It's been years since Congress created more federal judge positions, and the latest proposal seeking to make up for lost time appears as quixotic as it is ambitious. Senators Christopher Coons (D-Del.) and Patrick Leahy (D-Vt.) introduced legislation last week to add 91 judges to the nation's circuit and district courts, which would represent the largest increase in more than three decades.

That's the number of judges the U.S. Judicial Conference requested this year as reinforcement for overworked districts such as the Eastern District of California, which Chief Judge Morrison England Jr. described last week as "just at the point of breaking."

Since the last major increase in judgeships, in 1990, the caseload has grown by 40 percent with only 4 percent more judges to handle them, Coons said in an interview. That causes delays that hurt businesses and the American economy, he said, adding that the cost of the judgeships would represent a tiny slice of the full government budget.

Coons is pushing the judicial conference's full request, which would increase the number of Article III judges from 870 to 961, including six new circuit judges. (The U.S. Court of Appeals for the Ninth Circuit would receive five of those judges.)

"The reality is, we have not been investing in our federal courts anything comparable to its caseload, and the federal judiciary doesn't control its caseload," Coons said. "It's going to be an uphill climb to get this passed. It's my job to advocate the best policy for our courts, and then work through the politics."

Set against the backdrop of ideological and budget constraints on Capitol Hill, the request for 91 judges might, in many ways, seem like asking Congress for a courthouse on the moon, lawyers who closely track nominations and the nation's courts said.

Congress hasn't authorized a new circuit judgeship in 23 years, or a new district judgeship since 2002. Last year, the Senate took a pass on a more modest proposal to add 10 judges in what the judiciary officials described as the most overworked districts.

The cost of adding 91 judges is estimated to run as high as $1 million per judgeship. Last year, amid concerns over federal spending and a growing national debt, a bill just to keep the existing number of bankruptcy judges had to find a way to pay for those positions before it could pass the Senate.

BUDGET CLOUD

That budget cloud hasn't lifted. It's still unclear whether Congress will even restore a $350 million cut the federal courts absorbed this year under sequestration, which the Judicial Conference has called "devastating" and "painful" for federal clerk of court and public defender offices. Senate Republicans, who continue to argue there are too many judgeships in the U.S. Court of Appeals for the D.C. Circuit, will fight to deny President Barack Obama even more judicial vacancies to fill, said Norman Ornstein, an Ameri­can Enterprise Institute scholar who tracks Congress and politics.

"It would suggest you're hitting a pretty large headwind if you want to enlarge the size of the judiciary at this point," Ornstein said. But, he added, Democrats might view this as a chance to score political points, saying, "Let's just put out there what the judges themselves have asked for, and let them explain why the judges, which includes the chief justice, are wrong to ask for more judges," Ornstein said. "As a political strategy, that's the right way to go."

Senator Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, who has played chief antagonist to the Obama administration's judicial plans, did not respond to requests to office for comment regarding the judgeship bill.

Russell Wheeler, a Brookings Institu­tion fellow who studies federal court issues, said that asking for the full boat of judgeships allows Democrats to highlight the Republicans' refusal to spend more money on the courts. Democrats, he said, can use the proposal "to bash those in the other party about their spending priorities."

Coons, chairman on the Senate subcommittee overseeing the courts, said that just as Americans deserve their day in court, the federal court system "deserves its day for a fair consideration in the Senate Judiciary Committee." He has scheduled a September 10 hearing on Capitol Hill on the issue.

Out in the federal district courts, judges hope the bill is more than politics. California's Eastern District, centered in Sacramento, where England is the chief judge, stands to gain seven judgeships under the proposal. Statistics from the Administrative Office of the U.S. Courts show 997 cases per active judge there, compared with the national average of 526. Seven new judges could cut that caseload in half. The district, which includes Fresno and Bakersfield, has six district judge positions (with one vacant.)

"It gets to the point to where the workload is what it is and there's nothing we can humanly do to keep up with it," England, a federal judge since 2002, said during a telephone interview.

'OVERWHELMING' CASELOADS

The high number of circuit and district court vacancies — now 87, with only 44 pending nominees — compounds the problem of increased caseloads. Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit said in a formal statement that a number of courts in his circuit are struggling with "overwhelming" caseloads. "This bill would provide much needed relief to our judges and staff, and serve the public by ensuring swifter resolution of critical legal issues," Kozinski said.

England and other judges have gotten used to sounding the alarm and having Congress ignore them. Last year, the judicial conference initially asked for 80 judgeships, but saw that going nowhere and pushed for the much smaller number — only to see it fail, too. "We're excited but by the same token we're closely watching this, because these things have happened but never seem to get traction when it counts," England said.

Contact Todd Ruger at truger@alm.com.