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March 18, 2009

Are a lot more new federal judgeships in the works?

Tony Mauro at The BLT has this important post, headlined "Judicial Conference Adopts New Ethics Code, Seeks New Judgeships." The specifics suggest that a number of new federal judgeships may soon be created:

The Judicial Conference ... agreed to ask Congress to create 63 new judgeships -- 12 appeals court judges and 51 at the district court level. As usual the conference, which is the policy-making body for the federal judiciary, met behind closed doors at the Supreme Court, with Chief Justice John Roberts Jr. presiding....

On the issue of creating judgeships,[conference executive committee chair Judge] Scirica said the conference "hopes the administration and Congress will move ahead on this." Sens. Patrick Leahy, (D-Vt.), and Arlen Specter, (R-Pa.), both addressed the conference and indicated their support for more judgeships, Scirica said.  Congress has occasionally added district judgeships over the years, but no new appeals court seats have been created since 1990.

The recommendations made by the conference would add five judges to the 9th Circuit, two each to the 2nd and 3rd, and one each to the 1st, 6th and 8th. Some would be permanent seats and some would be temporary -- meaning that when the judge appointed retires or dies, it would not be refilled. Currently, there are 167 authorized appeals court judgeships. At the district court level, the conference recommends adding 51 judgeships to the existing 678.

Expanding the federal judiciary by nearly ten percent right now would, of course, provide President Obama with an ever greater opportunity to put his stamp on the lower federal courts.  And with Congress right now controlled by Democrats, I have to this all the partisan forces are properly aligned to make this expansion a reality sooner rather than later.

March 18, 2009 at 12:10 PM | Permalink

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Comments

It is a shame that the (bi-directional) partisan wrangling usually means that there is always a constituency that wants to block additional judgeships. The federal courts take way too long to resolve cases, and it is not because (most) of the judges and clerks don't work very hard. There are just too many cases in a lot of the courts, and too few judges.

I'm more or less a Bush I republican, and I'd rather all these new seats were not filled by an Obama/dem congress combo, but I'll take it over the alternative of eternal gridlock. At some point, you just need warm bodies to make the judicial sausage (i.e. the 80 or 90 percent of case processing and decisionmaking that is not really affected by partisan/ideological bent, especially in the district courts)!

Posted by: Court watcher | Mar 18, 2009 12:36:36 PM

Well. court watcher, since the Dems started this crap with Reagan and Bush judges, it's nice to see you want to roll.

Posted by: federalist | Mar 18, 2009 12:59:34 PM

"There are just too many cases in a lot of the courts, and too few judges."

Right, so do we attack the first prong of that or the second? I vote for the first. Way too many things are in federal court that don't need to be there.

A simple robbery doesn't need to be in federal court just because the bank was FDIC-insured. Prosecute it in state court with the rest of the robberies.

Why does the federal court need to review the penalty phase of a murder case already reviewed by the state supreme court, pondering issues that have nothing to do with actual guilt or innocence and that are not really federal questions in the first place? Just end that review altogether.

There are many other possibilities, but those are a start.

Posted by: Kent Scheidegger | Mar 18, 2009 2:39:26 PM

"When people come to us, they've exhausted every appeal. The Innocence Project for most is the last resort, and we can use the most state-of-the-art science to prove innocence. Every day it's an honor to be a part of it."

Seems to me the conviction of the innocent will always be a constitutional, 8th issue.

Posted by: George | Mar 18, 2009 3:33:33 PM

Good point, Kent. I guess I am just tired of waiting for movement in cases and am willing to take what I can get. But attacking the problem from the other side is also a good idea---I'd start by eliminating or severely cutting back diversity jurisdiction. Habeas and federal crim cases at least have a basis in *federal* law. What are state-law insurance, accident, med-mal, etc., cases doing in federal court at this point?

Posted by: Court watcher | Mar 18, 2009 3:54:18 PM

Or we could just not have any new judgeships and "starve the beast" . . . .

Posted by: federalist | Mar 18, 2009 5:00:39 PM

Has there been any buzz lately about creating a new circuit from some of the states in the Ninth?

Posted by: Alpino | Mar 19, 2009 3:14:20 AM

Why does the federal court need to review the penalty phase of a murder case already reviewed by the state supreme court, pondering issues that have nothing to do with actual guilt or innocence and that are not really federal questions in the first place?

1. State courts do not always follow the federal constitution. Could it be because they are peopled with officials who owe their jobs to the electorate?

2. The federal constitutional is the law of the land.
The 4th, 5th, 6th and 8th Amendments are applicable to the states through the 14th.

3.The federal constitution contains a provision for writs of habeas corpus. The writ is not suspended.

Maybe these three reasons among other are why federal court's review death penalty phase proceedings.

Posted by: yo dog | Mar 19, 2009 10:13:23 AM

Kent Scheidegger wrote: "Why does the federal court need to review the penalty phase of a murder case already reviewed by the state supreme court, pondering issues that have nothing to do with actual guilt or innocence and that are not really federal questions in the first place? Just end that review altogether."

How, exactly, do you pass yourself off as an expert if you don't understand how the due process clause, Sixth Amendment, or Eighth Amendment applies to sentencing proceedings? It is the collateral review by the state courts that is entirely unnecessary here, not the review of federal questions by the federal judiciary, which it is their principal duty to interpret and enforce.

Posted by: DK | Mar 20, 2009 12:52:24 AM

The writ of habeas corpus guaranteed by the Constitution does not include collateral attacks on convictions entered by courts of competent jurisdiction. That has been understood from the start. See Ex parte Watkins, 28 U.S. 193 (1830).

I understand very well, DK, how the requirement that cruel and unusual punishments not be inflicted applies to the procedure for deciding whether to impose a sentence within the legal range -- not at all. The Supreme Court made the whole thing up beginning in 1972. A purely substantive provision sprouted a whole branch of procedural requirements, all completely fabricated, and that is what is litigated for decades after the trial. It isn't necessary.

"State courts do not always follow the federal constitution." They follow it a hell of a lot better than the Ninth Circuit.

Posted by: Kent Scheidegger | Mar 20, 2009 3:51:48 PM

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