Today the United States Court of Appeals for the Eleventh Circuit operates under a crushing workload. Although the number of judgeships on the court has remained constant since its inception in 1981, the number of appeals it considers annually has grown almost 160%. No circuit court in the nation handles more appeals per three-judge panel or per active judge.

The Eleventh Circuit has employed several means for keeping up with its workload, including hiring a large staff of attorneys, enlisting the services of visiting judges, and hiring more law clerks. Despite these measures, the data indicate that the court is not serving the public with the same standard of excellence that it provided in the past.

Accordingly, the Eleventh Circuit needs assistance. Any further reforms, however, should serve to complement, not substitute for, the independent and rigorous review of cases the Article III judges of the court bring to the process. In other words, any new measures should encourage the traditional appellate process. Prior reforms have not necessarily done so. Although the movement to limit the jurisdiction of the federal courts has appeal, it is not prevailing. As a result, in order to serve the public with the excellence it expects and deserves, the Eleventh Circuit needs more active judges. The court should expand in a limited fashion, from twelve to fifteen judges.

The opponents of circuit court expansion argue that increasing the number of judges leads to instability in the law and greater litigiousness. The available empirical evidence, however, refutes this contention. Moreover, adding three more active judges would enhance the collegiality and efficiency of the court because the addition of judges would reduce the court's reliance on visiting judges. The assertions that adding three members would deteriorate the quality of the bench and be too costly are similarly without merit.

The Eleventh Circuit exists to serve the public. Adding three more active judges to the court would enable it to better fulfill its mission.

Mr. Chairman and members of the Commission, I am Joseph W. Hatchett, Chief Judge of the United States Court of Appeals for the Eleventh Circuit. I appreciate having this opportunity to speak to you concerning the current state of the federal appellate system, with particular focus on the Eleventh Circuit Court of Appeals. I bring to this discussion a considerable range of experience with court systems and the appellate process, having served as a federal prosecutor and full-time United States magistrate, as a military judge in the United States Marine Corps, as a Justice of the Supreme Court of Florida, and, for over eighteen years, as a federal circuit court judge.

Chief Justice William Rehnquist, in his 1997 year-end report, highlighted the disparity between judicial resources and the increasing workload as one of the problems presently facing the federal judiciary. The discussion continues concerning whether increasing the number of federal judgeships is not only a viable solution to the problem, but in fact a necessity. An important underlying question that must be considered is what constitutes the "bare minimum" of the courts' services -- that is, how much of the "nuts and bolts" of the work can judges delegate, how many oral arguments can the courts forego, and how many opinions can the courts not write and/or publish before the courts are no longer upholding their responsibilities to the public. Much of the debate has focused on determining the "right" number of judges. Although I cannot articulate a "right" number of federal judges for the nation, and do not foresee an exact formula for deriving such, I can speak to the present situation of the Eleventh Circuit.

At the outset, let me state that the judges of the Eleventh Circuit are doing an excellent job. Indeed, because I could not be more impressed with the qualities and dedication of my colleagues, nothing I say today should be interpreted to suggest otherwise. Likewise, nothing I say should be interpreted to imply that the Eleventh Circuit works harder than other circuits, or that other circuits are somehow not as efficient.

It is, however, a matter of fact that today the Eleventh Circuit operates in the face of a crushing workload. Since its inception in October 1981, the Eleventh Circuit has had twelve judicial positions. In the 1997 calendar year, litigants filed 6,102 appeals in the court, representing a 30.5% increase since 1991, and a 158% increase since 1981.⁽¹⁾ In 1997, the court ranked first among the circuits in terminated appeals per three-judge panel with 1,518 -- a number 17.9% higher than the second-ranked circuit.⁽²⁾ Moreover, the Eleventh Circuit ranked first among the circuits in terminations on the merits per active judge (792), which was 34% higher than the second-ranked circuit, and in the number of written decisions generated per active judge (252), approximately 33.3% higher than the second-ranked circuit.⁽³⁾ To put these latter figures into perspective, the situation is not unlike the one that Judge Jones recently described concerning the Fifth Circuit: "[O]n average, each judge disposes of almost one case and participates in two others every working day of the year."⁽⁴⁾ Accordingly, it is not surprising that the Administrative Office's Application of New Judgeship Formula for 1996 provided that the Eleventh Circuit's caseload rendered it eligible to have twenty-seven judges, a 125% increase over its current size.⁽⁵⁾ No other circuit had a greater disparity between the formula application and the number of its current judgeships, either in aggregate terms or as a percentage increase.⁽⁶⁾

The Eleventh Circuit has successfully implemented several means for keeping up with its caseload. First, the court now employs forty-three staff attorneys who exert considerable influence. Among other things, these attorneys recommend whether cases should go to oral argument and prepare memoranda summarizing and analyzing certain types of issues and cases. Pursuant to a recent decision of the members of the court, the staff attorneys also now orally present some pro se cases to panels of three of our circuit's senior judges. Second, the court enlists the services of visiting judges, i.e., senior judges from other federal courts. In fact, this year the court will use twenty-one visiting judges, some of whom will participate on more than one judicial panel. Finally, most of the active judges on this court now hire four law clerks instead of three, and several judges employ career law clerks.

Without these steps, the Eleventh Circuit would probably not be able to keep up with its enormous caseload. Even with these measures and an extraordinary amount of judicial effort, I believe strong evidence exists that the court is no longer able to provide the public with the same standard of excellent service that it did in the past. In 1986, the court granted oral argument in 49.1% of all merits terminations (1,104 out of 2,248); in 1991, the figure was 44.4% (1,043 out of 2,347); and in 1997, it dropped to 30.9% (999 out of 3,235).⁽⁷⁾ Moreover, in 1988, the percentage of merits terminations decided via published opinion was 33.3% (690 out of 2,069); in 1991, that figure was 28.2% (659 out of 2,339); and in 1997, it fell to 15% (485 out of 3,235).⁽⁸⁾ Additionally, last year the court generated twenty signed opinions per active judge -- the least of all of the circuits,⁽⁹⁾ and the national average was fifty.⁽¹⁰⁾ Furthermore, in 1997, the median time in our court from the filing of an appeal to its disposition was 14.1 months.⁽¹¹⁾ In sum, in the Eleventh Circuit today, it is more than likely that a litigant's case will not be orally argued; judges will not discuss the case in a face-to-face conference; and the case will not be disposed of in a published opinion. Rather, it is more than likely that the case will be terminated through an unsigned, per curiam opinion, which may entail only a paragraph or two, or a reference to a local circuit rule.

Consequently, I believe the Eleventh Circuit needs more assistance to ensure that it continues to render its services with the excellence our citizenry expects and deserves. In order to achieve this objective, however, any reforms should serve to complement and foster the service the circuit courts are required to provide, i.e., Article III judge independent and rigorous review.⁽¹²⁾ In my view, the steps the Eleventh Circuit has taken thus far -- adding staff attorneys, enlisting the help of visiting judges, and hiring more law clerks -- do not necessarily advance this service. We must remain vigilant, I believe, in retaining the functional distinction between Article III judges and court personnel. In short, further reform should serve to encourage what has been termed the "traditional appellate process" -- having the Article III judges of the court hearing cases, deliberating face-to-face with their colleagues, sifting with care through briefs and records, and writing thorough, signed opinions.

I am aware, of course, of the movements to limit the jurisdiction of the federal courts. The debate has been active and well-catalogued, and it seems to me that many of the proponents of these ideas have presented persuasive arguments. I note, however, that the proponents of more limited jurisdiction do not appear to be prevailing; indeed, the trend continues to move in the opposite direction.

After much thought and consideration, it is my conclusion that the Eleventh Circuit needs more judges. I served on the Fifth Circuit before it was split in 1981 to form the Eleventh Circuit. At that time, the court consisted of twenty-six judges -- a situation that was, in my view, a horror. Staying abreast of the court's opinions was practically a full-time job in itself. And, the en banc conferences were completely unwieldy. At these conferences, twenty-six judges would give their views on each issue of every case -- a process that consumed hours, even days.

Consequently, it should not be surprising that, in the past, I have consistently opposed the court's growth. For the reasons outlined above, however, I no longer think that the court, with its current workload and resources, is excelling as it once did. I must be clear, however, in stating that I do not believe that the court should expand to a size even remotely approaching that of the old Fifth Circuit. Instead, I believe that the litigants of Florida, Georgia, and Alabama would be better served if the court had fifteen active judges rather than twelve.

I know that not everyone concurs in my view. Opponents of circuit court expansion have come up with an array of arguments in support of their position. They charge that increasing the number of judges on a court leads to instability in the law, intra-circuit splits, and a higher appeal rate; destroys the esprit de corps and collegiality inherent in a well-functioning appellate court; deteriorates the quality of the circuit bench; and is too costly. In my view, none of these arguments is persuasive.

Opponents of expansion contend that having more judges leads to instability in the law, intra-circuit splits, and a higher appeal rate. This argument takes a couple of different forms. One is that with more judges, a court generates more decisions, of which the judges cannot keep abreast, and thus the law becomes muddled, with conflicts in precedents inevitably arising at a greater rate. Another theory is that with more judges more combinations of panels are possible, which will generate more unpredictable outcomes, and, with outcomes less determinate, appeal rates will rise because litigants will increasingly choose to "roll the dice."⁽¹³⁾

In a recent article in the Cornell Law Review, Professors Richman and Reynolds do an excellent job of refuting these contentions, concluding that "[t]here simply is no evidence that increasing the number of judgeships within a circuit reduces the stability of circuit law or increases the rate of appeal."⁽¹⁴⁾ The authors observe that "what makes for an unpredictable outcome generally is . . . the absence of a circuit precedent that is closely on point or, less commonly, a fact-specific rule of law that by its nature requires case-by-case evaluation."⁽¹⁵⁾ Additionally, Richman and Reynolds found that "[i]f the more-judges-creates-more-appeals argument is valid, we should expect to see a relationship between circuit size and appeal rates. In fact, however, no such correlation exists."⁽¹⁶⁾ Furthermore, the presence of three more judges on the court will mean that each judge will have more time and will therefore be better able to communicate and coordinate with his or her colleagues, and keep better apprised of the law of the circuit.

Opponents of court expansion also argue that it will undermine the collegiality of the bench and that somehow this will hurt the functioning of the court. Let me say that the idea of the "clubby" circuit court is a myth. I am, like two other members of the court, the only Eleventh Circuit judge residing in my home city. Therefore, for the most part, I have the opportunity to interact personally with my colleagues only when I attend panel and en banc sittings -- maybe eight weeks out of the year, in the aggregate. Otherwise, I communicate with them via the telephone, facsimile machine, and computer. In addition, the court's current practice of importing the services of significant numbers of visiting judges undermines collegiality and efficiency. And, as mentioned above, having more judges would give the members of this court more time, and, with more time, a judge has more of an opportunity to be a reflective, thoughtful peer.

The argument that adding three judges to the court would somehow deteriorate the quality of the bench is devoid of merit. Indeed, almost 80,000 lawyers practice in the Eleventh Circuit, and when one considers all of the highly talented federal trial judges, state-court judges, government lawyers, senior partners, solo practitioners, and law professors who reside there, it is difficult to take seriously this assertion.

Another argument against adding judges posits that it is too costly to do so. Again, I do not find this position persuasive. The cost of salaries, benefits, and direct chambers support for a circuit judgeship totals about $475,000 annually.⁽¹⁷⁾ While this may sound high as an absolute figure, I insist that the public receives great value for that money. Consider that if my colleagues moved into the private sector, they would command salaries in the hundreds of thousands of dollars. Moreover, if the court's law clerks had chosen to bypass their year of government service and proceeded to join large law firms, they could command almost $80,000 in Washington, D.C., and over $90,000 in New York City -- salaries more than double of what they earn with the court. Furthermore, the federal judiciary consumes a very modest amount of the public fisc to begin with -- approximately two-tenths of one percent of the federal budget.⁽¹⁸⁾ Of course, at bottom, the cost issue reflects priorities and value judgments. I believe that giving litigants their full due in the federal courts -- and, of almost equal importance, having litigants feel as though they have received their due -- should rank very highly among the nation's priorities.

Footnotes

1. See Appendices A and B.

2. See Appendix C (using figures for the twelve months ending September 30, 1997).

3. See Appendix D (using figures for the twelve months ending September 30, 1997).

4. Hon. Edith H. Jones, Back to the Future for Federal Appeals Courts: Rationing Federal Justice by Recovering Limited Jurisdiction, 73 Tex. L. Rev. 1485, 1491 (1995) (book review) (emphasis added).

5. See Appendix E. Although the Administrative Office no longer utilizes the above formula to determine a circuit's recommended number of judgeships, I make reference to the formula merely to underscore the magnitude of the Eleventh Circuit's workload.

6. As to percentage increase, the Fifth Circuit ranked second in 1996, with its twenty-eight formula application judgeships representing a 64.7% increase over its size of seventeen judges. The Fourth Circuit ranked third at 33.3%. See Appendix E.

7. See Appendices F and G.

8. See Appendices H and I.

9. See Appendix J (using figures for the twelve months ending September 30, 1997).

10. See Appendix K (using figures for the twelve months ending September 30, 1997).

11. See Appendix L.

12. As Judge Higginbotham has written, "the judicial task is nondelegable." Hon. Patrick E. Higginbotham, Bureaucracy -- The Carcinoma of the Federal Judiciary, 31 Ala. L. Rev. 261, 265 (1980).

13. My colleague Judge Tjoflat made these assertions in arguing against "jumbo courts." It is unclear, however, whether Judge Tjoflat would believe that the addition of three judges would transform the Eleventh Circuit into a "jumbo court." See Hon. Gerald Bard Tjoflat, More Judges, Less Justice, A.B.A. J. July 1993, at 70.

14. William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273, 308 (1996).

15. Richman & Reynolds, supra note 14, at 310.

16. Richman & Reynolds, supra note 14, at 312.

17. Richman & Reynolds, supra note 14, at 304.

18. Richman & Reynolds, supra note 14, at 304-05.