Judge Timothy M. Tymkovich of Colorado, who is a member of the federal appeals court based in Denver, spoke to a congressional subcommittee on Tuesday to convey the federal judiciary’s support for adding more than five dozen new judgeships across the country.

During his appearance, Tymkovich criticized former President Joe Biden for vetoing legislation in his final weeks in office that would have enabled successive administrations — starting with now-President Donald Trump — to appoint 66 new judges.

“For the first time in decades, legislation was presented to the president that would correct severe stresses on the dockets of many courts around the country,” Tymkovich said. “Unfortunately, the previous administration vetoed the bill, publicly citing reasons that were not consistent with the record and reflect a misunderstanding of the facts.”

Members of the U.S. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet hurled accusations at the opposite party about that legislation, known as the JUDGES Act. Republican representatives pointed out the bill passed the Senate unanimously and on a bipartisan basis in the House. Democrats, meanwhile, observed the GOP-controlled House held off on voting until Trump had won election, thus guaranteeing he would appoint the first wave of new judges.

U.S. Rep. Darrell Issa, R-Calif., who chairs the subcommittee, indicated the current Congress will re-consider the 2024 JUDGES Act. U.S. Rep. Jamie Raskin, D-Md., countered that he has his own version of the bill that, like last year’s legislation, would allow the next, yet-to-be-elected president make the first judicial appointments.

Tymkovich spoke on behalf of the Judicial Conference of the United States, which is the policymaking body for the federal courts. He previously chaired the conference’s Committee on Judicial Resources and testified to Congress in 2013 about judgeship needs.

No new judges for decades

Tymkovich is a 2003 George W. Bush appointee to the U.S. Court of Appeals for the 10th Circuit, which hears appeals in federal cases arising from Colorado and five neighboring states. Although he spoke relatively briefly during the nearly two-hour hearing, his written statement to the committee outlined the methodology behind the judiciary’s request for more judges — and the basis for criticizing Biden’s veto.

“The decades-long gap in significant judgeship authorizations we are currently experiencing is unusual in American history,” wrote Tymkovich. He indicated 20 years have passed since the creation of any federal judgeships, with the last significant bill passing in 1990.

Every two years, the Judicial Conference reassess the needs of federal district courts and courts of appeals and makes recommendations to Congress. The next assessment will be released in March, but Tymkovich predicted there will only be small modifications from the March 2023 request for 68 new judgeships nationwide.

Colorado last received a new seat on its seven-member U.S. District Court in the 1980s, when the state’s population was roughly half of what it is now. The Judicial Conference has recommended two new positions for the court, and the 2024 JUDGES Act would have added an eighth seat in 2029 and a ninth in 2033.

Unusually, the JUDGES Act garnered the public support of hundreds of federal judges. Days after Election Day, the Federal Judges Association sent a letter to House leadership endorsing the JUDGES Act and related legislation. More than 300 federal trial and appellate judges signed their names to the message.

Four semi-retired senior judges on Colorado’s U.S. District Court joined the endorsement:

• Marcia S. Krieger, a George W. Bush appointee who no longer carries a caseload

• Robert E. Blackburn, a Bush appointee

• William J. Martínez, a Barack Obama appointee

• Raymond P. Moore, an Obama appointee

In addition, five judges on the 10th Circuit signed the letter.

Tymkovich’s written statement to the committee took aim at the Biden administration’s rationale for vetoing the bill. For example, Biden noted the JUDGES Act would have created new judgeships in states where Republican senators “sought to hold open” existing vacancies to prevent Biden from making appointments. Tymkovich countered that the judiciary would still be short-staffed even without such vacancies.

“In other words, vacancies make a bad situation worse, rather than making an adequate situation bad,” he wrote.

Tymkovich added it was not true that the legislation failed to account for how semi-retired senior district judges and magistrate judges affect the need for new judgeships, as the Biden administration claimed. He also took issue with the characterization of the JUDGES Act as “hastily adding judges.”

“The legislation was not hastily drawn up, but was the product of years of study, analysis, and congressional review,” Tymkovich wrote.

Broadly, Tymkovich told the committee that having too few trial judges, in particular, can result in the criminally accused spending more time behind bars while their cases are pending and civil litigants avoiding federal court because they do not have the resources or the time to wait for a resolution.

Current events and concerns

During his appearance, numerous committee members attempted to get Tymkovich to comment on other topics and current events, which he largely declined to address:

• U.S. Rep. Ben Cline, R-Va., asked about the possibility of consolidating all immigration cases nationwide into a single court. Tymkovich called it an “interesting concept” that might merit study

• U.S. Rep. Zoe Lofgren, D-Calif., referenced the attempts of congressional Republicans to impeach federal judges in retaliation for ruling recent actions of the Trump administration unlawful. Asked to respond to the propriety of such impeachments, Tymkovich said it is “part of the political process” within Congress’ purview

• U.S. Rep. Deborah Ross, D-N.C., asked about the possibility of the Trump administration removing security for federal judges that is currently provided by the U.S. Marshals Service. Tymkovich said he “would continue to support adequate funding for judicial security”

• U.S. Rep. Russell Fry, R-S.C., asked Tymkovich if he believed Biden would have vetoed the JUDGES Act had then-Vice President Kamala Harris won the 2024 election. Tymkovich said that was a question for the Biden administration to answer

In one exchange, U.S. Rep. Hank Johnson, D-Ga., asked Tymkovich about the possibility of a president disobeying or resisting a court order — a concern raised in part by Vice President JD Vance’s recent statement that “Judges aren’t allowed to control the executive branch’s legitimate power.”

“I’m here to talk about the urgent need of the judiciary for additional judges. It wouldn’t be appropriate for me to comment on any cases,” Tymkovich responded.

“What would happen if the U.S. Marshals Service, under the command of the Justice Department and the direction of the president, refused to carry out a court order of contempt?” Johnson pressed. “What would then be the state of our democracy?”

“Again, I’m here on behalf of the Judicial Conference to talk about the shortage of judges that we have,” Tymkovich reiterated.

In one bipartisan moment, Issa, the subcommittee chair, joined U.S. Rep. Eric Swalwell, D-Calif., in requesting that Tymkovich ask the Judicial Conference to consider the wisdom of having an agency provide security for judges that is independent of the executive branch.

U.S. Rep. Joe Neguse, the only member of Colorado’s congressional delegation who sits on the subcommittee, did not participate in the hearing.