Imposing a Moratorium

on the Number of Federal Judges:

Analysis of Arguments and Implications

Gordon Bermant Edward Sussman

William W Schwarzer Russell R. Wheeler

Federal Judicial Center

1993

This publication was produced in furtherance of the Federal Judicial Center’s statutory mission to conduct and stimulate research and development

on matters of judicial administration. The analyses, conclusions, and

points of view in this paper are those of the authors. It should be emphasized that on matters of policy the Center speaks only through its Board.

iii

Contents

Authorship and Acknowledgments v

Part I: Introduction 3

The growth of the judiciary and current arrangements for regulating

its size 3

Growth of the number of circuit and district judgeships 3

Current procedures for creating judgeships 8

Adjusting workload, procedures, and capacity to promote system

effectiveness 10

The idea of a moratorium 13

Part II: Capping the Size of the House of Representatives and the

Supreme Court 17

The House of Representatives 17

The Supreme Court 18

Relevance to current proposals to limit the number of circuit and

district judgeships 20

Part III: A Moratorium on New Circuit and District Judgeships: The Case

For and Against 23

A. The arguments 23

1. Continuing increases in the size of the federal judiciary will

eventually create unacceptable problems 26

a. Unchecked expansion of district and circuit judgeships

vitiates the historic understanding, based on federalism,

that the federal judiciary is a specialized body of limited

jurisdiction 26

b. Cohesiveness and efficiency will be impaired 27

c. The quality of federal courts will decline because

(1) As the number of judgeships increases, the ability of

the office to attract the most qualified individuals will

decline 30

(2) As the number of vacancies to be filled increases, it

will become increasingly difficult for the executive and

legislative branches to nominate and confirm with

sufficient care 33

d. A larger federal judiciary will require more resources than

Congress will be willing to appropriate 35

2. Without an explicit moratorium, the federal judicial workload

will continue to grow, leading Congress to continue to add

more judgeships to the system 37
iv

3. A moratorium will allow the courts to avoid growing larger

because it will force Congress to control jurisdictional expansion and restrict unnecessary access to the courts, and it will

force the courts to develop more efficient procedures 38

4. A cap on the number of Article III judgeships can be successfully implemented 47

a. A statutory, as opposed to a constitutional, solution will

suffice 47

b. Only an unequivocal cap, identified and argued for as such,

will assist the federal courts 48

c. Geographic shifts in demand for judicial services can be

accommodated 50

B. Comment 54

Appendix: Determining the Size of the House of Representatives: A

Historical Review 57
v

Authorship and Acknowledgments

The authors of this report are listed in alphabetical order. Russell

Wheeler took the lead role in organizing, drafting, and revising various versions. Judge Schwarzer and Gordon Bermant also contributed substantially to the conceptualization and revisions of the

text. Edward Sussman contributed early draft materials, which included much of the graphic and tabular data in the final text, and

is the author of the appendix on the House of Representatives.

We sent this paper in draft form to several persons for comment and are pleased to acknowledge here the suggestions we received from the following even while recognizing that our revisions

will not please all those who commented.

Thanks to

Judges Lucius Bunton, Ruth Bader Ginsburg, Ralph Guy,

Diana Murphy, Jon Newman, Stephen Reinhardt, Deanell Tacha,

Michael Telesca, and J. Harvie Wilkinson III

Professors Robert Katzmann, Daniel Meador, and Thomas Rowe

Circuit Executive Steven Flanders

David Cook, James Macklin, and Elizabeth McGrath of the Administrative Office of the U.S. Courts

William Eldridge, Fletcher Mangum, and Judith McKenna of the

Federal Judicial Center.

James Apple, Norman Baker, Melissa Pecherski, and John

Shapard of the Center provided assistance with particular data

elements.

1

S ome federal judges favor capping the number of federal district and circuit judgeships, in the sense of not having that

number grow larger than the current or a slightly higher

level. Other judges favor a policy of slow growth, requesting additional judgeships to deal with additional work but only when procedural, jurisdictional, and structural adjustments clearly prove ineffective. Still others favor a policy of steep and immediate growth,

asking Congress to at least double the number of judgeships. This

paper analyzes the arguments for and against imposing a cap on

the number of judgeships but in so doing references also the two

other approaches to the size of the judiciary.

We have focused our analysis on the capping proposal because

it has been advanced from several quarters and is the subject of

immediate debate within the judiciary: one committee of the Judicial Conference of the United States has endorsed a cap and three

others are considering it. Several prominent commentators have

advocated limiting growth to a maximum quite close to the current

number of authorized judgeships. In using the capping proposal as

the vehicle for analysis, however, we do not mean to suggest that it

is the approach favored by most judges. It is not, according to a recent Center survey, and the Judicial Conference explicitly rejected

it in 1990.

This paper does not present a Federal Judicial Center position

on whether the judiciary should endorse a cap or any other approach. It attempts to summarize fairly and analyze the competing

arguments.1 It thus responds to the Center’s mandate to “conduct

research and study of the operation of the courts of the United

States, and to stimulate and coordinate such research and study on

the part of other[s].”2

The paper is organized in three parts:

• Part I describes the current processes for creating lifetenured judgeships and summarizes the evolution of the idea

of a moratorium on their increase.

1. It is not our intent, however, to present fully the case of the proponents or

the opponents of particular approaches, and it is not necessary to do so to

accomplish the paper’s purpose.

2. 28 U.S.C. § 620(b)(1).
Imposing a Moratorium on the Number of Federal Judges

2

• Part II provides background on moratoria already imposed

on the House of Representatives and the Supreme Court.

• Part III, the heart of the paper, presents the various arguments for imposing a moratorium on new judgeships, responses to those arguments, and commentary.

The terms “cap,” “ceiling,” and “moratorium” (in the dictionary

sense of “a suspension of activity”) are used interchangeably in the

paper to denote a recognized limit on the number of judgeships,

intended to persist for several decades at a minimum.
3

Part I: Introduction

This part describes how the number of judgeships has grown and is

now determined and summarizes the emergence of the moratorium concept.

The growth of the judiciary and current arrangements

for regulating its size

Congress controls the number of circuit and district judgeships by

amending the numbers in 28 U.S.C. §§ 44(a) and 133(a). The last

amendments were in 1990, when Congress increased circuit judgeships to 179 and district judgeships to 649.3 Thus, there is now and

always has been a cap on the number of circuit and district judgeships, and Congress has routinely raised that cap. A moratorium as

the term is used here would change the historic assumption that

the number of judgeships should be periodically increased.

Figures 1 through 4 lay out the growth in the number of lifetenured judgeships, general and lawyer population, and district

and appellate filings. These numbers and trends are subject to various interpretations. We leave it to the readers to draw their own

conclusions about the data’s significance for the debate about the

appropriate size of the federal judiciary.

Growth of the number of circuit and district judgeships

The 1789 Judiciary Act provided for six Supreme Court justices and

created thirteen district courts and thirteen district judgeships. The

district courts were limited jurisdiction trial courts. Supreme Court

justices served with the district judges on the system’s principal trial

court, the circuit court; there were no separate intermediate appel3. This figure includes thirteen temporary judgeships, explained below at

note 12. Not included are district judges serving in territorial courts. We have also

excluded from our tallies the nine authorized (life-tenured) judgeships on the

Court of International Trade (see 28 U.S.C. § 251).
Imposing a Moratorium on the Number of Federal Judges

4

late courts until 1891.4 The Act provided a small federal judiciary

because it created a very limited federal jurisdiction, principally

founded on admiralty, federal crimes, and diversity of citizenship.

There was no general federal question jurisdiction until 1875.5 Until the twentieth century, most federal judicial districts had only one

judgeship. Congress created most new judgeships by creating new

districts. The separate courts of appeals created in 1891 were primarily three-judge courts well into the twentieth century.

Figure 1 shows the increase in district judgeships since 1789

and courts of appeals judgeships since 1891. The increase has been

accelerating since World War I and especially since mid-century.

(Since 1950 the numbers of district and of circuit judgeships have

both roughly tripled.6)

Identifying the factors driving this increase is not central to this

paper, although, as Figure 2 suggests, the increase is not simply a

function of a growing population. Figures 3 and 4 show that filings

have grown faster than judgeships.

4. The 1789 Act also created circuit courts, which were primarily trial courts,

but no separate judgeships for them. Rather, the circuit courts were staffed by the

district judges and Supreme Court justices. The circuit courts had some appellate

jurisdiction over the district courts. In 1869, Congress created nine separate circuit

judgeships, one each to attend the circuit courts in each circuit and thus relieve

the justices of some circuit-riding duties. Act of Apr. 10, 1869, 16 Stat. 44 (1869).

5. Act of Mar. 3, 1875, 18 Stat. 470 (1875).

6. From 65 to 179 authorized circuit judgeships and from 212 to 649 authorized district judgeships (including thirteen temporary judgeships). Based on data

in History of the Authorization of Federal Judgeships, Including Procedures and

Standards Used in Conducting Judgeship Surveys, Tables 5 & 6 (1991) (report

prepared by the Analysis and Reports Branch, Statistics Division, Administrative

Office of the U.S. Courts) (hereinafter Judgeship Authorization).
Imposing a Moratorium on the Number of Federal Judges

5

Figure 1

Number of judgeships, 1800–1991

0

100

200

300

400

500

600

700

1800 1850 1900 1950 2000

Courts of Appeals

District Courts

Number of Judgeships

Year

1891

Source: Judgeship Authorization, supra note 6, at Table 7; 1991 Annual Report of

the Director of the Administrative Office of the U.S. Courts 126, at Table 29.
Imposing a Moratorium on the Number of Federal Judges

6

Figure 2

Percentage increase since 1900 in total population, lawyer

population, and Article III judgeships

Year

Percentage Increase

1900 1920 1940 1960 1980 2000

0

100

200

300

400

500

600

700

Article III Judgeships

Total Population

Lawyer Population

Note: Lines show percentage increases over 1900, not numerical increases.

Source: Data on judgeships from Judgeship Authorization, supra note 6, at Table

7.

Data on U.S. lawyer population are from American Bar Foundation, Lawyer

Statistical Report: A Statistical Profile of the U.S. Legal Profession in the 1980s, at 4,

Table 1.1.1, Total Population, Lawyer Population, and Population/Lawyer Ratio in

Selected Years (1985) (see source for qualifications); American Bar Foundation,

1971 Lawyer Statistical Report, at 5, Table 1, National Distribution of Lawyers by

City Size and Sex, 1948–1970; David S. Clark, Adjudication to Administration: A

Statistical Analysis of the Federal District Courts in the Twentieth Century, 55

S. Cal. L. Rev. 65, 94–95 (1981).

Data on U.S. population are from U.S. Bureau of the Census, Statistical Abstract

of the United States: 1992, at 8, Table 2, Population: 1900 to 1991 (see source for

qualifications).
Imposing a Moratorium on the Number of Federal Judges

7

Figure 3

Percentage increase since 1910 in district court judgeships and

cases filed in the district courts

Year

Percentage Increase

Judgeships

Civil Filings

Criminal Filings

0

200

400

600

800

1000

1200

1400

1600

1910 1930 1950 1970 1990

Note: Lines show percentage increases over 1900, not numerical increases.

Source: Data from 1991 Annual Report of the Director of the Administrative

Office of the U.S. Courts at Tables 5, 8; Richard Posner, The Federal Courts 350–

52, at Table B.2 (1985).
Imposing a Moratorium on the Number of Federal Judges

8

Figure 4

Percentage increase since 1900 in circuit judgeships and cases filed

in the courts of appeals

Year

Percentage Increase

Judgeships

Filings

0

500

1000

1500

2000

2500

3000

3500

4000

1900 1920 1940 1960 1980 2000

Note: Lines show percentage increases over 1900, not numerical increases.

Source: Data from 1991 Annual Report of the Director of the Administrative

Office of the U.S. Courts at Tables 5, 8; Richard Posner, The Federal Courts 350–

52, at Table B.2 (1985).

Current procedures for creating judgeships

Since 1964, the Judicial Conference has submitted periodic legislative proposals for additional judgeships. Those “judgeship bills” are

based on surveys of judgeship needs conducted by the Judicial Conference Committee on Judicial Resources (and predecessor committees) and, more particularly, its Subcommittee on Judicial Statistics.7The Conference has adopted a numeric standard that the de7. The surveys were roughly quadrennial from 1964 to 1980, when they became biennial. See Judgeship Authorization, supra note 6, at 2–4. Before 1987 and
Imposing a Moratorium on the Number of Federal Judges

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sired workload for a district judge is no more than 400 weighted filings per year and for a circuit judge, a benchmark of 255 merits dispositions.8 The Conference considers more than these standards in

developing judgeship recommendations, however.9 A 1993 General

Accounting Office report characterized as “reasonable” the

Conference’s method of developing judgeship recommendations,

while recognizing limitations in the Conference’s workload measures and “the judgmental nature of much of the Conference’s decisionmaking.”10

Of course, Congress is under no obligation to adopt the Judicial

Conference recommendations, and it occasionally provides more

or fewer judgeships and for different courts than those recommended by the Conference.11

Finally, Congress sometimes creates temporary judgeships to

meet caseload pressures regarded as temporary. The judgeship is

“temporary” in that a future vacancy (e.g., the first occurring after

five years) will not be filled. The temporary judgeship thus creates

no permanent increase in the court’s authorized judgeships.12

the creation of the Resources Committee, the Court Administration Committee

and its Statistics Subcommittee developed judgeship proposals.

8. “Weighted filings” is a statistical construct that adjusts the number of raw

district court filings in light of the relative burden that different types of cases impose on judges. Those relative burdens are in turn based on time studies that the

Federal Judicial Center conducts for the Statistics Subcommittee. The “merits dispositions” figure for appellate courts is a rough measure of dispositions by judicial

action.

9. The Statistics Subcommittee also consults with judges and court managers,

who may argue that filing data underestimate the true judicial burden in a court

or conversely that, despite the need for additional judgeships based on formula,

the court does not desire the additional judgeships because it believes any benefits

they would provide are outweighed by their costs in efficiency and collegiality.

(This latter argument is most often made by appellate courts.)

10. U.S. General Accounting Office, Federal Judiciary, How the Judicial

Conference Assesses the Need for More Judges 1 (1993).

11. See infra note 105.

12. Pub. L. No. 101-650, § 203(c), 104 Stat. 5101, established thirteen temporary judgeships in thirteen districts but provided that the first vacancy in each

district occurring five years or later would not be filled. See 28 U.S.C.A. § 133.
Imposing a Moratorium on the Number of Federal Judges

10

Adjusting workload, procedures, and capacity to

promote system effectiveness

Debate over the size of the judiciary—life-tenured and other judges

and supporting staff—immediately faces two other elements: the

workload of the judiciary (often but not always framed in terms of

the appropriate scope of federal jurisdiction) and the judiciary’s

procedures (including the entire range of issues under the umbrella term “case management”).13

Four aspects of this debate are particularly relevant to the current inquiry. First, size is rarely considered in isolation. Size, workload, and procedure affect one another, and proposals for change

in one almost always implicate the others. For example, instead of

expanding capacity, one might favor restricting jurisdiction (e.g.,

diversity of citizenship jurisdiction) or resisting demands to

increase jurisdiction (e.g., bringing most gun crimes into federal

courts). Or, to accommodate expanded sentencing hearings, one

might favor abbreviating civil procedure instead of expanding

capacity. Or one might favor increasing judgeships or staff—or

creating additional forums—to accommodate increased workload

without restrictions on jurisdiction.

Second, as implied above, “size” of the judiciary can refer to the

number of circuit and district judges or to the total judicial plant,

which also includes bankruptcy and magistrate judges, staff attorneys, law clerks, probation officers, and other support staff.

Third, although workload and procedures have been debated

in terms of both expansion and restriction, the debate over size has

until now only been about expansion. Faced with growing federal

caseloads and seeing limited relief by way of additional procedural

or jurisdictional changes, the judiciary has historically sought additional judgeships. Chief Justice Burger’s request for ABA help in

getting more judgeships to implement the Speedy Trial Act represents a recurring theme: “see that Congress gives ‘us the tools,’ and

we will do the job.”14 On the other hand, Congress has occasionally

been skeptical about the judiciary’s judgeship requests. Many

13. Within the context of this three-part scheme, we include court structure

and alternative dispute resolution as part of the judiciary’s procedures.

14. Burger, State of the Judiciary—1975, 61 A.B.A. J. 439, 443 (1975).
Imposing a Moratorium on the Number of Federal Judges

11

judges, moreover, fear that enlarging their number, however necessary that may be, makes it more difficult to operate the courts and

to attract the best lawyers to serve as judges.

Fourth, precisely how one proposes to manipulate capacity,

workload, and procedure reflects one’s sense of the problem to be

solved and the values to be protected. Distinguished commentators

have advocated quite different approaches. Justice Scalia, among

others, has spoken about the “continuing deterioration”15 of the

federal courts. He compared them to what he perceived them to be

when he graduated from law school in 1960: “forums for the ‘big

case’—major commercial litigation under the diversity jurisdiction,

and federal actions under . . . laws regulating interstate commerce.”

More recently there has been “an explosion of new federal causes

of action . . . which often involve matters that are, in monetary

terms (and hence, in terms of the amount of time that counsel can

ordinarily devote to them), insignificant.” He listed several examples, ranging from certain Title VII cases to a $200 fee-splitting dispute between a bank and a real estate broker brought under the

federal Real Estate Settlement Procedures Act of 1974.16 He

lamented the changes that had been made to accommodate the increased workload: the “constant, and generally effective pressure

. . . to increase the number of federal judges . . . that helps the

docket [but] aggravates . . . the problem of image, prestige and

(ultimately) quality,” and “what is known as caseload management—essentially enabling the federal courts to dispose of the increasing number of routine cases more efficiently” but in the process changing judges into case processors.17 His proposed solution

was to create Article I courts for “large categories of high-volume,

relatively routine cases—Social Security disability cases, for example, and freedom of information actions”—with tightly constricted

appeal rights, and “greater specialization among [new] federal Article III tribunals,” to divert business “from the regular federal

15. Remarks by Justice Antonin Scalia before the Fellows of the American Bar

Foundation and the National Conference of Bar Presidents, Feb. 15, 1987, at 11

(manuscript).

16. Id. at 3–4.

17. Id. at 7 (emphasis in original).
Imposing a Moratorium on the Number of Federal Judges

12

courts” and thus give those regular courts “a chance of remaining

in the future what they have been in the past.”18

The opposing view has been expressed by, among others, Circuit Judge Stephen Reinhardt. In an October 1992 letter

(subsequently published) to the chairs of the House and Senate

Judiciary Committees, he characterized as “wholly meritless” the

view “that we must remain small so that the quality of judges will

remain high” and “wholly misguided” the view “that the federal

courts should remain elite in the sense that we should handle only

sophisticated problems involving large business interests” rather

than “the kinds of cases that affect individual rights and involve the

problems of the poor, the oppressed, the disabled and the victims

of discrimination.” Judge Reinhardt also said that the federal

courts, particularly the courts of appeals, are not “doing the same

quality work that we did in the past” and that new “expediting”

procedures “ensure that individual cases will get less attention . . . .

[W]e now all too often give cases second class treatment.”19 His proposed solution reflects his assumption that Congress would be unwilling to make changes necessary to stop “flooding the federal

courts with run-of-the-mill narcotics cases that should more properly be handled in our state system” and to ease the burdens and

additional trials and appeals that he says are caused by the

Sentencing Guidelines and mandatory minimum sentences.20

Thus, he proposed “simply that Congress double the size of the

courts of appeals” and expand them even more if it creates

additional district judgeships.21

In summary, then, proposals to change the interlocked variables of workload, procedure, and size implicate one’s view of the

role of the federal courts.

18. Id. at 9–10.

19. Reinhardt, Too Few Judges, Too Many Cases, 79 A.B.A. J. 52 (1993).

20. Id. at 53.

21. Id. at 52–53.
Imposing a Moratorium on the Number of Federal Judges

13

The idea of a moratorium

Fixing a permanent limit on the number of district and circuit

judges is a controversial proposal that has gained prominent adherents and opponents in the last several years.

In 1983, Judge Richard Posner wrote that his “first solution” to

the problems of the courts of appeals was “to stop creating new

federal district judgeships,” which he called a “stopgap measure,”

pending “fundamental reforms” of changed litigation incentives

and reallocated jurisdiction.22 The 1990 report of the Federal

Courts Study Committee warned that the federal judiciary would

soon reach “the limits of [its] natural growth” and referred sympathetically to (but did not endorse) “suggest[ions] that 1,000 is the

practical ceiling on the number of judges if the Article III judiciary

is to remain capable of performing its essential functions without

significant degradation of quality.”23 The Committee recommended more judgeships to handle the expanded federal criminal

caseload24 but stated that “the ultimate solution to the federal

courts’ caseload crisis” was not “[m]ore judgeships” but rather

“returning the federal courts to their proper limited role.”25 In his

1991 Year-End Report, Chief Justice Rehnquist called for “some

additional judicial resources . . . in the short run” but warned of

“the long-term implications of expanding the federal judiciary,”

pointing to others’ concern that “a federal judiciary rising above

1,000 members will be of lesser quality [and] an almost unmanageable size with an increasingly incoherent body of federal law.”26

In January 1993, Judge Jon Newman asserted that the number

of federal judgeships “must be held at 1,000 because once that

number is exceeded, it will be only a matter of time until the federal judiciary grows to 2,000, 3,000, and then 4,000. Growth of that

magnitude will seriously impair the federal judiciary’s ability to perform the vital tasks assigned to it under our system of govern22. Posner, Will the Federal Courts of Appeals Survive Until 1984? An Essay on

Delegation and Specialization of the Judicial Function, 56 S. Cal. L. Rev. 761 (1983).

23. Report of the Federal Courts Study Committee 8 (April 2, 1990).

24. Id. at 35, 112, 160.

25. Id. at 36.

26. Rehnquist, 1991 Year-End Report of the Federal Judiciary 2–4.
Imposing a Moratorium on the Number of Federal Judges

14

ment.”27 In a February 1993 report to the Judicial Conference

Committee on Long Range Planning, the Judicial Conference

Committee on Court Administration and Case Management recommended a set of organizational changes, including limiting the

federal judiciary “to the present number of authorized judgeships,

along with any increases for which need has been established . . . at

the time of the adoption of a Long Range Plan, but not to exceed

1,000 judgeships.” The Committee also recommended capping the

size of each circuit at twelve judges, and reducing the number of

circuits to ten.28

There has also been substantial opposition to the concept of a

moratorium. The Federal Courts Study Committee itself, while rejecting more judgeships as the “ultimate solution,” also recognized

“the need for increasing judgeships as caseload mounts, because

there is a finite limit to the number of cases to which a judge can

provide meaningful attention.”29 At its September 1990 meeting,

the Judicial Conference endorsed the following resolution proposed by the Committee on Judicial Resources after considering

the Federal Courts Study Committee recommendations. Specifically, the Conference

[a]greed to support the concept of maintaining a relatively small Article III judiciary through limitations on

the jurisdiction and caseload of the courts, but opposed

27. Newman, 1,000 Judges—The Limit for an Effective Federal Judiciary, 76 Judicature 187 (1993) (hereinafter Newman, 1,000 Judges); Judge Newman offered a

similar analysis in Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the

Federal Judicial System, 56 U. Chi. L. Rev. 761 (1989) (hereinafter Newman, Restructuring).

28. Report of the Judicial Conference Committee on Court Administration

and Case Management to the Judicial Conference Committee on Long Range

Planning, Feb. 16, 1993, at 2, 7 (hereinafter Court Administration Committee Report). The Judicial Conference’s Committee on Long Range Planning, its Committee on the Judicial Branch, and the Statistics Subcommittee of the Conference’s Committee on Judicial Resources are all examining the idea of a permanent

limit on the number of federal judges. The notion of a moratorium has been

noted in the popular press. See Schmitt, Push for More Judges Gains Political Steam,

Wall St. J., Feb. 24, 1993, at B12; Labaton, Clinton Expected to Change Makeup of Federal Courts, N.Y. Times, Mar. 8, 1993, at A1.

29. Report of the Federal Courts Study Committee 116 (April 2, 1990).
Imposing a Moratorium on the Number of Federal Judges

15

any efforts to set a maximum limit on the number of Article III judgeships.30

 An October 1992 Federal Judicial Center survey asked all federal judges about their support for or opposition to a wide array of

policy choices concerning federal court size, structure, procedure,

jurisdiction, and governance, including “Cap the number of Article

III appellate judges” and, separately, “district judges.” A majority of

active district judges and more than 40% of active appellate judges

strongly or moderately opposed a cap, while a quarter of active district judges and a third of active appellate judges strongly or moderately supported it.31 The specific numbers are shown in Table 1,

along with responses to questions about adding more judges.

(Respondents were presumably less familiar with the arguments

about the capping issue than they were with more long-standing issues, such as restricting diversity jurisdiction.)

Both moratorium supporters and moratorium opponents include judges appointed by Democratic and Republican presidents.

30. Report of the Proceedings of the Judicial Conference of the United States,

Sept. 12, 1990, at 93.

31. The Center sent the survey instrument, Planning for the Future: Survey of

United States Judges, October 1992 (hereinafter Survey), to all active and senior

judges, bankruptcy judges, and magistrate judges. The Center is using the results

in its statutorily mandated study of “structural alternatives for the Federal Courts

of Appeals” (Federal Courts Study Committee Implementation Act of 1990, section 302(c), as amended) and in its support for the Judicial Conference Committee on Long Range Planning and other Judicial Conference committees.

The results cited were tabulated in December 1992, reflecting an overall return rate of greater than 80%.
Imposing a Moratorium on the Number of Federal Judges

16

Table 1

Selected survey responses

Type of Judge Policy Choice Support Oppose

Active Appellate Add more appellate judges 24.6% 51.4%

Cap number of Article III appellate judges 34.0% 41.8%

Active District Add more district judges 37.9% 36.7%

Cap number of Article III district judges 25.6% 57.5%

Note: The category “Support” includes those who selected either “strongly support” or “moderately support.” “Oppose” includes those who selected either

“strongly oppose” or “moderately oppose.” The responses do not total 100% in any

case because some judges selected either “have mixed feelings” or “no opinion.”
17

Part II: Capping the Size of the House of

Representatives and the Supreme Court

Congress has twice imposed statutory moratoria on the size of government institutions that had previously grown incrementally to accommodate increasing population or workload. We discuss both of

these moratoria here because they provide an instructive historical

context, not because they necessarily furnish precedents applicable

to the federal district and circuit courts.

The House of Representatives

In 1929, Congress ended nearly a decade of debate by setting the

membership of the House of Representatives at 435.32 Congress

had increased the size of the House after each decennial census but

one, and in 1921, the House Census Committee recommended increasing it again from 435 to 483 but capping the size at 500. Proponents argued that effective representation demanded a larger

body, especially because the Nineteenth Amendment had doubled

the voting population, and because of increased legislative and

constituent work. A minority position called for maintaining the

membership at 435,33 citing the additional cost and decreased efficiency of a larger body and arguing that additional staff and more

sophisticated communications would enable the same number of

members to do more work.34 In 1929 Congress by statute fixed the

House at 435 members and adopted a scheme for automatic

periodic reapportionment of the 435 seats to reflect population

shifts. The House has had 435 members essentially since 1911.35

32. See infra the appendix.

33. House Census Committee, Apportionment of Representatives, H.R. Rep.

No. 1173, 66th Cong., 3d Sess. 29 (1921).

34. Id. at 29–30.

35. This number does not include delegates with limited voting rights from

U.S. territories and the District of Columbia added as recently as 1973. Jefferson’s

Manual and Rules of the House of Representatives of the United States, 101st

Cong., §§ 740, 741 (1988).
Imposing a Moratorium on the Number of Federal Judges

18

The Supreme Court

In 1869, Congress set the size of the Supreme Court at nine.

Congress had increased the Court’s size from six justices, as established by the 1789 Judiciary Act, to ten in 1862.36 The increases

reflected geographic and population growth: each justice served

one of the regional circuits as a circuit judge and, together with the

district judges, constituted the system’s chief trial court, the circuit

court. As Congress added circuits, it added justices to serve as circuit judges.

In 1861, in his first state of the union message, President Lincoln warned that “the country has outgrown our present judicial

system.” The problem was that the country’s legal activity required

more circuits than the number then authorized, but adding

enough justices to the Supreme Court to serve all the circuits that

were needed would make the Supreme Court “altogether too numerous for a judicial body of any sort.” His solution was to set the

Supreme Court at a “convenient number” and break the link between the number of justices and the structure of the judicial system.37

The next year Congress instead created a Tenth Circuit for California and Oregon and expanded the Court from nine to ten,38

In 1961, the House increased its membership temporarily to 437 to accommodate the new states of Alaska and Hawaii but returned to 435 following the 1960

census. See 2 U.S.C. § 2a, Temporary Increase in Membership, § 9 of Pub. L. No.

85-508, 72 Stat. 339 (1958); § 8 of Pub. L. No. 86-3, 73 Stat. 4 (1959).

Some observers are calling for an increase in the size of the House. Yates, A

House of Our Own or a House We’ve Outgrown? An Argument for Increasing the Size of the

House of Representatives, 25 Colum. J. L. & Soc. Probs. 157, 180 n.150 (1992); Lind,

A Radical Plan to Change American Politics, The Atlantic, Aug. 1992, at 73; Kromkowski & Kromkowski, Why 435? A Question of Political Arithmetic, 24 Polity 129, 134

(1991).

36. Act of July 15, 1862, 12 Stat. 576. See generally on the growth of circuits

and the size of the Supreme Court R. Wheeler & C. Harrison, Creating the Federal

Judicial System (Federal Judicial Center 1989).

37. Message to Congress of Dec. 3, 1861, in 5 The Works of Abraham Lincoln

41–42 (R. Basler ed. 1953).

38. Act of July 15, 1862, “To Amend the Act of Third of March, 1837 . . . ,” 12

Stat. 576 (1862). In 1855, Congress had created a separate California circuit—a

tenth circuit not so named, and staffed not by a Supreme Court justice but by the
Imposing a Moratorium on the Number of Federal Judges

19

but an 1866 statute forbade replacement nominations until the

Court consisted of seven members.39 Congress and the Court

sought to create a Court of more manageable size and to make it

easier for Congress to raise judicial salaries.40 A growing Supreme

Court caseload, however, prompted reconsideration of the goal of

a seven-member Court, and there was concern as well with the

eight-member court then sitting (which could reach ties).

In response to these concerns, Congress increased the number

of justices to nine, reduced the number of circuits to nine, and created nine separate judgeships for the circuit courts to relieve the

justices of some circuit-riding duties.41 No one probably expected

that the 1869 statute would set the number of justices for over a

century. It had that effect in part because Congress did not increase

the number of circuits until after it had effectively relieved the justices of any circuit-riding duties.42 Thus the concept of a ninemember Court had time to become a fact of judicial life.

Separate courts of appeals and broadened discretionary jurisdiction have allowed the Court to stay current with its work with the

same number of justices it had in 1869. There have been, to be

sure, occasional discussions of expanding the Court. In the years

before the enactment of the 1891 circuit court act, as the Court became seriously backlogged, Congress considered an eighteenmember Supreme Court, with nine justices serving on the circuits

through a rotational scheme.43 In the 1930s, President Roosevelt

proposed increasing the Court’s size for every justice over the age

of seventy, both to shorten case disposition time and to dilute the

first-ever separate circuit judge. Congress abolished the separate California circuit

when it rearranged the circuits in 1869.

39. Act of July 23, 1866, “To Fix the Number of Justices of the Supreme Court

of the United States, and to Change Certain Judicial Circuits,” 14 Stat. 209 (1866).

40. S. Kutler, Judicial Power and Reconstruction Politics 49–63, esp. at 54–55

(1968).

41. Act of Apr. 10, 1869, 16 Stat. 44 (1869).

42. The Circuit Court Act of 1891 virtually eliminated circuit riding. Act of

Mar. 3, 1891, 26 Stat. 826 (1891). In 1929, Congress split the Eighth Circuit to

create the Tenth Circuit. Act of Feb. 28, 1929, 45 Stat. 1346 (1929).

43. F. Frankfurter & J. Landis, The Business of the Supreme Court 79, 82–83

(1928). Similar schemes had been debated in the 1860s; see S. Kutler, supra note

40, esp. at 58.
Imposing a Moratorium on the Number of Federal Judges

20

impact of anti-New Deal justices. In 1972, before recommending a

national court of appeals to help the Supreme Court with its workload, the Freund commission dismissed as “counter-productive” an

increase in the number of justices, paraphrasing Chief Justice

Hughes’s 1937 prediction that “there would be more judges to

hear, more to consult, more to be convinced.”44

Relevance to current proposals to limit the number

of circuit and district judgeships

These histories illuminate five aspects of the debate over a cap on

Article III judgeships. First, both Congress and the Supreme Court

are unitary bodies. In each, size affects the ability to function as a

group, a fact that argued in support of capping the size of each. By

contrast, the more than 800 district and circuit judges do not

function as a unitary body (although there may be other reasons to

justify capping their numbers).

Each appellate court is itself a unitary body, however, although

each does much of its work in panels. Size affects the relationships

among the members of each appellate court, and the total number

of judgeships is an important factor in determining the best structure for the appellate judiciary.

44. Report of the Study Group on the Caseload of the Supreme Court 7

(1972).
Imposing a Moratorium on the Number of Federal Judges

21

Table 2

House and Senate employees,

overall legislative branch appropriations

House of Representatives Senate

Year

Members’

Staff

Per

Mem

-ber

Committee

Staff

Senators’

Staff

Per

Senator

Committee

Staff

Budget (in

1989 dollars)

1891 NA NA 62 39 .46 41 NA

1916 NA NA 105 72 .75 198 NA

1930 870 2 112 424 4 163 NA

1947 1,440 3 167 590 6 232 $343.1

1967 4,055 9 571 1,749 18 509 $832.2

1977 6,942 16 1,776 3,554 36 1,028 $1,971.9

1989 7,569 17 1,986 3,837 38 1,013 $1,804.6

Note: The 1967 figures for committee staff are based on 1965 data. Budget figures are in millions of dollars and reflect 1989 constant dollars. Staff do not include

employees of support agencies (e.g., Library of Congress, General Accounting Office, Congressional Budget Office, and Office of Technology Assessment).

Source: Data are from Norman Ornstein, et al., Vital Statistics on Congress,

1991–1992 (1992). House and Senate staff are from id. at 126, Table 5-2;

committee staff are from id. at 130, Table 5-5; legislative appropriations are from

id. at 136, Table 5-9. Constant 1989 dollar figures were calculated for this paper

using the Consumer Price Index.

Second, both the House and the Court operate differently than

they would without a cap. We cannot specify, obviously, how either

would operate had they increased in size beyond 435 or nine, but

part of the increased use of staff in both may be due to restrictions

on the number of principals. Table 2 shows the increase in House

and Senate staff over the last century. The increase is obviously a

product of other factors in addition to the moratorium on House

members (the principal-to-staff ratio has grown slightly more in the

Senate), but 435 members probably need more staff, per member,

to do the work that might otherwise fall to, say, 870 members.

Chambers and central legal staff have also helped the Supreme

Court keep abreast of its workload.
Imposing a Moratorium on the Number of Federal Judges

22

Third, both the House and the Court are better able to handle

the effects of a cap than are the district and circuit courts. Legislators can be active participants in determining how much additional

work is brought into their institution; they do not have to introduce, much less take seriously, every piece of legislation proposed

to them. The Supreme Court has by now an almost wholly discretionary jurisdiction. In contrast, under current law, district and circuit judges must give due consideration to every case brought to

them.

Fourth, in both cases, fixing the size of the institution required

abandoning the principle that membership would increase as population grew. The House has used a reapportionment scheme that

reallocates seats based on relative population shifts. As some areas

gain representation, others lose it. Before its cap, the Supreme

Court’s size was a function of the number of circuits, which in turn

reflected national expansion and growth. Justices were often selected with reference to the circuits they would serve. Now, although the Court still assigns its members “as circuit justices,”45

geography is no more than a minor factor in selecting justices.

Fifth, the long-standing ceilings on the size of both the House

and the Supreme Court are statutory46 rather than constitutional.

Although their sizes could thus be changed by statute, as they were

throughout the nineteenth century, in fact both statutory provisions have gained the weight of tradition and, in the case of the

Court, perhaps of “constitutional convention.”47

45. 28 U.S.C. § 42.

46. The House is fixed by 2 U.S.C. §§ 2a, 2b and the Supreme Court by 28

U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”). A reduction in the Court’s size would have to protect sitting justices’ tenure.

47. One observer has recently characterized the size of the Supreme Court as

a “constitutional convention.” Wilson, American Constitutional Conventions: The

Judicially Unenforceable Rules That Combine with Judicial Doctrine and Public Opinion to

Regulate Political Behavior, 40 Buff. L. Rev. 645, 674 (1992).
23

Part III: A Moratorium on New

Circuit and District Judgeships:

The Case For and Against

None of the writings supporting the moratorium have carried the

argument beyond a statement of the numerical ceiling to be imposed and a description of the conditions promoters believe a ceiling would alleviate. We know of no analysis of the details of implementing a moratorium.

To inform the debate on alternative approaches to the size of

the judiciary, Section A presents a summary brief for capping the

judiciary, and a response in opposition to each point in the brief.

Section B provides some concluding comments. We use only readily available data to analyze the competing arguments.

A. The arguments

The argument for a moratorium begins with the assertion that any

further significant increase in the size of the federal judiciary will

change the institution’s fundamental character to the serious

detriment of the nation. The federal judiciary must not grow significantly larger if it is to protect its effective working relations, prevent undue inter- and intra-court conflicts, avoid an unacceptable

number of mediocre appointments, and provide the public with an

effective and respected forum. All these conditions are essential to

maintaining a federal judiciary of the kind and quality that the

country expects. Furthermore, as the judiciary grows, it must present increasingly unpalatable budget requests to Congress; a large

court system will be unlikely to get the resources it needs to function effectively.

Without the drastic action of an explicit moratorium, however,

the federal judiciary will grow significantly. A moratorium will prevent that growth in two ways. It will hold constant the number of

judgeships, and it will force Congress to restrain the need for more

judges by limiting the federal judicial workload to disputes that

most need the federal forum. Finally, a moratorium is practical. It
Imposing a Moratorium on the Number of Federal Judges

24

can work through a reapportionment approach somewhat analogous to that applied to the House of Representatives.

More specifically, moratorium proponents make these arguments:

1. Continuing increases in the size of the federal judiciary

will eventually create unacceptable problems:

a. Unchecked expansion of district and circuit judgeships vitiates the historic understanding, based on

federalism, that the federal judiciary is a specialized

body of limited jurisdiction.

b. Cohesiveness and efficiency will be impaired.

c. The quality of federal courts will decline because:

(1) As the number of judgeships increases, the ability of the office to attract the most qualified individuals will decline.

(2) As the number of vacancies to be filled increases,

it will become increasingly difficult for executive

and legislative branches to nominate and

confirm with sufficient care.

d. A larger federal judiciary will require more resources

than Congress will be willing to appropriate.

2. Without an explicit moratorium, the federal judicial workload will continue to grow, leading Congress to continue

to add more judgeships to the system.

3. A moratorium will allow the courts to avoid growing larger

because it will force Congress to control jurisdictional expansion and restrict unnecessary access to the courts, and

it will force the courts to develop more efficient procedures.

4. A cap on the number of judgeships can be successfully implemented.

a. A statutory change can be effective.

b. Only an unequivocal cap, identified and argued for as

such, will assist the federal courts.

c. Geographic shifts in demand for judicial services can

be accommodated.
Imposing a Moratorium on the Number of Federal Judges

25

Opponents of a cap maintain that a ceiling on the number of

circuit and district judgeships will exacerbate, not solve, the problems that moratorium supporters believe beset the federal courts.

Whether or not a moratorium is in place, Congress will surely expand jurisdiction in response to new claims pressed by constituents,

although its statutes will be empty gestures if there are insufficient

judges to hear the cases that result. The federal caseload will increase, in fact, even if no new federal causes of action were created,

simply because more people will turn to the federal courts as population grows. Congress, though, would be incapable of the carefully

calibrated adjustments to jurisdictional statutes that might otherwise restrain federal filings.

Unless the number of judges keeps relative pace with the legal

problems needing their attention, meaningful access to the federal

judicial forum will be denied to many citizens whose claims entitle

them to that forum. The same number of judges will be forced to

handle a greatly increased number of cases, to the point that few

cases will get the judicial attention they require.

A moratorium would also impede efforts to increase gender,

ethnic, and racial diversity on the federal bench. And a moratorium

would require relocating judgeships geographically to accommodate the shifts of judicial business, threatening the historic sense

that federal courts reflect local legal and social cultures, and thus

creating additional legislative disincentives to make the moratorium work effectively.

These basic facts, opponents contend, demand rejection of the

moratorium proposal but still accommodate more than one approach to ensuring an effective judiciary. One approach favors

adding judges if and when necessary but would avoid large increases in judgeships by having the judiciary embark on a vigorous

campaign of maximizing procedural innovations, promoting structural change where necessary, and working even more closely than

at present with Congress and the executive to restrict federal judicial workload to disputes that truly need the federal forum. Another approach favors a significant expansion—perhaps a doubling

or more—of the number of judgeships. In this view, the nation

must invest the comparatively small sums necessary to provide

judgeships sufficient to ensure fair hearings to all persons entitled
Imposing a Moratorium on the Number of Federal Judges

26

to the federal forum, particularly those disadvantaged elements of

society that tend to get inadequate attention when judicial resources are at a premium.

We turn to an analysis of the arguments for and against imposing a ceiling on the number of judgeships.

1. Continuing increases in the size of the federal judiciary

will eventually create unacceptable problems

a. Unchecked expansion of district and circuit judgeships vitiates

the historic understanding, based on federalism, that the federal

judiciary is a specialized body of limited jurisdiction

The argument

The lower federal judiciary was created in 1789, and should

remain today, as courts of limited, specialized jurisdiction, to decide cases that Congress believed needed disposition by judges appointed for life, rather than a term, and selected and compensated

by the national government. Continued expansion of federal jurisdiction in response to interest group demands leads inevitably to

continued growth in the federal judiciary. Such unchecked growth

calls into question the basic principle of a federal judicial system

and will soon make the federal judiciary “indistinguishable from

state court systems.”48 Fixing permanently the size of the federal

judiciary will oblige Congress to restrict federal jurisdiction, and

oblige the executive to limit its prosecutorial activity to cases that

need the federal forum.

The response

It is easier to say that federal courts should exercise a specialized jurisdiction than it is to enunciate precise and accepted rules

by which to allocate cases between federal and state forums. Federal prosecutors, for example, may proceed against a small-time

drug seller as the opening step in a prosecution that, if carried to a

successful conclusion, is clearly a federal case. Federal civil jurisdiction has always been shaped by legislative perspectives about which

48. Newman, 1,000 Judges, supra note 27, at 194.
Imposing a Moratorium on the Number of Federal Judges

27

interests need federal courts—from the commercial interests for

which the first Congress enacted a diversity of citizenship jurisdiction, to victims of racial and other forms of arbitrary discrimination

for which more recent Congresses have enacted civil rights statutes.

It is unwise to posit a desired size for the federal courts and

then try to allocate them a jurisdiction appropriate to that size. We

must first decide on the function of the federal courts—what should

they be doing? Once this decision is made, the appropriate size of

the federal judiciary can be determined. The effect of fixing size

before understanding the work to be done will be to shut off

practical access to the federal courts by those who may need it most

and to preclude Congress from strengthening individual rights or

passing new legislation that could be effectively enforced in the

federal courts.

b. Cohesiveness and efficiency will be impaired

The argument

Bigness harms court operations. Size poses particular threats to the

operation of the federal appellate courts, in terms of both intraand intercircuit conflicts and relations among the judges. Above a

certain size, collegial appellate courts do not operate effectively. In

1964, the Judicial Conference Special Committee on the Geographic Organization of the Courts, while recommending more

judgeships for the Fifth Circuit, also recommended splitting it into

two circuits, citing the long-recognized proposition that “nine is the

maximum number of active judgeship positions which can be allotted to a court of appeals without impairing the efficiency of its operation and its unity as a judicial institution.”49 The Judicial Conference Committee on Court Administration and Case Management has this year stated that twelve judges is the “functional limit”

for “a body of judges small enough to function truly as a court” and

thus create and preserve “[t]he law of the circuit with its attendant

predictability.”50 Judge Newman states that his Court of Appeals for

the Second Circuit, now at thirteen, is “managing, but as I con49. Report of the Judicial Conference of the United States, March 1964, at 14–

15.

50. Court Administration Committee Report, supra note 28, at 7.
Imposing a Moratorium on the Number of Federal Judges

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template our court in the middle of the next century numbering, at

current trends, fifty or sixty judges, I despair. It will not be a court;

it will be a stable of judges, each one called upon to plough

through the unrelenting volume, harnessed on any given day with

two other judges who barely know each other.”51

Efforts to preserve comparatively small appellate courts without

limiting the overall number of judgeships also produce bad consequences: dividing the circuits and increasing their number, destroying, in Judge Newman’s words, “the unitary nature of the federal

judicial system, with a small number of cohesive circuits,” and

bringing about “an inevitable decline in the coherence of a body of

federal law,” essentially unreviewable by the Supreme Court.52 That

is a prospect that proponents of more judgeships are reluctant to

face. Judge Reinhardt, in proposing a doubling of the appellate

judges, concedes “[t]here are disadvantages to bigness” but writes

them off as “insignificant in comparison to the disadvantages of . . .

an inadequate number of judges.”

The work of district courts is not collegial in the same sense as

that of the appellate courts, but appellate court workload is tightly

bound to district court output. It would be folly to cap the number

of appellate judgeships without doing the same for district judgeships, unless one favors putting access to the courts of appeals on a

discretionary basis. Judge Reinhardt’s proposal for doubling the

number of circuit judges assumes “the size of the district courts remaining the same” and concedes that any increase in district judges

would require a more than two-fold increase in circuit judges,”53 an

outcome that he does not specifically embrace. A further reason for

limiting the size of district courts is the difficulty of managing large

administrative units.

Growth expands workloads faster than the courts’ ability to cope with

them. As Judge Newman explains, “as case volume rises . . . [t]he inevitable response is to add more judges. But then . . . judges are

added at a rate that always falls far short of the rate of increase in

case volume.” In the Second Circuit, he notes, over forty-five years,

“the case filings increased more than ten times; the number of

51. Newman, 1,000 Judges, supra note 27, at 188.

52. Id.

53. Id.
Imposing a Moratorium on the Number of Federal Judges

29

judges slightly more than doubled. Case filings per judge more than

quadrupled.”54 Just as enlarging highways is not an ultimate cure

for traffic congestion, increasing the number of judgeships is not

an ultimate cure for docket congestion.

The response

Continued growth in filings without more judgeships would be

worse than any deleterious effect that bigness will have on the

courts. Between 1960 and 1991, appellate filings per judgeship increased from 57 to 252, and district filings per judgeship have

increased from 356 to 391. Had a moratorium been enacted in

1960, filings per appellate judgeship at the 1991 filing levels would

be 618, and filings per district judgeship would be 1,035. Some

might say that a cap would have helped restrain the increase in

filings, either because Congress would have restricted jurisdiction

or the queue would have discouraged litigants who would otherwise

have filed. As explained on page 41ff., a cap would not lead

Congress to reduce jurisdiction. But, for the sake of argument,

even had filings increased by only half as much as they did between

1960 and 1991, filings in 1991 would be 337 per appellate judgeship and 777 per district judgeship.55

Moreover, it is not true that most judges believe that the federal

judicial system is so large now that the qualities of inter- and

intracircuit consistency are in danger. In the Center’s survey of all

federal judges, 83% of the respondents said that they regarded

intracircuit and intercircuit inconsistencies to be no problem

(11%), a small problem (38%), or a moderate problem (34%). The

remaining judges said that inconsistencies were a serious problem

54. Newman, 1,000 Judges, supra note 27, at 188 (emphasis in original).

55. The calculations are based on the following data:

1960 1991

Type of Court Filings Judgeships Filings Judgeships

Circuit 3,889 68 42,033 167

District 87,421 245 253,477 649

For 1960, from Annual Report of the Director of the Administrative Office,

1970, Table 1, at 91, and Table 2, at 96; for 1991, from Annual Report, 1991, Table

1, at 81, Table 5, at 86, Table 8, at 90 (excludes the Federal Circuit).
Imposing a Moratorium on the Number of Federal Judges

30

(9%), a grave problem (1%), or declined to express an opinion

(7%)

There are also ways to deal with problems of diminished collegiality other than a ceiling on the number of judgeships. The structure created by the 1891 Evarts Act need not continue to shape our

appellate procedures. Serious restructuring to accommodate

needed judges is preferable to limiting the availability of judges to

hear cases that Congress now and in the future determines should

have a federal forum. The literature is replete with alternative

structures that could be considered and adapted to the goal of preserving collegiality and consistency.56 In the final analysis, however,

as Judge Carolyn King of the Court of Appeals for the Fifth Circuit

puts it, “we have had and will have a great number of judges. That

reality is simply a fact of life and something that judges would do

well to recognize. There is no point in clinging to the past if the

future arrived years ago.”57

c. The quality of federal courts will decline because:

(1) As the number of judgeships increases, the ability of the office to attract

the most qualified individuals will decline

The argument

The federal judicial system’s value to the nation depends on its

being regarded as a quality forum. That is why Congress looks to

the federal courts to deal with the most troublesome and important

problems. It is regarded as a quality forum largely because of the

quality of the people who have been willing to trade the prospect of

very high incomes for the opportunity to join a respected corps of

jurists doing important public work. As the judiciary grows, the attraction of the position declines. In 1954, Justice Frankfurter, bemoaning the impact of diversity jurisdiction on the federal

caseload, endorsed a House Judiciary Committee conclusion that

recent new judgeships “‘had done much to alleviate the problem’

but . . . that merely multiplying judges is no solution.” He went on:

56. Some but by no means all the possibilities are displayed in Report of the

Federal Courts Study Committee (April 2, 1992), esp. at 116–121.

57. King, Commentary, A Matter of Conscience, 28 Hous. L. Rev. 955, 959 (1991).
Imposing a Moratorium on the Number of Federal Judges

31

“inflation in the number of the district judges, . . . will result, by its

own Gresham’s law, in a depreciation of the judicial currency and

the consequent impairment of the prestige and efficacy of the federal courts.”58

The judiciary today seems to share Justice Frankfurter’s concern. As noted above, in the Center’s recent survey of all federal

judges, only a quarter of the active appellate judges strongly or

moderately supported adding more appellate judgeships, and half

of them strongly or moderately opposed such additions. Even district judges, whose courts have traditionally been regarded as capable of absorbing additional judgeships, were evenly split on the issue (37.9% versus 36.7% among active district judges).59

It is unfair, moreover, to see a moratorium as an effort by sitting

judges to protect their “club.” Moratorium supporters know that

the political consensus necessary for a moratorium will not develop

until many of them are no longer active judges. As Judge Newman

put it, “[m]y concern, at age 60, is not at all with personal prestige

but solely with the nature and functioning of the federal judiciary

well into the twenty-first century, a time when, whatever the hereafter holds, I am confident that my prestige will matter not at all.”60

The response

Justice Frankfurter offered his oft-quoted warning of depreciation in the judicial currency in 1954, when the number of district

and circuit judges was 313. Judge Newman, citing this warning and

an even earlier observation by then-Professor Frankfurter, states

that the “point is no less valid because it has been made before.”61

However, the fact that some people have always worried about a

depreciation of the judicial currency, even though its occurrence is

far from apparent, inevitably raises doubts about the validity of the

point.

58. Lumberman’s Mut. Casualty Co. v. Elbert, 348 U.S. 48, 59 (1954)

(Frankfurter, J., concurring).

59. See Survey, supra note 31, and accompanying text and Table 1.

60. Newman, 1,000 Judges, supra note 27, at 187.

61. Id. at 188.
Imposing a Moratorium on the Number of Federal Judges

32

 Since 1954, the number of district and circuit judges has more

than doubled.62 There is no evidence reflecting any decline in

those years in either the quality of the people serving on the federal

bench or the attraction of the position. That only a third of appellate judges and a quarter of district judges support a cap indicates that the present incumbents are not greatly concerned over a

“depreciation of the judicial currency.” Moreover, by 1985, the last

year for which data are readily available, the pool from which

judges are drawn had increased: there were more lawyers per federal judgeship then than there were in 1957.63 There is no reason

to believe that the pool is not adequate to supply excellent judges

in increasing numbers.

The threat to the judiciary lies not in diminished prestige but in

poor working conditions. Judge Frank Coffin reported that he has

“been far less concerned with a Gresham’s Law of Position, which

dictates a cheapening of the currency of prestige with increased

numbers, than with the increasing pressures in the name of efficiency and productivity. If the work is rewarding and important,

there will be more than sufficient prestige.”64 And many lawyers are

available to serve. As Judge Reinhardt has written, the nation’s

circuit judges are “all fine individuals,” but there are many “other

persons in the legal community who are just as fine, just as qualified

and just as talented as we are,” and they are eager to serve.65 And

not all prospective candidates for the bench are necessarily attracted by the “big case” for which Justice Scalia expressed a preference—even assuming that “major commercial litigation . . . and

federal actions under . . . laws regulating interstate commerce”

made up a larger part of the docket in 1960 than they do now, a

perception challenged by one who has examined the data.66

62. From 313 to 828 authorized district and circuit judgeships. See Judgeship

Authorization, supra note 6, at Table 7.

63. In 1985, there were 911 lawyers for each federal judge, up from 838 in

1957 and from 761 in 1966. Statistical Abstract of the United States, No. 319, at

188 (Jan. 1991).

64. Coffin, Research for Efficiency and Quality: Review of Managing Appeals in

Federal Courts (Book Review), 138 U. Pa. L. Rev. 1857, 1867 (1990).

65. Reinhardt, supra note 19, at 52.

66. Galanter, The Life and Times of the Big Six; or, the Federal Courts Since the Good

Old Days, 1988 Wis. L. Rev. 921, 922.
Imposing a Moratorium on the Number of Federal Judges

33

It bears mention also that imposing a moratorium on new

judgeship creation will slow the arrival on the federal bench of

women and minorities in greater numbers.67

None of this denies that federal judgeships today are insufficiently attractive to some lawyers who would make excellent federal

judges. But that has always been true, and any moratorium under

current conditions would render federal judgeships even less attractive by increasing the judicial workload.

(2) As the number of vacancies to be filled increases, it will become

increasingly difficult for the executive and legislative branches to

nominate and confirm with sufficient care

The argument

The large number of judgeships that even now must be filled

has led to a decline in selectivity, threatening to undermine the historically high standards of the federal judicial office. This is so for

two reasons.

First, as the total number of nominees grows, the selection process will be less able to give adequate consideration to each nominee. Appointments to life-tenured federal judgeships totaled thirteen in 1953, forty-three in 1954, and twenty-three in 1955.68 By

contrast, in 1990, 1991, and 1992, there were, respectively, fiftyeight, fifty-eight, and sixty-six such appointments,69 well over one a

week during the periods when the committees are actively processing nominations. The courts are rapidly approaching the point

where the selection process will be incapable of the thorough investigation necessary to ensure that nominees meet the standards of

the federal bench.

67. Obviously, the chance to appoint women and minorities to the courts of

appeals would be further reduced were Congress to adopt the Court Administration and Case Management Committee’s recommendation—to let the federal appellate bench decrease from 179 judges to 120 through attrition.

68. Compiled from the prefatory pages of the Federal Supplement for the

years in question.

69. Telephone conversation with Amy Nash, Nominating Clerk, U.S. Senate

Committee on the Judiciary, Mar. 5, 1993. These figures include Claims Court appointments.
Imposing a Moratorium on the Number of Federal Judges

34

Second, the requirement to fill large numbers of vacancies reduces appointing authorities’ sense of responsibility for the judges

they put in office. Any appointment to a small bench is highly visible, restraining Presidents and senators from putting forward

marginal nominees. A large bench changes things. Judge Newman

cites state officials who say: “‘That court has 127 judges—they’ll

never even notice’ [an appointee with “dubious credentials”.]” The

appointment is made. Few notice. The episode has been repeated

in many states.”70 And, as Judge Newman observed even four years

ago, there are “a few indications that the increase in the number of

federal judges . . . has not been accompanied by the maintenance

of customarily high standards in their selection, the quality of their

work, and in the functioning of the federal court system.”71

The response

There is no reason to believe that, even with a growing judiciary, the average increase in the number of nominees will be more

than marginal. Without sacrificing standards, the Senate can well

process more than an average of six appointments per month to

the district courts and courts of appeal, the largest number

handled in recent years. Most of the work is done by staff, and

hearings on most of these nominations take only a few minutes.

The assumption that appointments made at a somewhat greater

rate will necessarily receive less attention and care is unproved. The

addition of a judge to the federal bench will always be noticed by a

substantial number of persons, and the politics of the appointment

process alone tend to focus attention on prospective nominees.

There are, moreover, ways to protect the integrity of the selection process without denying the federal judiciary necessary resources. They include merit selection systems that use broad-based

commissions to screen potential nominees, expanding the executive branch and Senate resources devoted to the task, and raising

judges’ salaries and benefits. None is foolproof, but all are less risky

than a lack of needed judges.

70. Newman, 1,000 Judges, supra note 27, at 187–88.

71. Newman, Restructuring, supra note 27, at 763.
Imposing a Moratorium on the Number of Federal Judges

35

d. A larger federal judiciary will require more resources than

Congress will be willing to appropriate

The argument

At close to $3 billion,72 the federal judicial budget has become a

consequential item. It has grown over 1,000% in the last twenty

years (as compared to a 330% increase in the legislative budget and

a 435% increase in the executive branch budget).73 The judiciary’s

resource needs are already encountering congressional resistance

as the nation faces massive deficits. The cost of operating the

federal courts is primarily a function of the number of judges. The

annual costs of maintaining active and senior Article III judges, as

currently calculated by the Administrative Office, are depicted in

Table 3. Creating no new judgeships is the best way to contain the

growth of the federal judicial budget and related budgets (such as

the $7 billion to $8 billion projected for the current federal courthouse building program).74

72. The total of all federal judicial appropriations for fiscal 1993 is $2.47 billion. The request for fiscal 1994 is $3.16 billion. Administrative Office of the U.S.

Courts, The Judiciary, Budget in Brief, Fiscal Year 1994, Table 4, at 33 (Jan. 1993).

73. The appropriations to support the federal judicial system (not including

the Supreme Court) have grown from $186 million in fiscal 1973 to $2.4 billion in

1992, an increase of 1,196%. In the same twenty-year period, the total appropriations for the legislative branch have grown to $2.035 billion, a 336% increase, and the executive branch’s appropriations have increased by 435%.

The 1973 figures on which these calculations are based come from “1973 Actual Column” of 1975 U.S. Budget Summary, Table 3, at 45–47 (judiciary), 289

(legislative and executive). Figures for 1992 are from the President’s January 1993

budget document, Budget Baselines, Historical Data, and Alternatives for the Future,

Table 5.2, at 336. Judiciary budget calculations are less Supreme Court budgets

(for 1992 drawn from 1992 Actual Column of the judiciary’s fiscal 1994 budget

request document). Executive branch figures were reduced by $117.111 billion in

offsetting receipts noted for the entire federal budget in 1992 and $8.363 billion in

Undistributed Intragovernmental Transactions in 1973. The 1992 executive

branch appropriation used for these calculations is $1.464 trillion.

74. Slind-Flor, Court Orders, Nat’l L.J., Dec. 14, 1992, at 34.
Imposing a Moratorium on the Number of Federal Judges

36

Table 3

Direct and indirect costs of supporting one federal judge

(in thousands of dollars)

Circuit District

Senior

Circuit

Senior

District

Salaries, benefits, direct chambers support $475.9 $395.7 $269.9 $261.7

Court operations & maintenance

(e.g., travel, furniture, rent, security)

$338.1 $299.4 $299.2 $283.6

Total annual recurring cost $814.0 $695.1 $569.1 $545.3

Source: Administrative Office of the U.S. Courts, Cost to the Judiciary of Establishing a New Judgeship (effective Jan. 1, 1993) (as revised Nov. 17, 1992).

Congress, even as it has increased the courts’ budget dramatically, has not been fully funding the needs of the fast-growing federal judiciary. In 1993, the judiciary received considerably less than

it requested,75 and the future is not rosy. Without a moratorium,

the judiciary faces the prospect of more judges but increasingly inadequate financing.

The response

Resource considerations should not drive important policy

judgments concerning the need for federal courts to ensure the

fair and adequate administration of justice. In any case, even with

its recent growth, the entire third branch of government still uses

only about two-tenths of one percent of the entire federal budget.

The combined budgets of two suburban Washington, D.C., counties, Fairfax and Montgomery, equal that of the entire federal judicial system. The federal courts are one of the nation’s great public

bargains. Even if the costs of the courts were to double, the impact

would not be out of proportion to the social benefits that Congress

75. See, e.g., 102nd Congress Adjourns: Results Are Mixed Bag for Judiciary, The

Third Branch, October 1992, at 1 (“Congress handed the Judiciary its leanest budget in recent years, funding the judicial branch at about $200 million below the

amount needed just to stay even with the services provided in fiscal year 1992.”).
Imposing a Moratorium on the Number of Federal Judges

37

and the public have always seen in the work of an independent and

effective federal judiciary.

It is illusory to argue that capping the size of the federal courts

will save public money. In the diminished federal judicial future

that a moratorium would create, the public would bear the costs in

one way or another. Some suits would not be filed and some crimes

would not be prosecuted. Some litigation would be driven into the

state courts, already understaffed and underfunded in many states.

Avoiding a breakdown in the state courts may require infusion of

federal funds to support state justice systems, a financing arrangement that may not be as efficient as providing adequate federal

courts. Impaired access to the federal courts may also deter people

altogether from settling their disputes through the established adjudicatory processes, impelling them instead to seek private alternatives, including potentially destructive efforts at self-help.

2. Without an explicit moratorium, the federal judicial

workload will continue to grow, leading Congress to

continue to add more judgeships to the system

The argument

Moratorium opponents are correct that the economic, social,

and political factors that have traditionally led to increases in federal litigation, and thus in judgeships, will continue if left to their

own devices. But adding judgeships will only invite greater workload increases. The point is that the country needs dramatic action

to break the current cycle and reorder our thinking about the federal courts. Under the current approach, as the federal courts’ capacity is increased, time to disposition declines temporarily, thus attracting to the federal courts litigants who would otherwise have

filed in state courts or not have filed at all. Soon the courts are

clogged again and the call goes out for more judgeships, and the

cycle starts again. As noted above, adding or enlarging highways

may temporarily relieve congestion, but it is not a permanent solution.
Imposing a Moratorium on the Number of Federal Judges

38

The response

If the federal judicial workload continues to grow, there must

be adequate numbers of judgeships to handle the workload. The

courts can become more efficient and they can argue more forcefully for sensible jurisdictional statutes and prosecution policies,

but they must not be deprived of the ability to handle increased

caseloads. Enlarging highways may not reduce traffic, but does any

responsible person think the nation should stop highway construction for that reason? Phrased differently, where would we be had

we stopped expanding highways 30 years ago? As noted earlier, had

Congress imposed a moratorium in 1960, filings per judge today

would be totally beyond the system’s ability to handle.

As the population grows in size and diversity, and new social

and economic problems confront the country, the need for federal

courts to protect individual rights and enforce federal legislation

will increase rather than diminish. That is not to say, however, that

some of the pressure for additional judgeships might not be lessened by a reexamination by Congress and the Executive of the

criminal jurisdiction now exercised by the federal courts and the

sentencing laws (particularly mandatory minimum sentences) under which they must operate.

3. A moratorium will allow the courts to avoid growing larger

because it will force Congress to control jurisdictional

expansion and restrict unnecessary access to the courts,

and it will force the courts to develop more efficient

procedures

The argument

Congress. By creating a fixed-size judiciary, Congress would assume the obligations to weigh carefully whether the courts can absorb any particular additional jurisdiction, to adjust jurisdictional

statutes to contain workload increases that result from population

and other demographic factors, and to authorize necessary procedural and structural adjustments to ensure efficient case processing.
Imposing a Moratorium on the Number of Federal Judges

39

A cap would not preclude Congress from enlarging federal

court jurisdiction in response to newly emerging needs, but

Congress must be certain the courts can absorb the work and, if

they cannot, enact offsetting reductions. As the Court Administration and Case Management Committee put it, “When the sun rises

on new causes of action or crimes, it must set on some old ones.”76

For example, if Congress were to create new multi-party, multiforum jurisdiction, it should in exchange restrict access to

conventional diversity jurisdiction. Congress now weighs the budgetary impact of new programs to keep spending within overall limits; it can use this experience to weigh judicial impact to keep workload within overall limits.

Congress would also need to adjust jurisdictional statutes from

time to time as workload grows and population increases. There are

numerous relatively minor legislative and policy adjustments that

would prevent some transfers from state courts and discourage or

obviate certain other litigation, and a moratorium would give

Congress a strong incentive to enact them. For example, Congress

could bar removal under the Employee Retirement Income Security Act (ERISA)77 of state law wrongful discharge actions; eliminate

a private cause of action under the Racketeer Influenced and

Corrupt Organizations Act (RICO);78 eliminate resident plaintiff

diversity of citizenship jurisdiction and raise the jurisdictional minimum for diversity actions to $250,000;79 and bar removal of seamen’s personal injury actions under the Jones Act.80 To ensure that

cases needing the federal forum are not shunted off to state courts,

it has been suggested that Congress might provide the federal

courts with discretionary authority to grant requests to proceed in

the federal forum “under compelling circumstances.”81

The state courts are appropriate forums for many cases now in

the federal courts. As Judge Newman concedes, the state courts,

too, “are swamped, and they do not wish to grow.” But, he adds,

76. Court Administration Committee Report, supra note 28, at 6.

77. 29 U.S.C.A. §§ 1001–1461 (1974).

78. Court Administration Committee Report, supra note 28, at 8.

79. See 28 U.S.C. § 1332.

80. 46 U.S.C. App. § 688.

81. Newman, Restructuring, supra note 27, at 772. See generally id. at 770–76.
Imposing a Moratorium on the Number of Federal Judges

40

“these courts are already geared to handle high volume . . . . A reallocation of 70,000 cases from federal courts to state courts would

reduce federal court volume by 30 percent while increasing state

court volume only 1 percent.”82 Moreover, Congress can provide

funds to help state courts absorb the slight increase in cases that

would otherwise have gone on federal dockets.

A moratorium would also increase legislative interest in authorizing alternatives to traditional forms of litigation that are now not

authorized. For example, the Federal Judicial Center, at Congress’s

direction, evaluated the limited court-annexed mandatory arbitration program authorized in ten courts. The Center recommended

in 1992 that Congress broaden the authorization to allow all ninetyfour districts to adopt, at their option, either mandatory or voluntary arbitration.83 Congress has yet to adopt this recommendation.

An Article III judiciary fixed in size could increase the incentive for

Congress to do so. It would also encourage Congress to amend 42

U.S.C. § 1997e either to require state prisoner civil rights plaintiffs

to seek prior resort to (but not necessarily exhaustion of) state

prison grievance procedures, or make it easier for federal judges to

certify those procedures as fair and effective. Congress could establish alternative forums for cases involving student loan defaults and

veterans’ benefits; at present, the courts act as little more than collection agencies in these cases. Furthermore, the executive branch

could remove first-time, small-scale criminal offenders from the system by using diversion programs or minimum charges for such offenders.

Courts. A moratorium would oblige the courts “to become models of case management simply to manage likely increases in filings

within present jurisdictional structures”84 and would oblige

Congress to encourage innovation.

Some innovations could be adopted without legislative authorization. The 1990 Civil Justice Reform Act showed that modest

bench–bar planning could lead to procedural innovations to reduce cost and delay in the processing of civil cases. The Court Ad82. Newman, 1,000 Judges, supra note 27, at 194.

83. B. Meierhoefer, Court-Annexed Arbitration in Ten District Courts

(Federal Judicial Center 1990).

84. Court Administration Committee Report, supra note 28, at 6.
Imposing a Moratorium on the Number of Federal Judges

41

ministration and Case Management Committee has recommended

several innovations, including a two-track method of appellate review that it believes would allow the appellate courts to reduce their

number through attrition from 179 judgeships to 120.85

Other changes would require legislation. For example, the

Committee has also proposed that the current twelve circuits be

merged into ten and that ninety-four districts be merged into ten

district courts, one per circuit.86 Ten districts rather than ninetyfour would reduce the “attendant cadres of administrative staff, repeated in structure, if not in number, in all” ninety-four districts,87

and “the installation of professional managers would relieve judges

of administrative duties while reserving to them authority over policy issues arising from administrative matters.”88

The response

Congress. The judicial workload should be determined by societal needs, not by reference to an arbitrary limit on the number of

judges. And, as a practical matter, to assume that a moratorium

would induce Congress to hold constant the federal judicial workload is to ignore the dynamics of the political process. And to assume Congress could hold constant the federal judicial workload is

to ignore the effects of population growth and to attribute an unrealistic degree of precision to caseload analysis.

Capping the number of Article III judges will not stop Congress

from responding to constituent pressures for increased federal involvement in law enforcement and the resolution of particular civil

disputes. Congress must weigh constituent demands against any

concerns about federal judges’ workload. What appears apolitical

to a judge does not necessarily appear so to a legislator. Most of the

proposals described above as “relatively minor legislative and policy

adjustments,” or variations on those proposals, were urged in 1990

by the Federal Courts Study Committee89 and endorsed by the

85. Id. at 8–9.

86. Id. at 7, 9–10.

87. Id. at 10.

88. Id. at 5.

89. The Report of the Federal Courts Study Committee (April 2, 1990) recommended prohibiting removal of ERISA cases under $10,000 (pp. 43–44), re-
Imposing a Moratorium on the Number of Federal Judges

42

Judicial Conference, but few have even been introduced in

Congress. That is because federal jurisdiction is inherently a product of needs for federal protection of rights and interests as perceived by various groups in society and articulated through representative government. Those needs can be expected to expand.

Congress is unlikely to accept a moratorium even if it believes it has

been extravagant in expanding jurisdiction.

Moreover, federal court workload is not only a function of legislation that creates new causes of action. Even without jurisdictional

expansion, the dockets of the federal courts will grow as population

grows, as the number of lawyers increases,90 and as the economy becomes more national and international in character. As the number of federal prosecutors and investigators grows, criminal filings

will increase (the ratio of assistant United States attorneys to federal

district judges grew from 3.8 to 1, to 7 to 1, from 1980 to 1990).91

Minorities and other victims of discrimination will continue to apply to independent, life-tenured federal judges for redress of

grievances. Complex multi-district litigation that the federal courts

are uniquely positioned to resolve will increase.

pealing both the Jones Act (and allowing seamen to bring claims under an

amended Longshore and Harbor Workers’ Compensation Act) and the Federal

Employees Liability Act (and subsuming railway employees’ claims under existing

workers’ compensation systems) (pp. 62–63), prohibiting in-state plaintiff diversity

suits and raising the jurisdictional amount to $75,000 and indexing the new floor

(p. 42), amending 42 U.S.C. § 1997e to make it easier for federal judges to certify

state inmate grievance procedures as “fair and effective” and thus permit a stay of

120 days before proceeding with the federal suit (pp. 48–50), and limiting federal

prosecutions that could be brought as well in state court (pp. 35–38).

Congress has adopted one committee jurisdiction recommendation, however.

Pub. L. No. 101-650, tit. III, § 310, enacts the committee recommendation broadening federal jurisdiction by authorizing federal courts to assert pendent jurisdiction over parties without an independent federal jurisdictional base. See Report of

the Federal Courts Study Committee 46–47 (April 2, 1990).

90. See Figure 2, supra at p. 6.

91. There were 1,954 assistant U.S. attorneys in 1980 (see Annual Report of the

Attorney General of the United States 1980, at 70). There were 516 authorized

district judgeships (see Annual Report of the Director of the Administrative Office

of the U.S. Courts 1980, at 129). The 1991 figures were 4,017 and 575 (see U.S. Department of Justice, Legal Activities, 1991–1992, at 3; Annual Report of the Director 7).
Imposing a Moratorium on the Number of Federal Judges

43

It would not be enough simply for Congress to withdraw certain

outright grants of jurisdiction and decline to create others.

Congress would need constantly to be adjusting statutory provisions

respecting standing and amount in controversy, at a level of detail

and monitoring that is wholly unrealistic to expect.

Furthermore, even were Congress willing to try to balance workload increases with workload decreases, it would need reliable assessments of the number of judges required by a new cause of action or a growing population and identification of corresponding

jurisdictional restrictions. But efforts to predict the impact of legislation on the courts, which Chief Justice Burger proposed in

1972,92 have found little favor in Congress. Although the Administrative Office of the U.S. Courts has made noteworthy strides in assessing the likely budgetary impact on the courts of certain types of

legislation, it is not yet feasible to make accurate, broadly accepted

predictions of workload impacts. Only after statutes are enacted

and become subject to litigation can their true impact be gauged—

in fact, the impact is often not clear until long after enactment.

Even uncontroverted impact assessments would not produce

the carefully calibrated caseload balancing anticipated by moratorium supporters. Assume, for example, that there is general agreement that a statutory change would create additional workload

equivalent to that of eight district judges.93 Congress would assume,

plausibly, that the slight additional workload would be evenly

distributed across the system and that, with 1,000 judges, the system

could absorb that workload and would not need offsetting jurisdictional changes to reduce the workload by an equivalent amount.

The system would absorb the additional work through almost imperceptible procedural adjustments and slightly longer workdays

for some judges. This process would be repeated constantly until

92. Burger, State of the Federal Judiciary—1972, 58 A.B.A. J. 1049, 1050 (1972).

93. In 1978, for example, the Department of Justice’s Office for Improvements

in the Administration of Justice estimated that legislation then pending to subject

Veterans Administration rulings to review in federal district courts would require

eight new federal district court judgeships. Davis & Nejelski, Justice Impact

Statements: Determining How New Laws Will Affect the Courts, 62 Judicature 18, 24

(1978). The authors noted that they could not assess the impact of other sections

of the legislation, such as one increasing the $10 cap then in place on attorneys’

fees.
Imposing a Moratorium on the Number of Federal Judges

44

the fixed-size judiciary became an institution much different from

the one in place when the moratorium was imposed.

Are the state courts a proper repository for what the proponents of a ceiling regard as excess federal jurisdiction? While capping supporters propose shifting large numbers of cases to the state

courts, they also recognize that states have yielded time and again

to the temptation of appointing what one capping proponent calls

judges of “dubious credentials.”94 Furthermore, it is not enough to

say that the state courts, although burdened, are nevertheless

equipped to handle large caseloads. The most recent compilation

of state court filing data by the National Center for State Courts—

for 1991—also compares state and federal workloads, noting that

“the state general jurisdiction judiciary handles over 52 times as

many civil and criminal cases with only 15 times as many judges as

the federal judiciary.” The report recognizes that part of this difference may be explained by greater complexity of federal court cases.

But, adds the report, the fact of that greater complexity, and certainly its magnitude between state and federal cases, has not yet

been verified. Thus the report suggests examining such evidence

“before tampering with so fundamental an institution as the state

courts.”95

Courts. One of two massive changes—or perhaps both—would

overwhelm a judiciary of fixed size facing an expanding workload: a

much greater role for staff and severely truncated procedures.

Those who worry about an expanding judiciary cite the

prospect of staff domination, but in fact, staff domination is the

likely consequence of a moratorium. The growth to date in

bankruptcy and magistrate judges, law clerks, staff attorneys, and

94. Newman, 1,000 Judges, supra note 27, at 187. In 1989, Judge Newman

proposed a discretionary federal jurisdiction to allow the federal courts to hear

specific cases, among classes of cases shifted to state jurisdiction, when those

specific cases demanded the federal forum. See Newman, Restructuring, supra note

27.

95. B. Ostrom, State Court Caseload Statistics: Annual Report 1991, at 40, 44

(1993).
Imposing a Moratorium on the Number of Federal Judges

45

other staff96 would be modest compared with what would be necessary if Congress stopped creating judgeships. The House has had

435 members since 1911, but its workload is much greater than it

was in 1911. One result has been to transform the House into a

corporate structure of 435 separate offices. In each, the member

sets general policy and attends to numerous matters but is obliged

to leave at least some consequential decisions to permanent staff

members. The House had little choice but to limit its size, because

it must function as a unitary body. The federal judiciary has other

options.

Furthermore, judges would be so busy managing their judicial

workload that they would lose control of much administrative decision making. It may be comforting to put faith in what the Court

Administration and Case Management Committee calls “professional managers [who] would relieve judges of administrative duties

while reserving to them authority over policy issues arising from

administrative matters.”97 The dominant lesson of public administration in the modern era, however, is the futility of trying to

separate policy making from administrative implementation.

96. The growth in judgeships and court personnel is shown in the following

table:

Article III Judgeships, Judicial Personnel, and Staff Per Judgeship since 1900

Per Per

Year Judgeships Personnel Judgeship Year Judgeships Personnel Judgeship

1920 140 1,820 13.0 1980 663 13,190 19.9

1940 250 2,218 8.9 1991 828 23,586 28.4

1960 328 5,182 15.8

See Judgeship Authorization, supra note 6, at Table 2. Judgeships are district and

circuit judges only. 1991, 1980, and 1960 data include all federal judicial employees except Supreme Court Justices and personnel. Data for 1991 Personnel figures:

1991 AO Report, 127, Table 28. Data for 1980 Personnel figures: 1980 AO Report,

152, Table 19. Data for 1960 Personnel figures: 1960 AO Report, 205. 1940 and

1920 figures include all judicial employees, less the number of Article III judgeships, as listed by U.S. Bureau of the Census, Historical Statistics of the United

States, Colonial Times to 1970, Bicentennial Edition, pt. 2, 1102 (1976) (see

source for qualifications).

97. Court Administration Committee Report, supra note 28, at 5.
Imposing a Moratorium on the Number of Federal Judges

46

In addition, jurisdiction would become, if not by statute then by

practice, more discretionary. The Supreme Court functions well

with nine members only because Congress has allowed its docket to

become almost totally discretionary. Congress might authorize the

courts of appeals to exercise a certiorari-like jurisdiction, or it

might establish an appellate section within the district courts. The

Court Administration and Case Management Committee “would

urge adoption of either”98 alternative if its two-track case management approach is unable to sustain ten appellate courts of

twelve judges each.99 Otherwise, the courts of appeals will be forced

either to deny most cases any but the most cursory review or to

elevate the decisional role of staff. In the district courts, the search

for settlements will become not so much an effective aspect of case

management as a driving imperative. The relatively crude approach

of a moratorium on new judgeships will encourage equally crude

implementation, such as higher filing fees to regulate a growing

flood of litigants competing for the dwindling capacity of the

federal courts. And, as Judge Carolyn King of the Court of Appeals

for the Fifth Circuit notes, “when there is simply not enough

judicial time to go around, the temptation is to give shorter shrift

to the cases brought by our most vulnerable citizens[, who] are frequently without effective advocates.”100

The moratorium opponents’ point is not to criticize staff increases, or jurisdictional alterations, or structural changes, but

rather that such changes should be debated on their merits instead

of being allowed to occur in some uncharted way because of the

pressure created by keeping the number of judges finite while

workload grows. Most of the problems moratorium proponents

want to solve could be met, as some argue, by a more deliberate

policy of planned slow growth, a policy several circuits have already

embraced, or, as others argue, by a policy of significantly increased

growth.

98. Id. at 9.

99. Id.

100. King, supra note 57, at 963.
Imposing a Moratorium on the Number of Federal Judges

47

4. A cap on the number of Article III judgeships can be

successfully implemented

a. A statutory, as opposed to a constitutional, solution will suffice

The argument

The experiences of the House and the Supreme Court show

that a constitutional amendment is not necessary to effect a durable

moratorium on the size of a major institution of government. Thus

the nation can experiment with a ceiling without being locked into

a constitutional bind. A statute will suffice to set a limit on the

number of district and circuit judges. Such a statute will be as permanent as Congress elects to make it. Congress will retain the authority to deal with serious emergencies by statutory amendment.

Yet the very process of developing the moratorium will involve

Congress and the judiciary in hearings, analysis, study, and compromise, and those processes will impress upon both judges and

legislators the need not to tamper lightly with the size of the judiciary, just as it will fix in the mind of Congress the need for controlling the judicial workload. The statute fixing a new judgeship moratorium, like that capping the House, will need to specify a mechanism for adapting a fixed-size judiciary to geographic shifts in workload. Section c on page 50 describes such an approach. The temporary assignment authority will be available to accommodate special

needs during the transition.

The response

A statute would be insufficient to maintain a permanent ceiling

on the number of district and circuit judgeships, even if statutes

have been able to limit the size of the House and the Supreme

Court. An effort to increase the size of the Court would entail a

major national debate. Similarly, any effort to increase the size of

the House would implicate every other member of the House, diluting voting strength and posing the potential for much greater

dilution once the precedent were set.

By contrast, an effort to add one or two judgeships to seriously

overburdened districts or circuits would inevitably be less noticed.

A judgeship or two could be slipped into a major piece of legisla-
Imposing a Moratorium on the Number of Federal Judges

48

tion after consultation with other members who might be under

pressure for additional judgeships. Such a change would obviously

not have the visibility of changing the size of the Supreme Court,

and it would not pose any threat to legislators’ relative power as

members of the body to be changed. The dike, once breached,

would quickly crumble, undermining the moratorium.

b. Only an unequivocal cap, identified and argued for as such, will

assist the federal courts

The argument

Some in the judiciary are sympathetic to the idea that courts

should not grow significantly but are reluctant to endorse a flat

limit on the number of judges. They prefer “slow growth”—requesting judgeships only when absolutely necessary. Such an approach

will be disastrous. Congress can only assume that if the judiciary

does not request judgeships, it does not perceive a need for more

judgeships, and Congress will continue to expand jurisdiction.

Rather than slow growth, the judiciary, working with Congress

and the executive, needs to formulate a vision for the future, to include a precise proposal for a maximum number of judgeships and

identify the jurisdictional, prosecutorial, and structural changes

necessary to make the moratorium effective (including continuing

legislative adjustment to account for population growth). Further,

the judicial leadership must go before Congress with its proposal.

asserting forcefully that the federal judiciary in 1993 faces a new

day with new needs, just as the House and Supreme Court did in

earlier years.

The response

While it is true that the judiciary needs to present Congress with

a bold vision of the judiciary’s future, proposing a moratorium,

which is a bad idea, is not the way to do it. That vision could reflect

either a slow-growth or a large-growth policy, but either approach

would have the judicial leadership present to Congress, the executive branch, and the nation a comprehensive, strategic plan and a

long-range plan, clearly describing the desired future for the nation’s federal judicial system and how to achieve it.
Imposing a Moratorium on the Number of Federal Judges

49

The judiciary could make a slow-growth policy effective if it

wished to do so. Such a policy would include four elements:

(1) a judiciary-wide program of testing and reporting case

management innovations, including a judiciary-designed

and imposed version for the appellate courts of the Civil

Justice Reform Act of 1990101 (for example, the judiciary

could test the effectiveness of the two-track proposal for

appeals proposed by the Committee on Court Administration and Case Management);102

(2) consideration, in cooperation with Congress, of structural

or procedural changes designed to preserve collegiality

and consistency at the appellate level;

(3) similar cooperative efforts with Congress and the executive

branch to restrict federal filings to cases that truly deserve

the federal forum; and

(4) requests for judgeships when the need is demonstrably

clear, coupled with statutory change to allow reassignment

of vacant judgeships as proposed on the following page.

Alternatively, the judiciary could adopt an approach based on

the view expressed by Judge Reinhardt among others, viz., that “it is

time to start thinking ‘big.’ Incremental increases will not solve our

problem. Neither will a continuing deterioration of our work.”103

That vision as well would consist of several elements, some of them

similar to those outlined above:

(1) close analysis of any changes, both to the structure of the

courts and their governance arrangements, necessary for

the effective functioning of a judiciary of perhaps 2,000 or

more district and circuit judges;

(2) a program to test case management innovations appropriate for a large judiciary;

(3) serious examination of budgeting and financing, to

achieve economies of scale and restrain the cost of the

much larger judicial system; and

101. 28 U.S.C. §§ 471–482.

102. Supra note 28.

103. Reinhardt, supra note 19, at 54.
Imposing a Moratorium on the Number of Federal Judges

50

(4) efforts to work with Congress and the executive branch to

restrict federal filings to cases that truly deserve the federal

forum, even the much larger forum contemplated by the

large growth approach.

c. Geographic shifts in demand for judicial services can be

accommodated

The argument

With a moratorium on new judgeships, the system would need a

way to rearrange its finite number of judges to respond to changing

geographic distribution of workload. Over time, the number of Article III judgeships has grown more rapidly in some regions than in

others. Table 4 shows the percentages that district and circuit

judgeships in each circuit constituted of all such judgeships in 1960

and in 1990. For example, in 1960, the nine judges on the Court of

Appeals for the District of Columbia Circuit constituted 11.5% of

all circuit judges. In 1990, the twelve judges on that court constituted only 6.7% of all circuit judges. Similar shifts can be expected

to continue.
Imposing a Moratorium on the Number of Federal Judges

51

Table 4

Circuit and district judges in each circuit as a percentage of all

circuit and district judges, respectively, 1960 and 1990

Circuit Judgeships District Judgeships

Circuit 1960 1990 1960 1990

D.C. 11.5% (9) 6.7% (12) 6.1% (15) 2.3% (15)

First 3.8% (3) 3.4% (6) 3.7% (9) 4.4% (29)

Second 7.7% (6) 7.9% (13) 12.7% (31) 9.6% (62)

Third 9% (7) 7.8% (14) 11.0% (27) 9.6% (62)

Fourth 3.8% (3) 8.4% (15) 6.5% (16) 8.0% (52)

New Fifth* 5.1% (4) 9.5% (16) 7.3% (18) 12.0% (78)

Sixth 7.7% (6) 8.9% (16) 9.8% (24) 9.7% (63)

Seventh 7.7% (6) 6.1% (11) 7.8% (19) 7.1% (46)

Eighth 9% (7) 6.1% (11) 8.6% (21) 6.6% (43)

Ninth except:* 11.5% (9) 15.6% (28) 6.5% (16) 5.4% (35)

Cal./Ariz. 8.2% (20) 9.9% (64)

Tenth 6.4% (5) 6.7% (12) 5.7% (14) 5.7% (37)

Eleventh* 3.8% (3) 6.7% (12) 6.1% (15) 9.7% (63)

Fed. Cir.* 12.8% (10) 6.7% (12)

Total judgeships 78 179 245 649

*New Fifth and Eleventh Circuits based on circuit judges residing in, and districts

in, the states of the new Fifth Circuit (Louisiana, Mississippi, and Texas) and the

current Eleventh Circuit (Alabama, Florida, and Georgia). Federal Circuit numbers

for 1960 are the former Courts of Claims and of Customs and Patent Appeals.

Circuit judgeships for the Ninth Circuit are for the entire circuit, but Ninth Circuit

district judges are broken down between the districts in California and Arizona and

all other Ninth Circuit districts. This breakout is necessary because the large size of

the Ninth Circuit obscures relative increases and decreases. Percentages do not total 100 because of rounding.

Source: Data derived from Judgeship Authorization, supra note 6, at Tables 5, 6.

The amendment to 28 U.S.C. § 44 shown below, and a similar

amendment to 28 U.S.C. § 133 for district judgeships, could provide for gradual and continual readjustment of judgeships to accommodate shifts in need. (Italics denote new language.)
Imposing a Moratorium on the Number of Federal Judges

52

§ 44. Appointment, tenure, assignment, residence, and

salary of circuit judges.

(a) The President shall appoint, by and with the advice and consent of the Senate, 250 circuit judges for

the several circuits as follows the courts of appeals.

(b) [Good behavior tenure, unchanged]

(c) Upon appointment, a circuit judge shall be permanently assigned to one of the thirteen circuits established pursuant to section 41.

(1) The circuit of assignment will be determined by joint

vote of the Committees on the Judiciary of both the House of

Representatives and the Senate, after consultation with the

Chief Justice of the United States and consideration of the list

mandated in subsection (3).

(2) For each vacancy that occurs in the office of circuit

judge, the committees shall announce the circuit of assignment

for the replacement judge within five days of certification by the

Chief Justice of the existence of said vacancy.

(3)The Director of the Administrative Office of U.S. Courts

shall maintain for public inspection a list of circuits, showing

for each circuit such indices of judicial workload as the Judicial

Conference shall establish.

(d) [Residence of judges, unchanged]

(e) [Salary of judges, unchanged]

Under this statute, whenever a vacancy occurs through retirement or death, the Judiciary Committees would determine whether

a circuit (or a district in the case of a district judge vacancy) had a

greater need for a judge than the circuit or district of the vacancy,

and if so, provide that the judgeship would be reassigned to such a

circuit or district. The committees would consider a variety of factors to determine “need,” but their actions would have to stand

public comparison with a list maintained by the Administrative Office, under the supervision of the Judicial Conference. That list

would take into account weighted filings, time to disposition, the

use of senior judges, and other relevant factors to ensure that

standing on the list reflected true need and not low productivity.

Around fifty to sixty vacancies occur each year, so this procedure
Imposing a Moratorium on the Number of Federal Judges

53

would enable Congress to respond rapidly to true judgeship needs

and at the same time to correct the disequilibrium of judicial resources across the system. This process would be the functional

equivalent of congressional redistricting.104

The response

Judgeships are tied to the political culture of their localities.

Congress is not likely to establish a system under which some areas

lose the opportunity to replace judges who retire or die. The existing process for creating and filling judgeships would be fundamentally altered, and the opportunities to reward friends and

supporters with judicial nominations would diminish.

Furthermore, periodic omnibus judgeship bills, whatever their

defects, allow both the judicial branch and Congress to weigh numerous quantitative factors as well as important less tangible factors

to produce comprehensive resolution. Reassigning a judgeship on

the average of once a week will hinder careful comparative analysis

of need, because the heavy pressure for a new judge in a fixednumber system would preclude thorough debate about the best reassignment. The list called for by the statute will itself become an

object of bickering and contention as legislators and judges argue

over how to make it truly responsive to judgeship need. And it will

require constant updating and analysis with monthly adjustments

for the impact of newly assigned judges.

On the other hand, one might conclude that the proposed

statutory amendment is sound. If so, its merit is as great without an

artificial moratorium as with one. The existing process is slow, often unresponsive to need, and heavily encumbered with party politics. Judgeships are not necessarily created in the courts that need

them the most.105 As the Court Administration and Case Man104. It would also occasionally be necessary to realign or combine circuit and

district boundaries of circuits or districts that grew disproportionately larger than

other circuits or districts.

105. The last request by the Judicial Conference for new federal judges was

made in 1990. The Judicial Conference requested that seventy-six new district

court judgeships be created. See Judgeship Authorization, supra note 6, at Table 2.

Congress responded by authorizing seventy-four judgeships, but many were not in

the districts identified by the Judicial Conference. For example, although in 1990

there was no Judicial Conference request for a new district court judgeship in
Imposing a Moratorium on the Number of Federal Judges

54

agement Committee puts it, the “retirement of a [district] judge in

a modestly burdened court . . . provides a new judge and a senior

judge to that court while judges in a nearby heavily burdened court

will face continued overwork and growing backlogs.”106 Indeed, by

adopting the proposed statute’s scheme for reallocating vacant

judgeships, Congress could work many of the benefits that are

claimed for capping while retaining the discretion to create additional judgeships when relocation will not suffice.

B. Comment

The debate whether Congress should cap the size of the judiciary,

increase its size incrementally, or create a much larger federal

bench rests on a conglomeration of empirical evidence, subjective

hunch, and policy preferences about the operation and the purposes of the federal judiciary. The pressure for change in the status

quo is strong and some kind of change may be inevitable. The size

of the federal judiciary may be frozen, or it may expand gradually

or be substantially increased in short order. Alternatively, change

may come through procedural adjustments or major structural realignment. As the Chief Justice recently said, with particular reference to the courts of appeals, “Although no consensus has yet developed around any particular set of changes to the status quo—

and to be sure any alternatives will present practical and political

difficulties—it is safe to say that change will come.”107

In considering the proper size of the judiciary as a general matter, and moratorium proposals in particular, policy makers should

ask:

Wyoming, Congress created an additional judgeship in the district. Id. at Table 2.

The same was true for D. Me., D.N.H., M.D. Pa., M.D.N.C., W.D. Tenn., D. Haw.,

E.D. Wash., D. Utah, N.D. Fla., and M.D. Ga. Id. For each district that received a

judgeship not requested by the Judicial Conference, another district was denied a

new judgeship despite a Judicial Conference recommendation.

106. Court Administration Committee Report, supra note 28, at 10.

107. Welcoming Remarks by Chief Justice Rehnquist, 1993 Federal Judicial

Center Workshop for Judges of the U.S. Courts of Appeals, Feb. 8, 1993, at 5

(manuscript).
Imposing a Moratorium on the Number of Federal Judges

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1. Are there, as the Federal Courts Study Committee said,

“limits [on the] natural growth” of the federal judiciary (of which a

cap would be merely an instrument), or is it “natural” for the federal judiciary to evolve into a larger, structurally more complicated

institution (as it did when separate courts of appeals were created

in 1891)? Is the proposal for a moratorium a serious proposal or

simply a tactic on the part of those who favor slow growth for the

federal courts? Is it likely that the legislative and executive branches

will take this debate seriously?

Whether or not there is some “natural” basis for accepting or

rejecting a moratorium, and whatever the pragmatic justifications

advanced by its supporters, the idea is arguably no less plausible

than were the proposals to limit the size of the House and the

Supreme Court when they were offered—both of which are now

conventional. The same can be said of the various internal adjustments of judicial administration, such as Article I courts, appellate

courts with more than twenty judges, and magistrate judges, to

name a few. On the other hand, the House and the Supreme Court

offer precedents for capping the courts that are dubious at best.

The idea of capping the judiciary may have little more going for it

than its novelty, and novelty is hardly the same as wisdom: other

proposals of the past, such as no lower federal courts and eighteenmember Supreme Court sitting in panels, seem bizarre today.

2. Is the debate over a moratorium simply a different form of

the debates over alternative ways for the federal courts to do their

business?

Were the Congress to cap the number of Article III judges, it

would not necessarily render moot the debate over how the federal

courts should process litigation, including the question of how they

should be structured to process litigation, particularly at the appellate level. For example, even if caseloads did remain relatively constant, there would still be proposals to equalize the number of

judges in the circuits and control inter- and intracircuit conflict.

And, if caseload continued to grow in a fixed-judgeship system, it

would press the consideration of discretionary jurisdiction, staffing

alternatives, and other issues.

3. Can the judiciary commit itself to any of these approaches

without consensus about the principal mission of the federal
Imposing a Moratorium on the Number of Federal Judges

56

courts? Can that mission be stated with enough precision to be neither a platitude nor special pleading for a particular point of view?

Proposals for major and immediate expansion in judgeships

rest on the view that there are many disputes, particularly disputes

involving those on the margins of society, that the federal courts

should resolve but are not resolving adequately because there are

not enough district and circuit judges. But there is a strong belief

within the judiciary that many such cases, while surely deserving of

effective resolution, do not need the federal forum for their resolution and, in fact, that their presence in the federal caseload may

frustrate the system’s ability to redress civil rights and civil liberties

violations, as well as other disputes, of national importance that

cannot be effectively redressed elsewhere.

The proposal for a permanent ceiling rests on the axiom that

the federal courts are courts of limited jurisdiction. The logic of the

proposal would have them become courts of an even narrower jurisdiction. More than 800 Article III judges now exercise what some

regard as too broad a jurisdiction and others regard as necessary

and wise, if not too limited. But in any case, if a 1,000 judge cap

were imposed, and if population continued to grow, it seems

inevitable that at some point—perhaps in thirty years—the federal

courts either would be severely restricted in the cases they could

hear, or would have to use procedures that are, at the very least,

much more efficient than those they use today. Even granting that

there is more efficiency to be wrung out of the system, at some

point procedural innovations will compromise due process. At that

point, maintaining a ceiling will be feasible only if there is

consensus that federal jurisdiction should be curtailed, probably

significantly beyond what it is today. That, however, hardly closes

the case. Different people have different views on which disputes,

within the broad range of eligibles, should fall within the federal

courts’ limited jurisdiction.

Finally, determining the size of the federal judiciary implicates

questions of public policy as well as those of law and administration. The three branches of government share responsibility for

confronting all these questions and fashioning a mutually acceptable resolution to them.
57

Appendix

As noted in the text, the efforts leading up to the 1929 statute that

fixed the size of the House of Representatives at 435 do not necessarily offer a precedent for efforts to cap the number of district and

circuit judgeships. Nevertheless, those supporting a cap and those

opposing it have both expressed interest in the House experience,

and for that reason we include this brief appendix, which describes

some of the major events leading to the decision to limit the size of

the House.

Determining the Size of the House of Representatives:

A Historical Review

by Edward Sussman

For most of its history, the size of the House membership increased

as the population of the nation grew, but since early in the twentieth century the size of the House has been maintained at 435 seats.1

This brief essay summarizes debates over the proper size of the

House and efforts to change its size. It first treats the Constitutional

period and then describes nineteenth-century efforts to restrict the

size of the House. The major part of the essay describes the debates

in the 1920s, which led to the decision to stop expanding the

number of representatives and the statutory provisions now in place

effecting that decision.

The Constitutional Period

The Constitution, in Article I, § 2, provides that membership in the

House is to be apportioned among the states according to population. This provision evolved from debate over whether the Constitution should adopt a formula specifically linking growth in the

number of representatives to the size of the population. An initial

proposal—one representative for every 40,000 inhabitants—was

1. This is with the exception of seats provided for Alaska and Hawaii following

their admission as states. Following the 1960 census, however, the House was once

again reapportioned based on 435 seats, rather than 437.
Imposing a Moratorium on the Number of Federal Judges

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significantly altered to allocate membership “not exceeding 1 for

every 40,000.” Madison explained that the change was necessary to

keep the size of the House from expanding indefinitely.2 The

change secured the authority of Congress to adjust upwards the

number of inhabitants each member could represent, and implicitly, to impose a ceiling on the number of seats in the House.3 The

significance of this change (and the possibility that under the proposed formulation Congress might also decrease the size of the

House) was discussed at greater length during the ratification process. A later proposal guaranteed that every state would have at

least one representative in the general legislature, regardless of the

state’s population.4 On the final day of the convention, September

17, the number 40,000 was changed to 30,000 at the request of

George Washington, who stated that “[t]he smallness of the

proportion of Representatives had been considered by many

members of the Convention, an insufficient security of the rights

and interests of the people.”5

That Washington was moved to make his only recorded comment at the Philadelphia convention on the matter of House size—

and the comment itself—indicate the salience of the issue to those

who debated the Constitution. It was generally accepted that the

Senate should be a more deliberative body than the popular

branch of Congress, and that a small number of members would

proceed with “more coolness, with more system, & more wisdom.”6

The size of the House was a point more in contention. For example, Madison, reacting to a proposal to constitute the first House

at sixty-five members, argued that a “majority of a Quorum of 65 was

too small a number to represent the whole inhabitants of the U.

States; They would not possess enough of the confidence of the

2. II Records of the Federal Convention of 1787, at 221 (Farrand ed. 1937)

(Madison’s notes).

3. Id.

 4. Id., vol. I at 223.

5. Id. at 644.

6. Id. vol. I, at 151. Madison argued that so far as the Senate was concerned

“additional number would [not] give additional weight to the body.” On the contrary it appeared to him that “their weight would be in an inverse ratio to their

number.” He used as an example the Roman Tribunes, which he said “lost their

influence and power, in proportion as their number was augmented.”
Imposing a Moratorium on the Number of Federal Judges

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people, and wd. be too sparsely taken from the people, to bring

with them all the local information which would be frequently

wanted.”7 Madison later pointed to Pennsylvania, Virginia, and,

most significantly, the boroughs of England as examples of regions

where legislators representing a minority of the population had

failed to relinquish power to new majorities. Elbridge Gerry maintained that “the larger the number the less danger of their being

corrupted. The people are accustomed to & fond of a numerous

representation, and will consider their rights better secured by it.

The danger of excess in the number may be guarded agst. by fixing

a point within which the number shall always be kept.”8

The same themes occurred in the state ratification debates. In

New York, Publius, in Federalist 58, asserted that the Congress

could be trusted to exercise its power to increase the number of

representatives from sixty-five. But once the House has reached a

sufficient size to ensure adequate local information and sympathy

with the whole population, he stated that it ought not to add more

representatives. In large assemblies, he argued, power ends up being wielded by the few because large numbers of men are more easily led by passion than by reason, and because more members will

have “limited information and weak capacities.”9 “The countenance

of the government may become more democratic, but the soul that

animates it will be more oligarchic. The machine will be enlarged,

but the fewer, and often the more secret, will be the springs by

which the motions are directed,” he wrote.10

The first Congress saw efforts to amend the Constitution with

respect to House size. The first of twelve proposed amendments

(the last ten of which became the Bill of Rights) would have quickly

brought the House to about 100 members; subsequent reapportionment would have been carried out until the House reached 200

members. After 200 members, reapportionment would have continued but increases to the size of the House would have become

7. Id. at 568.

8. Id. at 569.

9. Alexander Hamilton, John Jay, James Madison, The Federalist Papers 381

(Modern Library 1937).

10. Id. at 382.
Imposing a Moratorium on the Number of Federal Judges

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discretionary, with representation not to exceed one seat for every

50,000 persons.11

The failure of the proposed amendment allowed the House to

evolve under the terms of Article I, Section 2 (as altered by the

Fourteenth Amendment with respect to the population basis for

apportioning representatives). Table 1 on the following page shows

the ten-year growth in the House from the first Congress through

1990.

11. Phillip B. Kurland & Ralph Lerner (eds.), V The Founders’ Constitution

40–41 (1987) from the Congressional Record, March 4, 1789. The full text of

“Article the First” as it went to the states is as follows:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until

the number shall amount to one hundred, after which the proportion

shall be so regulated by Congress, that there shall be not less than one

hundred Representatives, nor less than one Representative for every forty

thousand persons, until the number of Representatives shall amount to

two hundred; after which the proportion shall be so regulated by

Congress, that there shall not be less than two hundred Representatives,

nor more than one Representative for every fifty thousand persons.
Imposing a Moratorium on the Number of Federal Judges

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Table 1

U.S. Population, Size of the House of Representatives,

Members Per Capita

Ratio of

Number of House Members

Year Population House Members to Population

1789* 3,929,214 65 1/60,449

1790 3,929,214 105 1/37,000

1800 5,308,483 141 1/38,000

1810 7,239,881 181 1/40,000

1820 9,638,453 213 1/45,000

1830 12,866,020 240 1/54,000

1840 17,069,453 223 1/77,000

1850 23,191,876 234 1/99,000

1860 31,443,321 241 1/130,000

1870 39,818,449 292 1/136,000

1880 50,155,783 325 1/154,000

1890 62,947,714 256 1/177,000

1900 75,994,575 386 1/197,000

1910 91,972,266 433 1/212,000

1920 105,710,620 435 1/243,000

1950 150,697,361 435 1/346,000

1960 179,323,175 437 1/410,350

1970 203,302,031 435 1/467,000

1990 248,709,873 435 1/572,000

* Population figures for 1789 are actually those for 1790, the year of the first

census.

Source: All figures, except 1789 and 1960, are from Christopher St. John Yates,

A House of Our Own or a House We’ve Outgrown? An Argument for Increasing

the Size of the House of Representatives, 25 Colum. L. & Social Probs. 157, 180

n.150 (1992) (citing Michael L. Balinski & H. Peyton Young, Fair Representation

156–70 (1982), and U.S. Bureau of the Census, Statistical Abstract of the United

States 9 (1991)). For 1789 and 1960, the figures for the number of members are

from George B. Galloway, History of the House of Representatives 22 (1976). The

1960 population statistic is from U.S. Bureau of the Census, Statistical Abstract of

the United States (1992).
Imposing a Moratorium on the Number of Federal Judges

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The Nineteenth Century

While the overall trend of the nineteenth century regarding the

size of the House was substantial growth (from 141 seats in 1800 to

386 seats in 1900),12 the mid-nineteenth century also brought two

serious attempts to limit the size of the House. The first attempt

arose in the Senate on June 9, 1842. It was eventually successful in

reducing the number of seats despite a substantial increase in population since the 1830 census (from 12 million to 18 million persons).13 However, the 1842 reduction imposed no permanent limit

on the size of the House and the House again increased in size following the 1850 census. Significantly, though, a majority of the

members of Congress made it plain that they wished to permanently limit the growth of the House. In 1850 legislation approving

the taking of the seventh decennial census, Congress inserted provisions to freeze the size of the House at 233 seats.14 The Secretary

of the Interior was to be exclusively responsible for subsequent

reapportionment.15 However, the statutory limit was undone by

subsequent legislation. In 1852, an additional member was added,

and in 1862 eight additional seats were approved.16 A new apportionment statute at the time of the 1870 census replaced the 1850

statute altogether.17

1920–1929 Debate

By 1920, the House had grown to 435 members. In 1921, the House

Census Committee once again recommended increasing the size of

the House. However, at the time the recommendation was made,

concern began to be expressed that the size of the House was becoming unmanageable. In anticipation of this criticism, the committee also recommended adopting a constitutional amendment

12. See supra Table 1.

13. See Cong. Globe, 27th Cong., 2d Sess. 620 (June 13, 1842, for debate on

the question.

14. See Charles A. Kromkowski & John A. Kromkowski, Why 435? A Question of

Political Arithmetic, 24 Polity 129, 133 n.15 (1991).

15. Id.

16. Id. See 10 Stat. 25, 12 Stat. 353 (1852).

17. Id.
Imposing a Moratorium on the Number of Federal Judges

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capping the size of the House at 500 members. In the meantime,

the increase to 483 seats would have prevented any state from losing members, despite substantial movement and growth in the nation’s population, primarily representing a shift away rural and

agricultural states toward states with large cities.18 Without the increase, eleven states were to lose seats through reapportionment

and eight states were to gain seats.19

A report issued by the House Census Committee explained its

recommended increase from 435 to 483 on a number of grounds.20

These included the population growth in the United States and the

idea that “legislative bodies must be more representative of the

people”; the inclusion of women as eligible voters since the 1911

census; the comparison of the U.S. ratio of representatives to

population to the generally lower ratio in other countries; the

increased constituent work of the House, especially with the return

of soldiers from World War I; and the increased legislative work of

the House.21 The report also pointed out that Congress had never

failed to increase the size of the House after every decennial census

since the founding, with only one exception.22

However, in response to “the growing sentiment throughout

the country that the size of the House should be limited in number” the committee recommended a constitutional amendment

capping the House at 500.23 The report did not elaborate a further

justification for the constitutional cap, other than stating that the

sentiment of the citizens ought to be tested through the amendment process.24

18. Congressional Quarterly, Origins and Development of Congress 142

(1982) (hereinafter Origins); see also Kromkowski, supra note 14, at 134. The

large waves of European immigration to U.S. cities in the early part of the century

likely played a role in the increased population of urban areas.

19. Id.

20. House Census Committee, Apportionment of Representatives, H.R. Rep.

No. 1173, 66th Cong., 3d Sess., pt. 1 (Jan. 8, 1921) (hereinafter 1921 Report).

21. Id. at 3–4.

22. Id. at 3. The exception was in 1842, although the report incorrectly lists it

as 1843. See supra at notes 12–17 and accompanying text.

23. 1921 Report, supra note 20, at 4.

24. Id.
Imposing a Moratorium on the Number of Federal Judges

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A minority position accompanying the report called for maintaining the size of the House at 435.25 The minority report said that

the cost of adding members was too high; that the efficiency of the

body would not be increased with more members; that increased

membership meant that the body would become “more unwieldy

and cumbersome”; that increased membership would add delay in

the transaction of business; that additional staff could “care for any

increase in the work required of Members”; that members had at

their disposal better facilities for transportation, communication,

and association with constituents and thus did not need more

members to manage the additional work created by the growth in

population; and, finally, that it would be unwise to lock in a future

Congress with a constitutional amendment.26

The full House took up debate on the proposal on January 18

and 19, 1921. The debate spans more than fifty pages in the Congressional Record.27 Numerous speakers refer to the editorial positions of newspapers regarding the size of the House.28 The debate

broke along both political and regional lines. The regional split was

most apparent; most states threatened with losing seats opposed

limiting the size of the House. These were generally smaller states,

southern states, and agricultural states. Larger states and states with

urban centers generally supported the limit.

On one side were those who believed that corporate interests

would more easily control a House of smaller size and that representation of local interests would be threatened by increasing the

number of citizens each member represented. On the other side

were those who argued that the expense of increasing the size of

the House was unjustified by the benefits of increasing the membership, and that the addition of members decreased the effectiveness and efficiency of the body as a whole.

Eventually, the House voted by 267 to 76 not to increase the

membership and to reapportion the existing seats; however, the

Senate failed to act on the bill.29 Thus began a fight within the

25. Id. at 29.

26. Id. at 29–30.

27. See 66 Cong. Rec. 1626–56, 1676–94 (1921).

28. See, e.g., Remarks of Mr. Blanton, id. at 1638; Mr. Hersey, id. at 1641.

29. Origins, supra note 18, at 143–44.
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Congress that continued for most of the decade. Despite repeated

attempts to either increase the size of the House (460 members was

also proposed) or to reapportion the existing seats, Congress could

not resolve the impasse until a special session was called in 1929.30

By then, the focus of the debate had shifted to reforming the

method of apportionment. A January 5, 1929, report by the House

Census Committee noted that in order to prevent any state from

losing a seat under the current apportionment method, an increase

to 483 members would no longer be sufficient. Further shifts and

growth in the population meant 535 seats would be required to

keep any state from losing a seat.31 In order to break the possibility

of a recurring deadlock between those opposed to any increase in

the size of the House and those blocking redistricting under the existing size and formula, the committee proposed that reapportionment of the existing 435 seats become automatic following each

decennial census.32 The bill was characterized by the committee as

being drawn in anticipation of a possible “emergency” situation

that might prevent “fair and equitable” representation for millions

of people if Congress failed to reapportion following the 1930 census, as it had following the 1920 census. The committee explicitly

stated that Congress might yet choose to increase the size of the

House to 535, to 475, or to leave it where it is: “In this bill there is

no suggestion made to any future Congress as to what the size of

the House membership shall be.”33

The House passed the bill by voice vote on January 11, 1929,

but a threatened filibuster by senators from states faced with a loss

of seats postponed a Senate vote. President Hoover called a special

session of Congress in April 1929, with the matter of reapportionment listed among the priorities of business.34 This time the census

committee’s bill passed.35

30. Id.

31. House Census Committee Report, Apportionment of Representatives,

H.R. Rep. No. 2010, 70th Cong., 2d. Sess. 3–4 (Jan. 5, 1929).

32. Id. at 4.

33. Id. at 6.

34. Origins, supra note 18, at 144.

35. Id.
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Afterword

In 1961, a reexamination of the question of the size of the House

was prompted by the admission of Alaska and Hawaii to the

Union.36 Proposals emerged to maintain representation at the 1951

ratio of one member per 345,000 rather than readjust the ratio to

one member per 413,000 in order to keep the House at 435.37 The

proposal would have increased the size of the House to 517 seats.

Proponents of the measure asserted that both the constituent and

legislative workload had expanded greatly; that any space

limitations on housing new members could be overcome; and that

stricter House rules could control an enlarged membership.38 The

growth in the size of the federal judiciary during the same time

period was pointed to as an analogy for the House.39 Ultimately, no

permanent expansion was approved.

The right of delegates from non-voting territories of the United

States and the District of Columbia to participate in House business

has also expanded in recent years. In March 1993, a federal district

judge rejected a challenge to procedures adopted by the 103d

Congress allowing delegates from the District of Columbia and four

U.S. territories (Puerto Rico, Guam, U.S. Virgin Islands, and American Somoa) to participate in some floor votes of the House when

sitting as a “committee of the whole.”40 However, these delegates

have not been granted the right to vote on the final passage of legislation.41

36. Increasing the Membership of the House of Representatives and Redistricting Congressional Districts: Hearings Before Subcomm. No. 3 of the House

Comm. on the Judiciary, 87th Cong., 1st. Sess. (1961).

37. Id. at 25 (proposal by Rep. Whitten).

38. See A House of Our Own, 25 Colum. J. L. & Social Probs., supra note accompanying Table 1 on p. 63, at 186.

39. Id.

40. See Kent Jenkins, Jr. & Michael York, Judge Calls Norton’s Vote Legal but

Meaningless, Washington Post at A1 (March 9, 1993).

41. Id.