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The Judiciary Wants to Increase the Size of Lower Courts. This Is How We'd Do It.

The Judicial Conference has released its biennial recommendation on additional judgeships that it wants Congress to authorize based on its caseload formula. But how would Congress add judges in a way that doesn’t lead to a political explosion?

The answer, much like with term limits, is staggering the judgeships.

Under our plan (see chart at right), one new circuit judge and six new district judges would be added to the bench every two years, with the entire roster of new judges in place by 2041.

According to a Law360 article, federal caseloads have increased 30 percent since 1990, which was the last time Congress enacted a major bill to increase the size of the courts to keep up with filings.

This go-round, the Judicial Conference is calling for 65 new district judgeships, five new circuit judgeships and eight temporary district judgeships becoming permanent. This is an increase from the 2017 Conference list, which requested 52, five and eight, respectively.

Here’s how our plan would work: the Judicial Conference would vote on which seven judgeships should be authorized during its semiannual meeting in the year before the new judgeships would be created. In other words, in Sept. 2020 the Conference would determine which new judgeships would be created on Jan. 20, 2021, once the new presidential term begins, and in Sept. 2022 they would determine which new judgeships would be created on Jan. 3, 2023, once the new congressional term begins.

“Two decades may seem like a long time to arrive at a fully staffed bench, but given the contentiousness of adding new judgeships, we believe it may be better to start small and go steady than try to go big and end up with nothing,” FTC executive director Gabe Roth said.

Last year, the House Judiciary Committee passed the Judiciary ROOM Act, which had in it the 52 new district judges and the eight temporary to permanent judges, per the JCUS recommendation. The bill as passed also included an amendment introduced by Rep. Jamie Raskin that would have delayed the start of the new judgeships to 2021, which would have meant that no one would have known who the appointing president, or the confirming senators, would be.

The major sticking point in the bill, though, was that the parties could not find agreement on how to pay for the new judgeships, which cost about $1 million each per year (think salaries, support staff, office space and supplies, IT needs, retirement accounts, etc.).

Roth added: “Though our proposal does not address the cost issue – we remain agnostic as to where the money should come from, and supporting increased court filing fees seems self-defeating since we file a handful of federal suits each year – but spreading the new judgeships across two decades should help with concerns over financing.”

Should caseloads continue to rise at a rate the outpaces the newly added judgeships, the Judicial Conference should return to Congress with updated recommendations that may yield a different formula than what FTC has here.

Finally, it is also likely that an increase in the number of federal magistrate judges could help alleviate the caseload problem, though we do not yet have specific numbers or projections for this piece of the puzzle (cf. “The federal courts need more judges — magistrates can help,” June 20, 2018).

(Don't) Burn, Baby, Burn

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