First New US Judgeships in Decades Gain Momentum in Congress

Legislation to add judges to understaffed federal district courts is gaining momentum in Congress, as lawmakers face a narrow political window to expand trial courts before the November election.

The Senate Judiciary Committee is expected to consider bipartisan legislation next month that would authorize more than 60 new judgeships at trial courts across the US over several years. The House panel is expected to consider a similar version in late summer or early fall. Judiciary leaders in both parties and in both chambers support the effort.

The anticipated movement on the bills signifies a renewed urgency on an issue that has languished for years, amid growing alarms from the judiciary about worsening caseloads in federal courts in Delaware, California, Texas, and other states.

Similar efforts in recent years stalled in both chambers.

“We believe it’ll move this year,” said Rep. Darrell Issa (R-Calif), lead Republican sponsor of the bill in the House and chair of the Judiciary Committee’s panel on courts and intellectual property. “The need has gotten greater.”

The bill “has a good chance of passing the House and Senate this year, before the end of this session,” added Rep. Hank Johnson (D-Ga.), Issa’s co-sponsor.

On the Senate side, the topic is raised at the Judiciary Committee “at least on a weekly basis,” said Sen. Alex Padilla (D-Calif.), a panel member who has signed onto the bill led by Sens. Todd Young (R-Ind.) and Chris Coons (D-Del.).

“I know the urgency, and there’s bipartisan support for it. So, I am hopeful,” Padilla said.

Overworked Judges

It’s been more than two decades since Congress last created a new judgeship for any of the nation’s 94 federal district courts, leaving some courts struggling and judges overworked as population and case filings swell. There are more than 660 active district seats and 10 temporary ones.

The problem is particularly acute at the US District Court for the Eastern District of California, which includes Sacramento and Fresno and has one of the highest populations per judgeship, and the District of Delaware, which is a hub for patent and business litigation, among other courts.

The Judicial Conference, the judiciary’s policymaking arm, recommended last year that Congress add 66 district judgeships and two seats on the US Court of Appeals for the Ninth Circuit.

The current House proposal closely follows the judiciary’s recommendations, while the Senate version would create 63 district judgeships and add no circuit seats.

Critically, both bills (S.4199, H.R. 7597) introduced this year would spread the additional judgeships so that the next few presidents could fill them. Young said, through a spokesperson, that this structure “ensures as much neutrality as possible as control of the Senate and the White House are unknown for the time periods envisioned by the bill.”

Progress on the bill could be more challenging politically after November, once the next president is known.

Past efforts to add more judges have been derailed by political gridlock. They included attempts by Republicans to tie the issue to separate efforts to break up the Ninth Circuit. The nation’s largest appeals court based in San Francisco has 29 active judges and covers nine states and two territories.

Lawmakers have proposed various versions of bills to add more judgeships over the years, but none have gained traction.

Meanwhile, more than a dozen districts have over 600 weighted case filings per authorized judgeship, the judiciary’s threshold for evaluating when a court vacancy would constitute a so-called judicial emergency. There are 11 judicial vacancies at seven federal district courts currently classified as judicial emergencies.

“There have been decades since the expansion of the court, and in that time, our populations have grown,” said Sen. Laphonza Butler (D-Calif.), a Judiciary Committee member. “We’ve got to make sure that our judiciary has the capacity to adjudicate and dispense justice, timely.”

Republican and Democratic leaders support the latest effort to align the bench with the current population.

Sen. Lindsey Graham of South Carolina, the top Republican on the Judiciary Committee, said he’s “definitely open to” the bill to add more judges.

Coons, the co-sponsor, said “the most appropriate and timely” way to advance the legislation, if it gets the support of the full committee, would be through unanimous consent, a faster process for the Senate to pass legislation if no senator objects.

The House bill also is backed by the top Republican and Democrat of the Judiciary Committee, according to Issa. Issa also said he didn’t anticipate any problems resolving the differences between the House and Senate versions of the bill if they pass.

“We’d have no problem taking theirs, and I think they’d have no problem taking ours,” Issa said of the two versions.

Issa said he aims to have his bill marked up shortly before or after Congress’ August recess. The Senate Judiciary Committee initially scheduled its markup for May, but postponed consideration and is now expected to take it up in June, according to a spokesperson for Padilla.

Political Hurdles

Still, some Senate Republicans on the Judiciary Committee aren’t completely sold, previewing political challenges for the legislation despite bipartisan support.

Sen. John Cornyn (R-Texas) said he’s “not yet ready” to sign onto the bill, saying he had “general” concerns. He didn’t elaborate.

Sen. John Kennedy (R-La.) said he hasn’t made a decision and needs to look more closely at the data on court workloads. He said he’s open to adding judgeships, but he is “just not convinced that they’re needed.”

Sen. Charles Grassley (R-Iowa), former chairman of the committee, said he’s asked Judiciary Chair Dick Durbin (D-Ill.) for a staff briefing to resolve outstanding questions about the data used and the process.

“I don’t object to adding new judges, but I think we ought to do it in a studied way,” Grassley said.

The congressional schedule will also pose a challenge, with less than six months until Election Day over a period that includes a month-long recess in August.

“There’s a lot to get through and a short time to do it,” said Butler.

Bills need 60 votes to advance in the Senate through regular order, and full support to move through faster tracked methods.

“It only takes one senator to derail the train in the Senate,” Durbin said.

Russell Wheeler, a senior fellow at the Brookings Institution, said while the legislation is one to “watch with interest,” he wouldn’t bet on it passing both chambers.

“It has to overcome just the problem of judgeship creation, period, which Congress has not been very good at recently,” he said.