Judicial Vacancies: Fill the Seats That Exist, Then Create the Ones the Courts Need

A civil case filed in the Eastern District of California this month will, on the court's own figures, wait close to four years for a trial date. The litigants will not be told why, but the reason is arithmetic: the district has one authorized judgeship for every seven hundred weighted filings, against a national benchmark of 430, and two of those judgeships are vacant. The first problem is one Congress has refused to solve for thirty-six years. The second is one the Senate could solve by Thanksgiving. The bill the Judiciary Committee advanced this week addresses the first. Nothing on the calendar addresses the second.

The arithmetic of delay

Forty-seven seats on the federal district and appellate benches are vacant. Twenty-three of them are in districts the Administrative Office classifies as judicial emergencies — courts where a seat has been empty for more than eighteen months while filings per judge exceed the level at which the Judicial Conference says a new judgeship is needed. Nominees are pending for fewer than half. The average vacancy in those districts has lasted more than two years; several have passed three. In the meantime, the courts do what they can: senior judges in their eighties carry full dockets, visiting judges fly in from districts with fewer cases, magistrate judges try civil cases by consent, and the Speedy Trial Act pushes criminal cases to the front of a line in which everyone else — the employee suing over wages, the small business suing over a contract, the family suing over a death — waits.

Measure	Figure
Current federal judicial vacancies	47
Classified as judicial emergencies	23
Vacancies with a pending nominee	21
Districts with weighted filings above 500 per judgeship	12
Years since the last comprehensive judgeship act	36
Median time to civil trial in the busiest districts	More than three years

Two problems, one cause

It is tempting to treat the vacancies and the missing judgeships as separate failures with separate villains — the White House and the Senate for the first, Congress as a whole for the second. They have the same cause. Judgeships have become partisan property. A seat is not a place where a judge decides cases; it is an asset to be filled by one party and denied to the other, and both parties behave accordingly. That is why the JUDGES Act was vetoed in 2024 after passing both chambers without a dissenting vote in the Senate: the House waited to pass it until the election had decided who would fill the first seats, and the president declined to hand them over. It is why the 2026 version staggers its seats across five presidential terms, in the hope that neither side can count on winning the lottery. And it is why forty-seven existing seats sit empty: the party that controls the Senate moves the nominees it likes at a pace that suits it, and the home-state senators of the other party use the blue slip to slow the rest.

A seat is not a place where a judge decides cases; it is an asset to be filled by one party and denied to the other. The litigants are not consulted.

The Editorial Board

What should happen

1. Fill the emergencies first, by agreement. The twenty-three emergency vacancies should be the subject of a standing arrangement between the Senate leadership and the committee's ranking members: nominations within ninety days of a vacancy, hearings within sixty days of nomination, floor votes within thirty days of committee approval. Nothing in the Constitution requires the current pace; it is a choice, and it can be unchosen.
2. Pass the JUDGES Act as reported. The staggering is a concession to political reality and the price of a bill that can become law under any administration. The objection that the first tranche falls under the current president is true of any first tranche; the alternative is another decade with none. Sixty-three seats, phased, is less than the courts need and far more than they have.
3. Add the circuit seats the Conference asked for. The bill's study of appellate judgeships is a deferral. The Ninth Circuit's need has been documented since the 1990s.
4. Keep the bill clean. The committee was right to detach judicial security funding from it; that funding is urgent on its own terms and belongs in the appropriations bills, where it should be enacted at the level the Conference requested.

The cost of the status quo

The usual measure of judicial delay is economic: the lost value of claims that settle for less because the plaintiff cannot wait, the businesses that arbitrate because the courts cannot schedule them, the cases that die with their witnesses. Those costs are real and large. The less usual measure is civic. A citizen who waits four years for a trial learns that the courthouse is not for people like her; a judge who presides over a docket of eight hundred cases learns that justice is a matter of triage. Both lessons are false in principle and true in practice, and the gap between the principle and the practice is the Senate's to close.

The committee has done its part. The Senate should pass the bill before the year ends, and it should fill the empty chairs while the new ones are being built.

This editorial is commentary, not legal advice. Vacancy and caseload figures are as published by the Administrative Office of the United States Courts.