Competing congressional proposals to add federal judgeships give the judiciary a chance for its first comprehensive slate of trial court seats since then-Sen. Joe Biden spearheaded the last change decades ago.
The measures introduced in the Democratic-led House and Senate offer very different assessments of the need to add positions in the district court system, which is where much of federal court business is done.
The bipartisan JUDGES Act (S.2535) introduced in both chambers would give the judiciary the 77 new judgeships it requested over two presidential administrations and seems the more likely to win passage. The District Court Judgeships Act of 2021 (H.R. 4886) introduced by House Democrats offers 203 seats immediately, arguing the third branch needs more help than it’s letting on.
Neither plan is exactly what the judiciary wants, but those advocating for more help for a federal court system under strain from increasing civil and criminal caseloads and judicial staffing emergencies in a number of states welcome lawmaker attention.
“It’s good news to see any kind of legislative activity on this front,” said Marin Levy, a law professor at Duke University who studies federal courts and testified before the House Judiciary Committee about the need for more judgeships.
Despite years of requests, the last time Congress gave the judiciary a comprehensive allotment of new seats was in 1990 when it added 72 permanent district and appeals court seats and 13 temporary trial court seats. That effort was known as the “Biden bill” after then-Senate Judiciary Committee chairman and sponsor.
While there have been legislative proposals to add more seats introduced in both chambers since, no comprehensive expansion has passed. Since that 1990 measure, the judiciary reported district court caseloads have risen by 47%. The judiciary has 179 appellate and 677 district judgeships, including those in territorial courts.
“We look forward to working with Congress toward enactment,” said a spokesman for the Administrative Office of the U.S. Courts, which assists federal courts with non-judicial business.
The proposals were introduced almost simultaneously, signaling a broad interest in the issue even if lawmakers disagree on the number of new seats needed.
The bipartisan JUDGES Act, introduced by Sens. Todd Young (R-Ind.) and Chris Coons (D-Del.) creating 77 district judgeships, wouldn’t allow the president to fill any seats until 2025, which critics argue would put the courts in a bind in the meantime.
The House District Court Judgeships Act, which is being led by Rep. Hank Johnson (D-Ga.) and other Democratic leaders, would create 203 new district seats immediately.
The JUDGES Act would cost taxpayers at least $69.3 million and the District Court Judgeships Act at least $182.7 million based on an estimate of how much each new judgeship costs, according to a Bloomberg Law calculation.
The courts’ office said it costs roughly $900,000 to add a new judgeship. That accounts for salary, benefits, staff, equipment, and travel, but doesn’t include the cost of additional space or security.
House Democrats argue there is a need for more positions than the judiciary asked for. That bill relies on an old metric for determining seats used by the judiciary’s policy arm, the Judicial Conference, which sponsors say more accurately reflected the need.
In 1993, the Judicial Conference changed the ideal workload as measured by the number of weighted filings per judge from 400 to 430. That change was part of “an ongoing effort to control growth,” according the Judicial Conference’s written testimony before the Senate Judiciary Committee in 2020.
A Democratic aide who spoke about the matter without being identified to be more candid, said lawmakers decided to use the old threshold after sensing the judiciary’s recommendation was influenced by of politicking and pessimism rather than the actual need.
Johnson, who is the chair of the House Judiciary courts subcommittee, said he was concerned “the Judicial Conference may be effectively negotiating against itself” with its recommendations.
His bill proposes to add seats in 47 district courts as opposed to the Judicial Conference’s recommendations for 26. While more districts would get seats, some of the biggest increases would be in states with two Republican senators.
Needs vs. Feasibility
The House Democrats’ bill has support from progressives, who have wanted a large expansion of the lower courts since the November election when Biden won the presidency and Democrats reclaimed the Senate.
Earlier this year, 46 progressive groups signed a letter calling on leaders of the House and Senate judiciary committees to expand the lower courts beyond the Judicial Conference recommendations. They argued the judiciary’s proposed 8% expansion of the lower courts doesn’t meet the needs of a bigger U.S. population, which has grown nearly a third since the 1990 judgeships bill.
The immediacy of the House bill also has its fans. “Justice deferred is justice denied for workers who can’t bankroll litigation for years to get their day in court,” said Alice O’Brien, general counsel for the National Education Association, which supports the Johnson bill. “We can’t wait four years to start to tackle this problem.”
Brookings Institution fellow Russell Wheeler, a former deputy director of the Federal Judicial Center, the judiciary’s research and education arm, said the number of filings per judge alone doesn’t tell the full story. The Judicial Conference’s number takes the needs of the district into account in addition to what believes is doable, he said.
“It’s a little like an appropriations request,” Wheeler said. “You know what you think you need for the next year, but you also know what’s going to make Congress balk, so you try to find a number that’s not going to make Congress look at you and raise its eyebrows.”
The bipartisan bill that would give the courts 77 judgeships is based on the most recent request from the Judicial Conference. Supporters argue it’s a real chance to get an agreement.
Gabe Roth, executive director of courts watchdog Fix the Court, said the JUDGES Act “demonstrates that leaders in both parties can find a solution that will dramatically improve access to the courtroom and help to address judicial emergencies across the country.”
Rep. Darrell Issa (R-Calif.), the top Republican on the House Judiciary courts subcommittee, is a lead sponsor of the companion bill in the House along with Reps. Juan Vargas (D-Calif.), Scott Peters (D-Calif.), and Victoria Spartz (R-Ind).
The downside of the proposal, however, is the delay in getting the seats. “This is the number of seats the judiciary is saying they need now. Not in eight years from now,” Levy said.
Ultimately, this might also be the only shot Congress has to pass a bill like this for quite some time, Wheeler said.
“If the history of judgeship legislation means anything, it means that you better take your best shot now because you may not get another one,” he said.