For decades, the wheels of the federal judiciary have been turning ever more slowly, as the number of federal judges has failed to keep pace with rising caseloads.
The Judges Act of 2024 was supposed to ease the strain by adding 66 judges over the next 10 years. By spreading the new judgeships over three presidential terms, the bill’s champions hoped to allay fears on both sides of the aisle that a single president would be handed a bounty of additional judgeships to fill.
There was just one hitch — Election Day. The bill’s sponsors knew that the measure’s chances depended on it passing before the presidential race was decided. Otherwise, the party of the losing candidate would be far less inclined to back the bill.
The Democratic-controlled Senate passed it by a unanimous voice vote in August. But Election Day came and went without a vote in the Republican-controlled House. Now the bill’s chances of becoming law look slim, with President Biden threatening to veto it as the current Congress wraps up its term.
The bill has drawn support from the American Bar Association and the Federal Judges Association.
For Mr. Biden and many other Democrats, the Republican decision to push off the vote until after Election Day — once it was clear that Donald Trump would nominate the first 22 judges — cost the bill its bipartisan sheen, and cost it their support. “You don’t get to pick the horse after that horse has already won the race,” is how Representative Hank Johnson, Democrat of Georgia, put it.
The 677 district court judges are the front line of the federal judiciary, handling most of the nearly 400,000 civil and criminal cases that pass through the system each year. Many of the most contentious and consequential legal questions, on transgender rights, gun control, immigration and abortion drugs, are first litigated in front of federal court judges, with a tiny fraction of those cases ever advancing to appellate courts.
For years, the courts have tried to deal with their swelling caseload using a patchwork of visiting judges; semiretired judges; and magistrates, who have limited powers and do not have lifetime appointments.
The Administrative Office of the U.S. Courts, a few blocks from the Capitol, helps oversee the system under the direction of the Judicial Conference, a policymaking body led by Chief Justice John Roberts.
This year, Justice Roberts named a new head of the administrative office, Robert J. Conrad, a judge for the Western District of North Carolina. Judge Conrad’s office has been closely involved in tracking the courts’ workload and making the case for new judges. In an interview on Thursday at the Thurgood Marshall Federal Judiciary Building, Judge Conrad said there was consensus on the need for more judges and that the need should drive the decision on the bill, not the prospect that Mr. Trump is now assured of filling the first 22 judgeships that would be created by the bill.
“Very rarely does it happen that the Senate, the House and the judiciary all agree on something being needed,” Judge Conrad said.
Data collected by his office shows how much the courts are slowing down.
Every other year, the administrative office tallies the civil cases that have been pending for more than three years. There were 18,280 such cases in 2004. By 2024, the figure had more than quadrupled, to 81,617.
“We need these additional positions in order to do our job going forward,” he said.
Judge Conrad noted that the tally of slow-moving cases is sometimes known as the Biden List, named for the current president who, as chairman of the Senate Judiciary Committee, sponsored a 1990 law that mandated the count of slow cases — and added 61 new judgeships.
Now, President Biden faces a choice: He can follow through on his administration’s promise to veto the bill, letting the courts try to make do as their dockets swell. Or, he can sign the bill, putting even more judicial power into the hands of a successor who is intent on undermining his legacy.
Giving Mr. Trump those extra judgeships — 11 in 2025 and another 11 in 2027, plus three temporary judgeships in Oklahoma — would be an especially bitter pill to swallow in light of signs that Mr. Trump intends to be more aggressive during his second term about nominating judges who are ideologically aligned with his agenda.
In a speech last month at the annual lawyers’ convention of the conservative Federalist Society, Robert Luther III, who worked in the White House Counsel’s Office during Mr. Trump’s first term, laid out what prospective nominees should expect to be asked: “What have you done to prove that you share President Trump’s worldview and judicial philosophy?” Mr. Luther said.
Gabe Roth, executive director of Fix the Court, a nonprofit that pushes for tighter judicial ethics rules and more transparency, said a veto would be risky for Democrats. It could embolden Republicans to take steps that would make it easier for them to confirm Mr. Trump’s judicial picks.
“I get that the White House doesn’t want to give Trump any more judgeships, but playing this game of chicken is dangerous when facing a side that time and again has opted to smash norms, particularly on judicial confirmations,” he said.
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