The lack of any new federal judgeships in nearly 15 years, combined with significant caseload growth, has generated civil case delays in many federal courts, and especially in five district courts with extraordinarily high and sustained caseloads: the Eastern District of California, the District of Delaware, the Southern District of Florida, the Southern District of Indiana, and the Western District of Texas.

At a House Judiciary Subcommittee hearing on June 21, 2018, leaders of the Judicial Conference urged Congress to establish new judgeships in these five judicial districts as soon as possible. The Federal Bar Association spotlighted those same five districts and their judgeship needs in meetings with congressional lawmakers on April 20 during Capitol Hill Day. However, these judicial districts represent only the tip of the iceberg in terms of judgeship needs.

‘Tremendous Caseload Growth’ in Some Districts, Circuits

The Judicial Conference’s last survey of judgeship needs, completed in March 2017, identified five new judgeships in the Ninth Circuit Court of Appeals and 52 new judgeships in 23 district courts. The Conference also would like Congress to convert eight existing temporary district court judgeships to permanent status. These judgeships are in Arizona, California-Central, Florida-Southern, Kansas, Missouri-Eastern, New Mexico, North Carolina-Western, and Texas-Eastern.

At the June 21 House hearing, Chief U.S. District Judge Lawrence F. Stengel of the Eastern District of Pennsylvania, as chair of the Judicial Conference’s Judicial Resources Committee, pointed out that appeals court filings have grown by 40 percent and district filings by 38 percent since 1990, the last time Congress enacted a comprehensive judgeships measure that created a whopping 11 additional appeals court judgeships and 74 district judgeships.

Stengel pointed to the “tremendous caseload growth” in the California districts, Delaware, and other courts in recent years, triggered by changes in patent law and other developments. Delaware filings have increased significantly as a result of the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341 (May 22, 2017), which held that a domestic corporation resides only in its state of incorporation for purposes of patent venue. Stengel also noted the continued growth in multidistrict litigation cases, which represent about 35 percent of all federal civil litigation. More vigorous immigration enforcement also has increased caseloads, generating greater demands upon magistrate judges.

The impact of rising caseloads without an increase in judgeship capacity has been profound. California, with more than 10 percent of the nation’s federal caseload, witnessed a 13.5 percent increase in cases filed over the past 15 years. The workload situation in the state’s district courts has been especially severe, Stengel said, with weighted caseload filings significantly exceeding the national average and amounting to more than 500 cases per judge in each district, especially in the Eastern district. “The weighted caseload exceeds 700 in the Eastern district, which has had among the highest weighted filings per judgeship in the nation for many years,” Stengel said. This has delayed the resolution of civil cases for years.

15 Years Without a Single Judgeship

The failure of Congress to increase judgeship capacity and stay apace with caseload demands is symptomatic of the broader dysfunction that has gripped Congress. It hasn’t always been this way. Congress regularly added judgeships in 1966, 1970, 1978, and again in 1984. After Congress enacted a comprehensive judgeships bill in 1990, it passed three smaller, targeted bills between 1999 and 2003, adding 34 district judgeships, particularly in the southwest border states. It has now been nearly 15 years since a single federal judgeship has been added.

Prospects for approval of more judgeships next year could be difficult and impacted by the upcoming midterm elections. Democrats will remain wary of creating new judgeships that could be filled by Trump-nominated candidates, especially as long as vacancies remain, with nearly 150 district and circuit vacancies that await filling.