Earlier this week, the Judicial Conference of the United States – the official, nonpartisan, policy-making body of the federal courts – issued recommendations that Congress add 79 new judgeships to the federal court system. Given the critical role that the lower courts play in people’s lives and in our constitutional structure, these recommendations are an important step forward in increasing access to justice and improving the chances that people will receive timely justice in our nation’s federal judicial system.  

Originally established as the Conference of Senior Circuit Judges, the Judicial Conference was created in 1922 as a response to the backlog of cases in the federal courts. Today, the Judicial Conference assesses judicial workload through calculating “weighted filings” for district courts and “adjusted filings” for appellate courts, calculations that consider not only the number of cases, but their complexity. Based on such calculations, the Judicial Conference then makes recommendations for future judgeships. 

The Conference’s most recent set of recommendations asks Congress to create two new court of appeals judgeships on the Ninth Circuit and 77 new district court judgeships, an increase in the total number of judgeships the Conference recommended in March 2019. In its 2021 recommendations, the Conference also requested that nine temporary district judgeships be converted to permanent status. 

It has been more than thirty years since Congress significantly increased the number of federal judgeships. In 1990, Congress passed the Civil Justice Reform Act, which added 11 circuit judgeships, 61 district judgeships, and 13 temporary district judgeships. Since then, other bills have been proposed to significantly increase the size of the lower courts but none of them have passed, in part due to the politicization of the judiciary.

It is important to note that the relative stasis in lower court size is not indicative of lessened demands placed upon our judicial system. In fact, reality is quite the opposite. Since 1990, our nation’s population has grown by one third, and in that time, the number of cases filed in the federal courts of appeal and district courts has increased by approximately 40 percent.  

These numbers have continued to grow in the last several years. As of March 31, 2020, there were nearly 30,000 civil cases pending for more than three years, and 99 percent of those cases were before a federal district court judge. This is nearly double the figure from 2011. Notably, these cases have been delayed for reasons that could be addressed by an increase in judgeships, including the complexity of the case, extensive discovery involved, and a heavy criminal and civil caseload.  

Last month, the House Judiciary Committee held hearings on the need for new lower court judgeships, and the Constitutional Accountability Center submitted testimony in support of adding seats. As we explained in our testimony, the lower courts play an important role in our daily lives. And ensuring that the judiciary has adequate capacity to dispense equal justice is something that only Congress has the power and the responsibility to do and must immediately act on.  

In the recent past, there has been bipartisan support for expanding the lower courts. During the last Congress, Sen. Todd Young (R-IN) introduced a bill to add 65 new judgeships to district courts, as per the Judicial Conference’s 2019 recommendations. During a 2020 Senate Judiciary Committee hearing on this issue, both Senator Lindsey Graham (R-SC) and Senator Dianne Feinstein (D-CA) appeared to support the Conference’s recommendations. Similarly, in 2018, Rep. Darrell Issa (R-CA)sponsored a bill to add 52 new permanent district court judgeships, and the House Judiciary Committee approved the bill by a bipartisan voice vote. 

Despite bipartisan support to meaningfully expand the lower courts, Congress has failed to act on this important problem for more than thirty years. But Congress cannot ignore this any longer. Without a sufficient number of judges to adequately serve the American people, our courts cannot deliver justice efficiently. The federal judiciary, on behalf of its judges and litigants, is asking for help, and Congress must answer that call.