For decades, the size of the federal court system has lagged too far behind the inexorable growth in federal cases. The size of the lower courts is determined by Congress, which has passed dozens of bills over the nation’s history adding new lower-court judgeships. But Congress has not created a new appellate judgeship since 1990 nor a new permanent district court judgeship since 2003—both unprecedented droughts.

What explains this recent phenomenon? The clear culprit is an increasingly polarized and partisan judicial confirmation process. In an environment where judicial ideology increasingly correlates with appointing party, both sides have concluded that no new judges are preferable to new judges appointed by the opposition. That attitude makes bipartisan consensus on any new judgeship bill exceedingly difficult, since one of the two parties is always out of the White House. As the R Street Institute’s Anthony Marcum has observed, “one political party has little incentive to award a president of another party the chance to nominate additional federal judges.”

But in recent years, members of Congress from both parties have increasingly recognized that there is a path forward. In 2018, Representative Jamie Raskin (D‑MD) offered a compromise that new judgeships not take effect until after the next presidential inauguration in 2021. As he explained, that delay meant “neither side will know who is going to be president of the United States and this will not proceed as a court-packing plan by one party.”

Within the past week, bipartisan bills have been unveiled in both houses of Congress that would create new judgeships via the same type of compromise. Last week, Senators Todd Young (R‑IN) and Chris Coons (D‑DE) introduced the JUDGES Act, which would establish 77 new district court judgeships. Crucially, those judgeships would be created in two batches in 2025 and 2029, meaning neither party is guaranteed to control the appointments. And this week Representatives Darrell Issa (R‑CA), Victoria Spartz (R‑IN), Juan Vargas (D‑CA), and Scott Peters (D‑CA) introduced a House version of the bill with the same “delayed appointments” approach.

The bipartisan support for both of these bills is an encouraging sign that Congress may be close to finally breaking its decades-long judgeship logjam. As I wrote earlier this year in the Wall Street Journal, the failure to pass any judgeship bill in recent decades is evidence that the old approach of establishing judgeships in a single batch to be appointed by the incumbent president is no longer feasible. Delaying judgeships to future terms gives both sides a fair chance to benefit and gives a judgeship bill a real chance of becoming law. And waiting four or eight years for new judges would be far preferable to waiting another twenty or thirty.