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U.S. Judiciary Reduces New Ninth Circuit Judgeships Request (2)

March 16, 2021, 5:35 PMUpdated: March 16, 2021, 11:10 PM

The Judicial Conference reduced the number circuit judges it recommended Congress add to the Ninth Circuit and a submitted a larger request of district court picks in its latest proposal.

The new recommendations announced Tuesday included two seats for the California-based circuit and 77 district court judgeships.

The judiciary’s last proposal in 2019 included five seats for the Ninth Circuit along with 65 district court judges in California and other states. The Judicial Conference updates its recommendations every two years.

The new judgeships were the result of the conference’s biennial survey, said Judge Claire V. Eagan, chair of the Judicial Conference’s executive committee, during a call with reporters after its biannual meeting.

The recommendations undergo six levels of review in the judiciary, including factors such as caseload, number of senior judges, and geographic issues, she said.

It wasn’t immediately clear why the new seats proposed for the Ninth Circuit were reduced. The conference previously recommended five seats based on a high volume of adjusted filings per three judge panel and heavy pending caseload, according to a 2019 Congressional Research Service report.

Eastern District of Arkansas Judge Brian Stacy Miller, who chairs the conference’s Judicial Resources Committee, told Bloomberg Law the Ninth Circuit requested only two seats, and his committee doesn’t recommenced more than what a court requests.

Despite requests from the judiciary, Congress hasn’t passed a comprehensive judgeship bill in 30 years. Eagan said the judiciary hopes Congress “will be amenable to taking up these requests.”

While there is bipartisan interest in adding seats to the district courts, Republicans are reluctant to add seats to the Ninth Circuit, the largest appeals court, which is viewed as liberal-leaning.

Miller, who testified before the Senate Judiciary Committee on the need for new judgeships last summer, said he’s optimistic about the prospect of Congress adding more judges comprehensively and believes it will happen.

“Although there appears to be some debate about how it should be done, I get the impression that most of our Congress people believe that we need judges,” Miller said.

Cyberattack Review

Separately, the judiciary expects results of an audit of its electronic filing system following a cyberattack soon, Eagan said.

In January, the judiciary disclosed an “apparent compromise” of its electronic filing system that it believes was connected to the SolarWinds breach that had widespread impact in both the public and private sectors. The judiciary then announced it was working with the Department of Homeland Security on an internal audit of the system.

The judiciary doesn’t yet know what was accessed, Eagan said Tuesday. But she offered more details about the use of the SolarWinds system in the judiciary.

The judiciary has used SolarWinds nationally since 2011 and about 28 courts used it locally, she said. Federal courts have released orders instructing filers to keep “highly sensitive documents” off the electronic system.

Eagan said the judiciary expects those procedures will likely stay in place until the audit is complete.

The conference also discussed security issues, Eagan said, which have been a priority for the judiciary since an attack on a federal judge in which her son was killed, and heard from lawmakers.

The guests included Senate Judiciary Committee Chair Dick Durbin (D-Ill.), Sen. Patrick Leahy (D-Vt.), Sen. Sheldon Whitehouse (D-R.I.), Sen. Cindy Hyde-Smith (R-Miss.), House Judiciary Committee Chair Rep. Jerry Nadler (D-N.Y.), Rep. Hank Johnson (D-Ga.), Rep. Darrell Issa (R-Calif), and Rep. Steve Womack (R-Ark.).

(Updated with comments from Judge Brian Miller.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com