The bottom line: trust the judges who say we need more judges

Fix the Court today is calling on the White House to reverse its opposition to the JUDGES Act — a bipartisan bill to add judgeships that most Democrats supported just five weeks ago, and which passed the Senate unanimously before the August recess — and is encouraging the House to continue on its path to passing the legislation this week.

In expressing its opposition to the bill earlier today, the White House claimed that lawmakers did not “fully explore how the work of senior status judges and magistrate judges affects the need for new judgeships.” But that’s a reason — a bad one at that — in search of a problem. Any senior judge could retire tomorrow and leave his or her district in the lurch, and magistrates can’t preside over all the types of proceedings that full-fledged district court judges can.

“Sometimes it’s important to put principles above politics,” Fix the Court’s Gabe Roth said. “This is one of those times, and the principles of access to justice and relieving burned out public servants are worthy of support no matter how your party is doing at the polls.”

“As someone who’s worked for years on adding judgeships, I know how difficult it is to get to the right formula of which judgeships to add when, how much money is needed for appropriations and when in an election cycle to move legislation. We finally had each of these things in place and now comes a veto threat? That’s a slap in the face to our overworked federal judges, Democratic and Republican appointees alike, who say they desperately need the help,” Roth added.

The JUDGES Act is a carefully crafted, nonpartisan bill that was decades in the making. No comprehensive judgeships legislation has become law since 1990, and since around the turn of this century, the Judicial Conference has released new judgeship recommendations every two years that have gone unfulfilled. (Though the Conference has, at times, advocated for additional circuit court judgeships, Congress has not acceded to that request in recent legislation, citing the more politicized nature of those positions.)

One of the features apparently overlooked by the White House is that of the 22 permanent positions created in 2025 and 2027, 12 of them are in states with two Democratic senators (or 11, if Sen. Ossoff loses reelection in 2026). With blue slips very likely to remain in place at district court level, this means Senate Democrats could maintain veto power over those appointments.

According to sources, charges levied at Republicans that the bill is only being advanced now due to the results of the election are not fully accurate. Multiple people familiar with the process have told Fix the Court that the House GOP had its own work to do to button up member support that had nothing to do with who won in November.

Looking at the calendar, the “bad faith” argument again falls flat. Though the Senate passed the bill four months ago (Aug. 1), the House was only in session 13 days between that date and the election, during which the House GOP was shoring up support. What’s more, the Senate had its own delays, as more than 100 days elapsed from the initial introduction of the bill in Sept. 2023 to the markup-ready version was dropped (Apr. 19), followed by 25 days from then to the June 13 markup and another 19 days to get from markup to the floor (all “days” here are “days in session”).

It’s worth noting that Republicans have in the past tried to add judgeships in bad faith. When the Judiciary ROOM Act, which would have added 52 district court judgeships, passed House Judiciary in 2018, Republicans insisted on funding the new judgeships through removal fees that would have been paid by conservative litigants to move their cases to more sympathetic venues.

But this is a very different scenario. The confluence of events that got us to this place is not likely to happen again for several years, and all the while, docket pressures will only grow and access to justice will continue to contract.

Fix the Court’s Roth concluded: “When it comes to judgeship shortages, Democrats — the purported party of expertise — should trust the judges. When the Judicial Conference says a dozen districts have crushing caseloads, when 328 judges, a mix of Democratic and Republican appointees, say after the election ‘we need more judges,’ it’s time to put partisanship aside, take them at their word and pass the bill.

“What a self-own it would be if Democrats opposed the JUDGES Act, Republicans retaliated in January by carving out an exception to the filibuster for judgeships and Trump got all 66 appointments to himself.”