December 2014

Lame Duck, Part II

Congress has returned to Washington to conclude the second part of its lame duck session, which is likely to last until mid-December. The first part of the lame duck session occurred prior to the Thanksgiving holiday and was focused largely on the shift in control in the Senate and selection of new House and Senate committee chairs. Sen. Charles Grassley (R-IA) and Rep. Robert Goodlatte (R-VA) were selected chairs of the Senate and House Judiciary Committees. Sen. Patrick Leahy (D-VT) and Rep. John Conyers (D-MI) will serve as the respective ranking members. The Federal Bar Association has enjoyed a good working relationship with all four lawmakers.

While much speculation in the nation’s capital continues to focus on the shape of the House and Senate legislative agendas in the upcoming Congress, the most immediate priority attaches to a trio of must-do-tasks lawmakers must accomplish before this session draws to a close. That list includes approval of a tax extenders package, defense policy legislation and government funding.

On the government funding front, current law will continue to keep the government funded through December 11. House leaders hope to bring to the floor a hybrid bill that funds 11 appropriations titles through the end of fiscal 2015, while extending only short-term funding to the Department of Homeland Security into March. The short-term DHS funding is intended to provide a time-release opportunity next spring to attach immigration-related policy riders that respond to the President’s recent executive order temporarily blocking the deportation of millions of undocumented immigrants.

While negotiations continue between House and Senate appropriations leaders over the shape of the government funding bill, funding levels for most departments and programs have been decided and most of the remaining disagreements center on policy provisions included in the funding legislation.

How many of those policy differences get settled will largely determine how many of the 11 appropriations titles ultimately get included in the long-term funding part of the bill. The Judiciary’s funding is included in the Financial Services and General Government title, where there are two disputes over policy riders involving IRS funding levels and whether to rein in the District of Columbia’s new marijuana policy. If those disputes cannot be settled between House and Senate negotiators over the next several days, funding for that title and all components under it, including the Judiciary, could revert to inclusion in the short-term Continuing Resolution at last year’s funding level.

If the Judiciary’s funding is included in the long-term part of the funding measure, the funding level is likely to come close to the Judiciary’s original request of $6.7 billion in discretionary appropriations, a 3.1 percent overall increase above the prior fiscal year.

Judicial Vacancies

The vacancy report, as of December 2, reflects:

  Vacancies Nominees Pending
Courts of Appeal 7 2
District Courts 48 25
US Court of International Trade 3 1
Total 58 28

Nineteen of the current judicial vacancies are considered “judicial emergencies” by the Judiciary, due generally to the length of the vacancy and the amount of cases pending in the district that the sitting judges must handle.

Judicial vacancies fell in the last month, due to the confirmation of eight district judges. Three of the eight confirmed nominees filled vacancies in Georgia judicial districts. Ten nominees cleared the Judiciary Committee last month as well and await floor votes.

Senate Democrats are under increasing pressure to secure the confirmation of as many judicial and executive nominees as possible before they lose control of the Senate at the conclusion of the current Congress. More than 150 judicial and executive nominees remain pending, stuck in limbo due to Republican procedural maneuvering. Among them are twenty-one judicial nominees to judgeships on District courts, the U.S. Court of Federal Claims, and the U.S. Court of International Trade.

A substantial number of the 32 vacancies without nominees are concentrated in states with GOP Senators. Nearly 20 percent of the vacancies exist in Texas, with most without nominees.

House Panel Holds Hearing on Cameras in the Courts

A House Judiciary subcommittee held a hearing on broadcast coverage of the federal courts on December 3. The hearing went much as other Congressional hearings on the subject have in the past, with a bipartisan array of Congressional proponents and witnesses testifying for cameras in the courts, with a lone witness from the federal judiciary testifying why cameras would not necessarily advance the interests of justice. Bills have been introduced and hearings held over the past twenty years to require or encourage the federal courts to permit broadcast coverage of their proceedings. None have passed.

The ultimate outcome rests with the federal judiciary, and Congress recognizes that and separation-of-powers implications of the issue. The legislative proposal under consideration at the House hearing, the Sunshine in the Courtroom Act, H.R. 917, would only authorize the courts to permit cameras in their courtrooms, not mandate them. The federal judiciary has used that authority in limited ways. Two circuits, the Second and Ninth, have permitted camera coverage of televised some of their proceedings. And the federal judiciary is in the midst of a pilot program, ending next July, that has allowed video recording of civil proceedings in 14 district courts around the country. The conference will analyze the results before deciding whether to change its policy against broadcast access at the trial level.

The past chairwoman of the Judicial Conference committee overseeing the pilot program, Judge Julie Robinson of the U.S. District Court for Kansas, testified at the House hearing, noting concerns over the intimidating effect of camera coverage on jurors, witnesses and other trial participants. That intimidation could affect the credibility of witness testimony and diminish the fairness of trials, she said.

The Shape of the Supreme Court

  • At a Yale University alumni event last month, Supreme Court justices Clarence Thomas and Sonia Sotomayor noted concern about the lack of diverse legal and life experience among those who sit on the country's highest, according to an Associated Press report. According to Justice Thomas, “we should be concerned” about the fact that all nine Supreme Court justices attended either Yale or Harvard University. “I'm sure Harvard and Yale are happy, but I think we should be concerned about that. I think we should also be concerned that we have such a strong Northeastern orientation . . . But I couldn't say that somebody who’s a colleague of mine shouldn’t be there.” Justice Sotomayor commented that many of the justices are from big law firms, but few are from middle courts. “We need diversity of not just life experience, but legal experience,” she said. 
  • In a commentary in the Washington Post, Paul Waldman noted the huge impact the next presidential election could have on the composition of the Supreme Court and the everyday lives of Americans. That’s because the next president could have a chance to shift the court majority, Waldman says. “The consequences for Americans’ lives will probably be more consequential and far-reaching than any other issue the candidates will be arguing about.”

FBA “View from Washington” Video

The latest on demand FBA Government Relations video, providing details on what federal practitioners and judges should expect in the upcoming 114th Congress, as well as the shape of FBA’s legislative agenda in 2015, is now available on the FBA website. Click here to view the 18-minute video, recorded by FBA Government Relations Counsel Bruce Moyer on November 20, 2014.

GRC-Sponsored Events at the 2015 FBA Mid-Year Meeting

FBA is delighted that Lyle Denniston, the dean of the Supreme Court press corps, will deliver the keynote luncheon address at the FBA Mid-Year Meeting on Saturday, March 28, 2015. The second-half of the morning program (beginning at 10:30 am) will focus on the Foreign Intelligence Surveillance Court and the balance of intelligence gathering and civil liberties. More details on the session will be forthcoming.

Plan to Participate in FBA Capitol Hill Day - April 30, 2015

FBA members (and especially incoming chapter presidents) are encouraged to register to attend Capitol Hill Day on April 30, 2015.
During this important event, FBA leaders from across the country will meet with House and Senate offices to discuss the administration of justice and the federal courts, including adequate funding for the federal courts,
filling judicial vacancies promptly, and establishing enough judgeships to render justice.

Capitol Hill Day is held in conjunction with the 2015 Leadership Training Program (May 1-2, 2015). All chapters are encouraged to send a representative to this event. Because reimbursement is available for attendees of the Leadership Training Program, chapters who wish to have their representatives participate in Capitol Hill Day will only need to incur the cost of one additional night of lodging.

Participants are responsible for preparing for and scheduling their meetings with their Senate and House offices in advance of the event. Feedback on these meetings is distilled
during the Group Debriefing at the end of the day. The day begins with a briefing on the legislative issues by GRC Chair West Allen and FBA Government Relations Counsel Bruce Moyer.

Between meetings, participants will have the opportunity to visit the Senate and House galleries, as well as the Capitol Visitors Center.

More information and registration is available here


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