WASHINGTON (CN) — Some of the Senate Judiciary Committee’s top lawmakers said this week that they would be open to discussing proposed legislation aimed at creating dozens of new federal judgeships. But as the presidential election looms, a path forward for such a bill remains murky.
Congress, tasked with overseeing the federal judiciary, has left the number of judges overseeing district courts in stasis for more than two decades. Lawmakers last created a new district court judgeship in 2003 and haven’t significantly expanded district-level judgeships since the 1990s.
Experts have sounded the alarm about this judicial drought, which some argue has contributed to a crushing backlog of cases pending before federal district courts.
The U.S. Judicial Conference, the federal judiciary’s policymaking body, recommended in March 2023 that Congress pass comprehensive legislation adding 66 permanent federal judgeships to district courts across the country. The conference also suggested lawmakers tack on two extra permanent judgeships to the Ninth Circuit Court of Appeals.
It wasn't the first time in recent years that the Judiciary Conference has asked Congress to lighten the burden on federal courts. The group in 2021 urged Congress to add five judgeships in Oklahoma, after a Supreme Court ruling moved the venue for litigating crimes committed on Indigenous land from state courts to the federal docket
The needs expressed by the federal judiciary are real, said Carl Tobias, chair of the University of Richmond School of Law.
The Judicial Conference’s recommendations are “based on conservative estimates of case and workload,” he told Courthouse News during an interview Wednesday. “They’re not outlandish requests.”
A judgeships bill would address “the most dire circumstances in the judiciary,” Tobias said, pointing in particular to caseloads in jurisdictions like the Eastern District of California, which he said has been burdened "for decades" with double the national average.
Federal district courts in border regions like Texas, Arizona and southern California are also suffering from staffing shortages in the judiciary, he added.
Fortunately, there is at least one piece of comprehensive legislation in Congress aimed at expanding the federal judiciary.
Introduced in September by a bipartisan group of lawmakers including Delaware Senator Chris Coons and Indiana Senator Todd Young, the proposed bill would closely follow the Judicial Conference’s recommendations, adding 63 new district court judgeships and three more temporary positions.
“Too many Americans are being denied access to our justice system due to an overload of cases and a shortage of judges,” said Young in a statement at the time. “Our bipartisan bill will help address this shortage and ensure all Americans have the opportunity to have their day in court.”
If made law, the legislation — known as the Judicial Understaffing Delays Getting Emergencies Solved Act or JUDGES Act — would direct the White House to appoint new judges in two batches, one in 2025 and another in 2029. Three temporary judicial appointments, two in the Eastern District of Oklahoma and one in the state’s northern district court, would be selected separately.
The bipartisan bill would also extend temporary judgeships in the Northern District of Alabama and the District of Kansas, and commissions an independent report on the status of “vacant or underused” federal courthouses.
The measure does not include the Judicial Conference’s recommended Ninth Circuit judgeships.
Coons and Young introduced similar legislation in 2021, but it fizzled and died before it could see a vote. Lawmakers in 2020 also urged their colleagues to draft a comprehensive judgeships bill.
This latest attempt has yet to hear debate in the Senate Judiciary Committee, but both Republicans and Democrats said this week that they would be open to broaching the subject of federal judgeships in the new year.
“The judiciary is short on judges,” Connecticut Senator Richard Blumenthal told Courthouse News on Thursday. “This is a longstanding need, and we should meet it.”
Iowa Senator Chuck Grassley, who previously served as the Judiciary Committee’s Republican chair, said he had not yet made up his mind on the proposed legislation, saying that the details of how the new judgeships are distributed was important.
“But I think I’d just better admit that we need more judges,” Grassley added.
Missouri Senator Josh Hawley said Thursday that, while he wasn’t familiar with the proposed bill, Congress should also look at judgeships on U.S. Circuit courts. “I think we probably do need to think about expanding circuits,” he said.
Hawley also suggested that lawmakers consider breaking up the Ninth Circuit, which serves six states in the country’s western reaches plus Alaska and Hawaii, into “two smaller component circuits.”
“That circuit is massively huge, and the caseload is gigantic,” the Missouri Republican said. “It’s not efficient at all.”
Splitting up the Ninth Circuit has been a GOP policy objective for decades, said Tobias, who contended that Republicans have long disagreed with the court’s rulings.
“The problem is there is no feasible way to do that,” he contended, since California supplies more than half of the Ninth Circuit’s case docket and splitting the Golden State across two federal circuit courts “does not work.”
Coons signaled to Courthouse News Thursday that he was working to get his judgeships bill in front of the Judiciary Committee, which is led by fellow Democrat Dick Durbin.
“That’s a bill that I would love to see move,” he said, adding that he “recognize[d] there’s a lot of work to make progress” on the measure.
A spokesperson for Durbin’s office declined to comment on whether the Judiciary Committee chair would bring the bill up for a vote.
South Carolina Senator Lindsey Graham, the panel’s Republican ranking member, did not return a request for comment on whether he would support such an effort.
Tobias meanwhile said he was skeptical that Congress would be able to pass a judgeships bill before November’s presidential election.
“I think the short answer is that it isn’t going to happen,” he said.
While he said it was encouraging that Judiciary Committee senators have some bipartisan interest in expanding the judiciary, Tobias cited growing partisanship across both houses of Congress as a potential impediment to proposed legislation.
“The dynamic just seems to me to be on a downward spiral,” he said. “Republicans will view it as giving Biden judges, more vacancies to fill.”
If there were ever a good time to pass a judgeships bill, though, it would be during an election year, Tobias said, while it’s still unclear which party will control the presidency come January. “Whoever is in the White House is going to get the benefit of it,” he said.
While the possibility of a friendly White House getting a slate of new judicial appointments could attract bipartisanship, Tobias worried it would work in the opposite direction. He predicted that Republicans would view any proposed judgeships legislation as handing more judicial vacancies to the Biden administration.
“I don’t think it’s enough to overcome the partisanship,” Tobias said. “I just don’t see enough of a good government mentality.”
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