Government Relations Updates


 
September 2019 


During the week of September 9, Congress returned from its August recess to a packed agenda. The biggest short-term priority will be to stave off a government shutdown and pass a stopgap measure to keep the government funded at current levels. Consideration of proposals on gun control, drug prices and defense programs also will receive attention, with the defense bill having the best chance of becoming law. Confirmation of judicial nominees continues in the Senate. More details on these and other developments follow below.

FY 2020 Federal Government Funding

Funding for all federal operations, including the federal courts, likely will be extended on an interim basis into the next fiscal year, beginning October 1. House and Senate leaders are discussing passage of a stopgap funding measure, called a Continuing Resolution, extending FY 2019 funding levels until at least the week before Thanksgiving.

In late July, House Democrats and the White House agreed to a two-year $2.7 trillion budget agreement that sets top-line spending levels for FY2020 and FY2021. Now Congressional appropriations committees are hammering out the line-by-line details of the twelve FY 2020 measures that will fund the operations of the federal government, including the federal courts. They will need more time, however, given the relatively few legislative days remaining in September.

Passage of a CR also would avoid the drama of another government shutdown. But policy battles over the inclusion of riders in the CR, especially in the Senate over abortion funding, could emerge. Whether the Trump administration insists on border wall funding also remains uncertain. The President's attempts to inject wall funding into the FY 2019 appropriation bill led to the longest-ever federal government shutdown.

Funding for the federal Judiciary remains noncontroversial. Judiciary funding in included in the Financial Services and General Government (FSGG) appropriations bill (H.R. 3351), which includes roughly $7.5 billion in discretionary appropriations for the federal courts in FY2020. (FY 2019 spending has been at $7.2 billion.) The House passed its FSSG measure almost three months ago in late June. The Senate has yet to approve any of its twelve appropriations bills, but started to take action during the week of September 10 with subcommittee approval of the Defense and Labor-HHS-Education spending measures.

Federal Judicial Vacancies

The Federal Bar Association's attention in connection with judicial nominations is devoted to keeping federal judicial vacancies low, assured by prompt action by the President in nominating well-qualified candidates to the bench and the Senate in promptly considering their nomination. Each branch has a Constitutional obligation to assure that the Third Branch is staffed with sufficient numbers of judges to promptly administer justice. It is well-recognized that high numbers of vacancies on the Federal bench harm the delivery of justice, the economic interests of litigants before the courts, and public respect for the efficiency of our judicial system.

The Senate pace of confirmations has accelerated over the past four months, cutting into vacancy numbers, which last year had reached over 150 Article III vacancies. Sixty-three judicial nominees have been confirmed since January. Nearly 100 district vacancies still remain (approximately 14 percent of all district judgeships), with more than half of them (57) labeled as “judicial emergencies” by the federal Judiciary (based upon how long a vacancy has existed and how many weighted filings a judge in that district handles).

The decision of Senate Majority Leader Mitch McConnell (R-KY) in April to invoke the “nuclear option” and reinterpret Senate Rule 22 to reduce the time available (from 30 hours to 2 hours) for final debate on district judge and subcabinet nominees has contributed to the speed-up in confirmations. This change, along with less allegiance to the blue slip tradition, have reduced the procedural leverage of the minority to delay and obstruct action.
 
On July 30 and 31, the Senate confirmed 13 district court judges before leaving Washington for its August recess. Texas scored a bonanza in confirmations with the confirmation of six nominees, three of them in the Northern District.

 Nominee  Circuit  Court
John Milton Younge  Third  PA-E
William Shaw Stickman IV Third  PA-W
James Wesley Hendrix Fifth  TX-N
Mark T. Pittman Fifth  TX-N
Brantley Starr Fifth  TX-N
Sean D. Jordan Fifth  TX-E
Jeffrey Vincent Brown Fifth  TX-S
Jason K. Pulliam Fifth  TX-W
Martha Maria Pacold Seventh  IL-N
Mary M. Rowland Seventh  IL-N
Peter D. Welte Eighth  ND
Michael T. Librudi Ninth  AZ
Karin J. Immergut Ninth  OR

In addition, nominees M. Miller Baker and Timothy M. Reif were confirmed to the U.S. Court of International Trade. Two vacancies on the nine-member trade court remain.

The following six district court nominees were confirmed by the Senate on September 11:

 Nominee  Circuit  Court
 Mary S. McElroy  First  RI
 Stephanie L. Haines  Third  PA-W
 Stephanie A. Gallagher  Fourth  MD
 Ada E. Brown  Fifth  TX-N
 Steven C. Seeger  Seventh  IL-N
 Steven D. Grimberg  Eleventh  GA-N

Their confirmation, which included President Trump’s 150th judicial appointment, was the product of a deal struck by Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) to confirm some judges in the home states of both Republicans and Democrats. That bipartisan progress reflects, Roll Call notes, a shift in Leader McConnell’s priorities to speed-up the confirmation process, rather than blocking some nominees supported by blue state home state Senators.

Obstacles remain, however. Judicial emergencies in blue states have increased from seven to 42 during the Trump Administration, the result of White House differences with Democratic Senators on the choice of nominees. According to a Bloomberg analysis, “Trump has decreased the number of district-court judicial emergencies in red states—those with two Republican senators—to nine, from 20 in February 2017. Meanwhile, the number of emergencies in blue states—those with two Democratic senators—has ballooned to 42, from seven.”

Over the August recess, President Trump announced the nomination of seventeen more judicial nominees, including three circuit court nominees (Steven Menashi and William Nardini to the Second Circuit, and Danielle Hunsaker to the Ninth Circuit). Because not all of these nominations have been formally received by the Senate yet, they are not entirely reflected in the figures below.

Current Vacancies (as reported by the US Courts website on September 12, 2019)
   Vacancies  Nominees Pending
 Supreme Court 0 0
 Courts of Appeal 4 1
 District Courts* 97 39
 US Ct of International Trade 2 0
 US Ct of Federal Claims
Total 112 45


* 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.

Senate Confirmations of Trump Nominees in the 116th Congress (as reported by the US Courts website on September 12, 2019)


Court Confirmations
 Supreme Court  0
 Courts of Appeal  13
 District Courts      46
 US Ct of International Trade  2
 US Ct of Federal Claims  2
 Total  63

FBA Policy Priority Signed Into Law

A policy issue recently added to the FBA Issues Agenda was passed by Congress and signed into law by President Trump on August 23, 2019. The Honoring American Veterans in Extreme Need Act of 2019 (HAVEN Act, Pub.L. 116-52) excludes disability benefits paid by the U.S. Department of Veterans Affairs and the U.S. Department of Defense from the calculation of an individual debtor's disposable income used for bankruptcy means testing. Now veterans' disability benefits will be treated like Social Security benefits – neither will be treated as income.

The new law means that veterans' disability benefits will be excluded as income for purposes of determining whether a veteran headed for bankruptcy would have to file a Chapter 13 repayment plan case. Prior to the HAVEN Act, a veteran may have had to contribute some portion of his or her disability benefits to pay creditors. Instead, more veterans will now be eligible to file a Chapter 7 liquidation case where only nonexempt assets are sold to pay creditors. They will be able to fully use their disability benefits for their own needs and not have to use disability benefits as a source of income to pay back creditors. Thanks to the FBA Bankruptcy Law Section for nominating this issue to the FBA Issues Agenda.

FBA Support for an Independent Immigration Court

On July 11, the FBA and three other national legal associations urged Congress through a joint letter to create an independent immigration court outside the control of the Department of Justice. The groups cited growing dysfunction and due process concerns within the immigration courts. It was the first time that the four groups – the FBA, the ABA, the American Immigration Lawyers Association and the National Association of Immigration Judges -- had ever joined together to urge Congress to take legislative action.

Since 2013, long before the current Administration, the FBA has supported the creation of an independent immigration court through model legislation drafted by the Association. The Federal Bar Association’s support for such a specialty court created by Congress – otherwise known as an Article I court – relies on the impartiality, judicial independence and operational effectiveness afforded by a self-managed court. The performance of other Article I courts, like the Tax Court and the Court of Veterans Appeals, testifies to the strength of the case for an independent Article I immigration court.

PACER Modernization

The Administrative Office of the U.S. Courts recently announced the establishment of a public user group devoted to the use of PACER, the online portal that provides access to all documents filed in the federal courts. The twelve-member user group – comprised of PACER users in the legal community, business, academia and the press – will provide feedback on how PACER can become more user-friendly and effective in its use. It is expected to begin to meet later this fall. The move comes amid growing scrutiny on Capitol Hill and in federal court litigation over how PACER works and the use of PACER fees. The FBA Government Relations Committee (GRC) will monitor the activity and deliberations of the PACER user group, generate greater discussion within FBA, and provide input to the user group as warranted.

SAVE THE DATE: FBA Capitol Hill Day on March 19, 2020

FBA’s premier advocacy event – Capitol Hill Day – will take place on Thursday, March 19, 2020. This year’s event will occur in conjunction with the FBA Leadership Summit and celebration of the FBA Centennial. The GRC, which coordinates the event, is aiming for the participation of at least 100 FBA leaders in Capitol Hill Day 2020.

Last year witnessed the largest group of FBA leaders ever to participate in Capitol Hill Day. Seventy-four FBA advocates fanned out across Capitol Hill to educate House and Senate lawmakers about the importance of the federal courts and their needs, including adequate funding, the prompt filling of judicial vacancies and sufficient numbers of judgeships.

Resources

September 2019 GRC Update


April 2019 GRC Update


March 2019 GRC Update


January 2019 GRC Update


December 2018 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


October 2018 GRC Update


July 2018 GRC Update


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


February 2018 GRC Update


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