February 2011

1. FBA-Brookings Program on February 28 on the Judicial Nominations and Confirmations Logjam

On February 28, the Federal Bar Association and the Brookings Institution will host a Judicial Issues Forum in Washington, D.C. on the the growing crisis over vacant judgeships in the federal courts.

The program, titled “Breaking the Judicial Nominations and Confirmations Logjam,” will focus on how the federal judicial nominations and confirmations process has devolved over recent decades and its impact on the work of the federal courts, along with the prospects for improvement.

Of the 856 federal district and circuit judgeships, 100 judgeships (as of February 10) are unfilled, with almost half of those vacancies classified by the judiciary as “judicial emergencies.”  The nominations of forty-seven judicial nominees are pending in the Senate.  Vacancies have increased more under the current administration than under prior ones, especially on the district courts, but problems in the Senate confirmation process have been developing over the last several decades.  In his year-end report on the “State of the Judiciary,” Chief Justice John G. Roberts, Jr. called for a long-term solution to filling judicial vacancies, reigniting debate on how to move beyond gridlock over the selection of federal judges. 

The FBA-Brookings program on February 28 will examine what can and should be done to break the judicial appointments and confirmations logjam.  FBA leaders, federal judges, former Congressional and Department of Justice officials, and Brookings scholars will participate in the program, consisting of two program panels.  The first panel will examine nomination and confirmation trends, as well as assess the impact of judicial vacancies on the courts.  The second panel will focus on the prospects for change in the 112th Senate and beyond, including the impact of recent changes to the Senate’s rules.

The program will take place on Monday, February 28, from 2:00 – 5:00 pm in the Falk Auditorium of the Brookings Institution, 1772 Massachusetts Avenue, NW, in Washington, D.C.  The program is free with pre-registration available through the Brookings Institute website .  A live audio feed of the program will be available on the FBA and Brookings websites, and a transcript of the program will be published shortly afterwards. 


2.  Positive Signs Emerge from Bipartisan Senate Rules Agreement

The Senate made progress on February 7 in filling some judicial vacancies by confirming three noncontroversial judicial nominees to the federal district courts in Arkansas, Oregon and Texas.  On February 3 the Senate Judiciary Committee approved 11 judicial nominees by voice vote, clearing the way for consideration of these nominees by the full Senate.

These positive actions were the outgrowth of a “gentlemen’s agreement” reached in late January by Senate Majority Leader Reid and Minority Leader McConnell to speed up consideration of legislation and nominations. The agreement does not directly constrain filibusters and only indirectly impacts judicial nominations, although comity emerging from the bipartisan pact could extend to the pace of judicial confirmations.  The pact is memorialized in a colloquy printed in the Congressional Record.  In addition, the Senate adopted a pair of resolutions that addressed two points of the deal. 

The agreement:

• Clears the way for two Senate panels to write legislation to cut by a third the number of executive branch nominees requiring Senate confirmation. 

• Permits senators in the minority to offer more amendments to legislation if they do not try to limit, or filibuster, efforts to bring up such bills or nominations.

• Blocks the majority and minority leaders from resorting to parliamentary maneuvers to change the Senate rules through a simple majority vote — a tactic known as the “nuclear option” or “constitutional option” to change the rules.

• Curtails the ability of a Senator to block anonymously Senate consideration of a piece of legislation or a nomination. (S Res 28, adopted 92-4)

• Bars Senators from requiring the full reading of legislation or an amendment if the text of the measures had been publicly available for at least 72 hours. (S Res 29, adopted 81-15)


3.  Obama Administration: Judicial Vacancies Become Top Priority

In other news concerning judicial vacancies, the Obama administration said it will make filling judicial vacancies a top priority in the new Congress.  White House counsel Bob Bauer made the announcement during remarks on February 1 at the American Constitution Society.  

Bauer said the administration “seeks to raise the sense of urgency” of the problems caused by the large number of empty slots on the federal bench.  “The confirmation rate is perilously low,” Bauer said, resulting in a large number of vacancies deemed judicial emergencies where the “cases filed exceed the [court’s] capacity to hear them.”  He placed the blame on an “absence in the political sphere … of a sense of urgency” and a misguided assumption that the “heavy costs [of vacancies] are bearable” for the judiciary and the American people.

Bauer attributed the "pernicious" crisis over the state of confirming judicial nominees to a Cold War-style political standoff that few properly witnessed or understood.  Bauer declined, from the outset, to assign blame for the poor rate and state of judicial confirmations in the Senate. There was, he said, "no need for rhetorical embroidery." But he did call the state of affairs "disturbing" and castigated even seasoned political observers for not recognizing the gravity of the crisis.

"If it is a war," he said, "it is a cold and not a hot war ... Nominees left languishing on the floor for as much as hundreds of days without a vote, are basically ignored, not because ... of perceived deficiencies in their record or shortcomings as a potential jurists. It is a quiet blow to the process. But it is a heavy blow nonetheless. No shouting on the floor, just nothing on the floor. It is as if ... it did not matter at all. But of course it matters a great deal: to the nominees, to the courts to which they were nominated to serve, and to the parties to those courts."

"The confirmation rate is perilously low. And one result is the large number of seats designated as judicial emergencies. More than half of the nominations now pending in the Senate are judicial emergencies," said Bauer. "If it is okay to keep the courts short of the judges needed to administer justice, than this only goes to show how the costs have become bearable and how the loss of the quality of justices have some how come to see not to matter."

"I'm convinced in conversations with Republicans and Democrats that there is a growing recognition that however we got to this point, over however many years, we cannot in good conscience remain here," Bauer said.

During the last Congress, the Senate confirmed a total of 60 judicial nominees — the lowest total of federal judicial confirmations during the first two years of a presidency in the last 35 years, according to the Senate Judiciary Committee.  Before adjourning in late December, the Senate confirmed 19 judicial nominees to the federal courts, leaving behind an equal number of nominees who had been reported out of the Senate Judiciary Committee and others pending in committee.  The confirmed 19 nominees were all ones that had been reported out of the Senate Judiciary Committee prior to the November elections.

Looking ahead, Senate Democrats recognize that greater attention in coming weeks will be paid to giving the confirmation process the necessary floor time. The prospect of "Judicial Mondays" has been considered, in which the first day of each week would be spent confirming specific, or groups of, nominees.  “Suspension votes” on nominees, similar to expedited votes in the House, might also be used to give greater regularity to the confirmation process.


4.  State of Judicial Emergency Declared in Arizona

Judge Roslyn O. Silver, the chief district judge in Arizona, on January 25 declared a “judicial emergency” in Arizona, citing record-high federal felony caseloads. The Arizona federal court has the third highest criminal caseload in the nation driven by illegal immigration and drug smuggling across the U.S.-Mexico border. Criminal cases have increased 65 percent since 2008, when the federal government greatly expanded its law enforcement efforts along the border. The bulk of the criminal caseload is assigned to the court’s Tucson division, where approximately 1,200 cases are handled by three judges. The late Chief Judge Roll was assigned to the Tucson division.

Judge Roll’s death created the third vacancy on the Arizona bench, which consists of 13 judgeships.  Two of the three vacancies are in the Tucson division.  The rising criminal caseloads predated Judge Roll’s death, but his loss compounds an already serious situation.  He was already working on the judicial emergency declaration before his death.

A chief judge’s declaration of judicial emergency, which is different than the “judicial emergency” label assigned to specific vacant judgeships, provides temporary breathing room for the court to assure that it is not in violation of federal statutory requirements that mandate bringing accused criminals to trial within strict time periods.  During a judicial emergency, the time limit may be extended to a maximum of 180 days.

Judge Silver declared the emergency after discussing the matter with the Judicial Council of the Ninth Circuit at a special meeting held January 20, 2011, in San Diego.  At Judge Silver’s request, the Judicial Council agreed to exercise its authority under federal law to extend the judicial emergency by one year.


5.  Public Understanding and Respect for the Courts

A recent USA Today article examined the interaction between the judicial, executive and legislative branches and concluded that increased politicization “could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.” Despite relatively limited public understanding of the Supreme Court and its role, the Court has enjoyed a consistently positive public image for a quarter century, a recent Pew Research Center survey reported.  With the public’s views of the federal government and Congress in deeply negative territory, the Supreme Court’s 58% overall favorable rating stands out as even more of an exception.  


6.  Two New Members Named to Judicial Conference’s Executive Committee

Chief Justice John Roberts Jr. on December 28 appointed two federal trial judges to the Executive Committee of the policy-making Judicial Conference of the United States. They are Chief Judge Sarah Vance of the Eastern District of Louisiana and Judge Robin Cauthron of the Western District of Oklahoma.  Their appointments fill the Executive Committee’s eight-member roster. They join Committee chair, Chief Judge David Sentelle of the Court of Appeals for the D.C. Circuit and other committee members: Chief Judge Harvey Bartle of the Eastern District of Pennsylvania; Chief Judge Joel Dubina of the Court of Appeals for the 11th Circuit; Judge Rodney Sippel of the Eastern District of Missouri; Chief Judge William Traxler of the Court of Appeals for the 4th Circuit. Administrative Office Director James Duff is a non-voting member of the Committee.

The Judicial Conference has 27 members. The Chief Justice serves as its presiding officer. Its other members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the judicial branch

Prepared by Bruce Moyer
Counsel for Government Relations
Federal Bar Association
Email: grc@fedbar.org

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