On Wednesday, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the need for new lower federal court judgeships, a problem the hearing’s title deemed  “30 years in the making.”
It is certainly true that lower federal courts—specifically federal district courts—desperately need more full-time judges. Congress has not passed  an omnibus judgeship bill since 1990 and has only added  34 district court judgeships through other legislative means during the same period. This 4 percent increase in judgeships fails to make up for the significant growth in population and caseloads during the same time. Since 1991, total filings in district courts have grown by 39 percent. These filings include increased civil rights filings, prisoner petitions and social security cases. Notably, the criminal docket has too exploded, increasing 60 percent since Congress last took significant action.
These filings have left many courts overwhelmed, and in some districts, nearly inoperable. During Wednesday’s hearing, federal judges from California and Arizona spoke of dire circumstances found in their courts, which have led to growing delays and unneeded legal uncertainties for thousands of litigants. But courts with exploding populations—like California and Arizona—are not the only regions struggling to keep up. The Judicial Conference, the nonpartisan national policymaking body for the federal courts, has identified  over 30 “judicial emergencies” around the country. As a result, the Judicial Conference has recommended  that Congress create 65 new, permanent judgeships in some of the neediest district courts.
As Wednesday’s hearing made clear, more district judgeships are needed. Fortunately, this is a bipartisan conclusion. Over the years, both Republican and Democratic lawmakers have introduced scores of legislation that would increase the number of federal judgeships. Of course, since 1990, any significant attempts to do so have failed, largely due to one obvious sticking point. As I’ve written  before, when it comes to bipartisan judgeship legislation, “one political party has little incentive to award a president of another party the chance to nominate additional federal judges.”
Fortunately, Wednesday’s hearing has suggested bipartisan momentum for additional district judgeships. In his opening statement, Rep. Darrell Issa (R-Calif.) cited his 2018 bill , the Judiciary ROOM Act, as a sign of potential future compromise. That bill from the 115th Congress would have added 52 district judgeships. Surprisingly to some, the bill easily passed through the House Judiciary Committee by voice vote. How? Due to an amendment  by Rep. Jamie Raskin (D-Md.), the judgeships would not be open until after the next presidential election (in this case, after the 2020 election).
Although staggering or delaying the availability of judgeships is not ideal, it seems to be the most palatable solution in Congress. Yet that is little relief for some district courts to know that help is on the way three to four years from now. Nevertheless, if delaying judgeships is necessary to gain bipartisan support, there are potential Band-Aids to offer the judiciary in the meantime. One idea  is to expand the federal magistrate judge system temporarily. Magistrate judges are vetted by local selection panels and are chosen by district judges they will serve with. And unlike Article III judges who serve  “during good behaviour,” magistrate judges serve renewable terms. Further, their authority is broad and can help temporarily resolve many of the matters encountered by federal district judges.
Lawmakers must remember that adding district judgeships is about capacity, not politics. The adage that “justice delayed is justice denied” is apt. With growing case delays, litigants are losing their day in court and the opportunity to assert their legal rights. Regrettably, the situation becomes worse depending on a litigant’s zip code. Congress can fix this. There are several ways to do so, but it’ll take some legislative creativity and compromise to get there.
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- “deemed”: https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4378
- “passed”: https://fas.org/sgp/crs/misc/R45899.pdf#page=11
- “added”: https://www.judiciary.senate.gov/imo/media/doc/Miller%20Testimony%20-%20Appendix%203.pdf
- “identified”: https://www.uscourts.gov/judges-judgeships/judicial-vacancies/judicial-emergencies
- “recommended”: https://www.uscourts.gov/sites/default/files/2019_judicial_conference_judgeship_recommendations_0.pdf
- “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#page=2
- “bill”: https://republicans-judiciary.house.gov/wp-content/uploads/2018/09/HR-6755.pdf
- “amendment”: https://republicans-judiciary.house.gov/wp-content/uploads/2018/09/Raskin-001-2.pdf
- “idea”: https://scholarship.law.uc.edu/uclr/vol88/iss4/2/
- “serve”: https://www.law.cornell.edu/constitution/articleiii