Beltway Bulletin
Aspiring Judges—Should You Update Your Resumes This Year? The Prospects for Pending Judgeships Legislation By Dan Renberg and Cissy Jackson
A former senior Senate staff member and presidential appointee, Dan Renberg has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America. Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.
FBA members know all too well that our federal courts are severely overburdened, and many of you frequently face the consequences first hand. Article I, section 1 of the Constitution vests the judicial power in the Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” Thus, the courts must rely on the kindness of Congress to help manage their workloads. To facilitate this process, Congress created the Judicial Conference of the United States (“JC”), tasked with making a comprehensive survey of the condition of business in the federal courts, studying the operation and effect of the general rules of practice and procedure in use in the federal courts, and providing an annual report to Congress on its proceedings and its recommendations for legislation. According to the JC, a manageable district court caseload is 430 weighted filings per year. For the year ending Sept. 30, 2020, the average weighted filings per district court judgeship was 681, with some courts facing as many as 903 weighted filings per year. After assessing the caseloads of all district and circuit courts in granular detail, in March of this year, the JC recommended that Congress create 79 new judgeships across the country: 77 new district court judges and two new circuit court judges. In September, the JC supplemented its recommendation and requested five additional judgeships in Oklahoma, required to handle the significant increase in federal criminal prosecutions resulting from the Supreme Court’s 2020 decision in McGirt v. Oklahoma. In response to the JC’s March report, bipartisan sponsors in the House and Senate introduced identical versions of The JUDGES Act (S. 2535/H.R. 4885) that would increase the number of district and circuit court judges in accordance with the JC’s specific recommendations. Lead Senate sponsors of The JUDGES Act are Todd Young, R-Ind., and Chris Coons, D-Del.; House sponsors include Reps. Darrell Issa, R-Calif., Juan Vargas, D-Calif., Victoria Spartz, R-Ind., and Scott Peters, D-Calif. Rep. Issa, ranking member of the
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House Judiciary Subcommittee on Courts, provided videotaped remarks (https://youtu.be/P9gjPcRB_aE) for the FBA’s Annual Meeting. He explained that partisan politics has prevented the passage of judgeships legislation in the past and that the JUDGES Act seeks to avoid concerns about partisan court-packing by creating the new seats in two batches, half on Jan. 21, 2025, and half on Jan. 21, 2029. Not satisfied with the JUDGES Act, House Courts Subcommittee chairman Rep. Hank Johnson, along with the House Judiciary Committee chairman and other subcommittee chairs, introduced the District Court Judgeships Act of 2021 (H.R. 4886), which would establish over 200 new judgeships. The number of new judges is based on Rep. Johnson’s projections of federal court caseloads over the next few years. Rep. Johnson also provided videotaped remarks for the FBA’s Annual Meeting (https:// youtu.be/0G0uUoPqzWI), arguing that judicial delay undermines public confidence in the rule of law and that his proposed increases are necessary to provide the system of justice envisioned by the framers of our Constitution. Multiple bills aimed at solving this problem are a good start, but with such a disparity in the total judgeships created, negotiations will be necessary to reconcile differences and develop a consensus that can pass in both the House and Senate. As of the date of this writing, neither the House nor the Senate Judiciary Committee, to which the bills have been referred, has taken any action. The FBA has sent letters to the sponsors of all the bills expressing general support for addressing the national judgeships issue, but successful passage of judgeships legislation depends on additional grassroots efforts from federal court practitioners and personnel who can speak from experience about the urgent need to prioritize this legislation among the many pressing issues on Congress’s agenda. As Rep. Issa emphasized in his concluding remarks at the FBA’s Annual Meeting, the FBA’s input is important—your efforts do make a difference.
