Nonpartisan plan would stagger addition of 78 judgeships over two decades, promoting comity between parties, first and third branches

The judiciary badly needs more judges to deal with increasing caseloads, and Congress can provide them in a manner that does not favor either party, according to a statement submitted by Fix the Court’s Gabe Roth ahead of today’s Senate Judiciary Committee hearing on the matter.

Roth’s statement outlines a plan to stagger the judgeships in appropriations bills over the next 20 years, so that the lawmakers voting on them will not know who will be nominating and confirming the new judges.

No comprehensive judges bill has been passed for 30 years, and recent efforts to add all the new judges requested by the Conference at once have failed. (Last year the Judicial Conference requested 78 new judgeships: 65 new district, eight temporary to permanent district and five in the Ninth Circuit.) The logical conclusion would be to add a few judges per Congress, prioritizing the districts with the largest number of cases per judge.

In Fix the Court’s plan, six new district judges and one new circuit judge would be added every two years, with the entire roster in place by 2041.

“The snag, as it’s been for years, is the politics of the proposition, but any proposal to add new judges in a partisan fashion is ultimately self-defeating,” Roth wrote. “We believe that both parties have an interest in a healthy and independent judiciary, so we propose that Congress add judges in a fair and nonpartisan way.”

The plan is as follows: during its spring meeting in even-numbered years, the Judicial Conference would rank by caseload which districts have the most urgent need for new judgeships. Next, the Conference would recommend to the House and Senate Appropriations Committees the six or seven that are the most pressing and should be authorized in the following year’s budget.

The Appropriations Committees would then work with the House and Senate Judiciary Committees to confirm the request. Finally, language and funding for them would be included in the following year’s appropriations bill, which would peg the new judgeships to January 21 of the next calendar year – i.e., after a new Congress and, half the time, a new president would be sworn in.

For example, a spring 2022 JCUS recommendation of six new district judges and one new circuit judge would lead to a summer/fall 2022 appropriation, and a new slate of judgeships could be nominated and confirmed after January 21, 2023.

The statement also notes that the five circuit judgeships should be added one at a time every other year, and the eight temporary-to-permanent judgeships should be added right away.

“Two decades may seem like a long time to arrive at a fully staffed bench, but given the contentiousness of adding new judgeships, incremental progress may be the only way to ensure the process is conferred with broad-based legitimacy,” Roth added.