Congress Passes Legislation to Create Needed Judgeships, but Biden May Veto

The Judicial Conference has called for the creation of additional judgeships — primarily district court seats in parts of the country plagued by judicial backlogs. The Federal Bar Association has joined the call for more judgeships, and endorsed the JUDGES Act, which would authorize 66 new district court judgeships over the next decade, staggered so as to spread the nominations across presidential administrations.

The Senate passed the JUDGES Act earlier this year, before the August recess. Some hoped it would pass before the election, when it was still unknown who would get the first opportunity to fill new seats, but that did not happen.

Earlier this week, the FBA and Federal Judges Association issued a statement urging adoption of the JUDGES Act. It reads in part:

Our federal courts observed over 30 percent growth in their caseloads since the last comprehensive judgeship legislation three decades ago and the lack of new judgeships has contributed to profound delays in the resolution of cases and serious access to justice concerns. It is the litigants and residents of the Nation who suffer when there is a delay in deciding cases, and the enactment of the JUDGES Act would have a substantial positive impact on the efficient administration of justice for all Americans.

Now, more than ever, our judicial system needs enactment of the JUDGES Act. It adds judges in a non-partisan manner and through its creative staggered approach to creating these new judgeships, offers the best chance in three decades for addressing the increasing judicial caseload crisis. Failure to enact the JUDGES Act will condemn our judicial system to more years of unnecessary delays and will deprive parties in the most impacted districts from obtaining appropriate justice and timely relief under the rule of law.

The statement is signed by FBA President Glenn McMurry and FJA President Judge Michelle Childs (a Biden appointee to the U.S. Court of Appeals for the D.C. Circuit).

Today, the House passed the JUDGES Act with bipartisan support, 236-173.

The White House, however, is threatening to veto the bill, claiming that additional judgeships are unnecessary, even though the Judicial Conference and FBA claim otherwise.

According to the National Law Journal, judges are discouraged by the White House veto threat, with one Obama appointee calling it “really deflating.” From that report:

Federal judges must prioritize criminal matters, and as a result of heavy caseloads, civil cases in particular can drag on. According to the Administrative Office of the U.S. Courts, the number of civil cases pending more than three years rose from 18,280 to 81,617 over the last 20 years.

Chief U.S. District Judge Marcia Morales Howard of the Middle District of Florida said the court’s Ocala division currently has no judges assigned there and has the busiest docket in the district.

At least six senior judges and one active judge take on the division’s docket, she said. But she said many aging senior judges are beginning to roll back the number of cases they take on, which could pose a problem.

“The Middle Florida is huge. It’s 35 of the 67 counties in the state. It’s 60% of the population of the state,” said Howard, a George W. Bush appointee. “So we desperately need these judgeships.”

Howard said the bill would add five judges to the court over a decade: one in 2025, one in 2027, one in 2031, one in 2033, one in 2035.

There is no question that partisans prefer to authorize new judgeships when they know a president of their own party will get to fill the seats. That is one reason the JUDGES Act staggers vacancies over the next decade. The reality remains that more district court judgeships are needed, and it would be unfortunate if partisan concerns prevented these seats from being created.

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