Bench Memos

Politics & Policy

Creating New Judgeships

The 115th Congress is wrapping up its legislative business. What will the 116th bring?

One likelihood is a bill to expand the federal judiciary. Here’s how Congress should handle it.

Two months ago, retiring Representatives Darrell Issa (R-Calif.) and Bob Goodlatte (R-Va.) introduced H.R.6755, the Judiciary Reforms, Organization and Operational Modernization Act of 2018. Title II incorporates an earlier recommendation of the Judicial Conference to create 52 new judgeships on the U.S. District Court and convert eight temporary district court judgeships to permanent status.

It is impossible to know whether the judiciary needs more judgeships, when nearly 16 percent of the judgeships it already has are empty. We are in the longest period of triple-digit judicial vacancies since the early 1990s.

A total of 48 vacancies already exist across 16 of the 23 judicial districts slated for new judgeships under this legislation. Overall, new case filings in these 23 districts have risen 15 percent in the last five years.

The central district of California, for example, has seven vacancies today. This bill would add seven more judgeships even though new filings have risen less than 4 percent.

The southern district of California has four current vacancies, with another opening next month. This bill would add three more judgeships to a court where new cases have actually decreased over the last five years.

The middle district of Florida would get six more judgeships, even though it already has two vacancies and the number of new cases has risen just three percent since 2013.

The eastern district of Texas has three current vacancies but would still get two more judgeships even though new case filings have plunged 21 percent in the last five years.

Put it all together, and the case for needing all these new judges seems weak.

And then there’s the cost. Expanding the federal government never comes cheap. The Congressional Budget Office estimates that the proposed expansion would cost approximately $500 million per year for additional salaries, benefits, courthouse modifications, and administrative costs. CBO estimates for previous judiciary-expansion legislation and Senate Judiciary Committee hearing testimony suggest that this is a conservative estimate.

It’s common sense to obtain an accurate diagnosis before getting a prescription. In this case, that does not mean that judicial vacancies must reach absolute zero. But vacancies averaged 6 percent of the judiciary in 1989, the year before Congress last created a significant number of judgeships. The vacancy rate this year has averaged more than 16 percent. There’s just no way to reliably assess how much the judiciary should expand when it’s currently deflated.

Title III of the Issa-Goodlatte bill covered issues related to court operations such as video recording and internet streaming of federal court proceedings. The number of judges and how they must run their courtrooms, however, are fundamentally different issues and, therefore, should be addressed separately.

If similar legislation is introduced next year, Congress should put off creating more judicial vacancies through new judgeships until the president and Senate fill the 100+ current judicial vacancies.

Thomas Jipping — Thomas Jipping is deputy director of the Meese Center for Legal and Judicial Studies and senior legal fellow at the Heritage Foundation.

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