February 2013


Sequestration and the Courts

As March 1 and the sequester draw closer, there is a resigned acceptance in Washington that sequestration will take effect and not be averted.  Despite a proposal from President Obama and two House-passed bills to avoid the sequester, any resolution over federal spending for the remainder of the fiscal year may not be resolved until late March or early April.  That means the sequester will likely take effect and continue for possibly a month or more, with the potential for some cuts in federal court spending continuing through September 30.

The expiration on March 27 of the Continuing Resolution, which has kept the government funded, will create another witching point for further brinksmanship between the President and House Republicans.  The failure to agree upon a new CR could result in a government shutdown for an unknown period, on top of the sequester, before final resolution is reached.  Some House Republicans are not necessarily convinced that a shutdown would work to their disadvantage, at least at this point, despite the public blowback in 1995-96 associated with the two shutdowns that lasted for a total 28 days.

Under sequestration, the federal courts and domestic agencies (including the Department of Justice) will face a 5.1 percent cut in their FY2013 budgets.  The Defense Department and components will face an 8 percent reduction.  Planning guidance from OMB points to as much as 22 days of furloughs (1 a week) between now and the end of the year at some agencies. Many agencies will try to hold off furloughs as long as they can.  But they also know that if the ultimate cuts are as large as the sequester demands, the longer they wait, the more intense the personnel medicine may need to be to achieve the same savings.    

Within the federal court system, the federal courts are looking at the prospect of furloughs of court staff, including clerk's office personnel, although the Judicial Conference and the Administrative Office have given district and circuit courts flexibility in approaching how they will handle cuts.  This could lead to some courts curtailing operations, or even shutting down operations one day a week, but no courts have yet announced plans to do that.  Like many federal agencies, the federal courts are holding their sequestration planning cards tight to their vests.  Additional belt-tightening measures may be announced by the Administrative Office in early March. 

The bottom line is that everyone knows that cuts are coming, and likely more will come in FY 2014.  These budgetary potholes will be here for a while, as long as the budget battles continue in Washington.  We are only at the beginning of a 10-year cycle, established by the 2011 budget law, that imposes a sequester in any year when the savings target has not been achieved for that year.  
 

Judicial Nominations and Vacancies

There has been a spike in the number of vacancies, due largely to the retirement (or senior status) decisions, effective January 1, of nearly a dozen federal judges from the district and circuit bench.  These vacancies were not unexpected, due to the prior notice that all of them provided to the Judicial Conference. 

Here are the current vacancy numbers:

  Vacancies Nominees Pending
Courts of Appeal 18 8
District Courts 68 24
US Court of International Trade 2 2
Total 88 34

The Senate Judiciary Committee on February 7 approved by voice vote the nominations of the following three non-controversial circuit court candidates, renominated by President Obama on January 3:

  • Robert Bacharach, Tenth Circuit
  • William J. Kayatta, Jr., First Circuit
  • Richard Gary Taranto, Federal Circuit

All three nominees nearly crossed the confirmation line during the last Congress, but for the Thurmond Rule.


Judicial Nominations and Filibuster Reform

New changes in the Senate's procedures governing filibusters, adopted by the Senate on January 24, could trim the amount of time it takes to approve federal district judicial nominations. The set of relatively modest changes approved by the Senate shortens the time limit on debate before the Senate casts an up-or-down vote on federal district nominees, as well as some executive branch nominees.

Under the standing order approved by the Senate by a 78-16 vote, debate on district judicial nominations following a filibuster will be limited to two hours. Previously as many as 30 hours of Senate floor debate had been permitted. The rule change, which is set to last only for the next two years, does not set set debate limits on nominees to the Supreme Court or the appellate courts.

The past four years have seen an increase in the amount of time that federal district judicial nominees waited to receive a Senate floor vote. On average, a district court nominee waited 139 days, from the time of hearing to a floor vote, compared to 54 days during the Bush administration, or 30 days during the Clinton Administration.

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