The Federal Bench – Annual Report 2021

Article III Judgeships

In 2021, the Judicial Conference asked Congress for legislation to address the dire need for new Article III judgeships throughout the federal court system.

After its March meeting, the Conference transmitted to Capitol Hill its recommendations for 79 additional judgeships – 77 of those for district courts and two of them for the Ninth Circuit Court of Appeals. The Conference also recommended the conversion of nine existing temporary judgeships to permanent status. Six district courts were identified as priorities for expedited action because of their high sustained workloads: Eastern and Central California, Delaware, Southern Indiana, New Jersey, and Western Texas.

In support of the new judgeships, the Judiciary noted that the number of cases filed in the courts of appeals has grown 12 percent since enactment of the last comprehensive judgeship legislation in 1990. In the district courts, case filings rose 47 percent through 2019, but declined in 2020 due to the impact of the COVID-19 pandemic. Those declines are expected to be temporary.

Then in September, the Conference approved a recommendation for the creation of five additional Article III judgeships in Oklahoma, and a supplemental request was relayed to Congress, bringing the request for district judgeships to a total of 82. The Conference identified the need for the additional district judgeships as a result of the Supreme Court’s July 2020 decision in McGirt v. Oklahoma, which dramatically increased prosecutions in the Northern and Eastern Districts of Oklahoma. The McGirt decision found that the state of Oklahoma had no jurisdiction over crimes committed by or against Native Americans on tribal lands, which shifted prosecutions of serious crimes on tribal land from state courts to federal or tribal courts. Average annual criminal case filings were expected to jump from 121 to 1,834 in the Eastern District and from 278 to 1,473 in the Northern District.

In February, the House Judiciary Committee held a hearing titled The Need for New Lower Court Judgeships, 30 Years in the Making. Although a Conference witness was not invited to testify, Chief Judge Kimberly Mueller, of the Eastern District of California, Judge Larry Burns, of the Southern District of California, and Judge Diane Humetewa, of the District of Arizona, provided testimony in their personal capacities.

In July, Sen. Todd Young (R-IN) introduced the Judicial Understaffing Delays Getting Emergencies Solved (JUDGES) Act to authorize 77 new district judgeships and convert nine temporary judgeships to permanent status. The bill mirrors the Judicial Conference’s March recommendation for both additional district judgeships and the conversion of existing temporary judgeships to permanent status. The bill, which attracted bipartisan support in the Senate, authorizes half of the judgeships in January 2025 and half in January 2029. Rep. Darrell Issa (R-CA), the ranking member of the House Judiciary Subcommittee on the Courts, introduced a companion bill in the House that also had bipartisan support.

Rep. Hank Johnson (D-GA), Chairman of the House Judiciary Subcommittee on the Courts, Intellectual Property, and the Internet introduced the District Court Judgeships Act of 2021, H.R. 4886, which authorizes 203 new district judgeships across 47 districts and converts nine temporary judgeships to permanent status. The bill includes all the additional judgeships and conversions recommended by the Conference in March, except for one judgeship in the Northern District of Iowa. Authorization of the judgeships would occur at the time of bill enactment. The bill attracted multiple Democratic co-sponsors.

Several smaller judgeships bills also were introduced, generally by members of the House or Senate proposing judgeships for their local courts.

Senior Judges

In 2021, 500 senior Article III judges served in the courts of appeals, the district courts, and the Court of International Trade, providing vital assistance in courts with large, sustained caseloads. The number of cases filed in the courts of appeals and district courts has grown substantially since 1990, the last year that comprehensive judgeship legislation was enacted. Nationwide, during the 12 months ending Sept. 30, 2021, senior judges participated in 20 percent of all court of appeals cases that were terminated after oral hearing or submission on briefs. In the district courts, senior judges closed 19 percent of all criminal cases and civil cases that were terminated, and they conducted 25 percent of all completed trials.

Visiting Judges

Visiting judges provide short-term assistance to courts with high caseloads, both between circuits and among court districts within a circuit. The work of visiting judges is facilitated by the Conference’s Committee on Intercircuit Assignments. In fiscal year (FY) 2021, the committee recommended, and the Chief Justice approved, 180 intercircuit assignments of Article III judges. The committee also reviewed and concurred with 22 intercircuit assignments of magistrate judges and 17 assignments of bankruptcy judges. For the 12-month period ending Sept. 30, 2021:

• Visiting Article III judges participated in 2,556 appeals closed after an oral hearing or submission on briefs. They closed 979 civil cases and closed matters involving 639 criminal defendants.
• Visiting magistrate judges terminated nine civil cases with the consent of the parties.
• In the bankruptcy courts, judges provided 4,494 hours of visiting assistance.

Bankruptcy Judges

The Conference conducts surveys of the circuits every two years to gather information about where additional judgeships are needed. The surveys examine each court’s workload and case filing statistics, geographic needs, and other relevant factors that the Conference uses in drafting its requests to Congress for additional judgeships or extensions of temporary judgeships.

Congress has created temporary bankruptcy judgeships to address immediate workload needs when it is reluctant to establish permanent judgeships. Of the 345 total bankruptcy judgeships currently authorized by law, 29 are temporary. Typically, a temporary judgeship lasts five years from the day a judge is sworn into office.

When it became law in January 2021, the Bankruptcy Administration Improvement Act of 2020 extended 25 of the 29 temporary bankruptcy judgeships for an additional five years. The change affected 14 court districts. 

In 2019, the Conference recommended that Congress convert 14 of the Judiciary’s temporary bankruptcy judgeships to permanent status. While not making any of the judgeships permanent, the legislation did extend the terms of an additional 11 judgeships – considered by the Judiciary to be a major accomplishment that will ensure that current level of bankruptcy judgeships can be maintained for at least five years.

In March 2021, the Conference asked Congress to authorize two additional bankruptcy judgeships, one each in the Northern District of Mississippi and the Southern District of New York. The Conference also called for the conversion of 12 temporary judgeships to permanent status, seven in the District of Delaware, two in the District of Southern Florida, and one each in the districts of Maryland, Eastern Michigan, and Puerto Rico.

Magistrate Judges

Magistrate judges perform indispensable work for the Judiciary. In 2021, there were 555 full-time magistrate judges serving the Judiciary. During the 12 months ending Sept. 30, 2021, magistrate judges:

• Conducted 490,212 felony preliminary proceedings, including search warrants, initial appearances, detention hearings, preliminary proceedings, and arraignments. They also disposed of Class A misdemeanor and petty offense cases involving 25,922 defendants.
• Disposed of 16,974 civil cases with consent of the parties and conducted 20,282 settlement conferences in civil cases.

In 2021, the Magistrate Judges Committee recommended that the Judicial Conference authorize six new full-time magistrate judge positions, one in each of the districts of New Hampshire, Southern New York, Eastern North Carolina, Eastern Oklahoma, Middle Florida, and the District of Columbia.

Article III Vacancies, Nominations, and Confirmations

As of Dec. 31, 2021, there were 72 Article III judgeship vacancies: four in the courts of appeals, (one of which was designated a judicial emergency as defined by Conference policy), 66 in the district courts (30 of which were designated as judicial emergencies), and two on the Court of International Trade. There were two vacancies on the Court of Federal Claims. In addition, 33 future vacancies were announced (when a judge announces a retirement date), 16 in the courts of appeals and 17 in the district courts. A total of 31 Article III judgeship nominations were pending: five in the courts of appeals and 26 for the district courts. During the first session of the 117th Congress (calendar year 2021), 11 circuit judges and 29 district judges were confirmed. In addition, two Court of Federal Claims judges were confirmed.

Biannual Meetings of the Judicial Conference

The Judicial Conference of the United States is the national policy-making body for the federal Judiciary. The Chief Justice is the presiding officer. In 2021, the Conference met on March 16 and on Sept. 28. Both meetings were held by teleconference because of the COVID-19 pandemic. The Conference usually meets at the Supreme Court in Washington, D.C.

Reports of the Conference’s meetings are published on the Judiciary’s website.

New Judicial Conference Committee Chairs

Judicial Conference committees make policy recommendations to the Conference on a variety of subjects, such as information technology, probation and pretrial services, space and facilities, security, the budget, defender services, court administration, and rules of practice and procedure. The Chief Justice has sole authority to make committee appointments.

The Executive Committee is the senior executive arm of the Conference, with responsibilities that include acting on behalf of the Conference between sessions on matters requiring emergency action and preparing proposed consent and discussion calendars for meetings of the Conference.

In 2021, Chief Justice John G. Roberts Jr. appointed three new members to the committee: Judge John Bailey, of the Northern District of West Virginia; Chief Judge Jeffrey S. Sutton, of the Sixth Circuit Court of Appeals; and Chief Judge Diane S. Sykes, of the Seventh Circuit Court of Appeals. Judge Claire V. Eagan, of the Northern District of Oklahoma, is the current chair of the Executive Committee.

The Chief Justice named five new chairs of Conference committees and extended the terms of four current chairs by a year. The appointments took effect on Oct. 1, 2021 as follows:

• Judge Amy J. St. Eve (Seventh Circuit) succeeded Judge John W. Lungstrum (Kansas) as chair of the Committee on the Budget.
• Judge Jennifer Walker Elrod (Fifth Circuit) succeeded Judge Ralph R. Erickson (Eighth Circuit) as chair of the Committee on Codes of Conduct.
• Judge Audrey G. Fleissig (District of Eastern Missouri) was extended for another year as chair of the Committee on Court Administration and Case Management.
• Judge Michael Y. Scudder (Seventh Circuit) succeeded Judge Thomas M. Hardiman (Third Circuit) as chair of the Committee on Information Technology.
• Judge Nicholas G. Garaufis (District of Eastern New York) was extended for another year as chair of the Committee on Intercircuit Assignments.
• Judge Sidney H. Stein (District of Southern New York) was extended for another year as chair of the Committee on International Judicial Relations.
• Judge Richard J. Sullivan (Second Circuit) succeeded Judge David W. McKeague (Sixth Circuit) as chair of the Committee on Judicial Security.
• Judge Marcia Howard (District of Middle Florida) succeeded Judge Nancy Freudenthal (District of Wyoming) as chair of the Committee on the Administration of the Magistrate Judges System.
• Bankruptcy Judge Dennis Dow (District of Western Missouri) was extended for another year as chair of the Advisory Committee on Bankruptcy Rules.