Government Relations Updates


 
November 2019 


Federal Judicial Vacancies and Confirmations 

Federal Judiciary Tracker. The FBA has launched a new weekly report that provides an up-to-date look at the status of President Trump’s judicial nominations. The “Judiciary Tracker” report, presented with the assistance of National Journal, is posted here on the FBA website.

As the chart below shows, Federal judicial vacancies continue to decline as the Senate devotes continued attention to the confirmation of nominees to appellate and district court judgeships.

Current Vacancies (as reported by the US Courts website on November 8, 2019)

   Vacancies  Nominees Pending
 Supreme Court 0 0
 Courts of Appeal 3 3
 District Courts* 88 38
 US Ct of International Trade 2 1
 US Ct of Federal Claims*
Total 101 47


* Judges in territorial courts (Virgin Islands, Guam, and Northern Mariana Islands) and the U.S. Court of Federal Claims are Article I judges with term appointments.

At an unusually rapid clip, President Trump so far has appointed two Supreme Court justices, 43 appeals court judges, and 110 district court judges during his presidency, covering both the 115th Congress and 116th Congress. The following chart shows confirmations in the 116th Congress.

Senate Confirmations of Trump Nominees in the 116th Congress (as reported by the US Courts website on November 8, 2019)

Court Confirmations
 Supreme Court  0
 Courts of Appeal  14
 District Courts      57
 US Ct of International Trade  2
 US Ct of Federal Claims  3
 Total  76

During October the Senate confirmed the following five district court nominees:

 Nominee  District       Date of Confirmation
Charles R. Eskridge III Texas – Southern October 16, 2019
Frank William Volk West Virginia – Southern October 16, 2019
David John Novak Virginia – Eastern October 16, 2019 
Rachel Peter Kovner New York – Eastern October 16, 2019
Justin Reed Walker Kentucky – Western October 24, 2019


On November 6, the Senate confirmed the nomination of Danielle J. Hunsaker to the Ninth Circuit Court of Appeals. On November 5, the Senate confirmed the nomination of David Austin Tapp to the U.S. Court of Federal Claims.

During the week of November 4, the Senate Judiciary Committee approved the following district court nominees:

 Nominee  District  Roll Call Vote
Jodi Dishman* Oklahoma - Western 17-5
Richard E. Myers II North Carolina - Eastern 16-6
Sarah E. Pitlyk Missouri - Eastern 12-10
Daniel Mack Traynor North Dakota 12-10

*Ms. Dishman is the immediate past president of the FBA Oklahoma City Chapter.

On October 30, the Senate Judiciary Committee held nomination hearings on President Trump’s two most recent nominees to the Ninth Circuit, Lawrence VanDyke and Patrick Bumatay. The hearing was marked by harsh Republican criticism of the ABA’s role in assessing candidate qualifications and the “not qualified” rating the ABA assigned to Van Dyke.

California’s Judicial Vacancies. California’s 14 vacancies in the Central and Southern Districts, along with two future vacancies in the Eastern District, remain the largest bloc of federal judicial vacancies in a single state. Six of the current vacancies are without nominees. The chief judges of the Southern and Eastern Districts, along with the FBA Sacramento Chapter, recently sent letters to the White House and their California Senators urging prompt attention in naming and confirming nominees to fill those vacancies.


FY2020 Funding for the Federal Judiciary and Executive Branch

A Continuing Resolution extending FY2019 funding for the federal judiciary and the rest of the federal government remains in effect until November 21, 2019, with little certainty about what comes next. Top House and Senate appropriators have indicated they have not made sufficient progress in reaching a Fiscal Year 2020 budget, requiring an extension of the CR to avoid a government shutdown and fund the government into January, February or possibly even March.

Due to a technical legislative quirk, the CR does not provide any new border wall funding, a restriction that could engender Presidential resistance to an extension of the CR. While there appears to be bipartisan support for another stopgap bill to avoid a shutdown just before Thanksgiving, the President could still disrupt those plans if he refuses to sign it.

The FY 2020 appropriations scorecard, as a reflection of Congressional performance, is dismal. Congress has not passed any of the FY 2020 appropriations bills, including the Financial Services and General Government (FSGG) bill that funds the Judiciary.

The House earlier approved 10 of the 12 spending bills. The Senate last week approved a package of appropriations measures to fund the departments of Transportation, Housing and Urban Development, Agriculture, Interior, Commerce, Justice and other agencies. House and Senate conference negotiations over these bills will remain in a holding pattern until Congressional leaders complete negotiations over defense and non-defense spending allocations. These top-line spending levels for the 12 appropriations bills, called 302(b) numbers, must be addressed before any appropriations measures can make it through both chambers.


Independent Immigration Court Briefing

The Federal Bar Association and its Immigration Law Section will sponsor a briefing for Congressional staff on the merits of an independent immigration court on November 22, 2019 at 2:00 pm in Room 2168 of the Rayburn House Office Building. Representatives of the American Bar Association, the American Immigration Law Association, and the National Association of Immigration Judges will participate in the briefing.

Since 2013 the Federal Bar Association has urged Congress to establish an Article I “United States Immigration Court” to replace the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice as the principal adjudicatory forum under title II of the Immigration and Nationality Act. The federal courts in the United States include the courts established in and under Article III of the Constitution, as well as the adjudicative entities established by Congress under its Article I legislative powers. The FBA has drafted model legislation to create an Article I immigration court.

FBA Publishes Pro Se Handbook

The FBA recently published a handbook for pro se litigants and distributed it to the Chief Judges of each circuit and district, along with the clerks of the district courts and circuit executives. It also has posted an electronic copy of the handbook online at www.fedbar.org/prosehandbook.

The handbook offers litigants a roadmap of a “typical” civil case and includes a glossary of common terms that they may encounter. It serves as a form that may be edited to meet the specific needs and rules of each court. The handbook also provides litigants with guidance before filing a lawsuit, basic procedures for filing a lawsuit, general case management procedures, and tips for conducting discovery. This handbook serves as a form and may be edited to meet the unique needs of the court. The FBA’s Access to Justice Task Force was created to investigate and develop ways to increase access to justice within the federal judicial system, especially for civil litigants without adequate financial resources to hire an attorney.

Resources

November 2019 GRC Update


Judiciary Tracker Oct. 31, 2019


Judiciary Tracker Oct. 17, 2019


October 2019 GRC Update


September 2019 GRC Update


April 2019 GRC Update


March 2019 GRC Update


January 2019 GRC Update


FBA Provides Comments to the Judicial Conference on Proposed Changes to the Code of Conduct for U.S. Judges and the Judicial Conduct and Disability Rules


Capitol Hill Day, Public Policy Priorities, and FBA Letter on Immigration Court Subcommittee Hearing to Sens. Cornyn and Durbin


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