When it comes to the federal courts, the one thing Congressional Democrats, Republicans and the federal judiciary all agree on is that the lower courts need more judges. But for 30 years, Congress has failed to pass an omnibus judgeships bill. Worse still, the number of permanent judgeships has remained stagnant since 2003, which, according to the Congressional Research Service, is the “longest period of time since district courts were established in 1789 that Congress has not authorized any new permanent district court judgeships.”

During this period, caseloads have soared and continue to overwhelm federal district courts. Over the last 30 years, district court filings have soared 39 percent, and trial dates continue to move further down the calendar. In a recent House hearing, a California federal judge testified that in his district—the Southern District of California—the median time from filing a civil case to final judgeship was now over three years. These delays, as an Arkansas federal judge observed in recent Senate testimony, “increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial,” causing a “lack of respect for the Judiciary and the judicial process.”

And although in recent years Congress has held multiple hearings focused on the growing judicial capacity crisis and several judgeships bills have been introduced in each chamber, the sticking point is typically the same: the party not in the White House has little incentive to award the President a chance to nominate more federal judges.

Most recently, three judgeship bills were introduced within days of each other, all designed to add district court judgeships to help overburdened courts. But that’s where the similarities end. Two of the bills, introduced by Sens. Todd Young (R-Ind.) and Chris Coons (D-Del.) in the Senate and Reps. Darrell Issa (R-Calif.), Juan Vargas (D-Calif.), Scott Peters (D-Calif.) and Victoria Spartz (R-Ind.) in the House, are genuine bipartisan efforts that sidestep many pitfalls that have plagued past legislative efforts. The remaining bill—led by a coalition of Democratic House Judiciary members—is a strictly partisan effort with legislative logic that fails even basic scrutiny. It is a messaging bill, by any other name.

Number of additional district judgeships

The most obvious difference between the bills boils down to math: the bipartisan judgeship bills would create 77 new district judgeships, while the Judiciary Democrats’ bill would create 203 new judgeships. The bipartisan judgeship bills are based on the most recent recommendation by the Judicial Conference, the nonpartisan policy-making body for the federal courts. The Judiciary Democrats’ number is based on some less reliable metrics.

The Judiciary Democrats argue that the Judicial Conference once “used a threshold of 400 case filings per judgeship when determining whether a judicial district needed additional judgeships.” Judiciary Democrats are using that number to justify more than doubling the number of judgeships requested by the Judicial Conference itself. But this rationale garbles what the federal courts consider a “filing” and obfuscates the Judicial Conference’s actual criteria when requesting new district judgeships.

To begin, the Judicial Conference no longer has a benchmark of 400 weighted filings per judgeship. Since 1993, the Judicial Conference has used a caseload standard of 430 weighted filings. And when making this calculation, the Judicial Conference doesn’t simply count the number of cases filed in one court. After all, some cases are more complex than others and take more time and judicial resources. As a result, to more fairly weigh cases—and the potential burdens on courts—the Judicial Conference uses “weighted filings,” which applies different weights “based on the nature of cases.” So, for example, an antitrust case would be counted as 3.72 cases, while a defaulted student loan would only total up to 0.16. Each case is one filing, but are very different weighted filings.

Beyond weighted filings, the Judicial Conference looks at a number of additional factors like how many judgeships a district court requested; the availability of additional judges (like senior or magistrate judges) to aid in caseload management; geography; caseload complexity; and whether caseload increases may be temporary. These added factors explain why in past Judicial Conference recommendations, even if all requested judgeships were created, weighted filings would still be over 475 per judgeship in over 20 district courts. Weighted filings don’t tell the entire story, and determining where to request additional judgeships requires a district-by-district analysis.

In short, the Judicial Conference reaches its biannual recommendation for new district judgeships through an exhaustive process based on nuanced and well-researched factors. When writing judgeship legislation, it’s wise to seriously consider their recommendation, as the bipartisan bills do. On the other hand, it’s foolhardy to misapply the Judicial Conference’s own formula and use it to justify dozens of new federal judgeships the Judicial Conference says it doesn’t need.

The timeline for implementing additional district judgeships

Beyond the number of judgeships, the next challenge is when to create these judgeships. Ideally, new ones would be available as soon as possible. But creating dozens of judgeships for the sitting president is often not politically palatable. It is no surprise, after all, that when judgeship legislation is typically introduced, it’s by a member of Congress from the same political party as the president. The Judiciary Democrats’ bill falls into this trap, as its bill would not only grow the district courts by 30 percent, but would also allow the Biden administration the chance to name 203 more federal judges. In a divided Senate, this is a legislative path to nowhere.

The bipartisan judgeship bills deserve credit for thorough research. There are few instances of judgeship legislation gaining bipartisan support, but it happened in 2018—in the House Judiciary Committee, no less. The Judiciary ROOM Act, introduced by Rep. Issa, would have, in part, created 52 new district judgeships. But during the markup, Judiciary Democrats “objected to immediate creation of the judgeships.” The compromise was to make the judgeships available after the 2020 presidential election, a change which allowed the bill to advance through the committee by voice vote. The bill, though, never reached the House floor.

Taking the bipartisan lessons from this markup, both new Senate and House versions propose a similar compromise that would create the number of district judgeships recommended by the Judicial Conference, but that would not be available until after the next two presidential elections. Specifically, in both bipartisan versions introduced last week, half of the newly created judgeships would be available only after the 2024 presidential election, and the other half would be available after the 2028 presidential election. This blueprint has a history of bipartisan support and should help assuage partisan worries that any one party will gain an obvious numerical advantage in new judicial nominations.

Of course, it’s true that judgeships are needed now and that the number of recommended judgeships will likely increase over the next eight years. But it’s unwise to let the perfect be the enemy of the very, very good; it’s far preferable to have 77 new judges than none.

Elevate bipartisan bills; forgo less serious attempts

All too often in Congress, bills are introduced with no hope of ever becoming law. It is rare to find legislation in which the bill’s authors did their homework and present a pragmatic solution to a very real-world problem. If Congressional leaders are serious about aiding federal district courts and improving access to justice for everyday Americans, they should focus on the bipartisan efforts introduced last week in both chambers and forgo less serious attempts.

Image credit: Orhan Cam