Law in the United States can be a frustrating thing.

On one side, it protects Americans and their rights. It ensures freedoms and punishes those that have committed crimes and lived lives of malice. It is a time to cheer when the “bad guys” are brought to justice and they are tried and sentenced. The system operating smoothly and efficiently.

Of course, there are moments to jeer. The times viewed with bitterness as frivolous lawsuits and massive class action suits worm their way through the system, awarding lofty sums of money for seemingly benign infractions. The times when a cynic might view that one of the United State’s inalienable rights seems to be the ability to sue everyone for anything. Those times when the “bad guys” get away on a technicality or a “legal loophole,” walking away unscathed.

The law is layered and complex. There are civil cases, criminal cases, federal cases and appeals and more. Just last week, consumer bankruptcy filings pushed past the one million mark through the first nine months of 2009. And the American Bankruptcy Institute (ABI) believes that the numbers will work their way higher.

“Bankruptcy filings continue to climb as consumers look to shelter themselves from the effects of rising unemployment rates and housing debt,” said ABI’s Executive Director Samuel Gerdano, who said the filing pace was consistent with ABI’s belief that consumer bankruptcies will top 1.4 million by year’s end.

Through of all of this, there is a network of individuals that serve as the gears of the legal system. And overseeing the outcome is a select stable of judges. Unfortunately, judges across the country are facing a deluge of cases. According to the Judicial Conference of the United States, which conducts a survey every two years of the needs of the U.S. appellate and district courts, case filings for both the appeals and district courts have increased more than 30% since 1991.

“It has been nearly two decades since Congress passed comprehensive judgeships legislation,” testified District Court Judge George Singal before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts. “To enable the judiciary to continue serving litigants efficiently and effectively, the judicial workforce must be expanded.”

Last month, Subcommittee Chairman Senator Patrick Leahy (D-VT) introduced bill S. 1653, the Federal Judgeship Act of 2009, which looks to expand the number of judgeships in the U.S. The Judicial Conference recommends that Congress establish 63 new judgeships in the courts of appeals and district courts and have five current temporary judgeships be converted to permanent positions, with one temporary district court judgeship extended another five years. From the Conference and Leahy’s perspective, the reasons are quite simple. Weighted filings per judgeship—which the Judicial Conference uses as a measurement to determine the workload of judges— in the district courts that the Conference is recommending additional judges have increased from 427 in 1991 to 575 in June 2009. And this year, four circuit courts exceeded 800 adjusted filings per panel, though two of these courts—the Fifth and Eleventh Circuits—did not request an additional judgeship.

“The numbers underscore the need for action,” stated Senator Sheldon Whitehouse (D-RI). “On average, there are 573 so-called ‘weighted filings’ in the district courts for which new judgeships are recommended; well above the 430 ‘weighted filings’ needed to trigger a judgeship recommendation by the Judicial Conference. “

During the time period from 1991 to 2009, filings in district courts have risen 31% because civil cases have increased 22% and criminal felony filings have shot up dramatically by 91%. Immigration filings have witnessed a tremendous increase, ramping up from 1,992 in 1991 to more than 24,500 in 2009. Interestingly, despite what is portrayed on the evening news, homicide, robbery, embezzlement, forgery and counterfeiting filings have been on the decline the last 18 years.

Since 1991, filings in the courts of appeals have also been on an upswing, increasing 38% by June 2009. For the six circuit courts where new judgeships are recommended, there is an average of 802 adjusted filings per panel, which, as Whitehouse pointed out, is well above the 500 adjusted filings per panel measure the Judicial Conference uses to determine the need for additional judges.

“Although Congress created 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,” pointed out Singal. “As a result, the national average caseload per three-judge panel has reached 1,067. Were it not for the assistance provided by senior and visiting judges, the courts of appeals would not have been able to keep pace.”

On the surface it may seem rudimentary that an increased workload for courts should be a no-brainer to increase the number of judges. But it’s apparently not that simple, particularly for appellate judges.

“The chief argument for increasing the number of appellate judges is to reduce the workload per judge,” testified Eleventh Circuit Court of Appeals Judge Gerald Tjoflat. “This seems simple enough, but, from my experience, increasing the number of judges actually creates more work. Adding judges decreases a court’s efficiency by diminishing the trust and collegiality that are essential to collective decision-making.”

Tjoflat explained that when he was a member of the Fifth Circuit in 1979, when Congress increased the number of judges from 15 to 26, it negatively impacted the court’s efficiency and the stability of the rule of law in the circuit. And as the consistency in the rule of law diminishes, remarked Tjoflat, it in turn creates an increased need for more district court judges because unstable law leads to increased litigation. Though he is currently a judge in one of the busiest circuits in the country that has repeatedly refused an additional judgeship, Tjoflat argues that more important for appellate courts is a smaller, tight-knit group of judgeships because those relationships translate into speedier, consistent justice. Based on the Judicial Conference’s threshold for additional judges, Tjoflat's Eleventh Circuit should have 27 judges; more than double its current 12.

“Because appellate judges sit in panels of three, it is critically important that a judge writing an opinion be able to ‘mind-read’ his colleagues,” explained Tjoflat. “The process of crafting opinions can be greatly expedited if a judge is aware of the perspectives of the other judges on the panel so that he can draft an opinion likely to be amenable to all of them. In a small circuit, where the judges know each other— and each other’s judicial philosophy and predispositions—the process of drafting opinions likely to attract the votes of the other judges on the panel is much simpler.”

He added that increasing the number of appellate judges also torpedoes a critical circuit function: the en banc hearing, where all the judges of a circuit come together to speak definitively about a point of law for that circuit. An en banc occurs after multiple panels have issued conflicting opinions or a longstanding precedent needs to be revisited because of changing circumstances. When a circuit gets too large, it has to resort to a “mini” or “limited” en banc, where a minority of judges definitively determines the law for an entire circuit.

“The courts of appeals must be limited in size if the law is to possess the clarity and stability the nation requires,” lobbied Tjoflat. “As the law becomes unclear and unstable, our citizens—whether individuals or entities like corporations—lose the freedom that inheres in a predictable and stable rule of law. The demand for more judges, if satisfied, will inexorably lead—little by little—to the erosion of the freedoms we cherish.”

Matthew Carr, NACM staff writer. Follow us on Twitter @NACM_National


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