OPINION: Deprivation of Powers: The Federal Judiciary is Drowning
By: Dustin Weber
Justice delayed is justice denied. This aspirational maxim has been an essential element of American jurisprudence from our founding. Unfortunately, even the Framers could not anticipate the contemporary hyper-politicization of the federal judiciary. Simply filling a judicial vacancy has become extremely burdensome due to partisan acrimony, but an additional problem plagues the federal judiciary — crushing and unmanageable caseloads. Pursuant to the powers afforded Congress in Articles I and III of the U.S. Constitution, the legislature should swiftly authorize new judgeships. A Federal Judgeship Act, a bill that would create more federal judges, should be passed immediately to prevent the suspension of civil cases.
The nation’s ability to dispense justice efficiently and effectively has been compromised. In the Eastern District of California, Chief Judge Lawrence O’Neill recently stated that the enormous caseload was putting his court on “the verge of an impending, acute, and judicial catastrophe.” In the Eastern District, the number of cases per judge exceeds 900. Nationally, the average caseload is 425 cases per judge. Despite an increase in population from 2.5 million to roughly 8 million in the past 40 years, the Eastern District has not received a new judgeship since 1978. Chief Judge O’Neill stated that civil cases, where the time from filing to trial is already approximately four years, would risk effectively interminable delays if the Eastern District does not get new judges.
Cara Bayles, a reporter for Law360 and Professor at San Jose State University, found numerous troubling issues in federal districts across the country. She noted that civil cases would be most impacted by an understaffed judiciary. While criminal cases also will be impacted, the constitutional requirements attached to many criminal cases necessarily limit the impact an understaffed judiciary can have on those cases.
Again, in the Eastern District of California, she spoke with an attorney who filed a civil case in 2016 that has yet to receive a trial date. This same attorney, despite preferring the operation of federal court, indicated that he now tries to avoid federal court altogether. Some courts are sending cases to other districts, which has frustrated and inconvenienced parties to those lawsuits. Bayles spoke to lawmakers on both sides of the aisle who agreed that partisan politics is a significant reason for new judgeships not being created.
Clearly, the judicial selection process has become poisoned by contemporary partisan politics. For decades, federal judges were appointed with significant bipartisan support. In both 1984 and 1990, Congress passed Federal Judgeship Acts that expanded the size of the federal judiciary. The Brennan Center for Justice, a nonpartisan public policy institute affiliated with New York University, noted that from 1961 through 1990, Congress approved an expansion of the federal judiciary about every six years. Since 1991, however, there has been minimal expansion of the federal judiciary, despite massive increases in caseloads.
Simply put, there are too many cases for too few judges. Per the Brennan Center for Justice, Congress created 429 new federal judgeships between 1961 and 1990. In contrast, only 38 new judgeships have been created since 1991. Furthermore, the number of pending cases increased by 40 percent from 1992-2013, leading to a 35 percent increase in pending cases per authorized judgeship. Nationally, the median time from filing to trial for civil cases has increased from 15 months to nearly 26 months.
The politicization of the judiciary is a significant factor in this development. The 21st century has seen a particularly egregious amount of politicking with the judiciary. According to a Brookings Institute study, a nonpartisan think tank, through 2012 the two worst postwar periods for slowing down judicial nominations occurred during the 1999-2000 and 2001-02 Congresses.
The 2015-16 Congress set a record for failed confirmations. According to the Congressional Research Service, of the 79 district and appellate nominations sent to the Senate by President Obama, only 22 were confirmed. This approximately 29 percent confirmation rate is the worst, by far, of any Congress in the postwar period.
Congress must overcome its partisan gridlock and authorize dozens of new judgeships. The Federal Judgeship Act of 2013 would have created 65 new judgeships and 20 temporary district court judgeships. Predictably, this legislation went nowhere because, as explained by Senator Mike Lee, R-Utah., there is a lack of trust in Congress and one party does not want to create new judgeships for the other party to fill. In 2019, the Judicial Conference of the United States, the national policy-making body for the administration of federal courts, recommended the creation of 73 new judgeships. The 2013 Act should be amended to create 73 new permanent judgeships and 20 temporary judgeships, then passed expeditiously.
A new Federal Judgeship Act should spread new judgeships over a period of 10 years, while frontloading and backloading the creation of new judgeships. The most overburdened courts should get new authorized judgeships first. Spreading the authorizations over 10 years and backloading the last block of judgeships ideally would help secure bipartisan support, since both parties likely would get the opportunity to appoint a significant number of new judges.
While trust in particular branches of government waxes and wanes depending on which party is in power, pollsters from Gallup to Fox News consistently have found the judiciary to be the most trusted branch of government over the past decade. It is imperative for the other two branches to pass a judgeship bill that will functionally restore the judiciary and prevent any further inefficient allocation of justice.
(Editor's Note: This article was originally published in the December 2019 [Volume 50, Issue 2] version of The Advocate.)