Senate Panel Advances Bill to Create More Federal Judgeships

The Senate Judiciary Committee advanced legislation to create dozens of additional judgeships at federal trial courts across the US, signaling renewed support for an issue that has languished for decades.

The committee voted unanimously Thursday to move the bill (S. 4199), led by Sen. Todd Young (R-Ind.) with Sen. Chris Coons (D-Del.), sending it to the Senate floor. The committee also adopted a manager’s amendment with some changes to the bill, including by spreading out the additional judge seats into more tranches and over a longer period of time.

“We can do something today that hasn’t been done in a generation,” Coons said at the meeting. “I hope everyone will support this bill today, and that we can swiftly move it through the Senate and the House before this election.”

It was a rare act of bipartisanship over an issue that has previously been mired in political gridlock. Congress hasn’t created any new judgeships in over two decades, and hasn’t passed comprehensive legislation creating judgeships since 1990.

Meanwhile, federal judges at overworked courts, including the federal trial court in Delaware, a patent hub, and the Sacramento federal trial court, have said they are exhausted and overwhelmed with high caseloads.

The Judicial Conference, the judiciary’s policymaking arm, has recommended adding dozens of additional judge seats at federal district courts identified as overloaded, including at federal trial courts in Texas, California, and Delaware.

Sen. Lindsey Graham (R-S.C.) said he initially “thought this thing was going nowhere,” but that he’s “never seen the committee work together more collaboratively.”

“There are a lot more people today than 1990. I’m glad we’re making progress,” Graham said.

Sen. Chuck Grassley (R-Iowa), who had initially raised concerns about the legislation, ultimately voted for it. He said his staff had worked with other offices on the adopted changes “in an attempt to improve this bill, something I think we’ve achieved.”

“While this bill isn’t perfect, and it does not have everything that I would have wanted, it is a much improved bill,” Grassley said.

Still, some committee members, while voting for the bill, said their support came with caveats.

Sen. Sheldon Whitehouse (D-R.I.), said that before he can support the bill on the floor, he wanted Texas senators to explain why those federal courts needed more judgeships, when several judicial vacancies have been left unfilled.

Sen. John Cornyn (R-Texas) said his support was based on the understanding that the Senate would preserve the so-called blue slip process that gives senators influence over their states’ judicial nominees, and that the Judicial Conference “will stay in its lane.”

The conference released nonbinding guidance earlier this year encouraging courts to assign cases challenges to state or federal actions randomly between judges, in effort to curb the practice of “judge-shopping” where parties file in single-judge divisions. The judiciary’s Advisory Committee on Civil Rules is examining whether it has the authority to issue a more formal rule on the issue.

“I’m prepared to support this goal at this juncture. But if they continue to legislate through their shadow committees, then I am going to have issues with this bill,” Cornyn said, referring to the Judicial Conference committees.

His remark prompted Senate Judiciary Chairman Dick Durbin (D-Ill.) to reply that the conference is led by Chief Justice John Roberts. “You’re arguing he has a political agenda you disagree with?” Durbin said.

The legislation also faces a timeline challenge. The bill will likely no longer be politically viable after Election Day, once senators know which president will get the additional judge seats to fill.

Bill details

The legislation, as amended, would add 63 additional permanent judgeships to federal district courts where caseloads have outgrown the size of the bench. It would add another three temporary positions on federal courts that may be renewed as needed.

Those extra seats would be added in six rounds through 2035, giving the next three future presidential administrations the chance to fill them.

It would require the Government Accountability Office to submit to Congress a report, within two years of the bill’s enactment, evaluating the accuracy of the court system’s caseload methodology and efficiency of policies regarding workloads for senior judges taking reduced caseloads under a form of semi-retirement.

The Administrative Office of the US Courts would also be required to post publicly their recommendations for Article III judgeships twice per year, with disclosures about the methodology used to develop those recommendations.

A similar bill has been introduced in the House. Rep. Darrell Issa (R-Calif.), who is leading that effort, has said he is hoping to see that version considered by the Judiciary Committee in the late summer.

Judge Robert J. Conrad, Jr, director of the AO, said through a spokesperson on Thursday he is “grateful” the committee advanced the bill and looks forward to passage by the full House and Senate.

“The Judicial Conference carefully considers the needs of the Judiciary in making its judgeship recommendations and appreciates the Senate’s efforts to add critically needed judgeships,” Conrad said.