Chairman Graham, Ranking Member Feinstein, and Members of the Committee:

Thank you for holding this important hearing on the Judicial Conference’s recommendation for more judgeships.

My name is Anthony Marcum, and I am a fellow with the Governance Project at the R Street Institute. The R Street Institute is a nonprofit, nonpartisan public policy research organization whose mission is to engage in substantive policy research and legislative outreach. Much of my current work focuses on our separation-of-powers system, including policy matters that affect the federal judiciary. My background includes time as both an attorney and federal law clerk, which has shaped my research and interest in this important topic.

To begin, it is undeniable that more federal judgeships are needed. For years—and across presidential administrations—the nonpartisan Judicial Conference of the United States, the national policymaking body for the federal courts, has pressed Congress to authorize additional judgeships. And throughout the years, members on both sides of this Committee have introduced or supported legislation that would create additional judgeships.

In the subsequent thirty years, the U.S. population and civil filings in federal courts have soared, and case delays have worsened. Yet, for three decades, the number of federal judgeships has stayed nearly the same. This creates real-world harm. As I have argued before, “Mounting caseloads create significant case delays and unneeded legal uncertainties, which fuel greater litigation costs and impose significant hardship on individuals and businesses across the country.”

This problem is not solved simply by filling every available judicial vacancy. District courts in Delaware, Florida, Indiana, Louisiana, and Texas, for example, have no vacancies, but nevertheless have weighted filings well over the recommended limit for each district judge. Similarly, of the twenty-seven district courts and one circuit court for which the Judicial Conference has requested additional judgeships, a significant number similarly have no vacancies.

Fortunately, Congress can resolve this judicial capacity crisis. And judging by its past actions, a majority of lawmakers agree that something must be done. Therefore, the only questions that remain are when and how Congress will intervene. Regrettably, the political reality is that bipartisan legislation is difficult to pass. And effective legislation is all the more difficult when it comes to judgeships, as one political party has little incentive to award a president of another party the chance to nominate additional federal judges.

There are a number of proposals to untie this political knot. Most, however, require overlong timelines. The reasoning goes that since no one can expect who the next president will be, it is only fair to stagger judgeships for a number of years over the next one or two administrations. Although well-intentioned, the capacity crisis is happening now, and thirty years for sufficient
judgeships is long enough.

A faster and more effective solution would be to temporarily expand the federal magistrate judge system until Congress can deliver long-term judgeship reform. This proposal is explained in detail in an article I recently wrote for the Cincinnati Law Review. That piece is attached to this letter.

In short, the federal magistrate judge program was created by Congress over fifty years ago, and employs Article I judicial officers to work in tandem with Article III judges to manage cases and improve the workflow of federal district courts. It is a wide-ranging and invaluable system for federal district courts, and Supreme Court justices, fellow judges, and many court scholars have all recognized its contribution.

The advantages of growing the magistrate judge system are numerous. Most relevant to lawmakers, because the magistrate judge system is an Article I creation, it sidesteps the oft-contentious Article III nomination and confirmation process. In lieu of Senate confirmation, these judges are vetted by a local merit selection panel and finally chosen by the district judges they will serve with. And unlike Article III judges who serve “during good Behaviour,” magistrate judges serve renewable eight-year terms.

Since their creation, federal magistrate judges have shown their worth. Information provided by the U.S. Courts during the 2019 fiscal year details the hundreds of thousands of civil and criminal matters magistrate judges resolve annually. Magistrate judges assist district courts in numerous ways—by alleviating caseloads, fast-tracking civil trials, and decreasing the cost and stress of perpetually delayed litigation, to name a but a few. In consent cases, magistrate judges can handle entire civil cases. In criminal cases, magistrate judges often handle most pre-trial matters and entire misdemeanor cases. In other instances, magistrate judges can shorten litigation times by being active in case management, resolving non-dispositive motions, and even helping parties settle their disputes before trial.

But adding more magistrate judges is not simply a numbers game. Due to geography, population, economy, resources, and many other factors, every district court is unique in its challenges and emphases. The distinct statutory role of magistrate judges allows district courts the needed flexibility to task magistrate judges with broad, narrow, or evolving responsibilities.

Most critiques of expanding the federal magistrate judge system would probably focus on magistrate judges’ powers and qualifications. The Judicial Conference itself has raised one likely argument. In June 2018, three district court judges and members of the Judicial Conference’s Judicial Resources Committee testified before a House Judiciary Subcommittee on the need for new federal judgeships. Their testimony provided reasons why additional judgeships are necessary but argued that “[t]he problem cannot be addressed just by adding magistrate judges, or hoping senior and visiting judges will lessen the workload and reduce the need for more judgeships.” Magistrate judges are insufficient, they reasoned, because their “jurisdiction is limited.”

Yet the advantage of the magistrate judge system is not its jurisdiction, but its flexibility. Although magistrate judges cannot oversee criminal felony trials by consent or referral, they may be involved in nearly every other aspect of district court litigation. And criminal trials in federal court are rare. In fact, “Nearly 80,000 people were defendants in federal criminal cases in fiscal 2018, but just 2% of them went to trial.” And in the case of civil trials, when faced with the option of months—if not years—of delay, there is little doubt that litigants would consent and have their case heard much earlier before a well-qualified magistrate judge. As such, a magistrate judge’s jurisdictional limitations are not as stark—or as problematic—as the Judicial Conference may suggest.

Lastly, there is no serious debate on the high qualifications of magistrate judges. The selection process ensures that nominees are selected based on merit, and district judges have an overwhelming incentive to pick candidates who can do the job quickly and competently. It’s notable that a number of magistrate judges ultimately become district judges. According to a
2017 Congressional Research Service report, the third most common professional experience immediately prior to becoming a district judge was serving as a magistrate judge. President Donald Trump’s judicial nominees have followed this trend, as over twenty of them served first as federal magistrate judges.

The current dearth of district judgeships has placed real-world burdens on the courts and those seeking justice through them. An expansion of the magistrate judge system would serve as an apolitical and effective short-term solution to this very real problem. I thank the committee for its focus on this important issue. If I can be of any assistance to members of the subcommittee, please feel free to contact me or my colleagues at the R Street Institute.

Respectfully submitted,
Anthony Marcum
Fellow, Governance Project
R Street Institute
[email protected]

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