A years-long effort to expand the federal judiciary faltered this week when President Joe Biden vetoed the Judicial Understaffing Delays Getting Emergencies Solved Act of 2024. The JUDGES Act would have increased the federal district court bench by about 10 percent over the next twelve years, adding 63 new permanent federal judgeships in thirteen states, along with three temporary judgeships in Oklahoma. The U.S. District Court for the Northern District of Iowa was slated to receive one of the first eleven positions to be created in 2025.

The veto leaves Iowa’s Northern District with two District Court judges (Chief Judge C.J. Williams and Judge Leonard T. Strand), along with Senior Judge Linda R. Reade and two magistrate judges. That number hasn’t changed since 1990, when the last major expansion of the federal bench allocated a third judgeship to Iowa’s Southern District. The 1990 law also assigned a judge who had previously divided his time between the state’s two districts to the Northern District on a permanent basis.

Biden may not have the last word on this subject, given the Republican Party’s commitment to putting more conservatives on the bench.

“SERIOUS ACCESS TO JUSTICE CONCERNS”

The JUDGES Act mostly matched recommendations the Judicial Conference of the United States submitted to Congress in March 2023. The conference spent years studying where current staffing is inadequate to handle caseloads. They found,

In fiscal year 2022, weighted filings, which account for the different amounts of time district judges require to resolve various types of civil and criminal actions, were above 500 per judgeship in 17 of the 30 courts in which the Conference is recommending additional judgeships or the conversion/extension of existing temporary judgeships to permanent status. 

In eight of these courts, weighted filings exceeded 600 per judgeship, and were greater than 700 per judgeship in three. The Conference generally requires courts to have over 430 weighted filings per judgeship to recommend additional judgeships.

Judge Robert J. Conrad, Jr., the Director of the Administrative Office of U.S. Courts, wrote in a December 16 letter to the president,

District court filings have grown by 30 percent since 1990, when the last comprehensive judgeship bill was enacted. Meanwhile, since 1991, the overall number of authorized district court judgeships increased by only four percent. This has contributed to significant delays in the resolution of cases and serious access to justice concerns.

He said higher caseloads “lead to significant delays,” especially in civil cases. That raises costs for civil litigants “and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the Judiciary and erode public confidence in the judicial process. The problem is so severe that potential litigants may be avoiding federal court altogether.”

The Federal Judges Association and the Federal Bar Association echoed that sentiment in a December 11 statement endorsing the JUDGES Act: “the lack of new judgeships has contributed to profound delays in the resolution of cases and serious access to justice concerns.”

Iowa’s Northern District covers 50 counties, grouped in four divisions:

Federal Court Management Statistics show that as of December 2022, Iowa’s Northern District had 421 weighted filings per judgeship, significantly more than the 361 weighted filings per judgeship in Iowa’s Southern District. The latest available statistics from September 2024 measured weighted filings at 416 per judgeship in the Northern District and 358 per judgeship in the Southern District.

BIPARTISAN APPROVAL IN SENATE AND HOUSE—WITH A TWIST

Iowa’s senior Senator Chuck Grassley had opposed previous attempts to expand the federal bench, but he came around to supporting the JUDGES Act. He explained during a June meeting of the Senate Judiciary Committee that he still thought the bill “creates too many new judgeships,” but had concluded “the people of this country are entitled to justice, and justice is a speedy process, and when that’s slowed down, it’s not really justice.”

Grassley praised the “much improved” bill for spreading out the new judicial positions in six tranches, and providing more transparency on judicial caseloads and future judgeship recommendations.

The Senate approved the bill by unanimous consent on August 1, just before the chamber’s long summer recess.

The idea was to get the JUDGES Act to the president’s desk before it was clear who would be able to appoint the first two waves of judges in 2025 and 2027. However, House leaders did not bring the legislation to the floor while there was a chance of a Democrat succeeding Biden.

House members approved the bill on December 12 by 236 votes to 173. The 207 Republicans who voted yes included all four Iowans: Representatives Mariannette Miller-Meeks (IA-01), Ashley Hinson (IA-02), Zach Nunn (IA-03), and Randy Feenstra (IA-04).

AN “EXTREMELY DISAPPOINTING” VETO

Biden’s December 23 veto message was puzzling. He claimed the bill (which was years in the making) “seeks to hastily add judgeships with just a few weeks left in the 118th Congress.” He asserted the “hurried action” in the House “fails to resolve key questions in the legislation, especially regarding how the new judgeships are allocated,” and called for further study “before we create permanent judgeships for life-tenured judges.”

In reality, the bill text spells out which jurisdictions will receive new judgeships in 2025, 2027, 2029, 2031, 2033, and 2035. (I sought comment from the White House press office on that point; they did not respond.)

Judge Conrad called Biden’s veto “extremely disappointing” in a December 24 statement. He added, “The judgeship legislation presented to the President reflects decades of work by the federal Judiciary and is very similar to legislation introduced in the last Congress. It is not a bill that was hastily put together. Rather it is the product of careful and detailed analysis which considers primarily the weighted caseload per active judge in each judicial district, while also factoring in the contribution of senior judges, magistrate judges and visiting judges.” 

Biden’s veto message raised a second objection, claiming the bill “would create new judgeships in States where Senators have sought to hold open existing judicial vacancies. Those efforts to hold open vacancies suggest that concerns about judicial economy and caseload are not the true motivating force behind passage of this bill now.”

Judge Conrad refuted that point in his letter to the president earlier this month: “of the 25 districts in which judgeships are requested, only five of those districts (within three states) have vacancies with no nominees. For the remaining 80 percent of the districts in which judgeships are requested, there is no evidence to suggest that existing vacancies are being held open.”

Georgetown University law professor Steve Vladeck wrote in his One First newsletter, “President Biden is using partisan gamesmanship in a minority of these districts as a cover for vetoing a measure that creates new judgeships in plenty of districts in which no such gamesmanship is occurring.”

Vladeck also posited that the veto “sends the absolutely wrong message about court reform, i.e., that it is only worth doing when it also produces a short-term partisan political advantage.”

I would add that the veto may backfire, allowing Republicans in Congress to give incoming President Donald Trump many more judicial vacancies to fill.

CAN REPUBLICANS ACCELERATE THE TIME FRAME?

Judge Conrad warned in his recent letter to Biden, “Failure to enact this legislation will likely push back the opportunity to pass a judgeship bill for many years.”

I don’t think so.

Few things unite the GOP coalition more than packing the courts with conservative ideologues. In theory, a new bill expanding the judiciary would need at least 60 votes to clear the U.S. Senate. But Republicans will have a chance to pass two bills next year through the budget reconciliation process. Those bills can pass with a simple majority of 51 votes in the Senate.

Creating new judgeships costs money, and the JUDGES Act authorizes increasing appropriations by around $12.9 million in fiscal years 2025 and 2026, rising every two years to around $61.1 million in additional expenditures in fiscal year 2035 and thereafter.

What if Republicans put language adding 66 new judgeships over a two- or three-year period in a reconciliation bill? Groups like The Federalist Society and The Article III Project would have no trouble providing the White House with dozens of like-minded candidates. As chair of the Judiciary Committee, Grassley would put Trump’s nominees on a fast track.

The big question is whether provisions expanding the judiciary could pass muster under the Senate’s “Byrd rule,” which seeks to prevent abuse of the budget process by excluding “extraneous” provisions from reconciliation bills.

Several people who closely follow Congressional happenings have told me they are skeptical the Senate’s parliamentarian would let something like the JUDGES Act into a reconciliation bill.

Bobby Kogan, senior director of Federal Budget Policy for the Center for American Progress and a former Senate Budget Committee staffer, told Bleeding Heartland,

In the past, the previous senate parliamentarian advised that an attempt to create more judges ran afoul of the Byrd rule’s limitation against provisions whose budgetary impacts are merely incidental. We’ll have to wait and see to know for sure, but I expect that something like the JUDGES Act would similarly have merely incidental budgetary impacts and therefore not allowed in reconciliation with a simple majority.

Kogan was referring to a controversy from 2005, when Republicans tried to include a plan to split the U.S. Court of Appeals for the Ninth Circuit in a reconciliation bill. Senator Dianne Feinstein, a Democrat from California, threatened to raise a point of order under the Byrd rule, prompting Republicans to drop the judicial provisions from the budget bill.

If Republicans are committed to getting this done, though, they could overrule the advice from Senate Parliamentarian Elizabeth MacDonough with a simple majority vote. They could even replace MacDonough with someone more amenable to stuffing reconciliation bills with extraneous provisions on the judiciary, immigration, or anything on Trump’s wish list that can’t get 60 votes.

Alternatively, Republicans could try to pass the JUDGES Act next year with minimal changes, staggering dozens of new judgeships over three presidential administrations. To overcome a Senate filibuster, they would need just seven of the 47 Democrats to join the 53 Republicans. That’s plausible, given bipartisan recognition of the need for more federal judges to handle rising caseloads. This month, 29 House Democrats joined Republicans to approve the JUDGES Act, knowing Trump would soon be back in the White House.

As Senate Judiciary chair, Grassley would wield great influence over such legislation and could keep Iowa’s Northern District in the first group of jurisdictions to receive a new allocation.

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Top image: The United States District Court for the Northern District of Iowa federal building and courthouse in Sioux City. Photo from 2018 is by Tony Webster from Minneapolis, Minnesota, CC BY 2.0 license, available via Wikimedia Commons