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                                                       Calendar No. 891
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-427

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



 
                     FEDERAL JUDGESHIP ACT OF 2008

                                _______
                                

    July 21 (Legislative day July 17), 2008.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                    SUPPLEMENTAL AND MINORITY VIEWS

                         [To accompany S. 2774]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 2774), to provide for the appointment of additional 
Federal circuit and district judges, and for other purposes, 
having considered the same, reports favorably thereon, without 
amendment, and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Federal Judgeship Act of 2008......1
 II. History of the Bill and Committee Consideration..................9
III. Section-by-Section Summary of the Bill..........................10
 IV. Congressional Budget Office Cost Estimate.......................11
  V. Regulatory Impact Evaluation....................................14
 VI. Conclusion......................................................14
VII. Appendix A--Judicial Vacancies, 1990-2008.......................15
VIII.Appendix B--Circuit Court Vacancies, 1990-2008..................16

 IX. Supplemental and Minority Views.................................17
  X. Changes to Existing Law Made by the Bill, as Reported...........21

     I. Background and Purpose of the Federal Judgeship Act of 2008

    Chief Justice Rehnquist referred to our independent 
judiciary as the crown jewel of our government. Our Federal 
courts must have an adequate number of judges in order to 
safeguard our most cherished liberties and rights. Yet, rising 
caseloads threaten to diminish the quality of the justice 
system. The Federal Judgeship Act of 2008 responds to the 
resource needs of the Federal judiciary by authorizing certain 
additional U.S. courts of appeals and district court 
judgeships.
    Article III of the United States Constitution provides, in 
part, that Congress oversee the administration of the judicial 
branch and create such inferior courts ``as the Congress from 
time to time may ordain or establish.'' Additional judgeships 
in the courts of appeals and district courts are created 
through legislation by Congress, the only constitutionally 
authorized body to address the resource needs of the Third 
Branch.
    It has been 18 years since Congress enacted a comprehensive 
judgeship bill to add new Federal judgeships. In 1990, 
legislation established 11 additional circuit court judgeships 
and 61 permanent and 13 temporary district court judgeships.\1\ 
In recent years Congress has periodically responded to the 
continuing rise in workloads by creating 27 additional 
permanent district court judgeships,\2\ but no additional 
circuit court judgeships have been created.
---------------------------------------------------------------------------
    \1\Judicial Improvement Act of 1990, Pub. L. 101-650, 
Sec. Sec. 202-203, 104 Stat. 5089, 5098-5104 (1990). This was during 
the presidency of President George H.W. Bush. The previous 
comprehensive judgeship act was enacted in 1984 during the presidency 
of Ronald Reagan.
    \2\Table H U.S. District Courts Additional Authorized Judgeships 
(visited Jul. 9, 2008) .
---------------------------------------------------------------------------
    Upon introducing the Federal Judgeship Act of 2008 on March 
13, 2008, Senator Leahy observed:

          Without a comprehensive bill, Congress has proceeded 
        to authorize only a few additional district court 
        judgeships and extend temporary judgeships when it 
        could. For instance, in 2002 we were able to provide 
        for 15 new judgeships in the Department of Justice 
        authorization bill. However no additional circuit court 
        judgeships have been created since 1990 despite their 
        increased workload. . . . Our Federal judges are 
        working harder than ever, but in order to maintain the 
        integrity of the Federal courts and the promptness that 
        justice demands, judges must have a manageable 
        workload.\3\
---------------------------------------------------------------------------
    \3\154 Cong. Rec. S2138-01, S2153 (daily ed. Mar. 13, 2008) 
(statement of Chairman Leahy).

    Despite the piecemeal authorization of additional 
judgeships in recent years, growing caseloads continue to 
outpace the resources of the Federal courts. In 2006, the 
national weighted caseload per authorized district court 
judgeship was an average of 464, eight percent above the 
standard set for creating additional judgeships by the Judicial 
Conference of the United States (``Judicial Conference'').\4\ 
Furthermore, the weighted caseload per three-judge panel at the 
circuit court level in 2006 was 1,197, only 2.7 percent lower 
than the record high in 2005.\5\ The situation is even more 
dramatic in most courts where this bill authorizes additional 
judgeships.
---------------------------------------------------------------------------
    \4\``Judgeship Recommendations of the Judicial Conference of the 
United States 2007,'' p. 3.
    \5\See id.
---------------------------------------------------------------------------
    Historically, when vacancies on the Federal bench are low, 
Congress has authorized additional judgeships.\6\ On May 15, 
2008, the day the Committee considered S. 2774, Federal 
district court vacancies stood at 35, and circuit court 
vacancies were at 12.\7\ In 1990, when the district courts had 
28 vacancies and the circuit courts had 7 vacancies,\8\ 
Congress saw fit to authorize 72 new permanent judgeships.\9\
---------------------------------------------------------------------------
    \6\See A & B apps.
    \7\Federal Judicial Vacancies Vacancy Summary--110th Congress 
(visited Jun. 17, 2008) . On July 15, 2008, there were 
only nine circuit court vacancies.
    \8\Vacancies in the Federal Judiciary (Article III Judges Only) 
December 1, 1990 (visited Jul. 9, 2008) 


                  IX. Supplemental and Minority Views

 SUPPLEMENTAL VIEWS OF SENATORS CHUCK GRASSLEY AND SAM BROWNBACK, AND 
  MINORITY VIEWS OF SENATORS JEFF SESSIONS AND TOM COBURN ON S. 2774, 
                 ``THE FEDERAL JUDGESHIP ACT OF 2008''

    S. 2774, ``The Federal Judgeship Act of 2008,'' creates a 
total of 66 new federal judgeships at both the district and 
appellate court level. This number is based on a request 
submitted by the Administrative Office of the U.S. Courts (AO) 
to the Congress in March 2007. Congress has a constitutional 
responsibility to oversee the administration of the federal 
judiciary and to determine the proper size of the federal 
courts. Congress must be reasonably confident that, before it 
creates new federal court judgeships and expands the federal 
judiciary on a permanent basis, it does so based upon accurate 
and complete information. Congress should carefully analyze the 
statistics and methodology employed by the AO to determine 
whether there is a sound basis for this request. S. 2774 
creates new permanent and temporary judge positions--14 new 
circuit court judgeships and 52 new district court judgeships. 
That is why it is important to determine whether the numbers 
utilized to calculate these new judgeships justify the 
increases.
    The reality is that it is easier to create judgeship 
positions than to eliminate them. Instead of rushing to create 
a large number of new judgeships, it would be more prudent to 
fill the current federal court vacancies. Certainly confirming 
these judicial nominees is the quickest way to help ease the 
burdens on certain courts.
    In addition, S. 2774 will result in significant federal 
spending to create and sustain the new judgeships. According to 
the AO, the cost for creating each circuit court judgeship is 
approximately $1,062,000 for the first year, with recurring 
annual costs averaging a little more than $931,000. A district 
court judgeship costs roughly $1,169,000 for the first year, 
with recurring costs of approximately $960,000. These recurring 
figures do not even take into account the annual cost of living 
adjustments federal judges receive almost every year. These 
adjustments generally amount to a pay increase of 3% per year. 
Further, these numbers may go higher as this estimate does not 
take into consideration the possibility of legislation that 
would increase federal judge salaries. The cost associated with 
the creation of 66 new federal judgeships is staggering. Using 
the AO's numbers, the one year cost to maintain 66 new 
judgeships is more than $62 million. The ten-year cost is more 
than $620 million. This is a substantial cost to the American 
taxpayer at a time when everyone is seeking ways to cut costs 
and become more efficient.
    We believe that the Committee has not done all it can to 
ensure that the request for new federal judgeships is 
necessary. The Judiciary Committee has traditionally undertaken 
an in-depth review on the need to create new temporary and 
permanent federal judgeships. For example, in 1996, Senator 
Grassley, then-Chairman of the Subcommittee on Administrative 
Oversight and the Courts, sent out a questionnaire asking all 
federal appellate and district court judges about their views 
on a number of issues dealing with the administration of 
justice in the federal courts. In addition, the Subcommittee 
held a series of oversight hearings to evaluate the appropriate 
allocation of judgeships for each circuit, and to find ways to 
improve overall productivity of the federal judiciary. As a 
result of the hearings and analysis of the questionnaire 
responses, the Subcommittee produced a report based on the 
hearing testimony, court statistics and questionnaire data.
    The Subcommittee Report concluded that unjustifiable, open-
ended growth of the federal judiciary is not desirable. For 
example, the Report found that many judges were of the opinion 
that smaller courts foster collegiality, coherence in case law 
and better administration of justice, particularly at the 
appellate court level. The Report found that Congress should 
consider the significant costs of creating new permanent 
judgeships--over a million dollars for each judge--as well as 
the moneys that have to go into new judge chambers, courthouses 
and court staff to support those new judgeships. The Report 
also found that the federal courts were not employing many 
technologies or administrative practices that could help reduce 
the judges' workload, and recommended that before creating new 
judgeships, Congress consider whether a court has implemented 
as many efficiencies as possible--such as better case 
management techniques and technology, better use of senior, 
visiting and magistrate judges, and a reduction of non-case-
related judicial activities and travel by the judges.
    Perhaps most importantly, the Report concluded that there 
was no consensus on the proper measure of need for judges, nor 
was there a consensus on whether the statistical formulae 
utilized by the Judicial Conference are an effective and 
reliable means for calculating the appropriate number of 
judges. In fact, the Report found that a number of judges 
themselves believed that there were significant problems with 
the methods of calculation utilized by the AO. The Report 
concluded that Congress should carefully examine whether a 
court's caseload truly justifies a new judgeship position--in 
particular that the increase in caseload is a permanent one and 
not just a temporary spike in case filings. In this regard, 
Congress should scrutinize the methodology utilized by the 
Judicial Conference when calculating judgeship needs.
    These concerns with the Judicial Conference's methodology 
were confirmed by the U.S. Government Accountability Office 
(GAO). In early 2000, the GAO was asked to determine whether 
the weighted and adjusted case filing systems used by the AO 
accurately calculated the workload of judges. At a House 
Judiciary Committee hearing in June 2003, William Jenkins, the 
top expert on these issues at the GAO, produced a report and 
testified about a number of flaws with the case-related 
workload measures that the Judicial Conference uses when it 
assesses judgeship needs. The GAO concluded that there were 
problems with the reliability of both district and appellate 
court methodologies.
    In June 2008, Mr. Jenkins was asked to testify before the 
Senate Judiciary Committee on the Judicial Conference's 
methodology, whether the methodology had been improved since 
his 2005 testimony, and whether there were any ongoing concerns 
with the reliability of the present methodology. Mr. Jenkins 
reiterated his concerns with the reliability of the AO's 
methodology, and specifically questioned the accuracy of the 
case weights used by the AO to assess judgeship needs. Mr. 
Jenkins noted that notwithstanding the findings of the 2003 GAO 
report, the AO had not implemented their recommendations to 
improve the accuracy of their methodology.\34\
---------------------------------------------------------------------------
    \34\The Minority Leader objected to the Committee's hearing because 
the Senate had failed to confirm an adequate number of President George 
W. Bush's circuit and district court nominees at that point in the 
110th Congress. When the Minority Leader objected to the Committee 
meeting, he noted the irony of enacting legislation that would increase 
the number of federal judgeships while simultaneously failing to hold 
hearings and confirmation votes for qualified judicial nominees who had 
been languishing in Committee for months and even years. Further, some 
of the blocked nominees were nominated to districts to which the bill 
would add judgeships based on those districts' apparent need.
---------------------------------------------------------------------------
    We are of the position that if there is a clear, 
demonstrated need for new judgeships, the Congress should act 
to create those positions. There may well be a need for some of 
the judgeships contained in S. 2774.\35\ However, the GAO 
continues to find that the Judicial Conference's methodology is 
flawed and unreliable. As examined in a 2005 Subcommittee on 
Administrative Oversight and the Courts hearing chaired by 
Senator Sessions, the federal judiciary has not proven that it 
has taken every step it can to improve efficiencies, be it 
through use of technology, case management techniques, or 
senior/magistrate/visiting judges. Further, there are 
significant costs that come with creating new permanent and 
temporary judgeships. For these reasons, we believe that the 
Judiciary Committee should not be quick to rubber-stamp the 
AO's request in S. 2774. Moreover, because of the continued 
findings by the GAO that the methodologies utilized by the 
Judicial Conference are not accurate and could be improved, we 
believe that the AO should implement the GAO's recommendations 
before it submits--and Congress approves--any further judgeship 
requests.
---------------------------------------------------------------------------
    \35\For example, in the opinions of Senators Brownback and 
Grassley, the heavy caseload statistics, steady trend in increased 
caseload, and testimonials from judges and practitioners, demonstrate a 
justifiable need to shift the District of Kansas's temporary judgeship 
to a permanent judgeship and to create a new temporary judgeship for 
the Northern District of Iowa (both included in S. 2774).

                                   Chuck Grassley.
                                   Jeff Sessions.
                                   Sam Brownback.
                                   Tom Coburn.

    MINORITY VIEWS OF SENATOR JOHN CORNYN ON S. 2774, ``THE FEDERAL 
                        JUDGESHIP ACT OF 2008''

    I concur with the Committee Report that rising caseloads 
threaten to diminish the quality of the justice system, and 
that S. 2774, ``The Federal Judgeship Act of 2008,'' is an 
important step to respond to the resource needs of the Federal 
judiciary. I submit these minority views to express my belief 
that further Congressional scrutiny and analysis is needed 
regarding the allocation and number of new judgeships before S. 
2774 becomes law.
    Article I of the U.S. Constitution gives Congress the power 
to constitute the lower federal courts. This responsibility 
cannot be delegated, and should be undertaken by Congress 
through deliberation and debate based on the most current data 
available.
    The version of S. 2774 that was passed by the Judiciary 
Committee on May 15, 2008, adopts the Judicial Conference's 
2007 recommendations without revision. Since those 
recommendations were released, additional data has become 
available, and additional needs have been expressed by Judges 
on the ground regarding the urgent needs of the federal courts.
    Specifically, the judges of the Western District of Texas 
have persuaded me that their district urgently needs four new 
district judgeships, which is three more than are provided by 
S. 2774. Data published since the Judicial Conference released 
its 2007 recommendations supports this claim.
    On July 7, 2008, the Subcommittee on Judicial Statistics of 
the Committee on Judicial Resources of the Judicial Conference 
issued a preliminary recommendation that the 2009 Biennial 
Judgeship Survey should call for four additional judgeships in 
the Western District of Texas.
    According to the latest numbers available, the Western 
District of Texas has the largest number of criminal cases per 
judge in the nation. At 393 criminal cases per judgeship, the 
Western District has more than four times the national average. 
As a border district, a large percentage of the caseload in the 
Western District of Texas involves narcotics trafficking, human 
trafficking, and other crimes that require vigorous 
enforcement. Successful enforcement requires additional 
judgeships.
    The Administrative Office's 2007 judicial survey, on which 
S. 2774 is based, establishes a minimum standard of 430 
weighted case filings per district judge. Four of the Western 
District's seven divisions currently have weighted case filings 
per judge over 700. Applying the 430 weighted cases per judge 
standard and the latest data available, the Western District 
could receive up to six new judges.
    The Western District's request for four new judges is a 
current needs request, not an anticipatory needs request. My 
conversations with the judges of the Western District of Texas 
indicate that the need for new judgeships is urgent, and that 
the current case overload faced by the judges of the Western 
District of Texas is not sustainable. Precisely because the 
last comprehensive judgeship bill was passed 18 years ago, 
Congress must address the escalating caseload crisis in the 
Western District now.
    I am of the opinion that S. 2774 should be amended to add 
three additional new judgeships for the Western District of 
Texas, for a total of four new judgeships in that district. 
Before the May 15, 2008 markup of S. 2774, I circulated an 
amendment to add the needed three additional judges. I did not 
offer the amendment during the markup because Chairman Leahy 
promised to work with me to address the needs of the Western 
District of Texas. I look forward to working with Chairman 
Leahy and my other Senate colleagues to ensure that the Western 
District of Texas, and other districts that are underserved by 
the current version of S. 2774, receive the additional 
judgeships that they need.
                                                       John Cornyn.

        X. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2774, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

TITLE 28 UNITED STATES CODE

           *       *       *       *       *       *       *


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:

        Circuit                                         Number of Judges
    District of Columbia................................              11
    First...............................................               7
    Second..............................................              15
    Third...............................................              16
    Fourth..............................................              15
    Fifth...............................................              17
    Sixth...............................................              17
    Seventh.............................................              11
    Eighth..............................................              13
    Ninth...............................................              33
    Tenth...............................................              12
    Eleventh............................................              12
    Federal.............................................              12

TITLE 28 UNITED STATES CODE

           *       *       *       *       *       *       *


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
Alaska..................................................               3
Arizona.................................................              17
Arkansas:
    Eastern.............................................               5
    Western.............................................               3
California:
    Northern............................................              16
    Eastern.............................................              10
    Central.............................................              31
    Southern............................................              13
Colorado................................................               8
Connecticut.............................................               8
Delaware................................................               4
District of Columbia....................................              15
Florida:
    Northern............................................               4
    Middle..............................................              19
    Southern............................................              19
Georgia:
    Northern............................................              11
    Middle..............................................               4
    Southern............................................               3
Hawaii..................................................               4
Idaho...................................................               2
Illinois:
    Northern............................................              22
    Central.............................................               4
    Southern............................................               4
Indiana:
    Northern............................................               5
    Southern............................................               6
Iowa:
    Northern............................................               2
    Southern............................................               3
Kansas..................................................               6
Kentucky:
    Eastern.............................................               5
    Western.............................................               4
    Eastern and Western.................................               1
Louisiana:
    Eastern.............................................              12
    Middle..............................................               3
    Western.............................................               7
Maine...................................................               3
Maryland................................................              10
Massachusetts...........................................              13
Michigan:
    Eastern.............................................              15
    Western.............................................               4
Minnesota...............................................               8
Mississippi:
    Northern............................................               3
    Southern............................................               6
Missouri:
    Eastern.............................................               7
    Western.............................................               6
    Eastern and Western.................................               2
Montana.................................................               3
Nebraska................................................               4
Nevada..................................................               7
New Hampshire...........................................               3
New Jersey..............................................              17
New Mexico..............................................               8
New York:
    Northern............................................               5
    Southern............................................              28
    Eastern.............................................              18
    Western.............................................               5
North Carolina:
    Eastern.............................................               4
    Middle..............................................               4
    Western.............................................               4
North Dakota............................................               2
Ohio:
    Northern............................................              11
    Southern............................................               8
Oklahoma:
    Northern............................................               3
    Eastern.............................................               1
    Western.............................................               6
    Northern, Eastern, and Western......................               1
Oregon..................................................               7
Pennsylvania:
    Eastern.............................................              22
    Middle..............................................               6
    Western.............................................              10
Puerto Rico.............................................               7
Rhode Island............................................               3
South Carolina..........................................              11
South Dakota............................................               3
Tennessee:
    Eastern.............................................               5
    Middle..............................................               4
    Western.............................................               5
Texas:
    Northern............................................              12
    Southern............................................              21
    Eastern.............................................               8
    Western.............................................              14
Utah:...................................................               5
Vermont.................................................               2
Virginia:
    Eastern.............................................              12
    Western.............................................               4
Washington
    Eastern.............................................               4
    Western.............................................               8
West Virginia
    Northern............................................               3
    Southern............................................               5
Wisconsin:
    Eastern.............................................               5
    Western.............................................               2
Wyoming.................................................               3