Leaders on the Senate Judiciary Committee are pushing to quickly pass a measure to create more federal judgeships, eyeing an upcoming pandemic relief package as a way to get the legislation through Congress.

Senate Judiciary Committee Chairman Lindsey Graham and ranking member Sen. Dianne Feinstein were both in favor of adding more Article III judges at a hearing Tuesday on such a request from the Judicial Conference, and seemed prepared to take swift action to address those needs.

Graham suggested at the close of the hearing that such legislation could be included in a forthcoming Phase 4 economic relief package. "To me, it seems like we should be able to come up with a compromised version of the recommendations to put in that package because I think Sen. [Chris] Coons is right, that once we begin to reopen the economy, the courts are going to get overwhelmed with pending cases and there will be more litigation, probably not less," Graham said.

"So I just ask my colleagues to think about this committee putting together a bipartisan package that fills some of the needs, not all, and see if we can convince our respective leaderships to advocate for it on the Phase 4 bill," Graham added. Feinstein suggested their staffs each outline a proposal and meet in a week, and Graham agreed.

The rare bipartisan call for action came at a hearing on a Judicial Conference request for additional judges. The conference has asked lawmakers to establish 65 new judgeships across 24 district courts, five new seats on the U.S. Court of Appeals for the Ninth Circuit and make permanent eight temporary judgeships set to lapse at the end of fiscal year 2021.

Congress has not passed a comprehensive bill to create new judgeships in 30 years, instead signing off on bills to create new or temporary seats when the need became overwhelming. The Eastern District of California has declared a judicial emergency due to a lack of judges, and others, such as the District of New Jersey, have weighed short-term solutions to manage overflowing dockets.

While the bipartisan package discussed by Graham and Feinstein seems unlikely to address the judiciary's full request, senators from both sides of the aisle appeared to favor adding  new judgeships. That includes lawmakers from states with heavy caseloads or identified for more judgeships, such as Idaho Sen. Mike Crapo and Delaware Sen. Chris Coons.

Graham also noted that, during a presidential election year with no knowledge of which party will get to choose judicial nominees, "maybe this is the best time to do it because nobody knows the outcome and we all know we need more judges."

The need to pass such a package soon became more apparent with the questioning of Sen. Chuck Grassley, who is poised to take back the gavel from Graham and return as chairman of the committee at the end of this current Senate. He was skeptical of the formulas used by the Judicial Conference to calculate the need for new judgeships, and asked whether seats in other courts could be eliminated to offset new ones.

Both of the hearing's witnesses—U.S. District Judge Brian Miller of the Eastern District of Arkansas, who chairs the Judicial Conference Committee on Judicial Resources' Subcommittee on Judicial Statistics, and National President of the Federal Bar Association Christian Adams—strongly opposed the idea of cutting existing judgeships. Miller noted that currently, federal judges often have to travel to other districts to help manage their dockets, and he has tried cases in North Dakota as part of that practice.

Miller told the committee that, without new judgeships, some courts could move through dockets so slowly that people may start to lose faith in the judicial system and seek alternative ways to resolve conflicts, which "ends in chaos and ends with people not resolving disputes peacefully."

"And the caseloads have gone up to such a great extent that it's leading to, I would say, people to start turning away from the federal courts," Miller added. "And I just think that's an untenable situation."

Adams also noted that, with dockets packed with cases, parties may be forced to reach settlements rather than obtain justice in court. "The detrimental impacts and increased costs incurred by litigation due to delay are often incalculable and insurmountable," he said.