Congress Considers Creating New Federal Appellate Seats, and the Usual Political Arguments Emerge.

By John Grimm

The House Judiciary Committee recently held a hearing to consider creating additional federal judgeships, including the addition of new appellate-court seats.[1] The hearing revealed bipartisan concern that rising caseloads—and the growing backlogs they produce—threaten litigants’ access to the courthouse. At the appellate level, courts have grappled with increasing workloads by giving more power to staff attorneys to manage low-profile cases. Witnesses also cited curtailed oral arguments and a proliferation of unpublished decisions as casualties of appellate court overload.

The hearing demonstrated the stark political calculations inherent in the creation of new federal judgeships, where every new seat is an automatic vacancy the incumbent President gets to fill.  This happened in 1994, for instance, when Congress added a new seat on the Fourth Circuit, which President Clinton filled by appointing Judge Diana Motz. Although President Trump appointed nearly a third of all current active federal judges,[2] including 54[3] of the 167 federal appellate judges[4]—in part filling seats held open by Senate Republicans during the end of the Obama administration[5]—House Republicans appeared troubled by handing President Biden additional opportunities to fill federal appellate courts, particularly on the Ninth Circuit, which is a perennial bête noire among those concerned with the perceived political leanings of a court’s judges.  (In fact, Congressman Darrell Issa, R-Cal., said that the Ninth Circuit is relatively balanced.)

One proposal that would avoid creating too many Biden appointees is to delay or stagger the new judges’ effective dates, so that both parties can take part in the nominations. This is likely to be a contentious suggestion for congressional Democrats, who feel that President Obama was denied opportunities to fill vacancies that came up during his term—and it would not appear to immediately address the pressing concerns of judicial backlog that these proposals are meant to find solutions for.

All of this lays bare how overtly political federal judicial nominations can be. The suggestion that both parties should have a chance to fill vacancies presupposes that the appointments themselves have a partisan valence—a view of the courts that judges roundly reject.[6]

This was only a committee hearing, and it remains to be seen if any legislation will result.  Many appellate advocates would probably think more judges on a court is a good thing, if it means more oral argument, more published opinions, and a fuller consideration of their clients’ cases—in other words, more justice is never a bad thing.

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[1] https://www.law360.com/articles/1358026?cn_pk=52580888-7a57-4839-8051-8f2577da37a1&utm_source=newsletter&utm_medium=email&utm_campaign=custom

[2] https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/ft_21-01-07_trumpjudges_1/

[3] https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/ft_21-01-07_trumpjudges_2/

[4] https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_appprofile0930.2020.pdf

[5] https://www.npr.org/2020/07/02/886285772/trump-and-mcconnell-via-swath-of-judges-will-affect-u-s-law-for-decades

[6] https://www.masslive.com/news/2016/02/supreme_court_chief_justice_jo.html0