Brian Fitzpatrick testifies before House subcommittee on need for more lower court judgeships

Feb 26, 2021

Brian Fitzpatrick, who holds the Milton R. Underwood Chair in Free Enterprise, was one of two legal scholars and three judges invited to testify before a subcommittee of the House Committee on the Judiciary that is considering proposals to increase the number of federal judges nationwide. The hearing, held Feb. 24, 2021, by the Subcommittee on Courts, Intellectual Property and the Internet, addressed the need for additional federal judges in the district and appellate courts.

No new positions for appellate judges have been created since 1990.

Read Professor Fitzpatrick’s Feb. 24 testimony before the House Subcommittee on Courts, Intellectual Property and the Internet.

In his testimony, Fitzpatrick addressed the consequences of adding judges to the 9th Circuit, which is the nation’s largest judicial circuit with 29 active appellate judges and many more part-time senior judges. The Circuit covers approximately 20 percent of the U.S. population, or 60 million people.

He argued that one consequence could be to exacerbate the 9th Circuit’s rate of reversal by the U.S. Supreme Court, which is already significantly higher than those from other circuits. He contends that the Circuit’s large size is one cause of the high reversal rate because it increases the likelihood that judges selected to sit on three-judge panels and en banc panels are  not representative of the full Circuit. The 9th Circuit is the only Circuit that is too large to sit en banc as a full court, so 11 judges from the circuit sit on its en banc panels.

If Subcommittee members ultimately recommend an increase in the number of federal judges, Fitzpatrick recommended that this action be accompanied by a plan to restructure the 9th Circuit.

Fitzpatrick studies the federal judiciary and teaches Federal Courts and a seminar, Decentralization of Judicial Power. He began his legal career as a clerk, first for Judge Diarmuid O’Scanlain of the 9th Circuit Court of Appeals and then for Justice Antonin Scalia on the U.S. Supreme Court. He later served as Special Counsel for Supreme Court Nominations for Sen. John Cornyn, R-TX..

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