October 1, 2009

The Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, will hold a hearing this week on S. 1653, the Federal Judgeship Act of 2009, which was introduced by Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee.

The Act creates new permanent and temporary federal appellate and district court judgeships. While we encourage Congress to create new judgeships if there is a clear and demonstrable need for them, we're concerned that S. 1653 could bring partisan politics into the process of creating judgeships. The Senate Judiciary Committee should ascertain the true need for additional judgeships before assuming the cost for new judgeships. It should also delay the effective date for any new judgeships until after the next presidential election.

We agree with Senators Grassley, Sessions, Brownback, and Coburn that if there is a clear need for new judgeships, those judgeships should be created. However, the creation of new judgeships by Congress should not be used as a political tool to reshape the federal judiciary.

For that reason, we recommend that any judgeships bill contain safeguards to ensure that the independent judiciary remains just that — independent.

This bill, if enacted, will have a profound effect on the federal judiciary. We urge Congress to modify the legislation in several ways to (1) avoid partisan interference with the judiciary's operation, and (2) ensure taxpayer money is spent wisely and efficiently.

While it is recognized that federal judgeship nominees will likely possess similar views to those of the president, the judiciary has always been viewed as set apart from partisan politics to some degree.

Legislation passed to alter the judiciary by enabling the appointment of judges holding a certain political viewpoint is to be discouraged. While it is recognized that a certain amount of partisan entanglement is unavoidable by the fact that the judiciary will need to be modified and expanded at certain points during our nation’s growth, and this expansion will be conducted by politicians, the judiciary's independence must be cultivated, and with that aim in mind, we urge that several of the solutions and proposals contained within this document be incorporated into the Act.

We have produced a detailed analysis of Sen. Leahy's bill. You can read it here.

We will keep you posted on this as events unfold.