US in crisis: We need more federal judges. Congress and President Biden must act now | Opinion
Over the past several decades, federal district court caseloads have risen to alarming levels. The average federal district judgeship has more than 900 pending cases on its docket, with the hardest-hit districts well over 1,000. Handling such a caseload — comprising a broad range of complex civil and criminal law matters — with a staff of two to three law clerks is an unimaginably difficult burden.
Complex civil cases frequently have a dozen lawyers on each side generating a flurry of motions, which overwhelms the decision-making process. Criminal cases go to the fundamental rights and freedoms of citizens and the safety of our communities. Since the judicial capacity crisis took root half a century ago, the average processing time for cases has grown dramatically. As is commonly noted, justice delayed is justice denied. But it is not just delay. Overworked courts inevitably err at higher rates because of procedural shortcuts and limited attention.
The capacity crisis has grown acute because of the rising politicization of judiciary reform: Neither major political party has been willing to support legislation that would increase judicial appointments by the other. Prior to the 1980s, judicial appointments were recommended by judicial district senators, and Congress periodically expanded the size of the judiciary as caseloads increased. That era came to an end in the 1980s as the White House took a more partisan approach to judicial appointments. As a result, no significant expansion of the federal judiciary has occurred since 1990.
Therefore, it was with some relief that that in August the Senate passed, by unanimous consent, the Judicial Understaffing Delays Getting Emergencies Solved or JUDGES Act of 2024. This legislation expands the number of district court slots by 66 positions in roughly equal distributions over the next three administrations. The Judicial Conference of the United States — an institution composed of judges appointed by both political parties — carefully selected these districts based on the severity of caseload imbalances, not political considerations. The House of Representatives should have passed the JUDGES Act and President Joe Biden should have signed it into law prior to the election.
Unfortunately, the House delayed consideration of the JUDGES Act until after the election. On Dec. 10, the White House issued a statement threatening to veto the bill. Predictably, the House passed the legislation on Dec. 12 by a bipartisan, but divided, vote or 236 to 173.
Delay undermines public faith in rule of law
The federal judiciary is the backbone of our constitutional democracy, touching the lives of millions of people in innumerable ways. While some of the issues dealt with by the courts have political aspects, a large portion of district courts’ workload does not. For example, the District of Delaware hears a disproportionate share of the country’s patent cases. Adding two judgeships to that district is important for our national economy and would not likely implicate political balance. As we detailed in our 2020 law review article on judiciary reform, the federal judiciary’s capacity has failed to keep pace with escalating demands, leading to delays and other expedient case management practices that undermine access to justice, the public’s faith in the courts and the rule of law.
As we detailed, judiciary reform has increasingly fallen victim to political gridlock and institutional conservatism. Our antidote — a 2030 Commission — would task a bipartisan and multi-institution group with proposing balanced judiciary reform that could be immediately passed, but not implemented until after the current administration. The unknown future balance of political power creates a veil of ignorance that insulates policymakers from partisan politics. The JUDGES Act is a version of this approach focused on one important aspect: spreading out district court appointments over multiple, yet-to-be-known administrations. The House’s delay has unfortunately partially lifted the veil of ignorance.
We deeply regret this cynical game of federal judiciary politicization. The House should have taken up the bill prior to the election. We worry as well that Senate Republicans are slow-walking pending judicial nominations in an attempt to run out the clock. It is unclear whether Congress will be able to move such legislation forward in the foreseeable future in view of the effective 60-member Senate supermajority required to do so. The judiciary capacity crisis will only worsen.
The Senate’s passage of the JUDGES Act by unanimous consent and the Judicial Conference’s support for additional judgeships confirm that this legislation serves the public interest. The nation needs more district judges. The Senate should expeditiously move forward with pending nominations, after which President Biden should sign the JUDGES Act (or otherwise allow it to proceed into law by not vetoing it). And Congress should establish a 2032 Commission to take up the larger challenges of federal judiciary reform.