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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 12-13, 2013
RESOLUTION
RESOLVED, That the American Bar Association supports enactment of comprehensive
legislation to authorize needed permanent and temporary federal judgeships, with particular
focus on the federal districts with identified judicial emergencies so that affected courts may
adjudicate all cases in a fair, just and timely manner.
FURTHER RESOLVED, That the American Bar Association urges the President of the United
States to advance nominees for current vacancies for federal judicial positions promptly and the
United States Senate to hear and vote on those nominations expeditiously, with particular focus
on the vacancies in the federal districts with identified judicial emergencies so that affected
courts may adjudicate all cases in a fair, just and timely manner.
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REPORT
1. Overview
The nation’s federal courts are in critical need of additional judgeships. Congress last passed
comprehensive legislation authorizing additional judgeships in 1990. Since that time Article III
district courts have experienced a 38 percent growth in caseloads, but only a 4 percent growth in
judgeships. These factors have created enormous difficulties for many courts across the country,
and in a letter accompanying its request for additional judgeships, the Judicial Conference of the
United States (“Judicial Conference”) identified five federal districts laboring at near breaking
point levels of caseloads: the Eastern District of California, the Eastern District of Texas, the
Western District of Texas, the District of Arizona, and the District of Delaware. According to
statistics compiled by the Administrative Office of the United States Courts (“Administrative
Office”), the judges in these districts are experiencing weighted caseloads that exceed 700 cases
per judge.1 In the Eastern District of California and the Eastern District of Texas, this figure
exceeds 1000 cases per judge. The national average in 2012 was 520. The Judicial Conference
recommends a weighted caseload of 430 per judgeship. To alleviate this untenable situation, the
Judicial Conference has developed a comprehensive plan to create additional judgeships,
including the conversion of eight crucial temporary judgeships into permanent judgeships that
are otherwise set to expire in FY 2014.
As of May 16, 2013, 85 judicial vacancies exist within the federal judicial system.
Meanwhile, there are only 24 judicial nominees pending. Many of these vacancies have existed
for two years or more, with many vacancies falling in federal districts with declared judicial
emergencies. The nation’s federal courts require that vacancies be filled to ensure the proper
administration of justice. The President of the United States and the United States Senate must
make the identification, nomination, and confirmation of judicial officers a greater priority
throughout the 113th Congress so that the nation’s federal courts may adjudicate all cases in a
fair, just and timely manner.
2. Scope of the Problem
As of May 16, 2013, the federal judicial system is operating under the weight of 35 judicial
emergencies. The Judicial Conference defines a judicial emergency as:
Circuit Court
 Any vacancy in a court where adjusted filings per panel are in excess of 700; OR
1
In an effort to assess actual workload per judge, the Judicial Conference of the United States uses a formula for
determining weighted filings as a means of accounting for differences in the time required for judges to resolve
various types of civil and criminal actions. At present, the average civil case or criminal defendant each receives a
weight of approximately 1.0. For more time-consuming cases, higher weights are assessed (e.g., a death penalty
habeas corpus case is assigned a weight of 12.89), while cases demanding relatively little time from district judges
receive lower weights (e.g., a defaulted student loan case is assigned a weight of 0.10). The total “weighted filings
per judgeship” is the sum of all weights assigned to civil cases and criminal defendants, divided by the number of
authorized judgeships.
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
Any vacancy in existence more than 18 months where adjusted filings are between 500
to 700 per panel.
District Court
 Any vacancy where weighted filings are in excess of 600 per judgeship; OR
 Any vacancy in existence more than 18 months where weighted filings are between 430
to 600 per judgeship; OR
 Any court with more than one authorized judgeship and only one active judge.
The lack of comprehensive legislation authorizing additional judgeships has strained every
facet of judicial operations and has required judges to assume ever-increasing caseloads. In the
past, the Administrative Office has attempted to shift resources to the courts that are most in
need and to implement innovative pre-trial procedures, but these patchwork efforts were never
intended as long-term solutions and may not be possible in today’s fiscal climate. Sequestration
has already reduced the Judiciary’s FY 2013 budget by $350 million.2 As a result, the Judicial
Conference initiated a series of emergency measures to mitigate this impact and to continue
operations as effectively as possible under the circumstances. These measures include
dramatically reduced funding for probation and pretrial staffing, drug testing, drug treatment,
mental health testing, and court security systems and staffing.3 The current reality for our
nation’s federal judges is that they must process impossibly high caseloads with reduced
resources and staff.
The Judicial Conference submitted its request to Congress for additional judgeships while
mindful of the dire fiscal realities currently facing the federal government.4 In a letter to
congressional leadership, the Judicial Conference acknowledged that some prioritization may
occur and that Congress may not be able to adopt the Judicial Conference’s recommendation in
its entirety.5 However, the nation’s federal courts cannot continue to operate under the status
quo. The Judicial Conference identified five districts as the most urgent of judicial emergencies
based on current and expected case filings.
The Judicial Conference letter also identified eight crucial temporary judgeships that will
expire in FY 2014.6 Many of these temporary judgeships are in federal districts already in a state
of judicial emergency or very near that threshold, including: the District of Arizona, the Central
District of California, the Southern District of Florida, and the Eastern District of Texas. Strong
cases can also be made for the preservation of the remaining temporary federal judgeships
expiring in FY 2014. For example, weighted filings in the District of New Mexico are currently
at 527 per judgeship, and its criminal felony caseload at 446 per judgeship is the fourth highest in
the nation. If the temporary judgeship in the District of New Mexico were to expire, the
Administrative Office estimates that weighted filings would jump to 615 per judgeship or higher.
2
Chief Judge William B. Traxler, Jr., Chairman of the Executive Committee of the Judicial Conference of the
United States, Statement on the Impact of Sequestration on Judicial, Defender Funding (Apr. 17, 2013) (statement
available at http://news.uscourts.gov/statement-impact-sequestration-judiciary-defender-funding).
3
Id.
4
Letter from Judge Thomas F. Hogan to Senator Patrick J. Leahy (April 5, 2013).
5
Id.
6
Id.
3
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The nation’s federal courts need more judgeships, not fewer. Losing any of these temporary
judgeships would exacerbate a growing crisis and cripple efforts to maintain operational levels
required to meet constitutional standards.
The passage of nearly a quarter century without comprehensive legislation authorizing
additional judgeships has also forced our nation’s senior judges to shoulder heavier burdens.
Visiting senior federal judges are pressed into service regularly and extensively. A recent study
suggests that the desire to help his or her court by creating a judicial vacancy is the strongest
factor in the decision of many judges to take senior status.7 Indeed, the judiciary is becoming
increasingly reliant upon the work of its senior judges. In the 1970s senior judges constituted
approximately 20 percent of the district court judges. By the 2000s the percentage had jumped
above 36 percent.8
Senior judges have very little economic incentive to remain working after they are eligible
for retirement. However, many judges elect to take senior status and continue serving out of a
sense of responsibility to their courts and their colleagues and because of their commitment to
the fair and effective administration of justice. If a large number of senior judges chose to pursue
retirement, the effect of their dockets passing to already overburdened active judges could be
devastating.
Several courts are also experiencing a spike in copyright, patent and trademark cases as a
result of the Leahy-Smith America Invents Act. The Act, switching the U.S. patent system from
a “first to invite” system to a “first inventor to file” system, had the effect of turning one
enforcement action into five separate actions.9 Increase in filings has contributed to the rising
caseloads in the District of Delaware and the Eastern District of Texas. Copyright, patent and
trademark cases now make up 48 percent of civil dockets in the District of Delaware and 32
percent in the Eastern District of Texas.10 Additional judgeships are needed to process the extra
filings that Congress has created.
3. New Causes for Concern
Congress is currently considering comprehensive immigration reform. The current version of
Senate Resolution 744 (“S. 744”) allocates 6.5 billion dollars to immigration enforcement,
including increased funds for the U.S. Immigration Customs and Enforcement, for the Federal
Bureau of Investigation, and funds for additional Assistant United States Attorneys. Given that
greater enforcement agents and more prosecutors will result in increased immigration case
filings, consideration also should be given to authorizing additional federal judgeships in the
courts that will be most affected or already struggling under heavy caseloads. The criminal
dockets of the Western District of Texas and the District of Arizona are already inundated by
immigration cases. Immigration cases represent 59 percent of criminal cases in the Western
See Stephen B. Burbank, S. Jay Plager & Gregory Ablavsky, “Leaving the Bench, 1970-2009: The Choices
Federal Judges Make, What Influences Those Choices, and Their Consequences,” 161U. Pa. L. Rev. 1, 45 (2012).
8
Id. at 27.
9
See Leahy-Smith America Invents Act, Pub. L. 112-29, 125 Stat. 284 (2011).
10
U.S. District Court – Judicial Caseload Profile, available at http://
http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics.aspx (follow “District Courts - September
2012” hyperlink).
7
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District of Texas and 51 percent of criminal cases in the District of Arizona. Similarly,
immigration cases account for 21 percent of criminal filings in the Eastern District of California,
and the weighted caseloads in this district are already an appalling 1,132 per judge.11
Recognizing these existing challenges the Senate Judiciary Committee added an amendment
to S. 744 on May 9, 2013. This amendment proposes the creation of the following permanent
judgeships: 2 additional district court judgeships for the District of Arizona; 3 additional district
court judgeships for the Eastern District of California; 2 additional district court judgeships for
the Western District of Texas; and 1 additional district court judgeship for the Southern District
of Texas. The amendment also proposes to convert the existing temporary judgeships in the
District of Arizona and the Central District of California into permanent judgeships. Judgeship
legislation will be crucial to the implementation of any effective immigration reform. This sort of
targeted authorization of judgeships may fall short of the Judicial Conference’s full
recommendation, but can still mitigate the burden on some of the nation’s most pressed federal
courts.
It is difficult to imagine how the overburdened judges in these courts face each day of work,
no matter how committed they may be to public service and the ideal that service on the bench is
for life. This is an ongoing issue and the ABA has previously cautioned Congress about the
threats to the administration of justice posed by the lack of comprehensive legislation authorizing
judgeships.12 The burdens judges now face also impact individual and corporate litigants. Each
case cannot possibly receive the time and attention it deserves and the maxim that “justice
delayed is justice denied” is a harsh reality in many jurisdictions. The public should be assured
that justice will be provided fairly and promptly and that decisions are the result of rigorous
examination of the merits of each case.
Filling judicial vacancies is another key component in preserving the effectiveness of the
nation’s federal courts. A vacancy rate that persistently hovers around 10 percent of total federal
judgeships is not efficient or desirable. One of the best ways the nation’s leaders can support the
administration of justice is to work together promptly to fill existing judicial vacancies.
4. Recommended Action
The crisis facing the Judiciary requires immediate action. Congress needs to authorize an
adequate number of new judgeships promptly to meet the challenges posed by increasing
caseloads. The Judicial Conference has proposed 70 new permanent judgeships, 21 new
temporary judgeships, and the conversion of 8 existing temporary judgeships to permanent
judgeships. Congress must consider this judgeship request seriously. This Resolution urges
Congress to authorize additional federal judgeships, with a particular focus on districts operating
under identified judicial emergencies, including extending or making permanent the 8 temporary
federal judgeships expiring in FY 2014.
11
Id.
See American Bar Association Resolution 119 (Aug. 2001) (supporting the enactment of legislation to authorize
additional permanent and temporary judgeships for the five districts situated along the border between the United
States and Mexico), see also, e.g., American Bar Association Resolution 10A (Aug. 2004) (urging Congress to fund
the Judiciary at levels sufficient to enable the courts to fulfill their Constitutional and statutory duties).
12
5
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The creation of new judgeships will also alleviate the unsustainable strain already on the
nation’s federal courts. The effect of such an authorization may not be felt right away by the
judges currently toiling under such adverse conditions, but knowing that help is on the way will
make a big difference. This Resolution also urges the President of the United States and the
United States Senate promptly to identify, nominate, and vote upon nominations, with particular
focus on the vacancies in the federal districts with identified judicial emergencies so that affected
courts may adjudicate all cases in a fair, just and timely manner .13
Submitted by:
Hon. Norma L. Shapiro, Chair
Standing Committee on Federal Judicial Improvements
August 2013
13
The following chart is reproduced with the permission of the Judicial Conference of the United States and the
Administrative Office of the United States Courts.
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TABLE 1. ADDITIONAL JUDGESHIPS OR CONVERSION OF EXISTING JUDGESHIPS RECOMMENDED
BY THE JUDICIAL CONFERENCE - 2013
CIRCUIT/DISTRICT
AUTHORIZED
JUDGESHIPS
U.S. COURTS OF APPEALS
29
16
NINTH
SIXTH
U.S. DISTRICT COURTS
ADJUSTED FILINGS PER
PANEL/WEIGHTED FILINGS PER
AUTHORIZED JUDGESHIP
ADJUSTED FILINGS
843
593
WEIGHTED FILINGS
1
1,165
P
1,132
6P,
1,042
1T
752
2P,
712
T/P
691
4P,
675
1T
663
6P, 4T,
660
T/P
642
10P, 2T,
639
T/P
634
5P,
626
1T
619
2
613
P
613
2
602
P
596
1
587
P
577
3P,
568
T/P
556
5P,
553
1T
552
1
547
P
533
1
527
P
525
1P
497
T/
472
P
471
3P,
1T
424
2
P PERMANENT
P = PERMANENT; T = TEMPORARY; T/P = TEMPORARY MADE
2P,
1T
* If the temporary judgeship lapses, the recommendation is amended to one additional permanent judgeship.
1
P
2
P
7
1P,
1T
1
T
1P,
DELAWARE
CALIFORNIA, EASTERN
TEXAS, EASTERN
TEXAS, WESTERN
ARIZONA
CALIFORNIA, CENTRAL
CALIFORNIA, NORTHERN
COLORADO
WASHINGTON, WESTERN
INDIANA, SOUTHERN
FLORIDA, SOUTHERN
FLORIDA, MIDDLE
NEW YORK, WESTERN
FLORIDA, NORTHERN
WISCONSIN, WESTERN
ALABAMA, NORTHERN
CALIFORNIA, SOUTHERN
NEW YORK, EASTERN
NEW JERSEY
IDAHO
TEXAS, SOUTHERN
MINNESOTA
MISSOURI, WESTERN
GEORGIA, NORTHERN
NEVADA
OREGON
NEW MEXICO
NEW YORK, SOUTHERN
TENNESSEE, MIDDLE
VIRGINIA, EASTERN
KANSAS*
MISSOURI, EASTERN
4
6
8
13
13
28
14
7
7
5
18
15
4
4
2
8
13
15
17
2
19
7
6
11
7
6
7
28
4
11
6
8
JUDICIAL
CONFERENCE
RECOMMENDATION
5P,
1T
4P,
1T
1
P 8T/P
65P, 20T,
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GENERAL INFORMATION FORM
Submitting Entity: Standing Committee on Federal Judicial Improvements
Submitted By: Hon. Norma L. Shapiro, Chair
1. Summary of Resolution(s).
This Resolution supports enactment of legislation to authorize permanent and temporary
judgeships with particular focus on federal districts with identified judicial emergencies, in
order to provide our nation’s federal courts enough Article III judges to handle their dockets
and dispense justice promptly, efficiently and fairly. The Resolution also urges the President
of the United States and the United States Senate to fill existing judicial vacancies in an
expeditious manner.
2. Approval by Submitting Entity.
The Standing Committee voted to submit a resolution addressing judicial vacancies at its
Spring Meeting on April 20, 2013, in Milwaukee, Wisconsin. The Standing Committee
approved the final version of this Resolution via conference call on May 15, 2013.
3. Has this or a similar resolution been submitted to the House or Board previously?
No.
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
This proposed policy will reinforce and supplement existing policies concerning the
authorization of additional Article III judgeships and the need to fill vacancies properly. In
1995, the ABA adopted policy supporting various positions set forth in the Long Range Plans
for the Federal Courts, including one that stated that caseloads and considerations of prompt
and fair adjudication should be the primary determinants of how many new judgeships
should be created. In 2001, the ABA adopted policy supporting the enactment of legislation
to authorize additional judgeships, as requested by the Judicial Conference of the United
States, for the five federal districts situated along the border between the United States and
Mexico.
This proposed policy will also reinforce and supplement existing policies concerning the
prompt filling of existing federal judicial vacancies. The ABA adopted policy supporting the
timely filling of judicial vacancies in 1990, 1997, 1998, 2001 and 2002. This proposed
policy, however, is unique in that it calls for particular focus on federal districts with
identified judicial emergencies in regard to judicial vacancies and to the creation of
additional judgeships.
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5. What urgency exists which requires action at this meeting of the House?
Our nation’s federal courts need additional permanent and temporary judgeships
immediately. Current federal judicial vacancies must also be filled to ensure adequate
operations of the federal courts. As of May 16, 2013, 35 judicial emergencies exist. This
Resolution identifies the federal districts where conditions are most dire. Action is also
required by the House of Delegates because Congress is currently considering
comprehensive legislation that will affect the operations of the federal judiciary.
6. Status of Legislation. (If applicable)
U.S. Senator Charles Schumer of New York introduced the Border Security, Economic
Opportunity, and Modernization Act – S. 744 – in the U.S. Senate Judiciary Committee on
April 16, 2012. As of May 16, 2013, the Act remains in Committee and hearings have been
held. On May 9, 2013, the U.S. Senate Judiciary Committee approved an amendment to S.
744 adding additional permanent federal judgeships.
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
None.
8. Cost to the Association. (Both direct and indirect costs)
None.
9. Disclosure of Interest. (If applicable)
While three current members of the Standing Committee are Article III judges and one
current member is an Article I judge, none hold any of the eight temporary judgeship
positions that are set to expire in FY 2014 absent action by Congress.
10. Referrals.
Appellate Judges Conference
Commission on Immigration
Criminal Justice Section
Government and Public Sector Lawyers Division
Judicial Division
Lawyers Conference
National Conference of Federal Trial Judges
National Conference of Specialized Court Judges
Section of Individual Rights and Responsibilities
Section of Litigation
Senior Lawyers Division
Solo, Small Firm and General Practice Division
Standing Committee on Legal Aid and Indigent Defendants
Standing Committee on the Delivery of Legal Services
Tort Trial & Insurance Practice Section
9
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Young Lawyers Division
11. Contact Name and Address Information. (Prior to the meeting.)
Bryan J. Bach, staff to the Standing Committee
Justice Center Staff Attorney I
321 N. Clark Street
Office 19038
Chicago, IL 60654
312-988-5682
Email: Bryan.Bach@americanbar.org
12. Contact Name and Address Information. (Who will present the report to the House.)
Hon. Norma L. Shapiro, Chair, Standing Committee on Federal Judicial Improvements
United States District Court for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The Resolution urges Congress to authorize additional temporary and permanent
judgeships with particular focus on federal districts with identified judicial emergencies. The
Resolution also urges the President of the United States and the United States Senate to fill
existing judicial vacancies in an expeditious manner.
2.
Summary of the Issue that the Resolution Addresses
Congress has not passed comprehensive legislation authorizing additional judgeships
since 1990. Since that time, federal district courts have experienced a 38 percent growth in
caseloads but have seen only a 4 percent increase in judgeships. Legislation is needed to ensure
that the federal judiciary has the judgeships it needs to adjudicate all cases in a prompt, efficient,
and fair manner. As of May 16, 2013, there are 85 federal judicial vacancies and 24 nominations
pending. Filling these existing judicial vacancies is essential.
3.
Please Explain How the Proposed Policy Position will address the issue
The proposed policy supports the authorization of additional permanent and temporary
federal judgeships, and urges that existing federal judicial vacancies be filled in an expeditious
manner. These measures are necessary to ensure that the nation’s federal courts may adjudicate
all cases in a fair, just and timely manner.
4.
Summary of Minority Views
None known.
11