The debate about expanding the number of Supreme Court justices has hogged all the attention after a five-year run of contentious confirmation battles, but there are signs of traction this Congress for less politically charged proposals to add judges to the lower courts.
A House Judiciary subcommittee already held a hearing that highlighted bipartisan backing to add judges to overworked district courts that are the most used by the public — something Congress hasn’t done in a comprehensive way since 1990.
And Indiana Republican Sen. Todd Young, who filed a bill last Congress to add 64 new judgeships to district courts, plans to update and reintroduce that proposal after the Judicial Conference releases a new report on what it calls “judicial emergencies,” expected this month, a spokesman said.
The Supreme Court’s decisions in fewer than 100 cases a year can grab headlines, but problems are mounting in the district courts, where the public interacts most with the federal legal system through civil lawsuits, criminal charges, jury service and more.
Small businesses and litigants say disputes drag on into uncertainty and spiraling legal costs, prosecutors say delays make cases harder to prove, and defense attorneys say clients languish in pretrial detention waiting for trials, Georgia Democratic Rep. Hank Johnson said at the subcommittee hearing last month.
“We hear about this crisis in the courts all the time, but it’s been going on for so long that we’ve stopped treating it as a crisis,” Johnson said.
The idea of sending reinforcements to the district courts generally has bipartisan backing. But proposals face hurdles similar to those efforts that fell short in previous years, including from Senate Democrats in 2011 and 2013, a bipartisan measure from California Republican Rep. Darrell Issa in 2018 and Young’s proposal last year.
That includes concerns about which president would pick those judges, the $1 million annual cost each new judgeship would bring and whether any measure should make bigger changes, particularly restructuring the sprawling U.S. Court of Appeals for the 9th Circuit. An issue such as this, on which Congress has not taken action for years, means it could also take a back seat to more pressing high-profile concerns.
The Senate Judiciary Committee held a hearing about adding more judgeships last year when South Carolina Republican Sen. Lindsey Graham was chairman. Rhode Island Democratic Sen. Sheldon Whitehouse, who now chairs the Judiciary subcommittee on the federal courts, said back then that “there was a lot of chatter among the Judiciary Democrats about getting it done.”
“And it does seem that there are areas in which there’s a real need,” Whitehouse said.
The Northern District of Georgia, which includes the rapidly growing Atlanta area, hasn’t received a new district judgeship since 1978. Neither has the Eastern District of California, where the lone current judge in the Fresno courthouse can’t hear civil trials or hearings and instead has those cases assigned to Judge None — as in N-O-N-E, as in nobody.
“We are fighting a losing game,” Kimberly J. Mueller, the chief judge of the Eastern District of California, told the House subcommittee in testimony last month.
In the District of Arizona, the shortage of judges means felony criminal cases must be handled by a district court judge based in Phoenix, Judge Diane J. Humetewa of the District of Arizona told Congress.
That means either judges must pause their other work for a week to drive the 148 miles north to Flagstaff to hold a trial or, if that is not possible, the defendant, victim, investigators and potential jury pool must drive the distance south for a week.
Congress has added a relatively smaller number of district court judgeships since 1990, created using appropriations or authorization bills, but the federal courts say they need much more based on an increase in caseload over the years. The Judicial Conference in March 2019 called for 65 new district court judges and five temporary judges to be made permanent.
Also in the mix this year is President Joe Biden’s reported creation of a bipartisan commission to study overhauls to the Supreme Court and federal courts. That has not been formally announced, and the White House did not respond to questions about its formation.
Issa, who introduced a bill to add 52 district court judgeships back when his party had control of the House in 2018, said last month that the bill failed because they “ran out of time to get it through the Senate.”
Republicans on the House Judiciary subcommittee criticized Democrats for not holding a hearing about adding federal judges until former President Donald Trump left office and a Democrat was in the White House.
Even a new bill might not bring relief to the district courts right away.
Proposals have tried to stay above that battle for partisan control of the nation’s courts by giving the picks to future, yet-to-be-elected presidents. For example, Young’s proposal from last Congress would have created 34 judgeships after the new president took office on Jan. 21, 2021, and 31 judgeships after the next presidency started on Jan. 21, 2025.
Issa asked for a similar provision to be included again, “so that nobody is being asked, is this a partisan appointment process or an expansion of the court for purposes of one side or the other, but rather the ongoing need that we will have even in three years from now.”