The federal courts need more judges — magistrates can help
To address some of these challenges, the Judicial Conference has asked Congress to create 57 new federal judgeships. These additional judgeships are greatly needed. Since the last major increase in judgeships nearly 30 years ago, filings in federal court have increased by approximately 40 percent. Mounting caseloads create significant case delays and unneeded legal uncertainties, which fuel greater litigation costs and impose significant hardship on individuals and businesses across the country.
Much of the trouble starts in the overburdened lower district courts. In 2017 alone, litigants filed more than 344,000 civil and criminal cases in federal district court. And although district courts managed to resolve more than 365,000 cases last year, more than 439,000 cases remain pending, including approximately 100,000 criminal cases. If Congress approved the Judicial Conference’s request, 52 of the 57 requested judgeships would serve the neediest of these district courts.
On Thursday, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet will hold a hearingexamining the need for new federal judgeships. If congressional Republicans endorse a plan for more judgeships, they should expect little support from Democrats — even for judgeships at the district court level, where most issues are uncontroversial and the most contentious cases are ultimately resolved by the higher appellate courts. After all, congressional Democrats made similar proposals during the Obama administration with little bipartisan support. Today’s Democrats would likely be just as unenthusiastic about providing President Trump the opportunity to nominate dozens of additional federal judges.
Without bipartisan support, though, any straightforward legislation to create dozens of new judgeships will probably fail. Consequently, if Congress hopes to add any judgeships, it must get creative. Law professor Jonathan Adler, for example, has proposed legislation to stagger the number of new judgeships over several years and implement seats only after federal elections, arguing it “would enable to the Senate to discharge its obligation to keep the courts functioning while minimizing concerns about partisan court-packing.”
Adler’s proposal is fair but would likely fail in today’s political environment. Republicans would be reluctant to support such legislation, given the possibility of greater losses in the Senate over the next few cycles. And Democrats are unlikely support any measure that would allow President Trump the chance to nominate judges en masse.
With Congress’ current configuration, it would seem that any proposal to create new judgeships is destined to fall short of the necessary votes. Yet if congressional Republicans truly want to support federal district courts, there is another solution: appropriate funds for the Judicial Conference to add more federal magistrate judges.
The federal magistrate judge position was created by Congress in 1968 to assist with handling federal district judges’ growing caseloads. Over the years, the magistrate judge’s role has grown to include issuing search warrants, conducting arraignments, holding pretrial conferences, ruling on discovery disputes and, with litigants’ consent, even conducting civil trials. In instances where a magistrate judge may not offer a dispositive ruling, he or she may still provide a “report and recommendation” to a district judge. These nonbinding opinions are useful in many cases — including in prisoner petitions, which often include complicated facts and a voluminous legal record, and tend to constitute a hefty share of a district court’s docket.
Currently, more than 500 full-time magistrate judges serve in federal district courts around the country — and their impact continues to grow. In 1990, for example, magistrate judges disposed of nearly 500,000 legal matters. In 2017, that number doubled. Their impressive and growing responsibilities have not gone unnoticed. The Supreme Court has remarked that magistrate judges are “indispensable” to the federal court system, and Department of Justice regulationsencourage government attorneys to allow magistrate judges to hear civil cases when possible.
Additional magistrate judges would offer district judges more time to focus on trials and dispositive rulings. Even better, magistrate judges are not confirmed by the Senate. Instead, they are appointed by district judges from their respective districts, avoiding the partisan pitfalls of the Senate confirmation process. In addition, unlike district judges (who serve life terms unless they are impeached) magistrate judges serve for eight-year terms and may be removedby the district court. This prevents any magistrate judge from going “rogue” and defying judges who have received Senate confirmation.
Federal district courts deserve more support from Congress. The courts are overburdened, and litigants are not afforded timely justice. Adding more judges to the most overstrained district courts is an important step. However, if politics bars Congress from adding more judgeships, additional magistrate judges may be a temporary. but worthwhile, fix.
Anthony Marcum is a research associate for the R Street Institute’s Governance Project.