Jurisprudence

Congress Might Actually Expand the Courts

But will Republicans let Joe Biden fill the new seats?

Rep. Hank Johnson speaks into a mic during a congressional hearing.
Rep. Hank Johnson, chair of the House subcommittee on courts, at the Capitol on July 28. Chip Somodevilla/Getty Images

The United States judiciary does not have enough judges. This is not a partisan gripe but an objective problem that has overwhelmed federal courts and imposed unconscionable delays on litigants for decades. On Wednesday, the House of Representatives’ subcommittee on courts held a hearing to confront this quandary; remarkably, Democrats and Republicans agreed that Congress has an obligation to expand the federal judiciary by adding new seats to both district and appeals courts. But several Republicans endorsed a scheme that would prevent President Joe Biden from filling these new seats, at least in his first term. Their political maneuvering may not be fatal to the vital project of lower court expansion, but it could doom Democrats’ effort to swiftly restore a fully functioning judiciary.

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Court expansion may be a political football today, but that’s a recent development: For most of American history, Democrats and Republicans routinely worked together to expand the size of federal courts. When the modern courts of appeals were created in 1891, for instance, they had just 19 judges. Over the next 100 years, Congress expanded these courts nearly 30 times without much fanfare. Republicans agreed to add seats under Jimmy Carter; Democrats agreed to add seats under Ronald Reagan and George H.W. Bush. Each time Congress expanded the courts, it allowed the sitting president to fill the new seats. Both parties understood that giving the president extra judicial nominees was the price of maintaining an operative judiciary. As the population grew, federal criminal law ballooned, courts entertained a vast new swath of constitutional claims, and judges were periodically pushed to their limit. So Congress stepped, time and again, to provide a fresh infusion of judgeships.

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Eventually, however, this bipartisan cooperation broke down as both parties prioritized nominating like-minded judges and the courts’ dockets grew more politically charged. Congress hasn’t expanded the courts of appeals since 1990, when there were 179 active judges serving 250 million Americans. The country’s population has now risen to 330 million people, and yet there are still just 179 active judges on the courts of appeals. Predictably, these judges are swamped. According to Marin Levy, a Duke law school professor who testified on Wednesday, the number of cases filed with the courts of appeals has risen 20 percent since 1990. There are 284 filings per judgeship every year overall, and more in some courts: The 11th U.S. Circuit Court of Appeals, for instance, faces a walloping 450 cases per judgeship. The situation is arguably even more dire in the federal district courts, which must perform a plethora of additional tasks like holding trials. Congress hasn’t added new seats to the district courts since 2003. Yet according to testimony by U.S. District Judge Larry A. Burns on Wednesday, the number of cases filed at these courts has risen by 13.6 percent since then. Some judges must preside over more than 600 cases every year.

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Burns, joined by U.S. District Judges Kimberly Mueller and Diane J. Humetewa, pleaded with the subcommittee to create more judgeships. All three witnesses highlighted the consequences of the current shortage, including unconscionable delays for both criminal defendants (who have a constitutional right to a speedy trial) and civil plaintiffs (who have a constitutional right to petition the government for redress of grievances). Federal criminal defendants sit in jail for months or years awaiting a jury trial. Wronged employees, defrauded consumers, and victims of police brutality regularly wait years for a verdict, then bide their time as their cases slowly wend their way through the courts of appeals.

As Burns, Mueller, and Humetewa noted, the solution to this problem is no mystery: more judgeships, filled immediately. Every Democratic lawmaker who spoke on Wednesday agreed. Rep. Henry Johnson, the Democratic chair of the subcommittee, wholeheartedly endorsed legislation to expand the lower courts. “We cannot find a workaround,” Johnson said, “to the fact that expanding the lower courts is decades overdue. The consequences of doing nothing are insidious and could become downright cancerous.” Rep. Darrell Issa, the Republican ranking member, agreed, pointing out that Congress has now gone the longest without adding judgeships since 1789. But Johnson and Issa disagreed on the details of how to fix the problem, embroiling the subcommittee in the same debates that have stymied action on this matter for decades.

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Republicans have two basic concerns about Democrats’ proposal to solve the judicial shortage by simply creating more judgeships and allowing the president to fill them straight away. First, and most obviously, if Congress acts now, it will allow Biden to appoint more judges than he could otherwise. Republicans are still sore over Jimmy Carter’s transformation of the federal judiciary after Congress expanded the lower courts. Carter diversified the bench, appointing, for the first time ever, a large number of women and people of color, who tended to lean left. (Some of Carter’s nominees are still serving today, a reminder of the long-running impact of judicial nominations.) Second, Republicans are eager to split up the 9th U.S. Circuit Court of Appeals, which covers nine states (including California) and two territories. Republicans assert that the 9th Circuit is dominated by liberal judges, and complain that it covers so many states. In short, they do not like the fact that coastal elitist judges based in California or Oregon can strike down laws passed in Idaho and Montana. Conservatives also allege that the 9th Circuit gets reversed more frequently than any other appeals court, though in reality that figure changes depending on how you count.

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Issa repeated these complaints on Thursday and suggested that Republicans would only endorse legislation expanding the lower courts if it breaks up the 9th Circuit. He also insisted upon staggering appointments for any new judgeships: Congress, he said, should forbid Biden from filling some or all of these new seats, instead leaving that task to future presidents. His Republican colleagues appeared to support this line in the sand—which was somewhat surreal because they also acknowledged, like Issa, the crisis that exists right now. If the nation has a calamitous shortage of federal judges (as Republicans admit) with devastating consequences for civil rights and access to justice (as Republicans admit) that can only be fixed by creating more judgeships (as Republicans admit), why would Republicans refuse to increase the number of active judges until 2025 or beyond?

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The answer, of course, is politics: Republicans know these seats are necessary, but don’t want Biden to fill them. Democrats can respond to this intransigence in two ways. They can pass a bill creating more judgeships on district and appeals courts and, following uniform practice from the founding to today, let the current president fill as many of those seats as the Senate permits. Or Democrats can compromise with Republicans by creating more seats and letting a future president fill them. The latter route might attract sufficient bipartisan support to avoid a filibuster in the Senate. But if Democrats decide to solve this crisis by actually solving the crisis—that is, creating seats to be filled immediately—they’re unlikely to get 60 votes in the Senate. Thus, such a bill would trigger a filibuster showdown, and potentially scuttle the creation of any new seats at all. If justice delayed is justice denied, then it’s hard to see how a disastrously short-staffed federal judiciary can provide much justice to anyone.

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