February 2014

Federal Shutdown and Court Funding

The funding picture for the federal courts has improved as a result of Congressional approval in January of an FY 2014 omnibus government funding measure that funds the federal judiciary at its requested level of $7.042 billion. The FY 2014 measure provides for a 5.1% increase in discretionary funding to the federal courts. The measure generally restores “regular order” to the funding process for government operations this year, removing the threat of a government shutdown. While moderate budget constraints will continue in some respects, court units largely will be spared the financial crisis that existed throughout the federal court system in 2013.

Judicial Vacancies

Here are the federal court vacancy numbers, as of February 24:

  Vacancies Nominees Pending
Courts of Appeal 16 10
District Courts 80 49
US Court of International Trade 0 0
Total 96 59

Thirty-nine of the 96 vacancies have been designated “judicial emergencies” by the Judicial Conference. Of the 59 nominees to the federal bench, more than two dozen judicial nominations await Senate floor action. Most all of these are nominees are holdovers from last year; nominations from last year’s session of the Senate had to be resubmitted and clear committee again in this session. One nominee currently awaiting a floor vote, John Owens, would fill a Ninth Circuit appeals court seat that's been vacant for more than 3,325 days. Another nominee, Beth Freeman, would fill a district court seat in the Northern District of California that's been empty for more than 860 days.

Up-or-down full Senate votes on these nominations (most of which have cleared the Senate Judiciary Committee without controversy) is expected to slowly occur, as Republicans force time-consuming cloture votes and the use of all of the debate time to protest the Democrats’ implementation of the “nuclear option” on judicial and executive branch nominations. Last November, Democrats unilaterally changed the Senate’s filibuster rules so that a simple majority can advance most judicial and executive branch nominees. Prior to the rules change, 60 votes were needed. Republicans have argued that the use of the nuclear option has negatively changed the Senate by limiting the minority party’s rights. Democrats have argued that the rule change was necessary to overcome Republican obstruction of qualified nominees. The FBA has refrained from taking sides in the partisan struggle over these rules, and instead has urged in a non-partisan way that the White House and Congress make the elimination of judicial vacancies a high priority and work to minimize vacancies through prompt action in nominating judicial candidates to the federal bench and assuring prompt consideration and guaranteed up-or-down votes in the Senate.

Additional Issues

Patent Litigation Reform.
Both chambers of Congress appear committed to passing legislation that cracks down on frivolous patent infringement lawsuits by making changes to the civil litigation system. The lawsuits are being brought by patent “trolls,” or entities that obtain patents for the express purpose of filing infringement lawsuits against companies and consumers. The House of Representatives late last year passed a patent reform measure (The Innovation Act, H.R. 3309) by a wide margin, and the Senate is expected to take up its own version soon. The White House supports elements of both the House-passed plan and the pending Senate bills, making patent litigation overhaul one of the few areas of possible bipartisan compromise in Congress in 2014. The GRC is wrapping-up its review of the pending legislative proposals and preparing to share its views with FBA’s leadership.

Immigration Reform. This area will be more difficult. The Senate last year passed a comprehensive immigration bill (S. 744) that would do many things, foremost set in motion a process to grant citizenship to undocumented immigrants. The Senate bill would provide additional resources to the backlogged 59 immigration courts in the Justice Department, which hear deportation and other appeals. The courts are falling behind due to the record pace of deportations initiated by the government. The Senate-passed bill and a similar bill introduced by House Democrats would authorize 225 more immigration judges over three years, as well as additional staff -- one law clerk per judge, rather than the current three-to-one judge-clerk ratio. Whether Congress goes further and reorganizes the immigration court system remains uncertain. The FBA supports the establishment of an Article I immigration court through the consolidation of the Justice Department’s immigration courts. The court system would work in ways similar to the bankruptcy courts.

Criminal Sentence Reform. Growing concerns over the rising costs of federal prisons and the fairness of mandatory minimum sentences have prompted bipartisan proposals to change federal sentencing laws over drug-related crimes. The Senate Judiciary Committee in January approved legislation (The Smarter Sentencing Act, S. 1410) that would reduce mandatory sentence penalties and give federal judges greater discretion at sentencing to depart below mandatory minimums. The changes are aimed at reducing the size of the overcrowded federal prison population (now at 220,000 inmates) by both reducing the number of people entering the prison system and sentence length (so-called “front-end” measures). Another bipartisan measure aims at releasing inmates at an earlier point, including through to community corrections programs (“back-end measures.) The FBA Issues Agenda supports “efforts to advance fairness and consistency in federal sentencing, while preserving judicial independence and discretion to deal with the particular circumstances of individual cases.” 

Issues Agenda

As set forth above, FBA leaders, members and organizational components are invited to nominate issues for inclusion in the next annual update of the FBA Issues Agenda. The deadline for nominations is Friday, April 4. The Issues Agenda nomination form is attached. The current Issues Agenda is here.


Judicial Vacancies Panel at Mid-Year. The GRC is coordinating a panel discussion on judicial vacancies on Saturday morning, March 29, during the FBA Mid-Year meeting. The panel will involve leading officials from the White House Counsel’s Office and the Senate Judiciary Committee. We expect this to be an informative session gauged to assist FBA leaders in better understanding the judicial nominations process and the opportunities for involvement.

Capitol Hill Day. All chapter leaders also are encouraged to participate in FBA Capitol Hill Day on Thursday, April 24, immediately prior to Leadership Training. During meetings on Capitol Hill with lawmakers and staff, FBA participants will urge Congressional attention to judicial vacancies and judgeships. Last year nearly two dozen FBA leaders participated in Capitol Hill Day, and we expect even more this year. The Capitol Hill Day registration flyer is attached.

Presentations to Chapters. On October 9, 2013, Government Relations Counsel Bruce Moyer presented a government relations update to the South Florida Chapter in Miami, Florida at its monthly luncheon program. On November 25, 2013, Mr. Moyer also presented an update to the executive committee and judges of the FBA Dayton, Ohio Chapter. Government Relations Committee Chair West Allen on January 24, 2014 presented a government relations update to the monthly luncheon meeting of the Middle District of Florida Chapter in Orlando, Florida.

GRC Webinar. A free webinar on the funding perils faced by the federal courts also was posted on the FBA website in November 2013. It helped to educate FBA members on the funding situation and how they could participate in FBA’s advocacy efforts.


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