June 12, 2017
Congressional Authorization of New U.S. Circuit and District
Court Judgeships
Congress, pursuant to its authority in Article III, Sec. 1 of
While Congress creates temporary judgeships relatively
the U.S. Constitution, determines through legislative action
frequently for U.S. district courts, the authorization of
the size and structure of the federal judiciary. Congress first
temporary U.S. circuit court judgeships is relatively rare.
exercised this power with the passage of the Judiciary Act
Between 1960 and 2016, Congress created temporary
of 1789, creating a three-tiered judiciary that forms the
circuit court judgeships on one occasion (and each of the
basis for the modern structure comprised of U.S. district
judgeships was later converted to permanent judgeships).
courts (i.e., the federal trial courts), U.S. circuit courts of
appeals, and the Supreme Court.
Number of U.S. Circuit and District
Court Judgeships Authorized by
Types of Judgeships Authorized by
Congress Since 1945
Congress
The combined number of all U.S. circuit and district court
Although the Constitution provides Congress in Article I
judgeships has increased by nearly a factor of 3.5 from
with the authority to create a variety of judgeships and
1945, the beginning of the post-War period, to 2016. In
courts (e.g., Congress established the bankruptcy courts in
1945, there were a combined total of 248 U.S. circuit and
1978), the focus of the information below is about the most
district court judgeships—while in 2016, there were a
common types of judgeships created by Congress—those
combined total of 852 such judgeships (including 10
for U.S. circuit and district courts.
temporary district court judgeships). District court
judgeships during this period increased from 189 to 673 (a
U.S. circuit and district courts are referred to as Article III
256% increase). Circuit court judgeships increased from 59
courts because Congress created these courts pursuant to its
to 179 (a 203% increase).
authority in Article III of the U.S. Constitution. Judges
appointed to these courts must be nominated by the
While the number of circuit and district court judgeships
President and confirmed by the Senate. Appointments to
has increased since 1945, relatively few new judgeships
these judgeships are considered to be effective for life,
have been authorized since 1990. No new circuit court
meaning judges remain in office until they die, assume
judgeships have been authorized since 1990, while 28 new
senior status, resign, retire, or are removed by Congress
district court judgeships have been authorized.
through the process of impeachment.
Types of Legislation Used to Authorize
When increasing the number of U.S. circuit or district court
Judgeships
judgeships, Congress may authorize either permanent or
Congress may choose to create many judgeships at one time
temporary judgeships. The creation of a permanent
or, instead, create relatively few. There are various
judgeship, as the name suggests, permanently increases the
legislative vehicles that Congress has at its disposal when
number of judgeships on a U.S. circuit or district court. In
choosing to authorize additional judgeships.
contrast, temporary judgeships are designed to increase the
number of judgeships on such courts for a limited period of
If Congress chooses to create a relatively large number of
time. In authorizing a temporary judgeship, Congress may
judgeships at one time, it may use an “omnibus judgeships
choose any length of time it deems appropriate for the
bill.” An omnibus judgeship bill is either a stand-alone bill
judgeship to exist.
or a title of a larger bill concerned exclusively, or in large
part, with the creation of federal judgeships.
Congress may consider it desirable to temporarily increase
the number of judgeships on a particular court if the court is
Since 1977, Congress has enacted three omnibus judgeship
dealing with an increased workload considered temporary
bills: the Omnibus Judgeship Act of 1978 (which created 25
in nature (e.g., when a court’s workload temporarily spikes
new circuit court judgeships and 117 new district court
as a result of new federal legislation or a recent Supreme
judgeships); the Bankruptcy Amendments and Federal
Court ruling). Congress might also be uncertain about
Judgeship Act of 1984 (which created 24 new circuit
whether an increase of a court’s workload is temporary or
judgeships and 61 new district judgeships); and the Judicial
permanent in nature and, thus, Congress might initially
Improvements Act of 1990 (which created 11 circuit
decide to authorize one or more temporary judgeships to
judgeships and 61 new district judgeships).
meet the workload demands of the court. Temporary
judgeships can later be extended by Congress (so as not to
In more recent years, Congress has created a smaller
lapse after the specified period of time in the authorizing
number of new judgeships using appropriations bills: the
statute has expired) or be converted into permanent
Judiciary Appropriations Act, 2000 (which created 9 district
judgeships.
court judgeships); the Judiciary Appropriations Act, 2001
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Congressional Authorization of New U.S. Circuit and District Court Judgeships
(which created 10 district judgeships); and the 21st Century
The specific statistic used by the Judicial Conference to
Department of Justice Appropriations Authorization Act,
make its comparison across U.S. district courts is the
2002 (which created 19 district judgeships).
number of “weighted filings” per authorized judgeship in
each district. The weighted filings statistic is a
Congress might also create new judgeships when passing an
mathematical adjustment to the number of case filings in a
act that would restructure the federal judiciary. For
district that takes into account the relative complexity of
example, when creating the U.S. Court of Appeals for the
cases and the expected amount of time required for
Federal Circuit in 1982, Congress authorized 12 new
disposition of a district’s cases. The higher the number of
Article III circuit court judgeships (increasing the number
weighted filings per judgeship in a district, the more likely
of circuit court judgeships at the time from 132 to 144).
that district might need one or more new judges to handle
its caseload. Conversely, if the number of weighted filings
Bills authorizing new judgeships that have become law
per judgeship is relatively low, a district might not require
have often received bipartisan support. For example, the
additional judges. A similar statistic is used for comparing
Judgeship Improvements Act of 1990 passed the House by
the workload of U.S. circuit courts.
387-18 and the Senate by voice vote.
While the number of weighted filings per judgeship is the
Role of the Judicial Conference in
primary factor in the Judicial Conference’s evaluation of a
Determining the Need for New
court’s need for additional judgeships, the Conference’s
Judgeships
recommendations for new judgeships are not based solely
While Congress is primarily responsible for determining the
upon this statistic. Other factors that the Conference might
structure and scope of the federal judiciary, it has
consider in making its recommendations include the
increasingly relied on the Judiciary itself to recommend
number of judgeships requested by the court itself; the
changes to the size of the judiciary by adding additional
availability of senior, visiting, and magistrate judges to
permanent or temporary judgeships.
assist in handling a court’s caseload; geographical factors;
unusual caseload complexity of a court; and whether a court
The Judicial Conference of the United States is the policy-
is experiencing temporary increases in its caseload.
making body for the federal court system. The Conference
meets twice a year to consider administrative and policy
The Judicial Conference’s Most Recent
issues affecting the federal courts, including making any
Recommendation for New Judgeships
recommendations to Congress concerning legislation
The most recent recommendation by the Judicial
involving the judicial branch. Such recommendations
Conference, issued in March 2017, called for the creation of
include requests for the creation of new circuit and district
5 new circuit court judgeships and 52 district court
court judgeships.
judgeships (all permanent). The Conference also
recommended converting eight temporary district court
In longstanding practice, the Judicial Conference—through
judgeships to permanent judgeships.
its committee structure—periodically reviews the judgeship
needs of all U.S. circuit and district courts to determine if
Each of the five requested new circuit court judgeships is
any courts might require additional judgeships. If such a
for the U.S. Court of Appeals for the Ninth Circuit
need is determined to exist, the Conference makes
(comprised of California, eight other western states, and
recommendations to Congress for the creation of new
two U.S. territories).
judgeships. The Judicial Conference may recommend that
new judgeships be permanent or temporary; recommend the
The new district court judgeships are recommended for 27
extension of temporary judgeships; the conversion of these
of the nation’s 91 judicial districts (located in 17 different
judgeships from temporary to permanent, or the
states and Puerto Rico). The Conference recommended that
reassignment of a judgeship serving multiple districts to a
several judicial districts receive more than one new district
single, or dual, districts.
court judgeship, including the Central District of California
(Los Angeles), the Eastern District of California
The Judicial Conference’s recommendation as to which
(Sacramento), the Middle District of Florida (Tampa), and
judicial districts need new judgeships is based, in part, upon
the Western District of Texas (San Antonio).
a comparison across districts of the complexity of different
types of cases handled by judges, as well as the amount of
In making its recommendation, the Judicial Conference
time it takes for judges to dispense with such cases. Types
notes that since 1990, when the last omnibus judgeship
of civil cases that are generally more complex or time-
legislation was enacted (creating 72 new judgeships),
consuming for judges include environmental, patent, civil
appeals filings have increased 40% and district court filings
rights, antitrust, and Freedom of Information Act actions.
have increased 38% (with civil case filings up 38% and
Types of criminal cases that might be more complex or
criminal filings up 39%).
time-consuming include criminal enterprise, homicide, and
extortion cases. In general, there is greater variation in
Barry J. McMillion, Analyst in American National
complexity across different types of civil cases than for
Government
criminal cases.
IF10669

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Congressional Authorization of New U.S. Circuit and District Court Judgeships



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