There’s a way out of this impasse. In 2018 Rep. Jamie Raskin (D., Md.) offered a compromise: creating the new judgeships in 2021, after the next presidential inauguration. That way, Mr. Raskin said, “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.” Mr. Nadler agreed: “The decision to add new judges can be made on a bipartisan basis without knowing who will ultimately be in control of the nomination and confirmation process.”
The Judiciary Committee adopted Mr. Raskin’s amendment and favorably reported the Judiciary ROOM Act. In a recent hearing, Republican representatives including Ohio’s Steve Chabot and California’s Darrell Issa expressed potential support for a compromise modeled on Mr. Raskin’s proposal.
But delaying the entire batch of new judgeships—the Judicial Conference now recommends 70—to 2025 may not be enough. Lawmakers from both parties will be wary of potentially giving the opposition a windfall akin to the one in 1978, when an omnibus judgeship act gave President Jimmy Carter 145 new vacancies to fill. That might have been a factor in the 2018 ROOM Act’s failure to receive a vote by the full House. Such an approach would also risk further politicization of the judiciary by giving outsize importance to a single election.
A better course is to spread new judgeships evenly across several terms, starting immediately. A single bill creating four new judgeships a year for the next 16 years would give Mr. Biden some immediate appointments, which could be used for those districts where the caseload crisis is most acute. But it would also give an equal number of new vacancies to the winners of the next three presidential elections, most likely giving at least some appointments to presidents of both parties.
During the recent judgeships hearing, Duke Law Professor Marin K. Levy noted that “all the other times in which we have added judgeships to the courts of appeals, we have not staggered them.” But perhaps the failure to pass any judgeship bill in recent decades is evidence that the old way is no longer feasible. Delaying some of the new judgeships to future terms would give both sides a fair chance to benefit and give a judgeship bill a real chance of becoming law. That’s better than waiting another 30 years.