An uncertain presidential election outcome could bolster bipartisan support for creating new federal judgeships.
At a U.S. Senate Judiciary Committee hearing Tuesday, Chairman Lindsey Graham (R-S.C.) said the pre-election period might be a good time for lawmakers to act on a request from the judiciary’s policy making arm to add more judges.
“What I would hope is that maybe we could come together and take the recommendations of the Judicial Conference and put on the table more judges for the next president, whoever he may be,” Graham said. “Seems to me that maybe this is the best time to do it because nobody knows the outcome, and we all agree we need more judges.”
The Judicial Conference has requested adding five new appeals court judges for the San Francisco-based U.S. Court of Appeals for the Ninth Circuit and 65 federal trial court judges, while also converting eight temporary district court judgeships to permanent positions.
Graham later said a compromise version of the Judicial Conference’s recommendations could even be added to the next coronavirus relief package to move through Congress.
Congress last enacted comprehensive legislation creating more judgeships 30 years ago. High caseloads in the years since justify another expansion, according to the federal judiciary.
To make expansions of the federal bench politically palatable to both parties, such legislation usually delays the appointments until after the next presidential election so both sides have a shot at making them.
Republican enthusiasm for a judges bill generally—and more Ninth Circuit judges in particular—could fade should the presumptive Democratic nominee, Joe Biden, maintain his commanding lead over President Donald Trump into the fall.
The committee’s ranking member, Dianne Feinstein (D-Calif.), whose home state would get many of the new federal judgeships, said she welcomed the idea of working out a solution at the hearing.
“Now that we’re considering additional judges, I hope we can put together a practical bill which will have support from our colleagues, and we can get weighted average that makes sense so the that federal courts can function really as they should,” Feinstein said.
The among the top districts in need of judgeships are the District of New Jersey; the Southern District of Indiana, which covers Indianapolis; and the District of Delaware. Each of those three courts had more than 1,000 weighted filings per judge, according to a September 2019 Congressional Research Service report. The national average of weighted filings per judge is 521.
Brian Stacy Miller, a U.S. District judge in the Eastern District of Arkansas in Little Rock, who represented the Judicial Conference at the hearing, painted a dystopian picture for lawmakers when talking about the impact of not having enough federal judges.
“The courts are a place where people go to resolve disputes, and if we don’t open up the courts for people to come resolve the disputes, it ends with chaos, and it ends with people not resolving disputes peacefully,” Miller said when asked by Graham about what the future would look like if Congress failed to act.
The high caseloads are already leading people to turn away from resolving disputes in the courts, he said. Miller chairs the Judicial Conference’s subcommittee on judicial statistics which determines the need for more federal district and appellate jurists appointed under Article III of the U.S. Constitution.
Each appointment comes with life-tenure, intended to insulate federal judges from political pressure.
The hearing also comes of the heels of call for new judgeships from the left.
Demand Justice, a progressive judicial advocacy group, recently floated the idea that Biden, if elected, could follow in the footsteps of President Jimmy Carter by adding more judgeships to the lower courts in an effort to undo the influence Trump has had on the federal judiciary.
The incumbent president has had 200 judicial confirmations to the district courts, appellate courts, international trade court, and Supreme Court.
"[T]he next Democratic president must act as boldly as Carter did, dramatically expanding the number of lower-court judges to keep pace with rising cases, and filling those judgeships with lawyers who will make America’s judicial branch look more like America and represent diversity drawn from a variety of professional settings,” Demand Justice co-founders Christopher Kang and Brian Fallon wrote in a June 28 article for The American Prospect.