Congress Ponders Whether to Add More U.S. District Judges as Caseloads Rise

The James R. Browning U.S. Court of Appeals Building in San Francisco
The 9th Circuit U.S. Court of Appeals, the largest federal appeals court in the nation, oversees several of the busiest U.S. District Courts, including in California and Arizona. / Shutterstock

The odds that Congress may add more judges to the federal courts may be increasing as legislators of both parties continue to introduce bills to expand their numbers. Whether legislation aimed at implementing recommendations to augment judicial resources to address rising caseloads can survive partisan crossfire is unclear.


Democrats in the House of Representatives introduced a bill on July 29 that would add 203 U.S. district judges in 47 federal judicial districts, including four more in Colorado. Meanwhile, on July 28 two Senators – one a Democrat, the other a Republican – jointly set in motion a measure that would add 77 new judgeships.

“By adding federal judges through the District Court Judgeships Act of 2021, we hope to ensure Americans get their day in court and their matters adjudicated,” said Georgia Democratic U.S. Rep. Hank Johnson, the lead sponsor of the House proposal and the chairman of the chamber’s Subcommittee on Courts, Intellectual Property and the Internet, in a statement. “Justice delayed is justice denied as far as I’m concerned.” All of the new judges under the Johnson bill, which is co-sponsored by 12 other members of the House Democratic Caucus including Colorado’s Joe Neguse, could be appointed immediately after it is enacted into law.

The states that would receive the largest boost in federal trial court judges under the House bill would be California, Florida, New Jersey and Texas. One Golden State federal court – the Central District, which includes Los Angeles – would get 16 new judges. In the Lone Star State, eleven jurists would be added to the Western District, which includes Austin and San Antonio, while the Eastern District would get 10 more judges. The Southern District of Florida, which encompasses Miami and Fort Lauderdale, would get 12 additional judges. 

The Senate bill, which is more modest, aims for bipartisan support. It’s sponsors – Todd Young of Indiana and Chris Coons of Delaware – included provisions to delay nominations of candidates to the new seats. In an effort seemingly intended to assuage fears that any bill would give a chief executive of the opposite party an edge in picking judges, half would be chosen by the president inaugurated in January 2025 and the other half would be selected by the president inaugurated in January 2029. 

The proposed JUDGES Act is sponsored in the House by GOP Reps. Darrell Issa of California and Victoria Spartz of Indiana and Democratic Reps. Scott Peters and Juan Vargas of California. Issa, a longtime member of the House Judiciary Committee, said in a statement that he thinks any judgeship bill must avoid giving either party the perception that it gains a partisan advantage in the makeup of the courts. “This framework has the potential to achieve bipartisan consensus on a critical issue for our courts and for our country, while continuing to guide future legislation on this vital issue,” he said. 

The Judicial Conference of the United States asked in March for 79 new judges, including two for the 9th U.S. Circuit Court of Appeals. The JCUS, which serves as the federal judiciary’s policymaking arm, noted that caseloads in federal district courts, as of the end of fiscal year 2019, increased 47 percent since the last omnibus judgeships bill was enacted in 1990. Appellate caseloads jumped 12 percent since then.

During a February 2021 subcommittee hearing to consider the question of increasing the size of the federal judiciary, Johnson pointed to dire circumstances facing both litigants and judges in U.S. trial courts. “We imagine a system of open and equal justice accessible to everyone, where each and every case is closely supervised by a federal judge who ensures that the case is resolved both fairly and efficiently,” the Georgian said. “But this vision falls apart if the judicial system doesn’t have enough judgeships to ensure that disputes are not only resolved correctly but also without the unjustifiable expense and delay. That, unfortunately, is the crisis we face today.” 

The numbers bear out his concern. As of March 31, 2021, there were 696,789 pending cases in federal district courts across the U.S. On average, each U.S. District Judge is assigned more than 800 of them. Federal judges, too, have pleaded for more support. “The bottom line of my testimony today is that we cannot fulfill our obligations without congressional action to create new judgeships. We urgently ask for your help to meet the needs of the public we serve,” said Chief Judge Kimberly Mueller of the Eastern District of California, which includes Sacramento, at the February hearing.

Rising caseloads are not a new problem. The JCUS, perhaps recognizing the inherent political difficulties in convincing Congress to add more judges, raised in 1993 the baseline standard of case filings per judge, used to decide whether additional jurists are needed in a federal judicial district, to 430. For decades that number was set at 400. Johnson’s bill would restore that number and base the number of additional judgeships his bill would create on it.

In the previous JCUS recommendation, issued in 2019, the judiciary asked for 70 new judges, including five for the 9th Circuit. The organization’s decision to scale back its suggestion for additional appeals court judges may relate to ongoing political controversy over whether to divide the nation’s largest appellate tribunal. Sprawling across the American West and the nation’s Pacific states and territories, an expanse that makes up more than 40% of the country’s landmass, the 9th Circuit has 28 active judges and serves more than 60 million people.

Republicans have long advocated dividing the 9th Circuit while Democrats have resisted. Federal judges, for the most part, seem to reject the idea of splitting up the court. Even judges of the court have publicly articulated views both in favor of and opposed to creating a new circuit court of appeals in the West. Despite that persistent division, there may be some legislators, even among Democrats, who are open to a conversation about the fate of the court. “If the way to do that requires that the Ninth Circuit be modified because that’s what some U.S. senators may be pushing for, then I would consider it,” Democratic Rep. Ted Lieu of California told Bloomberg Law in March.

Since U.S. District Judge Regina Rodriguez was confirmed earlier this year, Colorado no longer has any district court seats considered judicial emergencies by the JCUS, but the push to add more seats to the court did not begin with the Johnson bill. Joe Neguse, the Democratic representative for the state’s Second Congressional District, filed a bill in April that would add three judgeships. That measure would also allow the U.S. District Court for the District of Colorado to sit in Fort Collins. 

“Given Colorado’s recent growth, and in particular the population growth in Northern Colorado, as well as the overwhelming dockets our federal district court currently faces, increasing the number of district judges in Colorado and the localities in which court can be held will ensure access to timely and efficient justice,” Neguse said upon introducing his proposal.

There are currently 85 vacancies on the federal bench, including 39 judicial emergencies, according to the Federal Judicial Center, and 32 more empty seats will soon be created by the retirement of judges or their transition to senior status. 

No new federal judges have been added to any court since 2003. Since Congress last enacted a comprehensive judgeships law in 1990, the number of Americans has grown by more than a third, with about 84 million additional persons added to the population.

House and Senate Democrats have separately advocated for an increase in the size of the Supreme Court. Bills introduced in April would increase the number of justices from nine to 13. Neither of the proposals have been considered in committee.

 

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