GOP expected to block addition of judges
The administrative agency for U.S. judges is recommending creation of 79 new federal judgeships nationwide, including five in the Bay Area, to keep up with steadily rising workloads in courts that have not been substantially expanded since 1990.
But the expansion proposed by the U.S. Judicial Conference would require congressional approval, and a filibuster in the Senate would block any such law unless at least 10 Republicans joined Democrats in supporting it. Approval would most likely require Democratic concessions that would prevent President Biden from immediately appointing new judges.
Rep. Darrell Issa, RVista (San Diego County), senior Republican member of the House Judiciary Subcommittee on Courts, wants any legislation expanding the courts to delay the creation of new judgeships until 2025, after the next presidential election, spokesman Jonathan Wilcox said Wednesday. He said Issa included a similar provision in proposed 2018 legislation that would have added 52 new federal judges, starting in 2021.
Issa and other Republicans have also called for breaking up the Ninth U.S. Circuit Court of Appeals as part of court expansion. The Ninth Circuit, the largest federal appeals court, is based in San Francisco and oversees federal courts in nine Western states. It is one of the nation’s most liberal courts, and its breakup has long been sought by Republicans but opposed by Democrats and by most of the court’s judges.
In all likelihood, court expansion is “not going anywhere,” said Carl Tobias, a University of Richmond law professor and analyst of judicial appointments. “The problem is, if your person is in the White House, you want it, and if it’s the opposing party, you don’t.”
Congress last approved an overall increase in federal judgeships in 1990, during the administration of Republican President George H.W. Bush, though it added 34 trialcourt positions in U.S. District Courts in periodic legislation between 1994 and 2003.
The only judicial vacancies Biden could now fill are 68 openings — 62 in District Courts, six in appeals courts — created by judges’ retirements, deaths or transfers to semiretired senior status. Three of the vacancies are in the Northern District of California, based in San Francisco. Another 28 judges have announced plans to take senior status, including Judge Susan Graber of the Ninth Circuit and four judges in other appeals courts.
The Judicial Conference is chaired by Chief Justice John Roberts and includes chief judges of appellate and trial courts. In its announcement Tuesday recommending additional judgeships, the conference said District Court caseloads had increased by 47% between 1990 and Sept. 30, 2019, before the coronavirus pandemic began reducing court filings.
The proposal would add five judgeships to the Northern District of California, which now has 14 judges hearing federal cases from the Bay Area and northern coastal counties. The court has not added any judges since 1990 and reports that its workload increased by about 19% between 2001 and 2019.
The Judicial Conference recommended adding 25 judgeships to California’s other three federal districts, which have a total of 47 judges. Of the 79 proposed additions overall, only two would be for federal appeals courts — both in the Ninth Circuit, which now has 29 judges.