Government Relations Update

June 2010
Judicial Vacancies
Filibuster Reform
Courthouse Construction
Judicial Conference on Civil Litigation in the Federal Courts
Bankruptcy Judgeships
Federal Litigation Over the Gulf Oil Disaster
Kagan Nomination
Term Limits for Supreme Court Justices
Souter Address on Constitutional Interpretation
The High Court's Ultimate Verdict on the New, New Deal
Legislative Response to Citizens United

Judicial Vacancies

As of June 3, 103 judicial vacancies remained in the Article III federal courts, with 46 nominees awaiting Senate confirmation. Here are the details:

The filibuster, or threats of filibuster, of the confirmation of judicial candidates has been especially pronounced in recent years.  Senate Majority Leader Harry Reid (D-Nev.) pledged earlier this spring to take a serious look at revising the filibuster rules at the beginning of the next Congress, calling the current level of obstruction in the Senate unacceptable. The filibuster is a procedural tactic that increasingly has delayed and threatened the work of the Senate on a range of issues beyond judicial nominations.

Over the past two months the Senate Committee on Rules has held two hearings on the origins and use of the filibuster.  Senate Rules Committee Charles Schumer noted in his opening statement at the April 22 hearing: “In the first half of the 20th century, filibusters and filibuster threats were relatively rare events.  From the 1920s through the 1950s, an average of about ten cloture motions were filed per decade. That number almost tripled to 28 during the 1960s, the era of controversial civil rights legislation. But after that things really started to take off – a total of 358 cloture motions were filed in the 1990s, and from 2001 through 2009, there were 435 cloture motions filed.  Clearly, the filibuster has changed over the years. Not only is it used a lot more now, but the threat of filibusters has become an almost-daily fact of life in the Senate, influencing how we handle virtually everything debated on the Senate floor.  The filibuster used to be the exception to the rule. In today’s Senate, it’s becoming a straitjacket.”

For further reading:

Examining the Filibuster: History of the Filibuster 1789-2008, Testimony and Webcast of Hearing of the Senate Committee on Rules, April 22, 2010.

Examining the Filibuster: The Filibuster Today and Its Consequences, Testimony and Webcast of Hearing of the Senate Committee on Rules, May 19, 2010.

Sam Stein, Harry Reid Pledges Filibuster Reform, Huffington Post, March 10, 2010.

Courthouse Construction

The cost of federal courthouses was the subject of a contentious hearing before a Congressional committee on May 24. The Government Accountability Office in a draft report alleged that recently constructed federal courthouses have been built larger than necessary and have cost taxpayers $835 million in wasted construction funds since 2000.  GAO also alleged that the extra space requires $51 million annually to maintain.  The Judicial Conference and GSA separately contested the GAO findings.  Two federal judges on behalf of the Judicial Conference criticized the GAO report, saying that the federal judiciary is working hard to utilize courthouse space efficiently based on policies that balance appropriate courtroom sharing with efficient case management.  The GAO and the federal judiciary have sparred over courtroom sharing policies in the past.  The hearing was held before the House Subcommittee on Economic Development, Public Buildings, and Emergency Management.

For further reading:

Building Oversize Courts Wastes Millions, Washington Times, May 25, 2010.

Federal Courthouse Construction: Preliminary Results Show Better Planning, Oversight, and Courtroom Sharing Could Help Control Future Costs, Government Accountability Office, (GAO-10-417), May 25, 2010.

Judiciary Cites Good Stewardship in Planning Space in Federal Courthouses, Administrative Office of the United States Courts, May 25, 2010

Eliminating Waste and Managing Space in Federal Courthouses, Webcast and Testimony of Hearing of House Subcommittee on Economic Development, Public Buildings, and Emergency Management, May 24, 2010.

Judicial Conference on Civil Litigation in the Federal Courts

Access, fairness, cost, and delay in civil litigation in federal court were the focus of a conference at the Duke University School of Law on May 10-11, 2010, sponsored by the Judicial Conference Advisory Committee on Civil Rules. The 2010 Civil Litigation Conference presented new data from several empirical studies on current litigation practice and proposals for improving civil litigation in the federal trial courts.

For further reading:

The agenda, conference reports and a wealth of other resources
Webcasts of all sessions and speakers

Bankruptcy Judgeships

The Senate Judiciary Committee on May 27 favorably reported the “Bankruptcy Judgeship Act of 2010”, which creates 13 new permanent bankruptcy judgeships and converts 22 temporary bankruptcy judgeships to permanent ones, and extends the temporary authorization for 2 bankruptcy judgeships for another 5 years.

The FBA strongly supports this legislation. On May 18, FBA President Lawrence R. Baca communicated FBA’s endorsement of the legislation to the Senate Judiciary Committee. “… [W]e urge Congress to establish the additional bankruptcy judgeships authorized by H.R. 4506, given the increasing stain of caseloads that the bankruptcy courts face and the increasing complexity of bankruptcy litigation,” Baca said.

To pay for the 13 new permanent bankruptcy judgeships, the legislation increases bankruptcy filing fees by $1.00 for filings under Chapter 7 and Chapter 13 of the Bankruptcy Code and by $42.00 for filings under Chapter 11 of the Code. For a number of years, the filing fees for Chapter 7 bankruptcy cases have been $299 and the filing fees for Chapter 13 cases have been $274.

The legislation earlier had been approved by the House of Representatives on March 12, 2010.

Federal Litigation Over Gulf Oil Disaster

Seven federal judges already have recused themselves from handling oil spill cases arising from the Gulf of Mexico disaster.  That means only five of the 12 available judges in the Eastern District of Louisiana remain to hear disaster-related litigation – and that number may dwindle further as jurists consider whether they have ties that may create conflicts of interest.   A variety of conflicts have prompted the seven judges to recuse themselves.  Those conflicts include ownership of BP stock and close relatives with jobs in, related to or representing the oil industry.

For further reading:

Tresa Baldas, Make that seven judges in New Orleans recused from oil spill cases, National Law Journal, June 2, 2010.

Kagan Nomination

Widespread media attention has been devoted to President Obama's nomination of Solicitor General Elena Kagan to take the place of retiring Justice John Paul Stevens on the U.S. Supreme Court. 

For further reading:
Links to numerous articles on Kagan's nomination

Sheryl Gay Stolberg, Katharine Q. Seelye, and Lisa W. Foderaro, A Climb Marked by Confidence and Canniness, New York Times, May 10, 2010.  

Term Limits for Supreme Court Justices

Proposals for the creation of term limits for Supreme Court justices continue to pop up.  Matthew Yglesias at Think Progress on May 10 wrote: "Concerns you might have about justices being unduly influenced by political or financial considerations could be easily met by giving justices a single, non-renewable term of 9 or 10 or 12 years plus a decent pension."  According to Yglesias, fixed terms may also remedy two pressures that, under the current system, are particularly acute: the "undue weight [placed] on throwing up young appointees" and the "randomness" that results when justices stay on the bench in spite of old age in order to wait for the election of a president likely to replace them with a like-minded successor.  Jack Balkin, also a long-standing supporter of term limits for the Supreme Court, also echoed Yglesias at Balkinization, where he reiterated his call for 18-year fixed terms. 

For further reading:

Matthew Yglesias, Fixed Terms for SCOTUS, ThinkProgress, May 10, 2010

Jack Balkin, Term Limits for Supreme Court Justices, Balkinization, May 11, 2010.   

Souter Address on Constitutional Interpretation

Justice David Souter took aim at the doctrine of originalism in interpreting the Constitution in a commencement speech at Harvard University on May 27. Souter offered a rebuttal of what he termed “the fair reading model,” which calls for an analysis of the Constitution that is grounded in the language of the Constitution—at the expense of a more nuanced analysis that considers the contemporary values and outlooks that can shape judicial decisions.

For further reading:

Text of Justice David Souter’s Speech, Harvard Gazette, May 27, 2010.

Souter Presents Judicial Philosophy in Commencement Speech, Harvard Crimson, May 28, 2010.

David Souter's Harvard Graduation Speech: One for the Books, Andrew Cohen, June 2, 2010.

David Souter vs. the Antonin Scalias, E.J. Dionne Jr., Washington Post, June 3, 2010.

The High Court’s Ultimate Verdict on the New, New Deal

Barack Obama, like Franklin Roosevelt, took office at a time of economic crisis, pushed through a progressive legislative response, and now awaits a verdict on that response from a Supreme Court that is dominated by his political adversaries, Jeffrey Toobin observed in the May 24 edition of The New Yorker.  Toobin noted that “Roosevelt lost the court-packing battle, but he won the legal war over the New Deal. By the end of his long tenure in the White House, he had made eight Supreme Court appointments, and that is what guaranteed that the federal government was able to address the economic crisis. For Obama, then, the lesson of F.D.R. is simple. Kagan, plus Sonia Sotomayor, makes two appointments. The President, to secure his legacy, may need a few more.” Toobin also praises Jeff Shesol’s new book on FDR’s clash with the Supreme Court, Supreme Power.

For further reading:

Jeffrey Toobin, Activism v. Restraint, The New Yorker, May 24, 2010.

Jeff Sheshol, Supreme Power, Franklin Roosevelt vs. the Supreme Court.

Legislative Response to Citizens United

Congress continues to consider legislation in response to the Supreme Court’s decision in Citizens United v. Federal Election Commission, which gives corporations and unions considerably greater leeway to spend freely in election campaigns.  The House Committee on Administration on May 11 held a hearing on the proposed DISCLOSE Act, HR 5175, which would require corporations and other groups to disclose many details associated with their spending.

For further reading:

“Additional Discussion of H.R. 5175, The DISCLOSE ACT, Democracy is Strengthened by Casting Light on Spending in Elections”, Webcast and Testimony of Hearing of House Committee on House Administration, May 11, 2010.

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May 2010

Judicial Vacancies

There currently are 104 judicial vacancies on the district (88) and circuit (16) levels..  Twenty-three judicial nominations await floor action.  Some nominations were reported out of the Senate Judiciary Committee as far back as last November.  Of the 23 nominations pending, 17 were reported by the Committee without dissent.  Votes on three district nominees were expected on May 5. 

Recent media attention has focused upon the impact of vacancies in the Southern District and the Western District of Texas, where four of six vacancies are in border-area courts that carry some of the highest caseloads in the country.  The U.S. Attorney posts in all four of the Texas districts also remain unfilled.

There is a small window of time in the Senate for final action on pending judicial nominations -- between now and the startup of Senate confirmation hearings for the next Supreme Court justice.  If the confirmation process is completed by the Congressional August recess, additional time will remain in September before Congress adjourns, likely in early October.

For further reading:

Judicial vacancies burden courts, San Antonio Express-News, May 1, 2010

Texas Dems criticize Obama on slow judicial appointments, Houston Chronicle, May 3, 2010

The Case of the Missing Prosecutors, The Texas Tribune, April 30, 2010

Cameras in the Courts

The Senate Judiciary Committee on April 29 approved three bills expanding broadcast camera coverage in the district and appellate courts, as well as the Supreme Court.  The measures, which now go to the Senate floor, are:

• S.657, Sunshine in the Courtroom Act (Sponsors: Sens. Grassley, Schumer, Leahy, Specter, Graham, Feingold, Cornyn, Durbin and Klobuchar)
• S.446, A bill to permit the televising of Supreme Court proceedings (Sponsors: Specter, Grassley, Durbin, Schumer, Feingold, Cornyn, Klobuchar and Kaufman)
• S. Res. 339, A resolution to express the sense of the Senate in support of permitting the televising of Supreme Court proceedings (Sponsors: Specter, Kaufman, Cornyn, Feingold, Durbin, Klobuchar, Whitehouse, Schumer and Leahy)

The first measure, S. 657, the Sunshine in the Courtroom Act, introduced by Sen. Chuck Grassley (R-IA) is the most far-reaching in that it would expand coverage in the district and appellate courts (including the Supreme Court).  It was approved on a 13-6 vote.  An amendment offered by Sen. Ben Cardin (D-MD) that would have stripped the bill of authority for camera coverage of district court trial proceedings, failed.

The bill would preserve the current bar against camera access unless the presiding judge of the court permitted entry.  It also authorizes the Judicial Conference to issue guidance on how and when cameras should be permitted entry and requires additional guidance form the Judicial Conference on how cameras shall obscure the identity of vulnerable witnesses.  Specifically, the bill:

• Authorizes the presiding judge of a U.S. appellate court (including the Supreme Court) or U.S. district court to permit the photographing, electronic recording, broadcasting, or televising to the public of court proceedings over which that judge presides, except when such action would constitute a violation of the due process rights of any party.
• Directs: (1) a district court, upon the request of any witness in a trial proceeding other than a party, to order the face and voice of the witness to be disguised or otherwise obscured to render the witness unrecognizable to the broadcast audience of the trial proceeding; and (2) the presiding judge in a trial proceeding to inform each witness who is not a party of the right to make such request.
• Authorizes the Judicial Conference of the United States to promulgate advisory guidelines to which a presiding judge may refer in making decisions regarding the management and administration of photographing, recording, broadcasting, or televising described in this Act.
• Requires the Judicial Conference of the United States to promulgate mandatory guidelines which a presiding judge must follow for obscuring certain vulnerable witnesses.
• Prohibits broadcast of conferences between attorneys and clients. 

The other two bills, S. 446 and S. Res. 359, deal only with the Supreme Court and each were approved by a 13-6 vote. S. 446 would require coverage of its open sessions, unless a majority of justices decides by a majority vote on a case-by-case basis that coverage would violate the due process of one or more parties before the Court.  The other bill expresses the sense of the Senate and urges the Supreme Court proceed to provide the same camera coverage as embraced in S. 446.   Legal experts suggest that a Congressional dictate to the Supreme Court to televise its open sessions might breach the separation of powers doctrine and be unconstitutional; a Senate resolution seeks to avoid that confrontation.

Justice Stephen Breyer told Congressional lawmakers during an appropriations hearing earlier in April that the Judicial Conference was considering a pilot project to televise proceedings in the lower courts, but that the pilot would not include coverage of the Supreme Court.

A 2009 C-SPAN poll found that two-thirds of the country wanted TV coverage of the High Court.

In past Congresses, the House has approved cameras bills, but they have languished in the Senate, even after emerging from the Senate Judiciary Committee. The timing of Senate floor action is uncertain. 

For further reading:
Grassley Legislation to Promote Greater Public Access to Federal Courtrooms Clears Committee, Media Statement by Sen. Charles Grassley, April 29, 2010

Significant Progress on Cameras in the Supreme Court, Media Statement by Sen. Arlen Specter, April 29, 2010

Senate Committee Advances Federal Court Camera Access, The BLT: The Blog of Legal Times, April 29, 2010

Judiciary panel advances bill to compel Supreme Court to televise proceedings, The Hill, April 29, 2010

Supreme Court Still Resists Pressure to Televise Proceedings, Washington Post, April 19, 2010

What Americans Know About the U.S. Supreme Court and Want Changed About the Court, C-SPAN Poll, September 24, 2009

Sentencing Guidelines Amendments

On April 29, 2010, the U.S. Sentencing Commission submitted new amendments for the Sentencing Guidelines to Congress for approval.

Scheduled to take effect on November 1, 2010, unless Congress intervenes, the most important amendments propose changes in:

* Alternatives to incarceration
* Specfic offender characteristics
* Cultural assimilation
* Application instructions
* Recency
* Hate crimes
* Organizational guidelines

Under the proposed amendments, judges may depart from federal sentencing guidelines in order to refer offenders with alcohol and other drug problems to addiction treatment or other alternatives to incarceration.

In addition, the proposed amendments would change the Organizational Guidelines, which advise federal courts on how companies should be sentenced for any federal crime. Among other things, the Organizational Guidelines provide credit to any company that has an "effective compliance and ethics program." If a company is charged with a crime, that credit can result in a substantially lower fine or a substantially lower settlement agreement with the Department of Justice.  The amendments would change the Organizational Guidelines in three ways.  First, in very limited circumstances, the amendments allow a company to obtain credit for an effective compliance program even when one of its senior officials is involved in the misconduct. Second, the amendments clarify how a company with an effective compliance program may be expected to respond upon learning of misconduct. Finally, the amendments clarify that a court has significant authority to monitor companies as a condition of probation.

For further reading:

Amendments to the Sentencing Guidelines, United States Sentencing Commission, April 29, 2010.

Sentencing Commission Releases Guidelines on Alternative Penalties, Join Together, May 4, 2010

COMPLIANCEWATCH: Sentencing Guidelines May Boost Compliance, Wall Street Journal, May 3, 2010.

Judicial Conference on Civil Litigation in the Federal Courts

Access, fairness, cost, and delay in civil litigation in federal court will be the focus of a Conference, at the Duke University School of Law, May 10-11, 2010, sponsored by the Judicial Conference Advisory Committee on Civil Rules. The 2010 Civil Litigation Conference will present new data from several empirical studies on current litigation practice and proposals for improving civil litigation in the federal trial courts.

For further reading:

May Conference to Be First of Its Kind to Look at Civil Litigation in Federal Courts, Media Statement of Administrative Office of the United States Courts, April 12, 2010

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January 2010

Judicial Pay
On Nov. 3, Sen. Dianne Feinstein (D-Calif.) introduced bipartisan legislation that addresses the root cause underlying ongoing erosion in the pay of federal judges. The Federal Judicial Fairness Act of 2009 (S. 2725) delinks federal judicial pay from congressional pay and, instead, links future judicial pay raises to the annual adjustments received by federal civil servants under the General Schedule. The bill also repeals § 140 of Pub. L. 97-92, which requires separate congressional approval of each annual salary adjustment received by the federal judiciary.

Federal judicial compensation has declined dramatically and fallen well behind inflation over the past 30 years. Since 1969, the inflation-adjusted salaries of federal judges has declined by 24 percent, whereas federal civil servants’ salaries have kept pace with inflation, increasing by 18 percent since 1969. This chiefly has been due to congressional restraint in limiting its own pay, which in turn has deprived federal judges of pay raises. Even though Sen. Feinstein’s bill would not retroactively provide any catch-up raise for the judiciary to make up for past erosion of their salaries, the bill would take judicial pay out of the political issue of congressional pay and provide the assurance that judges will not be unfairly denied raises in the future.

Cameras in the Courtroom
On Nov. 5, Sen. Arlen Specter (D-Pa.), a frequent proponent of having cameras in the federal courts, introduced a nonbinding resolution (S. Res. 339) that would encourage the Supreme Court to provide for television broadcast coverage of its proceedings. Unlike past measures introduced by Specter that would mandate television coverage, Specter’s resolution would only encourage broadcast coverage so as to defer to the Court and avoid, as Specter has admitted, a potential constitutional confrontation. The FBA in the past has not taken a position on camera coverage at either the appellate or district court level (because membership opinion has been split), but the association continues to monitor the issue closely.

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November/December 2009

Drive for Judicial Pay Stalls
The Great Recession has generated plenty of downside consequences. For the federal judiciary, the economic downturn has caused efforts to improve federal judicial pay to hit the wall. In the face of a double-digit unemployment rate and cratering savings, it is very difficult for federal judges who earn an annual salary of $170,000 or more—and have lifetime tenure—to argue that they need a pay increase.

Meanwhile, federal judges are continuing to leave the federal bench at an accelerating rate. The number of judges leaving their lifetime federal appointments has increased considerably in recent years—partly because of pay levels. According to the Administrative Office of the U.S. Courts, three judges voluntarily stepped down from the federal bench during the 10-year period between 1958 and 1969. In contrast, between 2000 and 2009, a projected 69 federal judges will have resigned from the bench.

The federal judiciary has begun to realign its compass toward assuring that judges receive at least a cost-of-living adjustment (COLA) in 2010, because congressional lawmakers could once again block an automatic COLA for themselves and therefore, by statutory linkage, for judges. With the midterm 2010 elections approaching, the combination of incumbent jitters and the shaky economy could prompt Congress to deny itself a pay raise, and the federal judiciary as well (as was the case five times during the 1990s.) It took considerable effort earlier this year to cause Congress (finally in March) to retroactively authorize a 2.8 percent COLA for federal judges for 2009, even though Congress had already given itself a COLA late last year. 
 
Judicial Caseload Transparency
The Judicial Conference, at its meeting on Sept. 15, voted to increase transparency about judicial caseload productivity by making a judge-specific workload report available for the first time via the Internet at no charge; the online report will be available in spring 2010. The Judicial Conference also approved steps to facilitate courtroom sharing by approving a policy for magistrate judges in new courthouses as well as courtroom construction.