    District of New Mexico (two permanent). Weighted filings 
for the District are the fourth highest nationally (739 per 
judgeship). Caseload growth continues to rise, fueled almost 
exclusively by immigration prosecutions. Of the two senior 
judges, one is 90 and has greatly reduced his caseload. Two 
active judges are eligible to take senior status.
    Eastern District of New York (three permanent). The current 
total of 792 pending cases per judgeship is the third highest 
nationally--69% above average. The majority of the increase in 
overall filings in the district has occurred in the civil 
docket, including student-loan recoveries, asbestos litigation, 
and cable television theft disputes. Five senior judges closed 
32% of the most recently surveyed caseload; however, four are 
at least 77 years old and the fifth is 67.
    District of Oregon (one permanent). Oregon has experienced 
eight consecutive years of weighted filings either near or 
above 500 per judgeship (the current figure is 539). An 
additional permanent judgeship would reduce the figure to 462 
per judgeship, still well above the Conference standard. Five 
senior judges assist the court but they are all in their mid to 
late seventies and will accept declining caseloads in the 
future.
    District of South Carolina (one permanent). Weighted 
filings per judgeship for South Carolina (currently 549) have 
remained well above the Conference standard for years. There 
was a significant jump in 2001 tort filings when multiple 
plaintiffs (1,200) were required to file individual suits 
against a fertilizer plant. The district's three senior judges 
terminated 11% of the most-recently evaluated caseload, but two 
of them are 80 or older while two active judges are eligible 
for senior status.
    District of Utah (one permanent). Utah's weighted filings 
per judgeship have increased 65% since June 1996 to 521, 
largely due to dramatic increases in criminal filings that have 
tripled during that time. The court's four senior judges closed 
23% of all cases terminated in September 2002. In addition, one 
of the full-time Magistrate judges assigned to the Salt Lake 
City office recently died.
    Eastern District of Virginia (two permanent). The court's 
current total of 636 weighted filings per judgeship includes 
thousands of asbestos cases. Excluding these cases, weighted 
filings have risen steadily over the past decade and currently 
stand at 553 per judgeship. The court has three senior judges 
(ranging in age from 69 to 79), one of whom takes only a half a 
caseload.
    Western District of Washington (one permanent). The Western 
District's weighted filings average 534 per judgeship, nearly 
25% above the Conference standard. The criminal caseload has 
fluctuated considerably more than overall filings during the 
past 6 years. Four senior judges serve the court, but only two 
take a significant number of cases.

Sec. 2. Conversion of Temporary to Permanent Judgeships. 
Section 2 converts the following temporary judgeships to 
permanent judgeships.

    District of Hawaii (one temporary to permanent). Weighted 
filings in the District stand at 426 per judgeship but would 
escalate to more than 500 per judgeship if the temporary seat 
expires. The court has two senior judges, ages 70 and 86, the 
older of whom is likely to retire shortly. Together they closed 
18% of all cases in 2001.
    District of Kansas (one temporary to permanent). Weighted 
filings will rise to 485 per judgeship in the District if the 
temporary seat expires. There are five senior judges ranging in 
age from 70 to 95 (three are at least 80). All of the senior 
judges carry a heavy caseload but have experienced health 
problems in recent years that will require them to cut back.
    Eastern District of Missouri (one temporary to permanent). 
The current weighted filings average of 434 would increase to 
496 per judgeship if the judgeship expires. The District 
features one senior judge (age 75) and an expansive growth in 
criminal filings, many of which are firearms cases.

Sec. 3. Temporary Judgeships. Section 3 creates the following 
temporary judgeships.

    Northern District of California (one temporary). See 
section 1 profile.
    Central District of California (two temporary). See section 
1 profile.
    Southern District of California (three temporary). See 
section 1 profile.
    District of Colorado (one temporary). Weighted filings in 
Colorado have remained near or above 500 per judgeship for 
almost 10 years and currently stand at 495 per judgeship. In 
recent years there has been a threefold rise in firearms 
prosecutions. The three senior judges serving the court closed 
40% of civil cases in 2001 but only a small proportion of 
criminal terminations. While this level of senior judge 
assistance is substantial, it will probably decline as the one 
judge currently eligible to take senior status has indicated he 
does not plan to do so and no other active judge becomes 
eligible until 2008.
    Middle District of Florida (one temporary). See section 1 
profile.
    Northern District of Illinois (one temporary). Weighted 
filings in the Northern District have steadily increased since 
1993 and now stand at 491 per judgeship. Recent growth in civil 
caseload is attributable to an escalation in student loan, 
foreclosure, and labor law filings. Nine senior judges disposed 
of 16% of those cases terminated in 2001.
    Northern District of Indiana (one temporary). The caseload 
in the Northern District increased sharply between 1998 and 
2001 and weighted filings are well above 500 per judgeship. 
Drug and firearms prosecutions have driven the criminal docket 
in recent years; asbestos litigation, the civil docket. The 
court has not received senior judge assistance since 1998, but 
three active judges are eligible to take senior status.
    Southern District of Indiana (one temporary). Civil filings 
in the Southern District rank second nationally and weighted 
filings, currently 596 per judgeship, continue to rise. The 
construction of a new Federal penitentiary in Terre Haute that 
will house 1,100 inmates in 2005 should generate additional 
prison petitions as well as employment and other disputes. The 
court's lone senior judge is 88.
    Northern District Iowa (one temporary). This district's 
high weighted filings per judgeship (555) is attributable to 
increased criminal filings, a high trial rate, and an even 
higher number of contested sentencing hearings per judgeship. 
The district has only two authorized judgeships, but one has 
been vacant since February 2002. The two senior judges, ages 78 
and 82, terminated nearly one-fifth of all civil and criminal 
cases in 2001.
    District of New Mexico (one temporary). See section 1 
profile.
    Eastern District of New York (one temporary). See section 1 
profile.
    Western District of New York (one temporary). The Western 
District has the eighth highest pending caseload nationally and 
a weighted filings average of 539 per judgeship. The recent 
surge in filings is a function of criminal prosecutions for 
fraud, drug, and firearms cases. Two of the court's three 
senior judges take more than half of an active judge's civil 
and criminal caseload, while the third accepts no criminal and 
two-thirds of a civil caseload.

Sec. 4. Conforming Amendments. Section 4 amends the table 
contained in Sec. 133 of title 28 of the U.S. Code that lists 
the total number of judges for each U.S. district to reflect 
the changes made by Sec. Sec. 1 and 2 of S. 878.


Sec. 5. Additional Circuit Judges. Section 5 creates the 
following circuit judgeships and amends Sec. 44(a) of title 28 
of the U.S. Code that lists the total number of judges for each 
circuit to reflect the changes made by S. 878.

    1st Circuit (1 permanent). Adjusted filings average 638 per 
panel but would drop to 533 with the addition of one judgeship 
and the anticipated reduction in petitions filed to protest the 
military use of the Viequez practice bombing site in Puerto 
Rico. The majority of the circuit's appeals are criminal cases 
and prisoner petitions. Five senior judges, ranging in age from 
70 to 83, participated in 23% of cases terminated.
    2nd Circuit (2 permanent). Adjusted filings in the circuit 
exceed 700 per panel and would only fall to 614 (still well 
above the Conference standard) if the two judgeships are 
authorized. Non-prisoner civil petitions still constitute a 
plurality of appellate filings. Nine senior judges (ranging in 
age from 67 to 87) assist the court and assume roughly a half 
of a full caseload. Two active judges are eligible to take 
senior status and two more will become eligible in 2005.
    6th Circuit (1 permanent). The addition of an additional 
permanent judgeship would still leave the circuit's adjusted 
filings average per panel (553) above the Conference standard. 
Prisoner petitions typically constitute one-third of all 
appeals filed. Half (eight) of the circuit's judgeships are 
vacant. There are 10 senior judges who assist the court, 
ranging in age from 66 to 81.
    9th Circuit (five permanent, two temporary). Filings in the 
circuit have increased steadily in recent years. The adjusted 
filings average stands at 807 per panel, more than 50% above 
the Conference standard. Immigration, drug, and fraud cases 
have driven much of the increased workload. Four of the 28 
authorized judgeships are vacant. Twenty-one senior judges, 
most of whom are 75 or older, participate in roughly one-fifth 
of the appeals closed after oral hearing or submission on 
briefs. If authorized, the additional judgeships requested 
would still leave the adjusted filings average at 572 per 
panel.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--ORGANIZATION OF COURTS

           *       *       *       *       *       *       *


CHAPTER 3--COURTS OF APPEALS

           *       *       *       *       *       *       *


Sec. 44. Appointment, tenure, residence and salary of circuit judges

    (a) The President shall appoint, by and with the advice and 
consent of the Senate, circuit judges for the several circuits 
as follows:

                                                                  Number
    Circuits                                                   of Judges
District of Columbia..............................................    12
[First............................................................     6
[Second...........................................................   13]
First.............................................................     7
Second............................................................    15
     * * * * * * *
[Sixth............................................................   16]
Sixth.............................................................    17
     * * * * * * *
[Ninth............................................................   28]
Ninth.............................................................    33
     * * * * * * *

           *       *       *       *       *       *       *


                       CHAPTER 5--DISTRICT COURTS

Sec. 133. Appointment and number of district judges

    (a) The President shall appoint, by and with the advice and 
consent of the Senate, district judges for the several judicial 
districts, as follows:

  Districts                                                       Judges

[Alabama:
    [Northern.....................................................     7
    [Middle.......................................................     3
    [Southern.....................................................    3]
Alabama:
    Northern......................................................     8
    Middle........................................................     4
    Southern......................................................     3
     * * * * * * *
    [Arizona......................................................   12]
    Arizona.......................................................    15
     * * * * * * *
[California:
    [Northern.....................................................    14
    [Eastern......................................................     6
    [Central......................................................    27
    [Southern.....................................................   13]
California:
    Northern......................................................    15
    Eastern.......................................................    10
    Central.......................................................    28
    Southern......................................................    15
     * * * * * * *
[Florida:
    [Northern.....................................................     4
    [Middle.......................................................    15
    [Southern.....................................................   17]
Florida:
    Northern......................................................     4
    Middle........................................................    17
    Southern......................................................    21
     * * * * * * *
    [Hawaii.......................................................     3
    [Idaho........................................................    2]
    Hawaii........................................................     4
    Idaho.........................................................     3
     * * * * * * *
    [Kansas.......................................................    5]
    Kansas........................................................     6
     * * * * * * *
[Missouri:
    [Eastern......................................................     6
    [Western......................................................     5
    [Eastern and Western..........................................    2]
Missouri:
    Eastern.......................................................     7
    Western.......................................................     5
    Eastern and Western...........................................     2
     * * * * * * *
    [Nebraska.....................................................    3]
    Nebraska......................................................     4
     * * * * * * *
    [New Mexico...................................................     6
[New York:
    [Northern.....................................................     5
    [Southern.....................................................    28
    [Eastern......................................................    15
    [Western......................................................    4]
    New Mexico....................................................     8
New York:
    Northern......................................................     5
    Southern......................................................    28
    Eastern.......................................................    18
    Western.......................................................     4
     * * * * * * *
    [Oregon.......................................................    6]
    Oregon........................................................     7
     * * * * * * *
    [South Carolina...............................................   10]
    South Carolina................................................    11
     * * * * * * *
    [Utah.........................................................    5]
    Utah..........................................................     6
     * * * * * * *
[Virginia:
    [Eastern......................................................    11
    [Western......................................................     4
[Washington:
    [Eastern......................................................     4
    [Western......................................................    7]
Virginia:
    Eastern.......................................................    13
    Western.......................................................     4
Washington:
    Eastern.......................................................     4
8 Western.......................................................

           *       *       *       *       *       *       *


                              Agency Views



                           Markup Transcript



                            BUSINESS MEETING

                      WEDNESDAY, SEPTEMBER 9, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr., [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pursuant to notice I now call up the bill S. 878, a bill to 
authorize an additional permanent judgeship in the District of 
Idaho and for other purposes, for purposes of markup, and move 
its favorable recommendation to the House.
    Without objection the bill will be considered as read and 
open for amendment at any point.
    [The bill, S. 878 follows:]
    
    
    Chairman Sensenbrenner. The chair recognizes the gentleman 
from Texas, Mr. Smith, to explain the bill.
    Mr. Smith. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, the U.S. Judicial Conference 
biennially reviews the needs of the judiciary to determine if 
any of our Federal courts require additional judges. It 
completed its last review in March 2003 and submitted a list of 
judgeship recommendations to the House and Senate Committees on 
the Judiciary. The Conference set a benchmark caseload standard 
for considering requests at 430 weighted cases per judgeship 
for district courts. This process takes into account additional 
criteria that may influence the judgeship needs of each court, 
including senior judge and magistrate judge assistance, 
geographical factors, unusual caseload complexity and temporary 
caseload increases or decreases.
    Based on these criteria, the Senate passed S. 878 on May 
22nd, 2003. The bill as referred to our Committee creates 12 
permanent district judgeships and two temporary district 
judgeships. S. 878 also converts two temporary judgeships to 
permanent status.
    Mr. Chairman, S. 878 represents a good start, but I will 
shortly offer an amendment to provide more content. I urge 
Members to support the amendment and the underlying bill, and I 
yield back the balance of my time.
    Chairman Sensenbrenner. Does the gentleman from California, 
Mr. Berman, wish to give a Democratic opening statement? If so, 
he is recognized for 5 minutes.
    Mr. Berman. I thank the Chairman. I'm trying to get the 
state of play here, and while I get the state of the play, I 
think perhaps I shouldn't venture an opinion on a play that I 
don't yet understand, so I will pass up my right to make an 
opening statement.
    Chairman Sensenbrenner. Without objection, all Members may 
insert opening statements in the record at this point. Are 
there amendments? And the chair recognizes himself for purposes 
of offering an amendment. The clerk will report the amendment.
    The Clerk. Amendment to S. 878 offered by Mr. 
Sensenbrenner. At the end of the bill add the following: 
Section 12, Additional Circuit Judges. (a) Permanent----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the chair recognizes himself for 5 
minutes.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. I am offering this amendment to 
meet the needs of the appellate courts in addition to the trial 
courts. This amendment will add a total of 11 new circuit 
judgeships to S. 878, and those judgeships will benefit the 
operations of the First, Second, Sixth and Ninth Circuit Courts 
of Appeal. This is the full complement of circuit judgeship 
recommendations proffered by the Judicial Conference. All of 
the judgeships more than comply with the minimum threshold 
standards developed by the Conference in its 2003 
recommendations to Congress. By that standard, these circuit 
judgeships address the circuit courts that have the greatest 
need.
    The amendment represents a good complement to the amendment 
that will be offered by the gentleman from Texas, Mr. Smith. I 
urge the adoption of the amendment and the underlying bill and 
yield back the balance of my time.
    The question is on agreeing to the amendment offered by the 
chair. Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it and the 
amendment is agreed to.
    Are there further amendments? The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to S. 878 offered by Mr. Smith of 
Texas. Strike Sections 1 through 11 and insert the following: 
Section 1. New District Judgeships. The President shall----
    Mr. Smith. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman from Texas is recognized for 
5 minutes.
    [The amendment follows:]
    
    
    Mr. Smith. Thank you, Mr. Chairman. My amendment 
incorporates the base text of S. 878 with two major revisions. 
First it adds 16 permanent and 12 temporary judgeships to the 
bill. It also converts two temporary judgeships to permanent 
seats.
    The Judicial Conference has highly recommended that all of 
these judgeships be accepted. The vast majority of these seats 
will be located, it happens, in States associated with Members 
of our Committee, including Alabama, Arizona, California, 
Florida, Illinois, Indiana, Iowa, New York, Utah and Virginia.
    Again, the extra judgeships included in this substitute 
more than satisfy the threshold requirements developed by the 
Judicial Conference; and second, all of the bankruptcy judges 
set forth on pages 7 through 14 of the bill are stricken. This 
will be dealt with in the context of the bankruptcy reform 
legislation pending before the Senate, which includes all these 
judgeships.
    Mr. Chairman, it's unusual when the other body moves first 
on issues that fall within our Committee's jurisdiction. This 
is one of those rare occasions. This amendment incorporates the 
great majority of the bill as developed by the other body, so 
its adoption today augers well for further bicameral action.
    I urge Members to support this amendment and S. 878 on 
final passage, and I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. Thank you, Mr. Chairman. I want to thank 
Chairman Smith for offering this amendment, including a number 
of the judgeships recommended by the administrative office of 
the district judgeships. I note that the amendment leaves out 4 
of the 46 district court judgeships, and I will offer a 
perfecting amendment, which I hope the Chairman of the 
Committee and the Chairman of the Subcommittee would feel 
comfortable supporting that would include those 4 of the 46 
district judgeships.
    Chairman Sensenbrenner. Does the gentleman from California 
have an amendment?
    Mr. Berman. I do.
    Chairman Sensenbrenner. The clerk will report the 
perfecting amendment.
    Mr. Berman. Amendment 6.
    The Clerk. Perfecting amendment to the Sensenbrenner 
amendment to S. 878, or the Smith amendment to S. 878. At the 
end insert the following----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman from California will be 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Berman. Mr. Chairman, I would support--urge the 
Committee to support this amendment. I don't know of their 
rationale for leaving out these 4 judgeships, none of which are 
from California, but without understanding the logic of leaving 
them out, I think we should just be consistent and adopt all of 
the district court judgeships recommended by the AO and urge 
its adoption.
    Chairman Sensenbrenner. The question is agreeing to the 
perfecting amendment offered by the gentleman from California, 
Mr. Berman, to the amendment offered by the gentleman from 
Texas, Mr. Smith. Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to.
    The question now is on the adoption of the Smith amendment 
as amended. Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to.
    Are there further amendments?
    [No response.]
    Chairman Sensenbrenner. If there are no further amendments, 
a reporting quorum is present. The question occurs on the 
motion to report the bill, S. 878 favorably as amended. All 
those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment, or the bill is reported favorably as amended.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute, incorporating the amendments adopted here today.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules.
    Without objection, the staff is directed to make any 
technical and conforming changes, and all Members will be given 
2 days, as provided by the House rules, in which to submit 
additional dissenting supplemental of minority views.
    The business before the Committee having been completed, 
the chair thanks the Members for their attendance, prompt 
attendance today and their cooperation. And the Committee 
stands adjourned.
    [Whereupon, at 10:18 a.m., the Committee was adjourned.]

                                  
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