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Chairman Nadler Statement for Subcommittee Hearing on "The Need for New Lower Court Judgeships, 30 Years in the Making"

Washington, D.C. – Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks during a Subcommittee on Courts, Intellectual Property, and the Internet hearing on "The Need for New Lower Court Judgeships, 30 Years in the Making":

"Mr. Chairman, thank you for holding a hearing on this important issue that I know affects judges and litigants profoundly across this country—the growing crisis caused by the failure in recent decades to add new judgeships to the federal district and circuit courts.

"Article III, Section I of the Constitution states that the 'judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.'  Pursuant to that grant of authority, Congress soon passed the first bill to create judgeships, the Judiciary Act of 1789.

"Thereafter, Congress regularly enacted judgeship bills to keep pace with the growing nation and the growing complexity of the federal docket.  But that came to an end about 30 years ago, after the passage of the last major judgeship bill, the Federal Judgeship Act of 1990.  That was the last time that any new circuit court judgeships were created.

"That was also the last time that any, but a handful of, district court judgeships were created, and there have been no new permanent district court judgeships added since 2003.  This 18-year pause is the longest break in adding new district court judgeships since that first judiciary act passed in 1789. 

"Yet between 1990 to the end of fiscal year 2018, case filings have only continued to rise, growing by 15% in courts of appeals and 39% in district courts.  In terms of caseloads, this means that the nationwide average caseload per judge is 521.  This number is markedly higher in certain districts.  As of March 2019, for example, the average for the District of New Jersey was 1,066.

"We will hear today from judges presiding in districts that are similarly bearing a higher-than-average caseload—and of course, this is to say nothing about whether the average itself is already too high.

"The problem is also acute in the courts of appeals, which are often effectively the last court to which most litigants will have recourse.  The courts of appeals have collectively heard around 50,000 appeals in recent years compared to the less-than-one hundred that make it to the Supreme Court docket. 

"These numbers are dire, but statistics alone understate the depth of the crisis our courts face.  What I hope to learn more about from the academics and honorable judges appearing before us as witnesses today is what these numbers mean in real terms.  What is the impact of these growing caseloads on plaintiffs and defendants?

"Access to justice is a constitutional guarantee, but when this promise meets the reality of an over-burdened and under-staffed court, too often cases may be delayed or rushed, and justice is short-changed.

"It is clear, for example, that long waits for civil trials can put pressure on plaintiffs to settle their cases, even if they believe they would win at trial, simply because they cannot bear the cost of drawn-out uncertainty and litigation.

"The impact on the criminal justice system can be even more stark.  Although there are rules in place to, at least, prioritize these cases on the federal docket, the pressures of a burgeoning caseload on courts with too few judges can still place severe limitations on access to justice.

"We should also consider the impact on judges and how they must structure their practices to accommodate the growing caseload, with no new colleagues to help shoulder the burden.

"At the appellate level, statistics point to circuit courts using a range of techniques to cope with the rise in caseloads that depart from the traditional model of appellate decision making.  For example, while one quarter of all opinions were published in 1985, only one out of 10 is published now, meaning they are not considered to have precedential effect.  This can lead to confusion in the lower courts and among litigants. 

"In short, the efficient and fair administration of justice first and foremost requires enough judges.  And from all indications, it seems like we do not have the right number today.  I am pleased that we are having today’s hearing to start to learn more about this important issue, and I hope, Mr. Chairman, that our work will not end here.

"Thank you, and I yield back the balance of my time." 
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