Bench Memos

Law & the Courts

Judicial Conference Calls for More Judges

The Judicial Conference of the United States is recommending that Congress create several dozen additional seats on the federal judiciary. Specifically, the Judicial Conference is calling for the creation of five new seats on the U.S. Court of Appeals for the Ninth Circuit, and 52 federal district court seats in parts of the country that have seen a dramatic increase in filings. The Conference also suggests that Congress could leave one seat open on the U.S. Court of Appeals for the Tenth Circuit, due to a low caseload. According to the Judicial Conference, Congress has not enacted “comprehensive judgeship legislation” in over twenty-five years.

Were Congress to follow the Judicial Conference’s advice, this would give President Trump more judicial seats to fill, primarily on federal district courts. I doubt that Congress is in any rush to increase the size of the U.S. Court of Appeals for the Ninth Circuit, however. That Court is already an unwieldy size. A more likely — and, perhaps, more controversial — course would be to create new appellate judgeships in conjunction with splitting the Ninth Circuit into two more-regular-sized courts, as has been proposed by Senator Jeff Flake, among others.

There are also members of Congress that wish to add seats to the U.S. Court of Appeals for the D.C. Circuit, in part to rebalance the court after then-Senate Majority Leader Harry Reid forced through all of President Obama’s nominations to the court. The problem with this idea is that the D.C. Circuit is in no need of additional judges. If anything, it has more than its current caseload requires. To be defensible, any increase in the D.C. Circuit’s size would have to be combined with an expansion of its jurisdiction. In all likelihood, the D.C. Circuit’s size will remain at eleven active judges.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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