Joe Biden’s Final Attack on the Courts

Congress hasn’t expanded the federal judiciary since 2002. While the size of the country has grown considerably in that time—and the litigiousness of its citizens has not decreased—the number of district court judges has remained constant. With that background, the Senate has spent the better part of a decade working methodically to expand the number of district judges, resulting in Indiana Republican senator Todd Young’s JUDGES Act of 2024. Thanks in no small part to Senator Young’s dogged efforts, the bill passed both the Senate and the House and went to President Biden, who, in an act of legislative miserliness that would give Scrooge pause, proceeded to veto the bill just before Christmas.

Biden’s decision to veto this bill was unsound by every possible metric. In multiple explanations of his decision—first in a Statement of Administration Policy (SAP) and then in his veto message—he repeatedly mischaracterized the history and objectives of the bill. In the end, it can only be explained as a petty act of revenge against his predecessor and successor, President-elect Donald Trump. Republicans would do well to remember his partisan gracelessness next Congress when Democrats invariably make high-minded, self-interested appeals in the judicial wars.

The JUDGES Act

The Judicial Understaffing Delays Getting Emergencies Solved Act of 2024, or JUDGES Act, was the product of almost a decade of careful legislative work. Introduced by Young and Delaware Democratic Senator Chris Coons, it responded to increasing imbalances in district court dockets by gradually adding 66 judgeships over six Congresses and three presidential administrations.

In the federal system, district judgeships are allocated among 94 judicial districts across the 50 States, the District of Columbia, and Puerto Rico. Because these are life-tenure positions allocated by statute, over time population shifts can leave some judicial districts improperly staffed. So, for example, the population explosion in Florida has left the Middle District of Florida overworked. Likewise, previous efforts to expand the courts in California responded at the time to significant population growth in southern California, leaving the sprawling, inland Eastern District seriously understaffed. 

Changes in law can also have a significant effect on caseloads. Following the U.S. Supreme Court’s 2020 opinion in McGirt v. Oklahoma—which removed criminal jurisdiction from state courts in most of Oklahoma on matters relating to American Indians—the federal courts in Oklahoma have been importing visiting judges from around the country to meet their new backlog of cases. Similarly, changes in patent venue rules following​ the 2017 Supreme Court ruling in TC Heartland v. Kraft Foods Group Brands LLC and related cases have exploded the patent docket in Delaware (where more than 60% of Fortune 500 companies are incorporated) with a consequent strain on overall caseloads. And, of course, the last four years of record illegal immigration have pushed border courts well past their breaking points.

Because the allocation of judgeships is statutory, it can be hard to respond to these developments in real time. Furthermore, the increasingly partisan nature of judicial confirmations—including on lower courts, following Senator Chuck Schumer’s crusade against George W. Bush’s nominees—coupled with the rising importance of district courts in the era of universal injunctions has made it virtually impossible to give an incumbent president new judgeships to fill absent a filibuster-proof majority in the Senate.

Of course, the flip side to underallocation is overallocation. Each judgeship costs around $1 million per year, according to the Congressional Budget Office. Add enough judgeships and, over the usual ten-year window for CBO projections, Congress’s annual appropriations for the federal judiciary will have to be permanently increased in nontrivial amounts. When population shifts leave a courthouse sleepy, its judgeships are never removed—for several reasons. Those are local jobs, and the bar tends to be opposed—after all, no state wants to admit that residents are leaving. Furthermore, each judgeship constitutes  a valuable patronage appointment for home state senators. As a result—or so the argument goes from senators such as Iowa Republican Chuck Grassley—new judgeships are a one-way ratchet and are not a fiscally responsible allocation of judicial resources. 

There’s something to that, but the problem of underwater courts persists in states like Delaware and—for some reason—Indiana, whose Southern District is one of the most overworked courts in the country. That urgent issue (whose urgency is a matter of bipartisan agreement) is what led Young and Coons to try to resolve the issue. Conversations began in earnest during the first Trump administration and resulted in a consensus hearing in the Senate Judiciary Committee in 2020. Subsequently Young and Coons have introduced and reintroduced their bill, working with the Administrative Office of U.S. Courts to get the numbers right and then working closely with the Judiciary Committee to make the allocations as apolitical as possible.

The result was a bill providing 66 new judgeships over the next decade—around ten or so in each Congress—to California, Delaware, Florida, Indiana, New Jersey, New York, Texas, Georgia, Arizona, Idaho, and Nebraska. The allocations came from continual caseload studies of the Judicial Conference of the United States. The tranches were carefully balanced between Republican-leaning  and Democratic-leaning states to prevent any obvious partisan advantage and spread out over time among the largest states in order to properly account for the political prerogatives of senators wielding “blue slips” to prevent disfavored appointments—all without generating obvious vacancy backlogs. 

The bill passed out of the Judiciary Committee unanimously, and was passed by the full Senate via voice vote in the summer of 2024. As then-Senate Majority Leader Chuck Schumer said at the time, “There’s broad consensus we need more judges on the bench. It’s not a Democratic or Republican issue.” This was because “[t]oday our federal courts simply can’t keep up with their immense workload like they used to in the past. As our country has just kept growing and growing, our federal courts sadly have not kept pace.” He praised the final product, arguing its result would be “a better functioning judiciary.”

But on December 12, 2024, the JUDGES Act passed the House by a 236-173 margin, with just 29 Democrats voting in favor of it. 

Biden’s Bad-Faith Opposition

How did the bill go from passing the Senate unanimously to passing the House with a relatively slim bipartisan majority? The bill suddenly became controversial after the Biden White House—just before the House vote—put out a Statement of Administration Policy (SAP) blasting the bill and saying the president would veto it.

The SAP was a farrago of lies. It called the bill “unnecessary to the efficient and effective administration of justice,” which was blatantly false (more on this below). 

It argued, out of left field, that “the bill would create new judgeships in states where Senators have sought to hold open existing judicial vacancies,” a seeming dig at Texas and Florida, where senators have not been willing to allow President Biden to appoint radical judges, but one that applies just as well to California, New York, and New Jersey, where senators either refused to cut deals with the White House during the first Trump Administration or openly reneged on them before the ink was dry. Indeed, much of the work in the Judiciary Committee to improve the bill was with an eye toward accommodating the reality of judicial politics while still providing needed judgeships across the country. 

The SAP further argued—bizarrely—that the bill failed to take into account the work of senior-status and magistrate judges, the former of whom are an inherently a short-term solution given the advanced ages of senior judges (who must be at least 65 and have at least 10 years of federal judicial service in order to qualify for senior status) and the latter of whom are not Article III judges. 

In the end the SAP came out against this “hast[y]” process—which actually started sometime in 2017—and promised a veto of the same bill that Schumer had recently commended as  “very responsible, bipartisan, and prudent.”

Everything Biden Said Is Wrong

While the bill was sitting on the president’s desk, the head of the Administrative Office of U.S. Courts, U.S. District Judge Robert Conrad, sent him a letter rebutting each of the arguments of the SAP. Conrad informed the president of the fact that “[o]ver the past 20 years, the number of civil cases pending longer than three years has more than tripled. In some of our country’s most inundated district courts, the time between filing and disposition for a civil case is four or five years, compared to 20 years ago when the time was less than 22 months.”

As to the existing vacancies, he noted, “The request and recommendation of the Conference are not based on existing or anticipated vacancies. So even if all the open existing judicial vacancies were filled, the [Judicial] Conference would still request the additional new judgeships.”

Conrad pointed out that the Judicial Conference’s analysis actually takes into account the work of senior-status judges and magistrates. He quoted the Magistrate Judges Association, which itself responded to Biden’s SAP saying, “While senior-status district judges and magistrate judges have significantly helped relieve the stunning caseload increases, their assistance cannot be substituted for the need for additional district judgeships. Senior judges can decline certain cases or types of cases and magistrate judges are not statutorily authorized to handle certain types of cases, such as felony cases.”

Conrad decisively refuted claims of “haste” by noting that the Judicial Conference has been recommending new judgeships consistently for the last 22 years and that the bill was the subject of an extensive legislative process, including congressional hearings, and had also been scrubbed by the Government Accountability Office. 

The Text

Conrad’s points were all correct, devastating, and—unfortunately—beside the point. 

A junior naval officer asks in the classic Whit Stillman film Barcelona, “[W]hat do you call the message or meaning that’s right there on the surface, completely open and obvious? They never talk about that. What do you call what’s above the subtext?” To which his salesman cousin replies, “The text.”

The reason for Biden’s opposition to the JUDGES Act is right there in the text of the bill. When does the first tranche go into effect? Check Section 3(a)(3): “EFFECTIVE DATE.—This paragraph shall take effect on January 21, 2025.” Translation: the new judgeships take effect when Donald Trump returns to the White House. 

It would have been far more honest had Biden simply said, “I don’t want the next guy filling any of these judgeships.” But honesty has never been Joe Biden’s defining feature. 

Instead the White House gussied up the president’s petty partisanship with obviously insincere arguments, and Democrats will have to live with that fact.

Sauce for the Gander

That President Biden is, at heart, a partisan operator surprises no one who has watched him over the years. Had he simply embraced the lesser angels of his nature and, for hate’s sake, spat his last breath at Trump, it would have been par for the course. 

But that’s not “why” he vetoed the bill. He claimed to be taking a bold stand against Republican obstructionism. He was concerned that existing mechanisms can be used to alleviate workloads without adding new judgeships. 

Republicans should call Biden’s bluff and wrap themselves in the justifications of Biden’s SAP.

Obstruction by minority-party senators is a problem now. Why should states such as California, New York, and New Jersey get new judgeships when their senators—inevitably—prevent Trump from appointing judges to existing vacancies? Senate Majority Leader John Thune and Chuck Grassley, the new Judiciary Committee chairman, can make it clear to Coons that he won’t be getting his new Delaware judgeships until each of those blue-state vacancies is filled.

Why not rely on senior-status judges? Republicans could explore the idea of using budget reconciliation to give senior-eligible judges retirement bonuses, as proposed by Notre Dame Law School’s Derek Muller. Under the proposal, any senior-eligible judge who elects senior status over the next twelve months will get a, say, 50% increase in his salary for retirement. This would probably have the effect of increasing the availability of senior judges to alleviate caseloads, just as Biden proposed.

Another idea Republicans could consider is appropriating funds to give district judges another clerk. Currently district judges have two or three clerks. Allowing them to hire up to four would help judges manage their dockets more effectively over time. The cost would be manageable and could easily come from the massive appropriation given every year to federal public defenders in the same Financial Services and General Government appropriations bill. After all, such a change would ensure timely access to justice, so it’s hard to see how the federal public defenders would have grounds to complain (beyond their own eternal desire for appropriated funds). 

Of course, looking at the bigger picture and putting aside Biden’s casuistry on the JUDGES Act, Senate Republicans would be wise not to forget the outgoing president’s naked partisanship as they work to confirm Trump’s judges over the next four years. When Democrats complain that they haven’t been consulted on circuit court vacancies, or that they didn’t get to ask all the questions they wanted to at a hearing, or that every jot and tittle of nominees’ committee questionnaires weren’t perfect, or whatever other seemingly neutral appeal to fairness they might try, Republicans shouldn’t lose any sleep over simply ignoring them and putting up points on the board. They can simply respond that—from Robert Bork to the JUDGES Act—Joe Biden showed them the partisan way. 

Image from The White House and available on Wikimedia Commons.