This week’s Democratic convention was principally a made-for-TV event to showcase party leaders and promote its nominee, former Vice President Joe Biden. But every political convention also includes other less-noticed business, including approving the party’s platform . The party platform is representative of its future goals and policy agenda. And tucked between generalities around combatting climate change and improving health coverage, the Democrats’ new platform includes notable language around reforming the federal judiciary.
Although most attention has focused on the platform’s vague commitment to “structural court reforms”—suggesting openness to adding seats to the Supreme Court or placing term limits on justices—the document’s only concrete judicial proposal is surprisingly bipartisan and something Democrats could achieve now. No Democratic Senate majority or Biden administration required.
“Since 1990, the United States has grown by one-third,” the platform says , and “the number of cases in federal district courts has increased by 38 percent, [and] federal circuit court filings have risen by 40 percent (…) but we have not expanded the federal judiciary to reflect this reality in nearly 30 years.” The platform pledges to create new district and circuit court judgeships “consistent with recommendations from the Judicial Conference.”
Creating more judgeships to address the current capacity crisis in federal courts is not controversial. As I’ve recently written , “For years—and across presidential administrations—the nonpartisan Judicial Conference of the United States, the national policymaking body for the federal courts, has pressed Congress to authorize additional judgeships. And throughout the years, [both Republican and Democratic members of Congress] have introduced or supported legislation that would create additional judgeships.”
The political reality, of course, is when to create these new judgeships. After all, most legislation requires bipartisan support, and members of one political party are reluctant to award a president of another party the opportunity to nominate judges en masse.
Fortunately, though, there’s bipartisan political appetite for reform. In June, the Senate Judiciary Committee held a hearing  on the need for more federal judgeships. The hearing highlighted the Judicial Conference’s recommendation for 65 new district court judgeships, a proposal seemingly endorsed by both Chairman Lindsey Graham (R-S.C.) and Ranking Member Dianne Feinstein (D-Calif.). “If under your leadership you can do it, I want to be your Tonto to your Lone Ranger,” Sen. Feinstein told  Sen. Graham during the hearing.
If committee leaders are serious about reform, they should saddle up and act now. Their most significant advantage is the political calendar, but time is running out. We are three months from election day, and we do not know who will be president on January 20, 2021. That uncertainty is helpful, as legislation can be written to ensure that new judgeships are not created until 2021 or beyond.
A similar compromise was made during the 2018 mark-up of Rep. Darrell Issa’s (R-Calif.) “Judiciary ROOM Act.” The bill created 52 new judgeships to become available immediately. After some negotiation  by House Judiciary Committee members, it was agreed to make the judgeships available in 2021—after the 2020 election. In a committee rarely known to reach bipartisan consensus, the modified bill was overwhelmingly approved  by voice vote.
Case delays cause real-world harm, and the current capacity crisis harms litigants every day across the nation. The current COVID-19 pandemic has only made it worse. Beyond the simple policy wisdom of creating more judgeships, both parties must see the numerous advantages of acting now. Republicans can finish this Congress with a true legislative achievement beyond confirmation battles and emergency COVID spending. Democrats can already check a box of their party platform by supporting a good policy that—if polling is reliable—will likely provide them an opportunity to soon name a number of additional lower court judges.
Of course with any plan—no matter how commonsense—doubts will emerge.
How do we pay for it? Fortunately, equal access to justice does not come with a high price tag. Compared to the massive bureaucracies and costs in many corners of the executive branch, the entire third branch of government is 0.2 percent  of the federal budget. And placed against the trillions Congress has recently spent providing COVID-19 relief to millions of Americans, the modest cost to expand the federal judiciary is minuscule. Nevertheless, there are several ways to potentially offset the price, including a small filing fee increase for a limited number of litigants or taking some of the tens of millions that the federal courts collect  every year for its paywall around most public court filings.
Another concern: How could this be abused across the political aisle? Some Democrats may fear that President Trump would use the upcoming lame-duck session to nominate judges for seats not available until 2021—potentially after his only term in office. Democrats may cite the recent confirmation of Justin Walker as precedent. Walker was notably confirmed in June for a seat on the influential U.S. Court of Appeals for the D.C. Circuit which is not open until September. While confirming a slew of judges during a lame-duck for judicial seats that do not currently exist would present a number of headaches, there is a simple solution—a public commitment not to hold any hearings for these 2021 seats until the next Congress. If such a simple handshake agreement is impossible, then the Senate is even more trouble than we thought.
Increasing the number of federal judgeships is a bipartisan proposal, and the political calendar suggests now is the time to act. The upcoming weeks could help determine whether Congress is serious about solving the current judicial capacity crisis.
- “platform”: https://www.demconvention.com/wp-content/uploads/2020/08/2020-07-31-Democratic-Party-Platform-For-Distribution.pdf
- “says”: https://www.demconvention.com/wp-content/uploads/2020/08/2020-07-31-Democratic-Party-Platform-For-Distribution.pdf#page=39
- “written”: https://www.rstreet.org/wp-content/uploads/2020/06/Anthony-Marcum-Statement-for-the-Record-re-The-Judicial-Conferences-Recommendation-for-More-Judgeships.pdf
- “hearing”: https://www.judiciary.senate.gov/meetings/the-judicial-conferences-recommendation-for-more-judgeships
- “told”: https://www.courthousenews.com/senators-urge-addition-of-judgeships-as-caseloads-balloon/
- “negotiation”: https://www.abajournal.com/news/article/aba_urges_delay_of_bills_to_ban_nationwide_injunctions_restructure_court_re
- “approved”: https://www.congress.gov/bill/115th-congress/house-bill/6755/all-actions
- “0.2 percent”: https://crsreports.congress.gov/product/pdf/R/R45965#page=2
- “collect”: https://www.nytimes.com/2019/02/04/us/politics/pacer-fees-lawsuit.html