A prominent conservative law professor, Steven Calabresi, and one of his former students recently published a proposal to expand the federal judiciary by creating hundreds of new judgeships. A founder and chairman of the Federalist Society (of which I have been a member since 1984), Professor Calabresi promoted his “judgeship bill” as a way of “undoing” President Barack Obama’s judicial legacy. But there is nothing conservative — or otherwise meritorious — about this proposal.
Professor Calabresi, who teaches at Northwestern University, argues that federal courts are overwhelmed by their caseloads. He complains that appellate courts hear too few oral arguments and issue too many unpublished opinions, and that district courts too rarely conduct jury trials and approve too many plea bargains in criminal cases. He also contends that the federal judicial conference, the policymaking body for the federal courts, opposes more judgeships because it fears an expansion would diminish the prestige of the judiciary. None of this is true.
It's an interesting debate. I will say this -- the 11th Circuit needs more judges. They only hear oral argument in a very small percentage of cases. With more judges, there would be more oral argument and the litigants would feel like they are getting more process. It's very difficult to have a trial with real issues, only to get a non-published opinion back from the 11th Circuit that was done without the benefit of OA. We don't need 50+ judges as Calabresi says. That's silly. But a few more wouldn't hurt either.