Vice President Joe Biden’s campaign has floated that he envisions a transformational presidency on the scale of Franklin Roosevelt’s. So far, there is no indication that Biden’s plans will call for expanding the Supreme Court, as FDR famously proposed in 1937, but he can still leave a lasting imprint on the judicial branch. For proof, he need only look to the example of a more recent Democratic president: Jimmy Carter.
Though Carter receives relatively little credit for it today, his remaking of the federal judicial system was perhaps his most enduring legacy. He appointed 39 percent of the federal bench—a greater share over four years than any president since—and nominated the most diverse judges to that point in American history. His emphasis on professional diversity gave rise to judicial lions who have moved us closer to equal justice under the law. And he did this without getting to nominate a single Supreme Court justice.
When Carter assumed office, America’s judicial system faced twin crises. The country didn’t have enough judges to keep up with the number of cases being filed, resulting in a backlog and overwhelmed courts. As a result, the House Judiciary Committee chairman said at the time that “the quality of justice in the United States court system” had “been steadily eroding.” In addition, there was an unacceptable lack of diversity. America’s courts remained overwhelmingly white and male. Gerald Ford and Richard Nixon had both picked people of color for fewer than 10 percent of the judgeships they filled, and women for a vanishingly small number.
The country was changing, but the judiciary wasn’t keeping pace. The result, Carter recognized, was a threat to the legitimacy and efficacy of an entire branch of government.
Though Carter receives relatively little credit for it today, his remaking of the federal judicial system was perhaps his most enduring legacy.
Carter acted boldly to address both problems. To remedy the case backlog, he signed into law a bipartisan bill that added 152 judgeships, the largest-ever expansion of America’s court system. The bill expanded the number of judges in America by nearly one-third. In his words, this action would “catch up on court backlogs and provide prompt, efficient administration of justice in this country.”
But Carter was not content to simply have more of the same types of judges. He committed himself to changing the face of the judiciary, and he delivered. Federal Judicial Center data shows that Carter appointed more women (41) and people of color (57) than had been appointed by all past presidents combined (10 women and 35 people of color).
Carter chose judges who had spent their lives fighting for justice. A then less well-known ACLU lawyer named Ruth Bader Ginsburg recalls that the first time she ever thought of becoming a judge was “when Jimmy Carter announced to the world that he wanted to change the complexion of the U.S. judiciary.” Carter’s judges were a powerful force for equal justice under the law for decades to come. Patricia Wald was a former legal aid and public-interest lawyer whom Carter made the first woman on the D.C. Circuit when he appointed her to a newly created judgeship. Wald “[set] in motion major changes in federal employment” when she ruled that the State Department had discriminated against women. Carter also appointed civil rights trailblazers, including then–NAACP General Counsel Nathaniel Jones and Damon Keith, who even at the age of 94 wrote an impassioned dissent in a 2016 Ohio voting rights case. Newly created district court judgeships allowed Carter to appoint judges such as Matthew Perry, who had desegregated South Carolina universities, as that state’s first African American federal judge.
When the next Democratic president takes office, decades after Carter’s forgotten revolution, our courts will face the same two crises they did in the 1970s. And the next Democratic president must act as boldly as Carter did, dramatically expanding the number of lower-court judges to keep pace with rising cases, and filling those judgeships with lawyers who will make America’s judicial branch look more like America and represent diversity drawn from a variety of professional settings.
Our current workload crisis is decades in the making. During the 20th century, America routinely increased the number of judges to keep pace with a growing population and growing number of lawsuits. From 1960 to 1990, Congress passed seven judicial-reform bills authorizing new judgeships, more than doubling the size of the judiciary. But in the 30 years since, the creation of new judgeships has ground to a halt, as Congress has authorized no new circuit judgeships and only a small number of new district judgeships—only a 4 percent increase and none since 2002.
As with many judicial issues, Democrats have failed to make creating new judgeships a priority when in power. During the Obama administration, Sen. Patrick Leahy introduced a bill to add dozens of judgeships, but the bill was not a priority for Democratic leadership and ultimately went nowhere. As a result, Barack Obama was the first president since Ford who was not allowed to fill any newly created judgeships.
Not adding judgeships for decades is the exception, not the norm. This is the longest period of time with no major increase since the creation of our modern judicial system in 1891.
Carter appointed more women (41) and people of color (57) than had been appointed by all past presidents combined.
While the size of the federal judicial branch has remained largely frozen since 1990, the U.S. population has grown by about a third—roughly 80 million people—and the rate of increase has been even greater for people of color. Importantly, the country has grown unevenly. Some areas have experienced relatively little population growth while others have exploded, and some have attracted new industries that bring with them complex new legal questions.
The result is a judicial system with too few judges struggling to deal with too many cases. Since the last major bill increasing the number of judgeships in 1990, the number of cases in district courts has increased by 38 percent, and circuit court filings have risen by 40 percent. Cases involving a felony defendant are up 60 percent. While the number of lawyers has risen dramatically since 1990—an 80 percent increase—the number of judges has not.
For decades, the Judicial Conference, the national policymaking body for the federal courts, headed by Chief Justice John Roberts, has recommended creating scores of new judges to help address this growing workload. This has been ignored by Congress. The COVID-19 crisis is likely to make the situation worse; in May, the Conference wrote to Congress raising the alarm about needing more judges to deal with the legal fallout from the crisis.
Even more alarming, the Conference’s latest recommendation, of 70 new judgeships, vastly understates the judiciary’s true need, especially with respect to circuit courts. In 2018, the Conference testified that the national average circuit court caseload per three-judge panel has skyrocketed from 773 filings in 1991 to 1,084. Yet, the Conference only recommends five new circuit judgeships, all in the Ninth Circuit, and zero aid for the other circuit courts. By another measure, the Conference has established a baseline of 500 adjusted filings per panel to consider a new circuit judgeship, and the national average is 688 per panel, clearly demonstrating a need for more circuit judgeships throughout the country. The Conference even admits that its recommended five new judges for the Ninth Circuit will only lower the caseload to 600 adjusted filings per panel, still 20 percent higher than its suggested baseline.
The reason for these insufficient recommendations is likely that the Conference will only recommend new circuit judgeships if a majority of active judges on that court approve the request. In other words, circuit judges would have to affirmatively agree to limit their own power, especially when cases are heard en banc by the full court, to make room for new judges—even if the caseload and the administration of justice would otherwise demand it.
The Conference’s district court recommendations are similarly inadequate to meet its own stated criteria of 430 weighted filings per judgeship. It concedes that even if its recommendations were adopted in full, 19 district courts still would exceed this baseline standard, with weighted filings even exceeding 500 per judgeship in eight districts.
Evan Vucci/AP Photo
President Obama awards Judge Patricia Wald the Presidential Medal of Freedom, November 20, 2013. Wald became the first woman on the D.C. Circuit when President Carter appointed her to a newly created judgeship.
Our shortage of judges has devastating consequences for the ability to deliver equal justice. Often, the impact translates into a delay in cases going to trial. In criminal cases, that can mean someone detained before trial unnecessarily spends time in jail without having been convicted of a crime. In civil cases, the delays can stretch on for years, placing an especially heavy burden on those without significant resources to begin with. Having too many cases also encourages defendants to seek plea bargains, and judges to turn to shortcuts including issuing “unpublished” opinions or skipping oral arguments, further eroding confidence that everyone has a fair shot at being heard in our justice system.
The situation is especially dire in places where the population has grown significantly while the number of judgeships has remained unchanged, an inequality that makes a mockery of our stated commitment to equal justice under the law. On average, it takes about two years for a civil case to go to trial in the United States. But in the Eastern District of California, someone looking to right a wrong can expect to wait 40 months for her day in court.
Meanwhile, the federal judiciary’s diversity crisis is profound and getting worse. While America is now almost 40 percent people of color, judges in America remain overwhelmingly white, male, and straight. Republican presidents have prioritized filling courts with ideologues and dramatically reversed progress in diversity since Carter. According to Federal Judicial Center data, only 12 percent of the judges appointed by the four Republican presidents since Carter have been people of color, and only 17 percent have been women. Therefore, even though Presidents Clinton and Obama built on Carter’s record of diversity, a 2019 Center for American Progress study found that the courts continue to be more than 80 percent white and 70 percent male.
Donald Trump in particular has turned back the clock, appointing the least diverse group of judges since George H.W. Bush, who was president at a time when America and its legal profession were dramatically less diverse. If Biden wants to enhance judicial legitimacy through a judiciary that reflects the country it serves, he will need to not only prioritize nominating diverse judges, but also expand our courts to create enough judgeships to restore balance.
Our shortage of judges and our judiciary’s lack of diversity deepen racial inequities that plague our justice system and kneecap our ability to make the courts more equitable.
Our shortage of judges and our judiciary’s lack of diversity deepen racial inequities that plague our justice system and kneecap our ability to make the courts more equitable. In order to make our criminal justice system more just, we need to process cases more quickly. This may reduce the reliance on plea bargaining and its stark racial disparities. We also must improve access to civil justice by eliminating qualified immunity, which prevents victims of police violence from seeking justice; procedural barriers that make it harder for victims of discrimination to reach a jury; and forced arbitration, which pushes people out of the court system altogether. We should also expand private rights of action, so that people can better enforce their rights in court where the federal government lacks the resources or interest to do so on its own.
Improving access to our courts will result in more trials, and we will need more judges to hear them. The diversity of these judges also matters. Unsurprisingly, research clearly shows that judges’ decisions are informed by their life experiences. One study, for example, showed that African American judges are more likely to rule for people suing for workplace racial harassment. Of course, adding judges and diversifying the judiciary will not be nearly enough to deal with the systemic racism in our justice system, but both are important parts of any plan to do that.
Making our courts work for 21st-century America also will require rethinking what kinds of legal experiences best prepare someone to be a judge and who we look to for advice about who to put on the courts. While former prosecutors and corporate lawyers are overrepresented on the bench, we sorely lack judges with experience as public defenders, civil rights advocates, and public-interest lawyers. A recent report from the Center for American Progress found that “only around 1 percent total of all federal appellate judges spent the majority of their careers as public defenders or legal aid attorneys.” If we want a legal system that works for all Americans, not just the rich and the powerful, we must appoint more lawyers who have dedicated their careers to representing people.
Meeting today’s crisis in our judiciary will require matching Carter’s boldness. By creating the number of judgeships needed to meet the workload crisis and filling them with nominees who will bring desperately needed diversity to the bench, we can begin to repair the damage decades of neglect have done to our court system.
