Government Relations Update


 


June 2015
 

Federal Judiciary Funding

A House Appropriations subcommittee on June 11 approved a FY 2016 spending measure to fund the federal Judiciary, along with other departments and agencies. The FBA has been a strong proponent of adequate funding for the federal Judiciary.

The House Financial Services and General Government (FSGG) Appropriations Subcommittee-approved bill provides the Judiciary with $6.9 billion in discretionary appropriations, a 3.2 percent ($214 million) increase above FY 2015. This mark is a positive development reflecting the House Subcommittee’s priorities and attention to the Judiciary’s needs, given that the House FSGG subcommittee spending allocation was cut 7.3 percent ($1.6 billion) below FY 2015 by House leaders. Many agencies in the FSGG bill, especially particularly IRS and the General Services Administration (GSA) -- received deep cuts below the FY 2015 enacted level.

The House FSGG bill also:

  • Authorizes a January 2016 pay adjustment for civil service workers, but blocks an increase for senior Executive Branch political appointees. These is no comparable language attempting to block a 2016 pay adjustment for federal judges, although a provision in the FY 2016 Legislative Branch appropriations bill would block an adjustment for Members of Congress. President Obama earlier had proposed a 1.3 percent pay adjustment in 2016 for civil service employees.
  • Includes $20 million for the Judiciary Capital Security Program in GSA’s appropriation and $675 million for courthouse repairs and alterations, but does not provide funding for the Nashville Courthouse project or any other GSA new construction and acquisition projects.
  • Continues authority to implement a delegated tenant alterations program for projects below $100,000 instead of contracting through GSA.
  • Continues authority for the pilot project that permits the U.S. Marshals Service to assume perimeter security responsibilities from the Federal Protect Service at designated courthouses.
  • Does not include the $10 increase in the juror attendance rate or the sharing of probation officers across judicial districts provisions sought by the Judiciary.

Full committee markup of the FSGG bill is expected to occur on June 17. Senate subcommittee mark-up of the FSGG bill may occur before or after the Congressional July 4 recess. Further House floor action, and even Senate subcommittee action, could be stymied due to larger policy differences between Republicans and Democrats over larger differences over overall nondefense and defense spending levels. The differences could lead to negotiations later this summer between Congressional leaders over a new budget agreement with new spending caps, similar to the now-expired Paul-Murray budget agreement reached in 2013. If negotiations break down and funding bills cannot be passed by late September, a government shutdown once again will loom.

Judicial Vacancies

The US Courts website, as of June 15, reflects:

  Vacancies Nominees Pending
Courts of Appeal 2
District Courts 46 12
US Court of International Trade 4 1
Total 59 15

There are 26 judicial vacancies that are considered “judicial emergencies” by the Judicial Conference. In particular, the 7th Circuit U.S. Court of Appeals in Chicago has been waiting for more than five years for the Senate to fill a vacant judicial seat. The stalemate remains, as the Democratic and Republican Senators for Wisconsin wrangle over the procedures their bipartisan commission uses to recommend judicial candidates for consideration by the President.

In other developments, the controversial resignation of a federal judge in Alabama has created a third vacancy in Alabama. The judge’s resignation follows his indictment for a misdemeanor battery in August after his then-wife made an emergency call from an Atlanta hotel room. When it became clear earlier this week that the Judicial Council of the 11th Circuit Court of Appeals would issue an order that considered Judge Mark Fuller’s conduct as grounds for impeachment, Judge Fuller resigned. Once his resignation becomes effective, he will not qualify for either a judicial salary or be eligible for a judicial pension. The House Judiciary Committee had been prepared to initiate impeachment proceedings against Judge Fuller pending the recommendation of the 11th Circuit and the Judicial Conference of the United States. Judge Fuller's resignation depletes the federal bench in Alabama further. Three judicial vacancies judges in Alabama now exist, two in the Northern District and another in the Middle District. In addition, there is an Alabama vacancy on the 11th U.S. Circuit Court of Appeals in Atlanta.

The Senate Judiciary Committee at its recent June 4 business meeting is approved the nomination of four nominees to district court judgeships:
  • Dale A. Drozd - Eastern District of California
  • Ann Donnelly - Eastern District of New York
  • LaShann DeArcy Hall - Eastern District of New York
  • Lawrence J. Vilardo - Western District of New York
Foreign Intelligence Surveillance Court Reforms

On June 2 the Senate cleared the USA Freedom Act (HR 2048), previously approved by the House of Representatives, which sets limits on the National Security Agency’s ability to review Americans’ phone records. The new legislation, which immediately signed into law by President Obama, requires the agency to go to the phone companies, with a warrant, when it wants to review those records in the future.

The new law also contains two reforms in addressing the briefing and transparency issues involving the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR). It provides that both the FISC and the FISCR shall, if deemed appropriate, appoint an individual to serve as amicus curiae to participate in any case involving a novel or significant interpretation of law. In addition, the law permits the court to appoint amicus curiae in any case or permit an individual or organization leave to file as amicus curiae. The new law also provides for greater transparency of FISC and FISCR decisions. It requires the Attorney General to conduct a declassification review of each decision, order, or opinion of the FISC or FISCR that includes a significant construction or interpretation of law. When the opinion cannot be made available due to classification considerations, the Attorney General, shall publicly make available a summary of any case involving the significant construction or interpretation of law.

The briefing considerations (whether by amicus curiae or by special advocate) and the transparency of FISC and FISCR decisions was addressed by the distinguished panel of judges and others during a panel session at the FBA Mid-Year meeting in Washington on March 28.

Proposed Limitations on Supreme Court Justice Terms

“Come to Terms,” a new initiative recently launched by the organization Fix the Court, aims to replace the system of lifetime tenure for justices of the U.S. Supreme Court with a single, fixed term of 18 years. “The current system of lifetime appointments and sporadic retirements is broken and a far cry from its original intent,” said Gabe Roth, executive director of Fix the Court, in a press release. “Lifetime appointments were supposed to shield Supreme Court justices from the influence of partisan politics. Instead, under Chief Justice John Roberts, we have a court with the most 5-4 decisions in our nation’s history.” The initiative claims the proposal is supported by “two-thirds of American primary voters across party lines, as well as by a broad coalition of constitutional scholars and legal experts.” Come to Terms is gathering signatures for a petition calling on the next justice appointed to the court to pledge not to serve longer than 18 years.

As the race for the White House in 2016 heats up, Presidential candidates from both parties are likely to once again make the Supreme Court a political target. Writing for Bloomberg.com, David Knowles observed, “For Republicans still burned by the court’s 2012 ruling that let stand insurance mandates and penalties under the Affordable Care Act, the latest beef with the court concerns its forthcoming ruling on whether gay marriage should be recognized nationwide.”

Former Arkansas Gov. Mike Huckabee questioned the Court’s authority to make a final decision on the issue. “The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government,” said Huckabee last week. Meanwhile, Democrats have targeted the Court’s 2010 Citizens United decision, with first Sen. Bernie Sanders and then Hillary Clinton promising they would only appoint a justice who opposed the ruling. “I will do everything I can do to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections,” Clinton recently told supporters in Iowa.

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