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The Senate is playing a delicate dance over the fate of a bill to expand the federal judiciary by 50 permanent judgeships -- including a dozen on federal appellate courts nationwide.
The key is that none of the appointments could be made until the day after a new president takes office, leaving both parties to wager 50 appointments on their candidate's victory.
The Federal Judgeship Act of 2008, now S. 2774 (.pdf), would be the largest expansion of the federal judiciary in 18 years. It would add a dozen appellate judgeships to the current 179 nationally and 38 district court positions to the current 667. Both Democrats and Republicans have signed on to sponsor it.
In December 1990, the last time the judiciary got so many judgeships, a lame-duck Congress handed President George H.W. Bush 85 new judgeships -- 11 appellate judges and 74 district court judges.
Because the Senate is unlikely to confirm the existing 45 unfilled judicial vacancies by the end of the Bush II term, the incoming president would have an immediate opportunity to appoint nearly 100 judges, when the unfilled vacancies are combined with potential new judgeships.
In May, the Senate Judiciary Committee sent the bill, by a 15-4 vote, on to the full Senate, after which Republican committee members asked for a new committee hearing. As soon as a date had been set by Democrats, several Republicans objected to an additional hearing.
Sen. Patrick Leahy, D-Vt., called the tactic "childish." The committee's ranking Republican, Sen. Arlen Specter, R-Pa., declined to comment.
"It's definitely true there are partisan politics to this," said Mariano Florentino Cuellar, Stanford Law School professor of political science. "No party wants to give up expansion of the judiciary when they control the White House."
But two other political dynamics are at play. There is the interbranch politics of having a healthy judiciary to balance the legislative and executive, he said. Another factor is the internal dynamic of a Supreme Court that has more difficulty controlling lower courts the larger they get.
Efforts to pass judgeship expansions rarely succeed. Cuellar gives this bill a 10 percent shot at success in the two business months left for Congress before the election.
Chief judges in the various circuits generally want to see the new judges to meet growing caseload demands. Since 1990, case filings in federal appellate courts have increased 55 percent, and in the trial courts the filings have risen 29 percent. As a result, the national average caseload for each three-judge appeals panel is 1,049 cases, according to Chief U.S. District Judge George Singal of Maine, who is chair of the judiciary's committee on resources.
Filings are not spread evenly around the circuits.
In the 5th and 11th circuits, which did not seek added judgeships, roughly 60 percent of the appeals are criminal or prisoner petitions. In the 2nd and 9th circuits, which did seek more judges, there were dramatic increases in immigration appeals.