Federal judges are overworked; here's a proposal for hiring more of them

Congress should bring back a revised version of the JUDGES Act

Many federal district courts are overworked and overwhelmed. Congress has not expanded the federal judiciary for more than three decades.¹ During those decades, the U.S. population grew from about 249 million in 1990 to about 331 million in 2020.² Caseloads grew by 30 percent across all judicial districts,³ with some districts experiencing much higher growth. In the Eastern District of California, for example, the population has doubled since Congress last added a new judgeship, leading to a perpetual crisis of crushing caseloads and extensive backlogs.⁴

People who live in States with large and growing populations suffer when Congress fails to allocate resources to meet the growing need. Criminal and civil backlogs are far heavier in highly-populated districts.⁵ This means that criminal defendants sit in jail for longer before going to trial and civil litigants cannot obtain adjudication of disputes for years on end. Complex civil cases drag on for so long that the disputed matter is ancient history with no practical relevance by the time the courts finally resolve it. When judges are unavailable, a litigant may take advantage of the delay to resolve a matter by guilty plea or settlement. And when matters do not settle, delays diminish confidence in the judiciary’s ability to solve problems and increase the cost of litigation, both in terms of both attorneys’ fees and any interest awarded on judgment amounts.

Most federal judges work hard; the problem is that we do not have enough judges. In 2023, the Judicial Conference of the United States, a body made up of judges and headed by Chief Justice Roberts, recommended that Congress create 66 new federal district court judgeships to help address caseloads in overloaded districts.⁶ Following that recommendation, in August 2024, the Senate unanimously enacted a bill that would create 66 new federal district court judgeships over the course of ten years, so that no one president would have the opportunity to fill all of them.⁷ The Republican-controlled House declined to act on the bill until after the November election. After Trump prevailed, the House passed the bill by a 236-173 vote. The bill’s excruciating name is the “Judicial Understaffing Delays Getting Emergencies Solved Act of 2024,” i.e., the “JUDGES Act.”⁸

President Biden vetoed the bill, stating that Congress had passed the law too hastily without studying and answering questions about the need for additional judgeships.⁹ This explanation was unconvincing. The Judicial Conference had supported its request for more judgeships with detailed caseload data¹⁰ and Congress incorporated that data into its enacted findings of fact.¹¹ If the House had passed the bill before the election, such that identity of the incoming president with the power to appoint the new judges was unknown, Biden surely would have signed it. The House delayed because of the possibility that Kamala Harris would win and Biden vetoed the bill because she did not. Total fail.

How can Congress fix this? Here’s a proposal.

Congress should work with the current government to address the root of the problem. We need more judges, but to create more judgeships, Democrats need some assurance that Trump’s appointments for those judgeships will not be too far outside the mainstream of acceptable choices. The compromise I have in mind is a familiar one: require a three-fifths majority vote in the Senate as a threshold for confirming judges to the newly-created positions. That’s 60 votes if all 100 Senators are present.

This compromise should be politically feasible. From the Republican perspective, it is better to have additional judgeships with a heightened confirmation threshold than no additional judgeships. From a Democratic perspective, a 60-vote confirmation threshold effectively ensures that Democrats retain the ability to block nominees for the new judgeships. The Republican-Democrat divide in the incoming Senate is 53-47,¹² so appointment for new judgeships generally would require seven Democrats to join all 53 Republicans in voting for a nominee. The 60-vote threshold would apply only to the new judgeships, such that this president or the next would not lose any control over other appointments.

Trump or his advisors can find nominees for the federal district courts who can garner large bipartisan majorities in the Senate, especially if their ability to fill the post depends on it. Many of Trump’s nominees for the federal district court during his first term were confirmed by wide majorities that included the votes of Democratic senators.¹³ At the same time, many of Trump’s first-term nominees were controversial, but creating additional judgeships with a higher confirmation threshold would neither enhance nor limit his ability to appoint controversial judges to existing vacancies.

The proposed 60-vote threshold is also legally feasible. Congress could provide in a revised bill that the authorization to establish additional judgeships lasts only two years and is contingent upon the Senate amending its internal rules to impose the three-fifth majority requirement for the new judgeships. The amendment to the Senate rules could provide that for the new judgeships, the Senate’s advice and consent would require the concurrence of three-fifths of those present, which would be analogous to the former procedure for voting to overcome a filibuster with a super-majority cloture vote.¹⁴ Judges who were confirmed after 60 or more senators voted for cloture were not any more or less legitimate because they had to clear that super-majority hurdle. Requiring the super-majority upfront, as opposed to through a filibuster-and-cloture process, ought to be legitimate as well. After the initial appointment during a two-year-only authorization period, any future vacancies would be filled in the ordinary course, such that the amendment to the Senate rules would not necessarily affect a future Senate.¹⁵

Might the incoming Senate simply amend the Senate rules to eliminate the filibuster for all legislation and then vote to create the new judgeships without any Democratic support? Republicans leaders have said that they are not going to do that.¹⁶ Assuming that promise holds, the path forward for both sides to address the judicial staffing crisis is compromise. Congress should add the 66 new judgeships it has already approved, but do so in two years instead of ten, because an emergency requires judges now, not ten years from now. The new judgeships should be conditioned on bipartisan support represented by a super-majority vote requirement. Such a compromise would bring broadly acceptable and qualified judges to the bench in a time of dire need, without handing too much power to the incoming president.

1. Senate Bill 4199, section 2(2), https://www.congress.gov/bill/118th-congress/senate-bill/4199/text.

2. https://www.census.gov/data/tables/time-series/dec/popchange-data-text.html.

3. Senate Bill 4199, section 2(4), https://www.congress.gov/bill/118th-congress/senate-bill/4199/text.

4. https://www.caed.uscourts.gov/caednew/index.cfm/news-archive/important-letter-re-caseload-crisis; https://news.bloomberglaw.com/us-law-week/us-courts-safety-valve-threatens-to-burst-as-senior-judges-exit.

5. https://www.uscourts.gov/sites/default/files/2024-11/fcms_na_distcomparison0930.2023.pdf.

6. https://www.uscourts.gov/data-news/judiciary-news/2023/03/14/federal-judiciary-seeks-new-judgeship-positions.

7. https://www.congress.gov/bill/118th-congress/senate-bill/4199/all-actions?overview.

8. Senate Bill 4199, section 1, https://www.congress.gov/bill/118th-congress/senate-bill/4199/text.

9. https://www.whitehouse.gov/briefing-room/presidential-actions/2024/12/23/message-to-the-senate-on-the-presidents-veto-of-s-4199.

10. https://www.uscourts.gov/data-news/reports/statistical-reports/federal-court-management-statistics.

11. Senate Bill 4199, section 2(4)-(6), https://www.congress.gov/bill/118th-congress/senate-bill/4199/text.

12. https://www.pewresearch.org/short-reads/2024/12/17/slim-majorities-have-become-more-common-in-the-us-house-and-senate.

13. The vote margins for the U.S. Supreme Court and circuit courts are often very polarized and close, but the margins for the district courts frequently are not. See https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Donald_Trump.

14. The Senate effectively eliminated the filibuster for nominations to the federal district court in 2013 by reducing the number of votes needed for cloture from 60 votes to a bare majority. See https://law.emory.edu/faculty/scholarship/insights/2021/spring/insights-2021-filibuster-change-judicial-appointments.html.

15. Such a provision should eliminate any objection that the authorization legislation unfairly impinges on a future Senate’s ability to determine its own rules under Article I, Section 5, Clause 2 of the Constitution.

16. https://www.nbcnews.com/politics/congress/republicans-promise-protect-senate-filibuster-even-hinders-trumps-agen-rcna179893.