This week, the House of Representatives comfortably passed the JUDGES Act (S.4199), which would add 66 federal judgeships over the next ten years. The judgeships would be phased in over ten years, with the first two tranches coming in 2025 and 2027.
The Senate passed the same bill back in August, but House Republicans stalled a vote on the bill until after the election. Now that Donald Trump will return to the White House, the House Democrats decided that it was their turn to play politics with the judiciary and slow-played the vote until mid-December.
This is an excellent result for a resource-starved judiciary. But it appears that the drama will continue for a while, as President Biden has threatened to veto the bill on his way out the door. It’s worth unpacking the illogic and petulance of his threat.
Here is the key language from the OMB’s Statement of Administration policy on December 10:
While judicial staffing is important to the rule of law, S. 4199 is
unnecessary to the efficient and effective administration of justice. The bill would create new judgeships in states where Senators have sought to hold open existing judicial vacancies. Those efforts to hold open vacancies suggest that concerns about judicial economy and caseload are not the true motivating force behind passage of this bill now.
In addition, neither the House nor the Senate fully explored how the work of senior status judges and magistrate judges affects the need for new judgeships. Further, the Senate passed this bill in August, but the House refused to take it up until after the election. Hastily adding judges with just a few weeks left in the 118th Congress would fail to resolve key questions in the legislation,especially regarding how the judges are allocated.
So Biden’s reasoning comes down to three things: (1) Senators have been fighting over filling existing vacancies, suggesting that there is no urgency in adding more judgeships; (2) senior status and magistrate judges might be able to handle the existing work; and (3) passing the legislation now is a hasty overreaction and would leave important unresolved questions.
These are all nonsense.
Start with the urgent need for more permanent judgeships. There has not been a comprehensive, omnibus judges bill since 1990, nearly thirty-five years ago. (By contrast, Congress passed three separate omnibus judge bills in the 1960s.) The workload of the federal courts has now grown to the point where many districts’ dockets exceed 500 weighted filings per judgeship. The Judicial Conference of the United States has been patiently asking for more judges to assist with the workload. The fact that partisan politics have kept open a handful of judicial vacancies speaks only to the failures of Congress and the President, not the basic resource needs of the modern federal judiciary.
Moreover, the work of active district judges is qualitatively different than that of senior judges or magistrate judges. Senior district judges typically take a smaller caseload than active judges, and often limit themselves to specific cases or case types. Magistrate judges do not have the same breadth of authority as district judges (for example, they cannot preside over civil trials without the consent of all parties), and lack life tenure and Article III’s other guarantees of judicial independence. While senior judges and magistrate judges are essential players in handling the court system’s workload, they are not substitutes for active district judges.
Finally, notwithstanding President’s weak protestations, the proposed allocation of judgeships has been thoughtful and the bill staggers additional judgeships over ten years. The federal districts that would receive new judgeships are primarily those with the highest weighted caseloads. Many of these districts are in classically blue states, like California, New York, and New Jersey. Adding new judgeships assures that all of the identified districts are positioned to handle the increased workload, and phasing them in assures that no single President or Congress controls the nomination and confirmation process.
A veto of the JUDGES bill would be a tragic but fitting end to Biden’s long career of unproductive meddling with the operations of the federal judiciary, dating back to his days in the Senate. Hopefully he will think better of the threat and assure a co-equal branch of government the basic resources which it needs to serve the public .
The Interdependent Third Branch 