108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–708 

AUTHORIZATION FOR ADDITIONAL FEDERAL JUDGESHIPS 

SEPTEMBER 29, 2004.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. Sensenbrenner, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany S. 878] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(S. 878) to authorize an additional permanent judgeship in the district of Idaho, and for other purposes, having considered the same, 

reports favorably thereon with amendments and recommends that 

the bill as amended do pass. 

CONTENTS 

Page 

The Amendments ..................................................................................................... 1 

Purpose and Summary ............................................................................................ 4 

Background and Need for the Legislation ............................................................. 4 

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Vote of the Committee ............................................................................................. 4 

Committee Oversight Findings ............................................................................... 5 

New Budget Authority and Tax Expenditures ...................................................... 5 

Congressional Budget Office Cost Estimate .......................................................... 5 

Performance Goals and Objectives ......................................................................... 7 

Constitutional Authority Statement ...................................................................... 7 

Section-by-Section Analysis and Discussion .......................................................... 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 12 

Agency Views ........................................................................................................... 15 

Markup Transcript .................................................................................................. 17 

THE AMENDMENTS

The amendments are as follows: 

Strike all after the enacting clause and insert the following: 

2 

SECTION 1. NEW DISTRICT JUDGESHIPS. 

The President shall appoint, by and with the advice and consent of the Senate, 

the following: 

(1) 1 additional district judge for the northern district of Alabama. 

(2) 1 additional district judge for the middle district of Alabama. 

(3) 3 additional district judges for the district of Arizona. 

(4) 1 additional district judge for the northern district of California. 

(5) 3 additional district judges for the eastern district of California. 

(6) 1 additional district judge for the central district of California. 

(7) 2 additional district judges for the southern district of California. 

(8) 2 additional district judges for the middle district of Florida. 

(9) 4 additional district judges for the southern district of Florida. 

(10) 1 additional district judge for the district of Idaho. 

(11) 1 additional district judge for the western district of Missouri. 

(12) 1 additional district judge for the district of Nebraska. 

(13) 2 additional district judges for the district of New Mexico. 

(14) 3 additional district judges for the eastern district of New York. 

(15) 1 additional district judge for the district of Oregon. 

(16) 1 additional district judge for the district of South Carolina. 

(17) 1 additional district judge for the district of Utah. 

(18) 2 additional district judges for the eastern district of Virginia. 

(19) 1 additional district judge for the western district of Washington. 

SEC. 2. CONVERSION OF TEMPORARY TO PERMANENT JUDGESHIPS. 

The existing judgeships for the eastern district of California, the district of Hawaii, the district of Kansas, the eastern district of Missouri, that were authorized 

by section 203(c) of the Judicial Improvements Act of 1990 (28 U.S.C. 133 note; Public Law 101-650) shall, as of the date of the enactment of this Act, be authorized 

under section 133 of title 28, United States Code, and the incumbents in those offices shall, as of such date of enactment, hold those offices under section 133 of title 

28, United States Code, as amended by this Act. 

SEC. 3. TEMPORARY JUDGESHIPS. 

(a) APPOINTMENT.—The President shall appoint, by and with the advice and 

consent of the Senate, the following: 

(1) 1 additional district judge for the northern district of California. 

(2) 2 additional district judges for the central district of California. 

(3) 3 additional district judges for the southern district of California. 

(4) 1 additional district judge for the district of Colorado. 

(5) 1 additional district judge for the middle district of Florida. 

(6) 1 additional district judge for the northern district of Illinois. 

(7) 1 additional district judge for the northern district of Indiana. 

(8) 1 additional district judge for the southern district of Indiana. 

(9) 1 additional district judge for the northern district of Iowa. 

(10) 1 additional district judge for the district of New Mexico. 

(11) 1 additional district judge for the eastern district of New York. 

(12) 1 additional district judge for the western district of New York. 

(b) VACANCIES NOT FILLED.—(1) The first 2 vacancies in the office of district 

judge in the central district of California, occurring 10 years or more after judges 

are first confirmed to fill both temporary judgeships created in that district by subsection (a), shall not be filled. 

(2) The first 3 vacancies in the office of district judge in the southern district 

of California, occurring 10 years or more after judges are first confirmed to fill all 

3 temporary judgeships created in that district by subsection (a), shall not be filled. 

(3) The first vacancy in the office of district judge in each district named in subsection (a), other than the central or southern district of California, occurring 10 

years or more after judges are first confirmed to fill the temporary judgeship created 

in that district by subsection (a), shall not be filled. 

SEC. 4. CONFORMING AMENDMENTS. 

The table contained in section 133(a) of title 28, United States Code, is amended—

(1) by amending the item relating to Alabama to read as follows: 

‘‘Alabama: 

Northern ........................................................................................................................................................ 8 Middle ............................................................................................................................................................ 4 Southern ........................................................................................................................................................ 3’’; 

(2) by amending the item relating to Arizona to read as follows: 

‘‘Arizona ......................................................................................................................................................... 15’’; 

(3) by amending the item relating to California to read as follows: 

3 

‘‘California: 

Northern ........................................................................................................................................................ 15 Eastern .......................................................................................................................................................... 10 Central ........................................................................................................................................................... 28 Southern ........................................................................................................................................................ 15’’; 

(4) by amending the item relating to Florida to read as follows: 

‘‘Florida: 

Northern ........................................................................................................................................................ 4 Middle ............................................................................................................................................................ 17 Southern ........................................................................................................................................................ 21’’; 

(5) by amending the item relating to Hawaii to read as follows: 

‘‘Hawaii .......................................................................................................................................................... 4’’; 

(6) by amending the item relating to Idaho to read as follows: 

‘‘Idaho ............................................................................................................................................................. 3’’; 

(7) by amending the item relating to Kansas to read as follows: 

‘‘Kansas .......................................................................................................................................................... 6’’; 

(8) by amending the item relating to Missouri to read as follows: 

‘‘Missouri: Eastern .......................................................................................................................................................... 7 Western .......................................................................................................................................................... 5 Eastern and Western .................................................................................................................................... 2’’; 

(9) by amending the item relating to Nebraska to read as follows: 

‘‘Nebraska ...................................................................................................................................................... 4’’; 

(10) by amending the item relating to New Mexico to read as follows: 

‘‘New Mexico .................................................................................................................................................. 8’’; 

(11) by amending the item relating to New York to read as follows: 

‘‘New York: 

Northern ........................................................................................................................................................ 5 Southern ........................................................................................................................................................ 28 Eastern .......................................................................................................................................................... 18 Western .......................................................................................................................................................... 4’’; 

(12) by amending the item relating to Oregon to read as follows: 

‘‘Oregon .......................................................................................................................................................... 7’’; 

(13) by amending the item relating to South Carolina to read as follows: 

‘‘South Carolina ............................................................................................................................................. 11’’; 

(14) by amending the item relating to Utah to read as follows: 

‘‘Utah .............................................................................................................................................................. 6’’; 

(15) by amending the item relating to Virginia to read as follows: 

‘‘Virginia: Eastern .......................................................................................................................................................... 13 Western .......................................................................................................................................................... 4’’; and 

(16) by amending the item relating to Washington to read as follows: 

‘‘Washington: Eastern .......................................................................................................................................................... 4 Western .......................................................................................................................................................... 8’’. 

SEC. 5. ADDITIONAL CIRCUIT JUDGES. 

(a) PERMANENT JUDGESHIPS.—The President shall appoint, by and with the advice and consent of the Senate, 1 additional circuit judge for the first circuit court 

of appeals, 2 additional circuit judges for the second circuit court of appeals, 1 additional circuit judge for the sixth circuit court of appeals, and 5 additional circuit 

judges for the ninth circuit court of appeals. 

(b) TEMPORARY JUDGESHIPS.—

(1) APPOINTMENT OF JUDGES.—The President shall appoint, by and with the 

advice and consent of the Senate, 2 additional circuit judges for the ninth circuit 

court of appeals. 

(2) EFFECT OF VACANCIES.—The first 2 vacancies occurring on the ninth circuit court of appeals 10 years or more after judges are first confirmed to fill 

both temporary circuit judgeships created by this subsection shall not be filled. 

(c) NUMBER OF CIRCUIT JUDGES.—The table contained in section 44(a) of title 

28, United States Code, is amended—

(1) by amending the item relating to the first circuit to read follows: 

‘‘First ...................................................................................................................................................................... 7’’; 

(2) by amending the item relating to the second circuit to read follows: 

‘‘Second ................................................................................................................................................................... 15’’; 

(3) by amending the item relating to the sixth circuit to read as follows: 

‘‘Sixth ..................................................................................................................................................................... 17’’; 

and 

(4) by amending the item relating to the ninth circuit to read as follows: 

‘‘Ninth .................................................................................................................................................................... 33’’. 

4 

Amend the title so as to read: 

A bill to create additional Federal court judgeships. 

PURPOSE AND SUMMARY

The purpose of S. 878, as reported by the Committee on the Judiciary, is to authorize the creation of certain new U.S. circuit and 

district judgeships (permanent as well as temporary) and to convert other temporary judgeships to permanent status. 

BACKGROUND AND NEED FOR THE LEGISLATION

The Judicial Conference of the United States (‘‘Conference’’) reviews biannually the judgeship needs of all U.S. courts of appeal 

and U.S. district courts to determine if any of the courts require 

additional judges to administer civil and criminal justice in the 

Federal court system. The Conference then submits its recommendations to the House and Senate Committees on the Judiciary. The Conference completed its last review in March, 2003, and 

submitted its recommendations to Congress. 

The Conference set a benchmark caseload standard for considering judgeship requests at 430 weighted cases per judgeship for 

district courts and 500 adjusted case filings per panel for courts of 

appeal. The Conference process takes into account additional criteria that may influence the judgeship needs of each court, including senior judge and magistrate judge assistance, geographical factors, unusual caseload complexity, and temporary caseload increases or decreases. 

Based on these criteria, the Conference’s current proposal recommends that Congress establish 11 new judgeships in 4 courts of 

appeals and 46 new judgeships in 24 district courts. The Conference also recommends that five temporary district court judgeships created in 1990 be established as permanent positions. For 

many of these courts, the recommendations represent needs developed since 1990. 

HEARINGS

The Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held an oversight hearing on Federal judgeship 

needs on June 24, 2003. Testimony was received from three witnesses representing two organizations. 

COMMITTEE CONSIDERATION

On September 9, 2004, the Committee met in open session and 

ordered favorably reported the bill S. 878 with amendments by 

voice vote, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Committee’s consideration of S. 878. 

5 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Pursuant to clause 3(c)(2) of rule XIII of the Rules of the House 

of Representatives, the Committee notes that this legislation provides new budgetary authority as outlined in the Congressional 

Budget Office estimate printed in the next section. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, S. 878, the following estimate and comparison prepared by 

the Director of the Congressional Budget Office under section 402 

of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, September 29, 2004. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 878, an act to create additional federal court judgeships. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Rachel Milberg, who can 

be reached at 226–2860. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

S. 878—An act to create additional federal court judgeships. 

SUMMARY

S. 878 would authorize 47 additional district court judges and 11 

additional circuit court judges. Based on information from the Administrative Office of the United States Courts (AOUSC), CBO estimates that implementing the act would cost $225 million over the 

2005–2009 period for court staff salaries and benefits, supplies, security, and the rent or construction of office space to support the 

additional 58 judges. We also estimate that enacting the legislation 

would increase direct spending by $3 million in 2005, by $40 million over the 2006–2009 period, and by $90 million over the 2006–

2014 period for the salaries and benefits of the judges that would 

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be authorized by the act. Enacting S. 878 would not affect revenues. 

S. 878 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act (UMRA) and 

would impose no costs on State, local, or tribal governments. 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of S. 878 is shown in the following table. The costs of this legislation fall within budget function 750 (administration of justice). 

By Fiscal Year, in Millions of Dollars 

2005 2006 2007 2008 2009 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Budget Authority 8 87 42 43 45 

Estimated Outlays 8 52 70 50 45 

CHANGES IN DIRECT SPENDING 

Estimated Budget Authority 3 7 10 10 10 

Estimated Outlays 3 7 10 10 10 

BASIS OF ESTIMATE

CBO estimates that enacting S. 878 would increase direct spending by $90 million over the next 10 years for salaries and benefits 

of the additional district and circuit court judges that would be authorized by the legislation. In addition, we estimate that implementing the act would cost $225 million over the 2005–2009 period 

for court staff salaries and benefits, supplies, security, and the rent 

or construction of office space to support the 58 additional judges, 

subject to appropriation of the necessary amounts. For this estimate, CBO assumes that all judges authorized under the bill would 

be approved by the beginning of fiscal year 2007. 

Direct Spending 

S. 878 would authorize 47 additional district court judges and 11 

additional circuit court judges. Because the salaries and benefits of 

such judges are considered mandatory, adding more judges would 

increase direct spending. Under current law, district judges receive 

$158,100 and circuit court judges receive 167,600 annually. CBO 

estimates that enacting the legislation would increase direct spending by $3 million in 2005, $7 million in 2006, and $10 million each 

year thereafter for the salaries and benefits of the additional 58 

judges that would be authorized under the act. Adjustments in the 

annual salary for judges is subject to future Congressional action. 

Spending Subject to Appropriation 

CBO expects that each additional judge authorized by this legislation would require the same amount of staff support, supplies, security, and office space as current district and circuit court judges 

consume. Based on information from the AOUSC, CBO estimates 

the courts would need to hire an average of five support staff for 

each judge, construct expanded court facilities, and rent larger office space to accommodate the additional judges and staff. In addition, the courts would be required to conduct background checks, 

purchase lawbook subscriptions and furniture, and expand teleVerDate Aug 04 2004 14:59 Sep 30, 2004 Jkt 029006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\HR708.XXX HR708
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phone systems. CBO estimates that implementing the legislation 

would cost $225 million over the 2005–2009 period, and $473 million over the 2004–2014 period, subject to appropriation of the necessary amounts. 

INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

S. 878 contains no intergovernmental or private-sector mandates 

as defined in UMRA and would impose no costs on State, local, or 

tribal governments. 

PREVIOUS CBO ESTIMATE

On June 26, 2003, CBO transmitted a cost estimate for S. 878 

as passed by the Senate on May 22, 2003. The Senate version of 

this act would 14 additional district court judges and 36 additional 

bankruptcy judges, and the cost estimates reflect this difference. 

ESTIMATE PREPARED BY: 

Federal Costs: Rachel Milberg (226–2860) 

Impact on State, Local, and Tribal Governments: Melissa Merrell 

(225–3220) 

Impact on the Private Sector: Paige Piper/Bach (226–2960) 

ESTIMATE APPROVED BY: 

Peter H. Fontaine 

Deputy Assistant Director for Budget Analysis 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, S. 878 should facilitate an increase in the number of cases and appeals terminated on 

the merits as well as a reduction in pendency times for outstanding 

cases and appeals. The Committee also expects that the averages 

governing weighted filings per judgeship for district courts and adjusted case filings per panel for circuit courts will more closely approximate the current Conference standards (430 for district 

courts, 500 for circuit courts). If S. 878 is enacted, the Committee 

will closely monitor the data that measures these performance 

goals and objectives for the Federal judiciary. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee find the authority for this legislation in article III, § 1 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. New District Judgeships. Section 1 creates the following permanent U.S. district judgeships. 

Northern District of Alabama (one permanent). Weighted filings 

in this district have remained above the Conference standard of 

430 for several years and are now at 620 per judgeship. Civil rights 

8 

cases account for nearly one-third of its civil cases, and state prisoner petitions have increased by 29% since 1998. Three years ago, 

the four senior judges serving the district handled more than a 

fifth of the caseload; all four are in their seventies. 

Middle District of Alabama (one permanent). Weighted filings for 

the Middle District have remained above 500 per judgeship for several years and now stand at 564. Civil filings rank sixth nationally. 

No senior judges in this court regularly take cases, and the court 

indicates that the judge who recently took senior status will handle 

no more than 75 civil cases per year. 

District of Arizona (three permanent). The court’s current weighted filings, at 608 per judgeship, are ranked 13th nationally. Total 

filings have increased steadily over the past several years and have 

risen 28% since 1997. The district has the fourth highest criminal 

caseload in the nation, two-thirds of which relate to drug and immigration prosecutions. In addition, the district has five senior 

judges whose ages range from 68 to 83. Three of these judges will 

retire or significantly reduce their caseloads in the near future. 

Northern District of California (one permanent). Weighted filings 

in the Northern District currently exceed 500 per judgeship, driven 

by a high number of securities filings, higher than average multidefendant cases, and a reduction in senior judges. Of the seven 

senior judges, one only handles circuit cases, two have since retired, and the remaining four range in age from 68 to 80. 

Eastern District of California (three permanent). Weighted filings 

in this district have averaged more than 600 per judgeship since 

1997 and currently stand at 614. Civil filings per judgeship are the 

fourth highest nationally and the criminal caseload increased 65% 

between 1993 and 1997. Five senior judges assist the court and 

close more than a quarter of all cases. Four of the five are 70 or 

older. 

Central District of California (one permanent). The Central District’s weighted filings exceed 500 per judgeship. The District ranks 

ninth nationally in civil filings per judgeship, and firearms cases 

have more than doubled since 1999. Vacant judgeship months have 

remained high in the recent past. Four of the senior judges are 

over 80, and three active judges are now eligible for senior status. 

Southern District of California (two permanent). The court has 

the highest overall caseload, criminal filings, and supervised release hearings per judgeship nationwide, in addition to the heaviest 

weighted filings per judgeship (1,068). Of the five senior judges 

who serve the district, four range in age from 70 to 88 and the fifth 

recently became inactive. 

Middle District of Florida (two permanent). The court’s weighted 

filings far exceed the Conference standard of 430. During the mid 

to late 1990’s, filings in the Middle District grew at a rate of 29% 

for civil disputes and 34% for criminal cases. Six senior judges, 

ranging in age from 67 to 86, closed 11% of the court’s cases. Two 

of the senior judges may retire within the next 2 years. 

Southern District of Florida (four permanent). Weighted filings 

for the Southern District average 657 per judgeship, the eighth 

highest total nationally. Overall filings have risen 78% since 1994, 

and civil and criminal filings remain well above the respective national averages. Vacancies have harmed court operations in the 

9 

past, and the five senior judges, each in his seventies, carries a significant caseload. 

District of Idaho (one permanent). Weighted filings per judgeship 

in Idaho have increased by 58% since 1995 and stand at 504 per 

judgeship. The court has no senior judges and one of the two active 

judges is eligible for senior status. The court has also stated that 

the distance judges are required to travel from duty stations to divisional offices has a substantial impact on their ability to fulfill 

their obligations. 

Western District of Missouri (one permanent). The Western District’s weighted filings total 581 per judgeship. Increased civil 

rights cases and firearms and drug prosecutions have offset declines in prisoner petitions, student loan cases, and Social Security 

filings. Only two of the five senior judges who assist the court take 

cases and both are over 75. 

District of Nebraska (one permanent). Weighted filings per judgeship stood at 492 (14% higher than the Conference threshold) but 

have increased to 656 following expiration of the temporary judgeship earlier this year. The two senior judges serving the district 

(ages 76 and 77) closed 18% of all cases terminated in 2001. One 

of the court’s active judges, who is seriously ill, is eligible to take 

senior status this year. 

District of New Mexico (two permanent). Weighted filings for the 

District are the fourth highest nationally (739 per judgeship). Caseload growth continues to rise, fueled almost exclusively by immigration prosecutions. Of the two senior judges, one is 90 and has 

greatly reduced his caseload. Two active judges are eligible to take 

senior status. 

Eastern District of New York (three permanent). The current total 

of 792 pending cases per judgeship is the third highest nationally— 69% above average. The majority of the increase in overall filings 

in the district has occurred in the civil docket, including studentloan recoveries, asbestos litigation, and cable television theft disputes. Five senior judges closed 32% of the most recently surveyed 

caseload; however, four are at least 77 years old and the fifth is 

67. 

District of Oregon (one permanent). Oregon has experienced eight 

consecutive years of weighted filings either near or above 500 per 

judgeship (the current figure is 539). An additional permanent 

judgeship would reduce the figure to 462 per judgeship, still well 

above the Conference standard. Five senior judges assist the court 

but they are all in their mid to late seventies and will accept declining caseloads in the future. 

District of South Carolina (one permanent). Weighted filings per 

judgeship for South Carolina (currently 549) have remained well 

above the Conference standard for years. There was a significant 

jump in 2001 tort filings when multiple plaintiffs (1,200) were required to file individual suits against a fertilizer plant. The district’s three senior judges terminated 11% of the most-recently 

evaluated caseload, but two of them are 80 or older while two active judges are eligible for senior status. 

District of Utah (one permanent). Utah’s weighted filings per 

judgeship have increased 65% since June 1996 to 521, largely due 

to dramatic increases in criminal filings that have tripled during 

that time. The court’s four senior judges closed 23% of all cases terVerDate Aug 04 2004 14:59 Sep 30, 2004 Jkt 029006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR708.XXX HR708
10 

minated in September 2002. In addition, one of the full-time Magistrate judges assigned to the Salt Lake City office recently died. 

Eastern District of Virginia (two permanent). The court’s current 

total of 636 weighted filings per judgeship includes thousands of 

asbestos cases. Excluding these cases, weighted filings have risen 

steadily over the past decade and currently stand at 553 per judgeship. The court has three senior judges (ranging in age from 69 to 

79), one of whom takes only a half a caseload. 

Western District of Washington (one permanent). The Western 

District’s weighted filings average 534 per judgeship, nearly 25% 

above the Conference standard. The criminal caseload has fluctuated considerably more than overall filings during the past 6 

years. Four senior judges serve the court, but only two take a significant number of cases. 

Sec. 2. Conversion of Temporary to Permanent Judgeships. Section 

2 converts the following temporary judgeships to permanent judgeships. 

District of Hawaii (one temporary to permanent). Weighted filings 

in the District stand at 426 per judgeship but would escalate to 

more than 500 per judgeship if the temporary seat expires. The 

court has two senior judges, ages 70 and 86, the older of whom is 

likely to retire shortly. Together they closed 18% of all cases in 

2001. 

District of Kansas (one temporary to permanent). Weighted filings 

will rise to 485 per judgeship in the District if the temporary seat 

expires. There are five senior judges ranging in age from 70 to 95 

(three are at least 80). All of the senior judges carry a heavy caseload but have experienced health problems in recent years that will 

require them to cut back. 

Eastern District of Missouri (one temporary to permanent). The 

current weighted filings average of 434 would increase to 496 per 

judgeship if the judgeship expires. The District features one senior 

judge (age 75) and an expansive growth in criminal filings, many 

of which are firearms cases. 

Sec. 3. Temporary Judgeships. Section 3 creates the following temporary judgeships. 

Northern District of California (one temporary). See section 1 profile. 

Central District of California (two temporary). See section 1 profile. 

Southern District of California (three temporary). See section 1 

profile. 

District of Colorado (one temporary). Weighted filings in Colorado 

have remained near or above 500 per judgeship for almost 10 years 

and currently stand at 495 per judgeship. In recent years there has 

been a threefold rise in firearms prosecutions. The three senior 

judges serving the court closed 40% of civil cases in 2001 but only 

a small proportion of criminal terminations. While this level of senior judge assistance is substantial, it will probably decline as the 

one judge currently eligible to take senior status has indicated he 

does not plan to do so and no other active judge becomes eligible 

until 2008. 

Middle District of Florida (one temporary). See section 1 profile. 

11 

Northern District of Illinois (one temporary). Weighted filings in 

the Northern District have steadily increased since 1993 and now 

stand at 491 per judgeship. Recent growth in civil caseload is attributable to an escalation in student loan, foreclosure, and labor 

law filings. Nine senior judges disposed of 16% of those cases terminated in 2001. 

Northern District of Indiana (one temporary). The caseload in the 

Northern District increased sharply between 1998 and 2001 and 

weighted filings are well above 500 per judgeship. Drug and firearms prosecutions have driven the criminal docket in recent years; 

asbestos litigation, the civil docket. The court has not received senior judge assistance since 1998, but three active judges are eligible 

to take senior status. 

Southern District of Indiana (one temporary). Civil filings in the 

Southern District rank second nationally and weighted filings, currently 596 per judgeship, continue to rise. The construction of a 

new Federal penitentiary in Terre Haute that will house 1,100 inmates in 2005 should generate additional prison petitions as well 

as employment and other disputes. The court’s lone senior judge is 

88. 

Northern District Iowa (one temporary). This district’s high 

weighted filings per judgeship (555) is attributable to increased 

criminal filings, a high trial rate, and an even higher number of 

contested sentencing hearings per judgeship. The district has only 

two authorized judgeships, but one has been vacant since February 

2002. The two senior judges, ages 78 and 82, terminated nearly 

one-fifth of all civil and criminal cases in 2001. 

District of New Mexico (one temporary). See section 1 profile. 

Eastern District of New York (one temporary). See section 1 profile. 

Western District of New York (one temporary). The Western District has the eighth highest pending caseload nationally and a 

weighted filings average of 539 per judgeship. The recent surge in 

filings is a function of criminal prosecutions for fraud, drug, and 

firearms cases. Two of the court’s three senior judges take more 

than half of an active judge’s civil and criminal caseload, while the 

third accepts no criminal and two-thirds of a civil caseload. 

Sec. 4. Conforming Amendments. Section 4 amends the table contained in § 133 of title 28 of the U.S. Code that lists the total number of judges for each U.S. district to reflect the changes made by 

§§ 1 and 2 of S. 878. 

Sec. 5. Additional Circuit Judges. Section 5 creates the following 

circuit judgeships and amends § 44(a) of title 28 of the U.S. Code 

that lists the total number of judges for each circuit to reflect the 

changes made by S. 878. 

1st Circuit (1 permanent). Adjusted filings average 638 per panel 

but would drop to 533 with the addition of one judgeship and the 

anticipated reduction in petitions filed to protest the military use 

of the Viequez practice bombing site in Puerto Rico. The majority 

of the circuit’s appeals are criminal cases and prisoner petitions. 

Five senior judges, ranging in age from 70 to 83, participated in 

23% of cases terminated. 

12 

2nd Circuit (2 permanent). Adjusted filings in the circuit exceed 

700 per panel and would only fall to 614 (still well above the Conference standard) if the two judgeships are authorized. Non-prisoner civil petitions still constitute a plurality of appellate filings. 

Nine senior judges (ranging in age from 67 to 87) assist the court 

and assume roughly a half of a full caseload. Two active judges are 

eligible to take senior status and two more will become eligible in 

2005. 

6th Circuit (1 permanent). The addition of an additional permanent judgeship would still leave the circuit’s adjusted filings average per panel (553) above the Conference standard. Prisoner petitions typically constitute one-third of all appeals filed. Half (eight) 

of the circuit’s judgeships are vacant. There are 10 senior judges 

who assist the court, ranging in age from 66 to 81. 

9th Circuit (five permanent, two temporary). Filings in the circuit 

have increased steadily in recent years. The adjusted filings average stands at 807 per panel, more than 50% above the Conference 

standard. Immigration, drug, and fraud cases have driven much of 

the increased workload. Four of the 28 authorized judgeships are 

vacant. Twenty-one senior judges, most of whom are 75 or older, 

participate in roughly one-fifth of the appeals closed after oral 

hearing or submission on briefs. If authorized, the additional judgeships requested would still leave the adjusted filings average at 

572 per panel. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

TITLE 28, UNITED STATES CODE 

* * * * * * * 

PART I—ORGANIZATION OF COURTS 

* * * * * * * 

CHAPTER 3—COURTS OF APPEALS 

* * * * * * * 

§ 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: 

Number 

Circuits of Judges 

District of Columbia ............................................................................................... 12 

øFirst ....................................................................................................................... 6 

øSecond ................................................................................................................... 13¿ 

First ......................................................................................................................... 7 

13 

Second ..................................................................................................................... 15 

* * * * * * * 

øSixth ...................................................................................................................... 16¿ 

Sixth ........................................................................................................................ 17 

* * * * * * * 

øNinth ..................................................................................................................... 28¿ 

Ninth ....................................................................................................................... 33 

* * * * * * * 

* * * * * * * 

CHAPTER 5—DISTRICT COURTS 

§ 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 

øAlabama: 

øNorthern ....................................................................................................... 7 

øMiddle ........................................................................................................... 3 

øSouthern ....................................................................................................... 3¿ 

Alabama: 

Northern .......................................................................................................... 8 

Middle ............................................................................................................. 4 

Southern ......................................................................................................... 3 

* * * * * * * 

øArizona .......................................................................................................... 12¿ 

Arizona ............................................................................................................ 15 

* * * * * * * 

øCalifornia: 

øNorthern ....................................................................................................... 14 

øEastern ......................................................................................................... 6 

øCentral .......................................................................................................... 27 

øSouthern ....................................................................................................... 13¿ 

California: 

Northern .......................................................................................................... 15 

Eastern ............................................................................................................ 10 

Central ............................................................................................................ 28 

Southern ......................................................................................................... 15 

* * * * * * * 

øFlorida: 

øNorthern ....................................................................................................... 4 

øMiddle ........................................................................................................... 15 

øSouthern ....................................................................................................... 17¿ 

Florida: 

Northern .......................................................................................................... 4 

Middle ............................................................................................................. 17 

Southern ......................................................................................................... 21 

* * * * * * * 

øHawaii ........................................................................................................... 3 

øIdaho ............................................................................................................. 2¿ 

Hawaii ............................................................................................................ 4 

Idaho ............................................................................................................... 3 

* * * * * * * 

øKansas .......................................................................................................... 5¿ 

Kansas ............................................................................................................. 6 

* * * * * * * 

øMissouri: 

øEastern ......................................................................................................... 6 

øWestern ......................................................................................................... 5 

14 

øEastern and Western ................................................................................... 2¿ 

Missouri: 

Eastern ............................................................................................................ 7 

Western ............................................................................................................ 5 

Eastern and Western ...................................................................................... 2 

* * * * * * * 

øNebraska ....................................................................................................... 3¿ 

Nebraska ......................................................................................................... 4 

* * * * * * * 

øNew Mexico .................................................................................................. 6 

øNew York: 

øNorthern ....................................................................................................... 5 

øSouthern ....................................................................................................... 28 

øEastern ......................................................................................................... 15 

øWestern ......................................................................................................... 4¿ 

New Mexico ..................................................................................................... 8 

New York: 

Northern .......................................................................................................... 5 

Southern ......................................................................................................... 28 

Eastern ............................................................................................................ 18 

Western ............................................................................................................ 4 

* * * * * * * 

øOregon ........................................................................................................... 6¿ 

Oregon ............................................................................................................. 7 

* * * * * * * 

øSouth Carolina ............................................................................................. 10¿ 

South Carolina ............................................................................................... 11 

* * * * * * * 

øUtah .............................................................................................................. 5¿ 

Utah ................................................................................................................ 6 

* * * * * * * 

øVirginia: 

øEastern ......................................................................................................... 11 

øWestern ......................................................................................................... 4 

øWashington: 

øEastern ......................................................................................................... 4 

øWestern ......................................................................................................... 7¿ 

Virginia: 

Eastern ............................................................................................................ 13 

Western ............................................................................................................ 4 

Washington: 

Eastern ............................................................................................................ 4 

Western ............................................................................................................ 8 

* * * * * * * 

15 

AGENCY VIEWS


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MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, SEPTEMBER 9, 2004 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr., [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present. 

Pursuant to notice I now call up the bill S. 878, a bill to authorize an additional permanent judgeship in the District of Idaho and 

for other purposes, for purposes of markup, and move its favorable 

recommendation to the House. 

Without objection the bill will be considered as read and open for 

amendment at any point. 

[The bill, S. 878 follows:] 

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Chairman SENSENBRENNER. The chair recognizes the gentleman 

from Texas, Mr. Smith, to explain the bill. 

Mr. SMITH. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SMITH. Mr. Chairman, the U.S. Judicial Conference biennially reviews the needs of the judiciary to determine if any of our 

Federal courts require additional judges. It completed its last review in March 2003 and submitted a list of judgeship recommendations to the House and Senate Committees on the Judiciary. The 

Conference set a benchmark caseload standard for considering requests at 430 weighted cases per judgeship for district courts. This 

process takes into account additional criteria that may influence 

the judgeship needs of each court, including senior judge and magistrate judge assistance, geographical factors, unusual caseload 

complexity and temporary caseload increases or decreases. 

Based on these criteria, the Senate passed S. 878 on May 22nd, 

2003. The bill as referred to our Committee creates 12 permanent 

district judgeships and two temporary district judgeships. S. 878 

also converts two temporary judgeships to permanent status. 

Mr. Chairman, S. 878 represents a good start, but I will shortly 

offer an amendment to provide more content. I urge Members to 

support the amendment and the underlying bill, and I yield back 

the balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from California, 

Mr. Berman, wish to give a Democratic opening statement? If so, 

he is recognized for 5 minutes. 

Mr. BERMAN. I thank the Chairman. I’m trying to get the state 

of play here, and while I get the state of the play, I think perhaps 

I shouldn’t venture an opinion on a play that I don’t yet understand, so I will pass up my right to make an opening statement. 

Chairman SENSENBRENNER. Without objection, all Members may 

insert opening statements in the record at this point. Are there 

amendments? And the chair recognizes himself for purposes of offering an amendment. The clerk will report the amendment. 

The CLERK. Amendment to S. 878 offered by Mr. Sensenbrenner. 

At the end of the bill add the following: Section 12, Additional Circuit Judges. (a) Permanent——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the chair recognizes himself for 5 minutes. 

[The amendment follows:] 

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Chairman SENSENBRENNER. I am offering this amendment to 

meet the needs of the appellate courts in addition to the trial 

courts. This amendment will add a total of 11 new circuit judgeships to S. 878, and those judgeships will benefit the operations of 

the First, Second, Sixth and Ninth Circuit Courts of Appeal. This 

is the full complement of circuit judgeship recommendations proffered by the Judicial Conference. All of the judgeships more than 

comply with the minimum threshold standards developed by the 

Conference in its 2003 recommendations to Congress. By that 

standard, these circuit judgeships address the circuit courts that 

have the greatest need. 

The amendment represents a good complement to the amendment that will be offered by the gentleman from Texas, Mr. Smith. 

I urge the adoption of the amendment and the underlying bill and 

yield back the balance of my time. 

The question is on agreeing to the amendment offered by the 

chair. Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it and the amendment 

is agreed to. 

Are there further amendments? The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to S. 878 offered by Mr. Smith of Texas. 

Strike Sections 1 through 11 and insert the following: Section 1. 

New District Judgeships. The President shall——

Mr. SMITH. Mr. Chairman, I ask unanimous consent that the 

amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentleman from Texas is recognized for 5 

minutes. 

[The amendment follows:] 

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Mr. SMITH. Thank you, Mr. Chairman. My amendment incorporates the base text of S. 878 with two major revisions. First it 

adds 16 permanent and 12 temporary judgeships to the bill. It also 

converts two temporary judgeships to permanent seats. 

The Judicial Conference has highly recommended that all of 

these judgeships be accepted. The vast majority of these seats will 

be located, it happens, in States associated with Members of our 

Committee, including Alabama, Arizona, California, Florida, Illinois, Indiana, Iowa, New York, Utah and Virginia. 

Again, the extra judgeships included in this substitute more than 

satisfy the threshold requirements developed by the Judicial Conference; and second, all of the bankruptcy judges set forth on pages 

7 through 14 of the bill are stricken. This will be dealt with in the 

context of the bankruptcy reform legislation pending before the 

Senate, which includes all these judgeships. 

Mr. Chairman, it’s unusual when the other body moves first on 

issues that fall within our Committee’s jurisdiction. This is one of 

those rare occasions. This amendment incorporates the great majority of the bill as developed by the other body, so its adoption 

today augers well for further bicameral action. 

I urge Members to support this amendment and S. 878 on final 

passage, and I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. Thank you, Mr. Chairman. I want to thank Chairman Smith for offering this amendment, including a number of the 

judgeships recommended by the administrative office of the district 

judgeships. I note that the amendment leaves out 4 of the 46 district court judgeships, and I will offer a perfecting amendment, 

which I hope the Chairman of the Committee and the Chairman 

of the Subcommittee would feel comfortable supporting that would 

include those 4 of the 46 district judgeships. 

Chairman SENSENBRENNER. Does the gentleman from California 

have an amendment? 

Mr. BERMAN. I do. 

Chairman SENSENBRENNER. The clerk will report the perfecting 

amendment. 

Mr. BERMAN. Amendment 6. 

The CLERK. Perfecting amendment to the Sensenbrenner amendment to S. 878, or the Smith amendment to S. 878. At the end insert the following——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentleman from California will be recognized for 5 minutes. 

[The amendment follows:] 

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Mr. BERMAN. Mr. Chairman, I would support—urge the Committee to support this amendment. I don’t know of their rationale 

for leaving out these 4 judgeships, none of which are from California, but without understanding the logic of leaving them out, I 

think we should just be consistent and adopt all of the district 

court judgeships recommended by the AO and urge its adoption. 

Chairman SENSENBRENNER. The question is agreeing to the perfecting amendment offered by the gentleman from California, Mr. 

Berman, to the amendment offered by the gentleman from Texas, 

Mr. Smith. Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the amendment is agreed to. 

The question now is on the adoption of the Smith amendment as 

amended. Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the amendment is agreed to. 

Are there further amendments? 

[No response.] 

Chairman SENSENBRENNER. If there are no further amendments, 

a reporting quorum is present. The question occurs on the motion 

to report the bill, S. 878 favorably as amended. All those in favor 

will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the amendment, or the bill is reported favorably as amended. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute, incorporating the amendments adopted here today. 

Without objection, the Chairman is authorized to move to go to 

conference pursuant to House rules. 

Without objection, the staff is directed to make any technical and 

conforming changes, and all Members will be given 2 days, as provided by the House rules, in which to submit additional dissenting 

supplemental of minority views. 

The business before the Committee having been completed, the 

chair thanks the Members for their attendance, prompt attendance 

today and their cooperation. And the Committee stands adjourned. 

[Whereupon, at 10:18 a.m., the Committee was adjourned.] 

Æ