July 1, 2020 - Ninth Circuit Insights

Expanding The Ninth? The Plan to Add Five More Judges

With 29 authorized judgeships, the Ninth Circuit is already significantly larger than any other court of appeals. It could grow even bigger soon under a proposal picking up steam in Washington.

In testimony before the Senate Judiciary Committee on Tuesday, Judge Brian Miller made the Judicial Conference of the United States’ case for adding five judges to the Ninth Circuit, bringing its authorized total to 34. The Judicial Conference did not recommend expanding any other courts of appeals. (It asked Congress to add 65 judges to 24 district courts.)

Judge Miller explained that the Judicial Conference makes its recommendations based on a court’s workload, targeting 500 “adjusted filings” per court of appeals panel. (The filing figures are “adjusted” because they exclude reopened appeals and count pro se appeals as one-third of a case.) The Ninth Circuit, with 725 adjusted filings per panel, “substantially exceeded the standard.” Indeed, even with the addition of five new judges, Judge Miller explained, the court would still have a heavy workload, with 600 adjusted filings per panel.

According to media reports, both Judiciary Chairman Lindsey Graham and ranking member Diane Feinstein have indicated their support for acting swiftly on the Judicial Conference’s recommendations. Senator Graham said that a presidential election year may be the best time to pass such legislation “because nobody knows the outcome” and thus which party’s president would be able to fill the new judgeships.

Expansion of the Ninth Circuit to 34 authorized judgeships would be only the latest chapter in the court’s dramatic growth. As recently as 1978, the court had only 13 authorized judgeships. Ten were added in 1978, five in 1984, and one in 2009. If the Ninth Circuit gains an additional five judges next year, it will have double the number of judges of the next largest circuit—the Fifth Circuit, which has 17 authorized judges.