Government Relations Update


 

June 2017

Article III Judicial Vacancies

Vacancies on the federal bench continue to remain at historic highs. President Trump has begun to announce nominees to fill these vacancies, but the path toward Senate confirmation for many of these nominees will stretch well into the fall and beyond.

The Federal Judiciary website reported the following 132 Article III vacancies and 13 pending nominees as of June 12, 2017:

Current Vacancies Nominees Pending
Courts of Appeal 19 6
District Courts 105 5

US Ct of International Trade

2 0

US Ct of Federal Claims

Total

6

132

2

13 

Fifty-one of the vacancies are considered “judicial emergencies” by the Judicial Conference, the policy-making body of the Federal Judiciary.

President Trump thus far has secured the successful confirmations of Associate Justice Neil M. Gorsuch to the United States Supreme Court and Judge Amul R. Thapar of Kentucky to the Sixth Circuit appeals court. On May 8 and June 7, he announced his intent to send 21 nominees to the Senate for confirmation in what the White House has called its third and fourth waves of judicial nominations.

In the meantime, a new round of partisan bickering between Senate Republicans and Democrats has broken out over the future of the blue slip. The blue slip literally is a blue form that, when completed by each of a judicial nominee’s two home state Senators, permits the nominee to receive a Senate Judiciary Committee hearing, a necessary step before being reported out for a final Senate vote. Home state Senators in their own discretion determine when to return their blue slip signifying their endorsement. Under current Senate practice, a Judiciary Committee hearing on a nominee is not scheduled until the chairman of the committee is in possession of both blue slips, regardless of how long that may take.

Given a Senator’s ability to delay the return of their blue slip, the blue slip represents the last major tool available to Senate Democrats to leverage the nomination process, and some have already publicly called for aggressive slow-walking of blue slips. In response, Republicans have warned Democrats that uncompromising use of the blue slip could force their hand and cause them to drop the blue slip practice, which is not required by existing Senate rules. Some conservative groups, in fact, have urged Majority Leader McConnell and Senate Judiciary Committee Chairman Charles E. Grassley (R-IA) to relax the use of the blue slip, especially on circuit court nominees. Chairman Grassley has indicated he intends to abide by the blue slip process, at least for the time being.


FY 2018 Funding for the Federal Judiciary

The House appropriations subcommittee responsible for funding the Federal Judiciary held its hearing on the Judiciary’s budget request on May 17, 2017. Judge Julia S. Gibbons, Chair, Committee on the Budget of the Judicial Conference of the United States, and James C. Duff, Director, Administrative Office of the United States Courts, testified on behalf of the Judiciary.

The Judiciary’s fiscal year 2018 budget request of $7.2 billion in discretionary appropriations reflects an overall 3.9 percent increase above the fiscal year 2017 assumed level to support the Constitutional and statutory mission of the federal courts.

House and Senate Republican support is growing for a plan to write one large FY 2018 appropriations package and pass it before the August recess. The House Appropriations Committee would individually mark up all 12 annual spending bills for fiscal 2018, then bundle them into a single package for House passage. With four months remaining before the start of the new fiscal year on October 1, the two Budget committees have not written budget resolutions setting topline spending levels, nor have the Appropriations panels approved any funding bills. There is marked disagreement among Republicans, Democrats and the White House over what those spending levels should be and a government shutdown in early October once again remains a real possibility. A showdown over raising the budget ceiling could also occur later this summer before the August recess.


House Judiciary Panel Approves Additional Bankruptcy Judgeships

On May 17, 2017, the House of Representatives approved H.R. 2266, the Bankruptcy Judgeship Act, legislation converting 14 temporary bankruptcy judges to permanent status and authorizing four new bankruptcy judgeships. Additionally, this bill includes an increase in the U.S. Trustee’s Quarterly fees for large chapter 11 cases.

The FBA supports the legislation and earlier communicated its support to the House Judiciary Committee, prior to that committee’s markup of the measure. Action now shifts to the Senate and its consideration of an identical companion bill, S. 1107, and a potential hearing on the bill hopefully soon. Seven Senators associated with six of the states where the judgeships exist have cosponsored the bill thus far.

The 14 temporary judgeships that would be converted to permanent status by the legislation are located in the following eight districts: District of Delaware (5); Southern District of Florida (2); District of Puerto Rico (2); District of Maryland (1); Eastern District of Michigan (1); District of Nevada (1); Eastern District of North Carolina (1); and Eastern District of Virginia (1). The four new permanent bankruptcy judgeships would be located in the District of Delaware (2); Middle District of Florida (1); and Eastern District of Michigan (1).

There is a time sensitivity to passage of the bankruptcy judgeship legislation. All 14 temporary bankruptcy judgeships addressed by H.R. 2266 lapsed under their original authorization on May 25, 2017. Going forward, that means that any additional bankruptcy judgeship vacancy occurring after May 25 in any of the eight districts in which these temporary judgeships are located cannot be filled by law, regardless how the vacancy arose (whether by death, resignation, or retirement). This situation would be debilitating for many of these courts, especially the U.S. Bankruptcy Court for the District of Delaware, where five of their six authorized judgeships are temporary, all at risk of expiring in 2017.


Legislative Proposals to Split the Ninth Circuit Court of Appeals

The FBA transmitted the attached May 16, 2017 correspondence to the House and Senate judiciary committees conveying the FBA’s concerns regarding legislative proposals to restructure the Ninth Circuit and create a new Twelfth Circuit.


FBA Capitol Hill Day: A Big Success

On April 20, 2017, record-setting numbers of Federal Bar Association leaders met with Senate and House lawmakers to urge adequate funding for the federal courts and prompt action in filling judicial vacancies. These FBA leaders also brought to attention the urgent need to reauthorize temporary bankruptcy judgeships.

This year’s “FBA Capitol Hill Day” involved 62 FBA leaders from 39 chapters—located in 27 states and the District of Columbia—and all 12 federal circuits were represented. Leaders also represented ten FBA practice area sections and one career division. This was the largest group of FBA participants in the history of Capitol Hill Day.

FBA representatives received a warm reception and a positive response from nearly all of the Congressional offices they visited, providing the opportunity for ongoing and stronger relationships. FBA advocates in their meetings with members and staff of the United States Senate and House of Representatives focused on four policy priorities, as addressed in the 2017 FBA Public Policy Priorities Brief:

  • • Our Federal Courts Need Adequate Funding
  • • Judicial Vacancies and the Need for Prompt Action in Filling Them
  • • The Urgent Need to Reauthorize Temporary Bankruptcy Judgeships
  • • Congress Should Establish Additional Judgeships
In addition to their meetings with their congressional representatives, Capitol Hill Day participants had the opportunity to attend a lecture at the U.S. Supreme Court and meet with Scott S. Harris, Clerk of the U.S. Supreme Court.

View the 2017 Capitol Hill Day Recap Page here.

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