Thank you for this opportunity to participate in the important and ongoing dialogue fostered by this Subcommittee regarding the health of our federal courts and, in particular, the proper allocation of judgeships within the Seventh Circuit.

I offer my testimony today from what I hope is a valuable perspective on both sides of the bench. As both a trial court and appellate court judge in Illinois, I experienced firsthand the demands which are placed upon our members of the Judiciary and had the opportunity to deal intimately with the various concerns, administrative, legal and otherwise, which determine how effectively our court system works. As a practitioner, previously as Corporation Counsel under three Mayors for the City of Chicago, and currently as a name partner in a commercial litigation firm in Chicago, I can speak from personal experience of the impact on both clients and their advocates when a court system is not functioning as it should be. Finally, as an educator, I have had the opportunity to reflect upon what I believe the federal court system should, and indeed must, provide to the public. I am a faculty member of The National Judicial College in Reno, Nevada, and have participated as a faculty member in the Appellate Judges Seminar at New York University’s School of Law. I serve as Chair of the Illinois State Bar Association’s Committee on Judicial Appointments and Evaluations and as Judicial Liaison to the ISBA, and was recently appointed Chair of the Access to Justice Advisory Board of the Illinois State Bar Association. I also serve as Chairman of the Judicial Advisory Council of Cook County and have been a member of the Illinois Supreme Court Committee on Character and Fitness, and the Supreme Court’s Committee on Rules. Through these variety of positions, I have had the privilege and opportunity to interact with numerous members of the bar and the judiciary, and to consider what is necessary to maintain, and even improve, the high quality of justice to which we are accustomed in this country. It is against this background that I offer my testimony for your consideration.

Numerous scholars have attempted to set forth the key goals which an appellate court system must meet in order to do justice. For many years, the widely accepted model for fair appellate procedure in the United States dictated that the appellate process meet four goals:

(1) that a party had a right to appeal to one appellate court, at least from an adverse final judgment;

(2) that a party was entitled to present arguments to the appellate court, both in written briefs and orally;

(3) that the appellate decision-making process reflected both the individual thinking of each judge and the effect of consultation among the judges; and

(4) that the court disclose the reasoning underlying its decisions.

See P. Carrington, D. Meador and M. Rosenberg, Justice On Appeal, 7-11 (1976); R. Stern, Appellate Practice In The United States, 20 (1989). For a long time, these ideals were taken for granted because they were adequately fulfilled in the vast majority of federal appeals in this country. In more recent years, however, it appears that as the amount of appellate litigation continues to expand, the number of appellate litigants who benefit from the four principles discussed above is decreasing. I believe this should be a matter of great concern to the bench and bar, and of course, the distinguished members of this Subcommittee.

The first accepted principle of fair appellate procedure is that every party has a right to appeal to one appellate court. As judicial resources are stretched, however, this ideal of a right to appeal becomes illusory. As Professor William Richman has noted, the overwhelming increase in the caseload of the federal courts, both in the Seventh Circuit and around the country, necessarily means that key decisions allocating the judges’ efforts are not made by those judges, but by clerks and central staff who screen incoming appeals and determine how much judge time to allocate to each case. In some circuits, clerks and staff, and not appellate judges, recommend whether oral argument should be granted and whether a full opinion (or any opinion) should be written. In my own personal experience as a state appellate court judge, in certain criminal appeals, court staff would prepare a memorandum draft which would be presented to the court which, given the demands on the court’s time, would often inevitably form the basis of the court’s opinion. Professor Richman concludes, correctly I believe, that because litigants are in effect now petitioning the staff to obtain access to the judges, the federal circuit courts have become certiorari courts.

The second goal of any fair appellate system is that parties have an opportunity to present arguments, both written and oral, to the court. In their book, Justice On Appeal, Professors Paul Carrington, Daniel Meador and Maurice Rosenberg attempted to set a benchmark for the number of cases that should be handled by appellate judges annually. They concluded that, in general, judges of intermediate appellate courts should generate no more than 300 plenary dispositions per year, or 100 dispositions per judgeship, based on a three-judge panel system such as that employed in the federal circuits. Building on this benchmark, Professors Carrington, Meador and Rosenberg concluded that each judge could reasonably be expected to participate in no more than 200 oral arguments per year, and generate no more than 100 written decisions (from full opinions to summary orders) per year. These benchmarks, however, are quickly outgrown if the average number of appeals filed continues to grow while the number of judges handling those cases does not. The result is both inevitable and obvious. In order to accommodate the ever increasing caseload, fewer oral arguments will be scheduled and fewer full written opinions will be generated. The loss is felt both by individual litigants who are afforded the lesser process, as well as by the legal community as a whole due to less written guidance from the court and resulting greater instability in the law. Oral argument is particularly important, as it gives litigants real, tangible comfort that judges are paying attention to their case. Moreover, many appellate judges see oral argument as the opportunity to receive clarification on litigants’ positions. As caseload increases, and less cases are argued orally, this principle suffers.

The third component of a fair appellate process, decision making which reflects both individual thinking of each judge and consultation among the judges, is also affected by the lack of resources. Of course, federal appellate judges cannot participate in every minute of every appeal as it winds its way through the process. Efficiency demands that wise use of court staff and law clerks assists the judges in their handling of appeals. However, as many commentators have warned, at some point the increased caseload transforms appellate judges into administrators who do not decide cases, but simply oversee the resolution of cases through a vast bureaucracy of clerks and staff. Our system is predicated upon judges deciding cases, and with an erosion of that principle, the entire system suffers. In addition, while certain commentators have suggested that more federal appellate judges breeds less stability in the decisional law produced by a court, I submit that we should also question whether any greater stability is achieved with fewer judges, if those fewer judges must refer more and more appeals to an ever expanded administrative structure of staff attorneys and clerks.

Finally, a model of fair appellate procedure dictates that the appellate courts disclose the reasoning underlying their decisions. As the burdens increase on the current judiciary, more summary affirmances mean that this important principle is compromised in more cases. Greater stability in the law cannot be promoted when litigants and their counsel are not privy to the rationale behind the appellate court’s decisions.

According to figures from the Administrative office of the United States Courts, the number of appeals filed in our country’s twelve regional courts of appeal during fiscal 1997 rose to an all-time high of 52,319 cases. There were 3,349 appeals filed in 1997 in the Seventh Circuit alone, which was an increase of 92 appeals over the previous fiscal year. Notably, this increase in appeals might be even higher, if it were not for the backlog of cases in the District Court for the Northern District of Illinois, which is suffering under its own shortage of judges.

The Seventh Circuit Court of Appeals has generally handled the continued increase in federal appeals filed in an admirable fashion. The average time that appeals remain pending in the Seventh Circuit remains below the national average. The court has several senior judges who handle a considerable caseload, further assisting the court in processing its growing caseload. It is important to keep in mind, however, that litigants cannot flood the federal courts of appeal until they have been afforded some resolution by the district courts. It may very well be that the Seventh Circuit is in part enjoying the benefits of a district court which cannot process its own caseload as quickly as it should be able to. Indeed, Chief United States District Judge Marvin Aspen has repeatedly warned that without replacements for his increasing number of vacancies, the work of the Northern District of Illinois will be seriously hampered. Thus, I believe that this Subcommittee must maintain its focus on the larger picture and Congress must remain dedicated to providing adequate resources for a properly functioning judiciary.

There is another danger which must be contemplated notwithstanding statistics which show the Seventh Circuit to be adequately weathering the storm of increasing caseloads. This concern relates not to the quantity of justice dispensed, but to the quality of that justice. The four principles I have discuss related to the model appellate system all relate to that quality of justice. Oral argument, individual judicial consideration, consultation among judges, and a written explanation of a court’s actions, are all critical to our appellate process. As caseloads increase, it is only a matter of time before the Seventh Circuit, like other circuits, will have no choice but to compromise some or all of these critical principles.

Is the answer simply the hasty addition of new federal judges to handle the ever-increasing caseload? I do not believe so. Every court, and indeed every vacancy, must be carefully considered, and its impact on the overall administration of justice must be contemplated as this Subcommittee evaluates whether new judgeships are prudent. What is beyond question, however, is that a fair and just appellate system needs adequate resources to operate, and the most fundamental resource of that system is the appellate judge. Without an adequate number of judges, it is only a matter of time before the four principles of fair appellate process begin to erode. Litigants, and the American public, deserve a fair, complete judicial and appellate process if they are to continue to reap the benefits of the system of justice that our forefathers gave so much to achieve.