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Fair Courts E-Lert: Federal Judiciary Calls for the Creation of New Lower Court Judgeships

This E-Lert highlights the federal judiciary’s call for the creation of new lower court judgeships, Biden’s expected judicial nominations, and more.

Last Updated: March 26, 2021
Published: July 15, 2021

Federal Judiciary Calls for the Creation of New Lower Court Judgeships

On March 16, the Judicial Conference of the United States, the policy-making body for the federal judiciary called on Congress to create 77 new district court judgeships and two court of appeals judgeships. It also asked Congress to make nine temporary district judgeships permanent.

The last time Congress passed comprehensive legislation increasing the number of federal judgeships was in 1990, though 34 district judgeships were created between 1999 and 2003 as a component of other legislation. No new appellate judgeships have been created in more than three decades.

Since 1990, district court caseloads have increased 47 percent, with civil and criminal cases up 41 and 72 percent, respectively. Court of appeals caseloads have also increased by 12 percent as of fiscal year 2020.

In recent years, lawmakers have introduced bills to add district judges. Most recently, the House Judiciary Committee’s subcommittee on courts, intellectual property, and the internet held a hearing on February 24 about the need to add more lower court judges.

Biden Expected to Announce First Round of Judicial Nominations

President Joe Biden is poised to announce his first wave of judicial nominations, part of what “officials say will be a broader push by Democrats to move quickly on judicial vacancies with an emphasis on diversity,” according to NBC News.

President Biden currently has 84 district court and 12 appeals court vacancies to fill, including two on the influential D.C. Circuit Court of Appeals. Donald Trump, on the other hand, came into office with 19 court of appeals vacancies and an open U.S. Supreme Court seat.

President Biden is expected to nominate D.C. District Court Judge Ketanji Brown Jackson to fill the vacancy on the D.C. Circuit left by Attorney General Merrick Garland. Judge Jackson is a Black woman and former public defender.

Montana Governor Sued Over Bill Eliminating Judicial Nominating Commission

On March 16, Montana Governor Greg Gianforte signed Senate Bill 140 into law giving him and future governors the power to directly fill state supreme court and district court vacancies without vetting by the state’s judicial nominating commission.

The following day, a bipartisan group of former state officials filed a lawsuit against the Republican governor, arguing the new law passed by the Republican-controlled legislature violates the plain language and legislative history of Montana’s constitution and will “politicize an otherwise-nonpartisan, independent, and effective means of filling judicial vacancies.”

Prior to the passage of SB 140, Montana was one of 35 jurisdictions that use an independent nominating commission to help select judges for either initial or interim appointments, or both.

Lawmakers in Alaska, Iowa, Indiana, Missouri, Oklahoma, and South Carolina, are considering similar measures to eliminate or limit the roles of their state’s judicial nominating commissions.

New Jersey Governor Nominates Civil Rights Attorney to New Jersey Supreme Court

On March 15, Governor Phil Murphy nominated Rachel Wainer Apter to the New Jersey Supreme Court.

Apter, who is currently the director of the state Division on Civil Rights, will succeed Associate Justice Jaynee LaVecchia, who is retiring on August 31 after 21 years in office. Prior to her nomination, Apter served as a senior staff attorney for the American Civil Liberties Union and as a law clerk to the late U.S. Supreme Court Justice Ruth Bader Ginsburg.

Apter’s nomination is notable because there are currently no other former civil rights lawyers on the New Jersey Supreme Court, nor are there any public defenders or civil legal service providers, though one justice is a former government attorney.

“Murphy said he plans to formally send [Apter’s] nomination to the state Senate following the New Jersey State Bar Association Judicial and Prosecutorial Appointments Committee’s review,” according to The Center Square.