Beltway Bulletin: A Deeper Bench

Making the Case for the JUDGES Act

As FBA members know from personal experience, many federal courts face overwhelming caseloads, which result in delayed resolutions, higher costs, and diminished access for litigants. For judges and court personnel, the workload can deter qualified candidates from seeking such positions and can lead to departures or early retirements, compounding the burden on the remaining judges and courthouse staff. One of the FBA’s policy priorities this Congress is the enactment of legislation that would alleviate these problems by adding federal district court judgeships.

How Many New Judgeships Do We Need?

Every two years, the Judicial Conference of the United States ( JC) conducts an in-depth assessment of federal court workloads. Where the data demonstrates the need, they send Congress recommendations for the creation of additional judgeships. Rather than simply counting the number of cases filed per judge, the JC counts weighted filings per judge¹ to account for variations in the time and resources required for the disposition of different types of civil and criminal cases. According to the JC, a manageable district court caseload is 430 weighted filings per year.

In fiscal year 2022, weighted filings far exceeded the threshold in many jurisdictions—exceeding 500 per judgeship in 17 courts, more than 600 per judgeship in eight, and over 700 per judgeship in three. Based on its findings, the JC’s 2023 report recommends adding seats, or converting or extending temporary judges to permanent status, in a total of 30 districts.

As part of its judicial vacancy reporting, the JC also publishes a list of judicial emergency districts, which it defines as any vacancy where weighted filings are in excess of 600 per judgeship; any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship; any vacancy where weighted filings exceed 800 per active judge; or any court with more than one authorized judgeship and only one active judge. Almost all the 18 current judicial emergency districts also happen to be districts where the JC has recommended adding judgeships.²

In its March report, the JC asks Congress to create two permanent judgeships in the courts of appeals, add 66 permanent district court judgeships, convert seven temporary district court judgeships to permanent status, and extend two existing temporary district court judgeships for an additional five years. Although the JC’s biannual reports have repeatedly recommended the addition of new district court seats, Congress has not created a new district court judgeship since 2003 and has not enacted a comprehensive bill to add seats to the federal bench since 1990, despite a 30% increase in case filings since then.

Why Hasn’t Congress Acted On the Judicial Conference’s Recommendations?

The principal obstacles facing legislation to add judgeships fall into two categories: political and financial.

Since nominating and confirming judges has become increasingly politicized, many members of Congress are unwilling to give a sitting president of a different political party the opportunity to select judges who will be viewed as ideologically aligned with that president. In the last Congress, however, the Judicial Understaffing Delays Getting Emergencies Solved (JUDGES) Act offered a creative response to this problem. The act would create new district court judgeships in two equal batches in the future, when the occupant of the Oval Office is unknown. Specifically, roughly half the recommended district court seats would be added on or after Jan. 21, 2025, and the remainder would be added on or after Jan. 21, 2029. The act enjoyed bipartisan support in the last Congress, in large part because of this solution to the political problem. We have been in contact with staff for Senators Todd Young, R-Ind., and Chris Coons, D-Del., and Representative Darrell Issa, R-Calif., who cosponsored this legislation in the last Congress, and we expect them soon to reintroduce the JUDGES Act, updated with the March recommendations from the JC.

Adding the new seats in two future fiscal cycles also helps with the financial problem by spreading out the financial impact and allowing planning for the additional funding, which would not be inconsiderable. The costs of adding seats to the federal bench include salaries and benefits, office space, and other resources for judges and associated court personnel. The federal budget process is fraught with competing demands every year; consequently, the task for JUDGES advocates is to demonstrate that the costs of not adding judgeships are greater than the costs of adding them.

How Can You Help?

Because the FBA’s mission is to advance the federal judicial system and promote effective legal practice before the federal courts and federal agencies, the FBA supports adding permanent and temporary federal judgeships, including bankruptcy judgeships, when rising caseloads in the federal courts threaten the prompt delivery of justice. The FBA’s advocacy on this issue includes efforts to educate Congress, members of the legal profession, and the public about how the overwhelming caseloads threaten the ability of the judiciary to function. As emphasized in previous articles, members of Congress respond best to concerns raised by their constituents. Many are attorneys and are therefore particularly receptive to the FBA’s informed, nonpartisan views on matters that affect our legal system. Once the JUDGES Act is reintroduced, FBA members should contact their senators and representatives to encourage them to cosponsor this important legislation. Please watch the website and your email for news about reintroduction and for information about contacting your elected representatives. 

Endnotes

¹ Weighted filings data for each district court are published in Federal Court Management Statistics.

² Eastern and Western Louisiana are not recommended for new seats at this time, though the current vacancies there qualify as emergencies.