December 2012

Fiscal Cliff and Sequestration

The federal courts stand at risk of steep spending cuts in 2013 if Congress and the White House cannot agree on a deal before then to avert the “fiscal cliff” – the combination of automatic, across-government spending reductions and automatic tax increases set to begin on January 1. The conventional wisdom is that that the budget stalemate is likely to continue right up to the deadline. There is also optimism that a deal, more accurately, a deal to make a down payment on a bigger deal to come next year in terms of legislation, will come about, likely involving tax reform.  In the meantime, both sides are digging in for as long as possible to continue to be perceived by their supporters as protecting their base. There is increasing anxiety among Republicans each day that they will shoulder the larger part of the blame from the public if middle class tax rates rise because of GOP intransigence over tax rates for the top two percent of Americans. A Washington Post-Pew Research Center poll in early December showed that 53 percent of Americans would blame Republicans if the government goes over the fiscal cliff, but just 27 percent would finger the president. There are bodies of sentiment among members of both parties who are not alarmed by going over the cliff on January 1, at least for a little while. Conservative Republican members remain opposed to raising taxes and insistent on deeper cuts in entitlement and discretionary spending than House Leader Boehner had originally proposed. Democrats believe they will profit politically if they allow tax rates to expire at year’s end, and then return in January to lower taxes for all Americans except the top 2 percent. 

Meanwhile, FBA’s grassroots advocacy campaign continues to alert Congress on the impact of sequestration on the federal courts. FBA chapters and their members are reaching out to their House and Senate lawmakers to make them aware of the devastating impact that sequestration would have on the federal courts. 

Judicial Nominations and Vacancies

As of December 5, there were 82 vacancies in the federal courts:

  Vacancies Nominees Pending

Courts of Appeal

15   7
District Courts 65   34
US Ct of International Trade 2   2
Total 82   43

The White House has sent nine nominees to the Senate since the election. None of those nominees are expected to be cleared before the end of the lame duck session, and their names will likely be resubmitted by the President at the start of the 113th Congress. Considerable doubt also remains whether most pending judicial nominees who await an up-or-down vote on the floor will get that vote before Congress adjourns, likely in late December. Rising tensions between Senate Majority Leader Reid and Senate Minority Leader McConnell over the possibility of changes in the Senate’s filibuster rules has carried over to little agreement on floor votes on nominees.

In the coming months, more than a dozen vacancies are expected to arise due to the planned decisions of judges to resign, retire, or seek senior status.

An analysis in USA Today of President Obama’s judicial confirmations record reports that “only 75% of his nominees have been confirmed, compared with 88% for Bush and 84% for Clinton. On average, they have waited 224 days in the pipeline, up from Bush's 176 days and Clinton's 98.” The Huffington Post criticized President Obama for the vacancies, emphasizing that “There are currently 83 empty district and circuit court judge seats. That means Obama is poised to end the year with more vacancies than when he was sworn in -- there were 55 when he came in -- and with far fewer confirmed nominees than his two predecessors had by the end of their first terms. While former President Bill Clinton was at 200 and George W. Bush was at 205, Obama is at 160, according to data provided by the Senate Judiciary Committee. Thirty-three of those 83 empty seats are considered ‘judicial emergencies.’” The article blames both President Obama and the senate for the crisis, pointing to Obama’s record in nominating judges: “He hasn't put forward as many nominees as his predecessors, a fact that Senate Judiciary Committee ranking member Chuck Grassley (R-IA) said is fueling the crisis with judicial vacancies. By this point in their presidencies, Clinton and Bush had nominated 247 and 231 judicial nominees, respectively. Obama has only put up 215.” President Obama has been working to nominate more people to the bench since the election, keeping an eye to diversity as he does it. Since the election, he has nominated the first openly gay Latina and the first openly gay African American man.

Judicial Pay

The Federal Judges Association on November 30 filed in the United States Claims Court a class action suit on behalf of all Article III judges, seeking relief along the lines meted out in the Beer case.

Goodlatte to Become House Judiciary Chair

Representative Bob Goodlatte (R-VA) has been elected to serve as chairman of the House Judiciary Committee when the 113th Congress convenes in January. The outgoing chairman, Rep. Lamar Smith (R-TX), was term-limited from continuing to serve as chairman of Judiciary. He will serve as chairman of the House Committee on Science, Space and Technology. More information on Goodlatte is here

Congressional Ally of the Federal Courts to Depart Congress

Rep. Jo Ann Emerson (R-MO), an eight-term House member who has been a valuable friend of the federal courts, announced earlier this week that she will resign from Congress next February to become President and Chief Executive Officer of the National Rural Electric Cooperative Association.  

Emerson has chaired the Financial Services and General Government Subcommittee of the House Appropriations Committee, which oversees funding for the federal courts. During her tenure funding for the federal courts has been stable, a development due in part to Emerson’s leadership and support. The identity of Emerson’s successor as chair of the House appropriations subcommittee is uncertain at this point.

Political Identification of Judges – Does it Matter?

Adam Liptak in the New York Times recently reported on the impact of the political identification of judges on their voting records. Liptak previewed a book scheduled to be published in January by Harvard University Press, called “The Behavior of Federal Judges,” which provides the most comprehensive and detailed empirical analysis yet of the role played by ideology and political affiliation in judicial decision making.

Proposal to Change the Rules for Reassignment of Judges

An opinion piece in The National Law Journal on Nov. 19 proposes new legislation revising 28 U.S.C. 2106 to change the process of reassignment, when a court of appeals directs that, on remand to the district court, the case be reassigned to another district judge. The authors propose a ‘two strikes’ rule with a presumption in favor of reassignment, and that the legislature eliminate the balancing of judicial economy when considering the appearance of justice.”

“First, federal law should provide that cases that have twice been reversed and remanded to the same district court for the same reason are presumptively reassigned to a new judge. That is, when a district court judge is reversed, rules the same way upon remand, and then is reversed again, there would be a statutory presumption in favor of reassigning the case to another district judge who could step in to close out the case…

Second, Congress should codify a modified version of the common law of reassignment and eliminate any consideration of judicial economy in determining whether to reassign a case.”

The authors “believe that these changes are value-neutral. Instead of advantaging one segment of the bar, they benefit parties who prevail on appeal — irrespective of whether they are plaintiffs, prosecutors or defendants. This modest proposal would not constitute an improper legislative interference into the functioning of the judiciary because the circuits would retain discretion in applying the law. ... Rather than make reassignment mandatory upon a second remand, the two-strikes rule merely makes it ‘presumptively proper.’”


Hannibal Kemerer and James A. Worth, Judicial Reassignment: a Proposal, The National Law Journal, November 19, 2012.

Judicial Independence and Dangerous State Initiatives

Recent election initiatives to oust justices in Florida, Iowa, and Arizona failed by wide margins.

See: Bert Brandenberg, “Beating Back the War on Judges,” Slate, Nov. 12, 2012

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