WASHINGTON — What was once a bipartisan effort to expand by 66 the number of federal district judgeships across the country passed the House of Representatives on Thursday, though prospects for becoming law are murky after Republicans opted to bring the measure to the floor only after President-elect Donald Trump had won a second term.
The legislation spreads out the establishment of the new trial court judgeships over more than a decade to give three presidential administrations and six Congresses the chance to appoint the new judges. It was carefully designed so that lawmakers would not knowingly give an advantage to either political party when it comes to shaping the federal judiciary.
The Senate passed the measure unanimously in August, but the Republican-led House brought it to the floor only after the election results were known. The bill passed by a vote of 236-173 Thursday with the vast majority of Democrats opposed.
The White House said Tuesday that if President Joe Biden were presented with the bill, he would veto it. That likely dooms the bill this Congress, as overruling him would require a two-thirds majority in both the House and Senate. The House vote Thursday fell well short of that.
Rep. Darrell Issa, R-Calif., the sponsor of the House version of the bill, apologized to colleagues “for the hour we’re taking for something we should have done before the mid-term elections.”
“But we are where we are,” Issa said, warning that failure to pass the legislation would lead to a greater case backlog that he said is already costing American businesses billions of dollars and forcing prosecutors to take more plea agreements from criminal defendants.
“It would only be pettiness today if we were not to do this because of who got to be first,” Issa said.
But Democrats said the agreement central to the bill was broken by GOP leaders because they opted not to bring it up for a vote before the election.
“Unfortunately, we are back where we have always been every time a bill to create new judgeships comes before Congress — with one party seeking a tactical advantage over the other,” said Rep. Jerry Nadler, the lead Democrat on the House Judiciary Committee.
Organizations representing judges and attorneys urged Congress to vote yes, regardless of the timing of congressional action. They said that a lack of new judgeships has contributed to profound delays in the resolution of cases and serious concerns about access to justice.
“Failure to enact the JUDGES Act will condemn our judicial system to more years of unnecessary delays and will deprive parties in the most impacted districts from obtaining appropriate justice and timely relief under the rule of law,” the presidents of the Federal Judges Association and Federal Bar Association said in a joint statement issued before the vote.
The change of heart from some Democrats and the new urgency from House Republicans for considering it underscored the contentious politics that surrounds federal judicial vacancies.
Senate roll-call votes are required for almost every judicial nominee these days, and most votes for the Supreme Court and appellate courts are now decided largely along party lines. Lawmakers are generally hesitant to hand presidents from the opposing party new opportunities to shape the judiciary.
Nadler said the bill would give Trump 25 judicial nominations on top of the 100-plus spots that are expected to open up over the next four years. He said that Trump used his first term to stack the courts with “dangerously unqualified and ideological appointees.”
“Giving him more power to appoint additional judges would be irresponsible,” Nadler said.
Nadler said he’s willing to take up comparable legislation in the years ahead and give the additional judicial appointments to “unknown presidents yet to come,” but until then, he was urging colleagues to vote against the bill.
Rep. Troy Nehls, R-Texas, said the bill would create 10 new judges in his state and authorize additional courtroom locations to improve access for rural residents. He said it would reduce case backlogs and ensure the administration of justice in a reasonable time frame.
“Make no mistake folks, the sudden opposition to this bill from my friends on the other side of the aisle is nothing more than childish foot-stomping,” Nehls said.
Congress last authorized a new district judgeship more than 20 years ago, while the number of cases being filed continues to increase with litigants often waiting years for a resolution.
Last year, the policy-making body for the federal court system, the Judicial Conference of the United States, recommended the creation of several new district and court of appeals judgeships to meet increased workload demands in certain courts.
But in its veto threat earlier this week, the White House Office of Management and Budget said the legislation would create new judgeships in states where senators have sought to hold open existing judicial vacancies.
“These efforts to hold open vacancies suggest that concerns about judicial economy and caseload are not the true motivating force behind passage of the law,” the White House said.