January 2013

Fiscal Cliff and Sequestration

The House of Representatives during a rare New Year’s Day session (only the seventh ever) voted 257-167 to approve Senate-crafted legislation (the “American Taxpayer Relief Act of 2012”, H.R. 8) that prevented the United States from going over the so-called “fiscal cliff. The President signed the law on January 2, 2013. The legislation deferred the massive across-the-board federal spending cuts, known as sequestration, for two months, in addition to averting higher taxes for most Americans.

Temporarily postponing sequestration will mean that that a perfect storm of brinkmanship between Congressional Republicans and the President could come about in late February, when the issues of spending cuts, along with raising the debt ceiling, will need to be resolved. The third moving piece in the perfect storm will involve the continuation of current fiscal year government funding, which also is set to expire on March 27. Entitlement reform and tax reform are also part of the negotiations.

For the federal courts, the continuing uncertainty and risk of significant budget cuts is heightened. Even if the ultimate cuts are smaller than the 8.2% that sequestration would have required, the cuts nonetheless could be significant and exceedingly painful, requiring furloughs or firings of some federal court staff at some federal courthouses. By March 1, the federal courts (and the rest of the government) will be nearly six months into the 2013 fiscal year. That will require budget reductions to be compressed into a seven-month budget cycle, not a 12-month one, making cuts more severe.

The situation is complicated by the fact that the Federal Judiciary occupies a unique place in the federal budget. Despite the critical importance of the federal courts in our nation, funding for the federal judiciary represents a “miniscule” portion of the federal budget, as the Chief Justice pointed out in his recent year-end report. The Courts’ annual appropriation of almost $7 billion represents only 0.2 percent of the United States’ total budget of $3.7 trillion. This means that only two-tenths of one penny of every taxpayer dollar goes toward funding an entire branch of the federal government. “Those fractions of a penny are what the courts need to keep court facilities open, pay judges and staff, manage the criminal justice system (including pre-trial, defender, and probation services), process civil disputes ranging from complex patent cases to individual discrimination suits, and maintain a national bankruptcy court system,” the Chief Justice noted. “Those fractions of a penny are what Americans pay for a Judiciary that is second to none.”

The Federal Bar Association believes this is a situation that compels special attention by Congress in the upcoming budget negotiations to assure that the administration of justice is adequately funded and that justice throughout the country continues to be promptly delivered. The FBA -- through its member components at the circuit, chapter and section levels -- will continue its national advocacy campaign over the coming weeks to educate Congress on the vital role that the Federal Courts play, the impact that deep budget cuts would have on the Courts, and the need for assuring appropriate budget attention for the federal courts during the budget negotiations.

Chief Justice Roberts’ End-of-Year Report

Chief Justice Roberts underscored the budget challenges facing the federal courts in his eighth year-end report, saying the federal courts already are doing their part in holding the line on spending. Roberts pointed to ways the courts were seeking to save money by reducing rented space, trimming staffs and making smart use of information technology.

As noted above, Roberts said the Supreme Court, all other federal courts, the Federal Judicial Center and the Administrative Office of the United States Courts together consume a “minuscule” portion of the federal budget: $6.97 billion of a $3.7 trillion allocation. “Yes, for each citizen’s tax dollar, only two-tenths of one penny go toward funding the entire third branch of government!” Roberts wrote. “Those fractions of a penny are what Americans pay for a judiciary that is second to none.”

The Chief Justice further noted that, unlike executive departments, the courts “do not have discretionary programs they can eliminate or projects they can postpone. The courts must resolve all criminal and civil cases that fall within their jurisdiction, often under tight time constraints.”

He called on President Obama and Congress “to be especially attentive to the needs of the judicial branch and provide the resources necessary to its operation.” “Because the judiciary has already pursued cost containment so aggressively, it will become increasingly difficult to economize further without reducing the quality of judicial services,” he wrote. “Virtually all of the judiciary’s core functions are constitutionally and statutorily required. Unlike executive branch agencies, the courts do not have discretionary programs they can eliminate or projects they can postpone.”

The Chief Justice repeated his call for the Executive and Legislative branches to cooperate to reduce the number of vacancies on the federal bench. He did not choose sides or suggest that blame lies with the president’s pace of nominations or Senate Republicans stalling even noncontroversial nominations. “At the close of 2012, 27 of the existing judicial vacancies are designated as presenting judicial emergencies,” Roberts wrote. “I urge the executive and legislative branches to act diligently in nominating and confirming highly qualified candidates to fill those vacancies.”

An appendix to the chief justice’s report on the workload of the federal courts showed decreases in the Supreme Court’s docket and in the number of cases it is deciding. In the term that ended last year, the number of requests for Supreme Court review dropped by almost two percent from the previous term. The justices issued just 64 signed opinions in the most recent term, down from 75.

Judicial Nominations and Vacancies

At the conclusion of the 112th Congress, 33 judicial nominees remained pending. On the first day of the 113th Congress, January 3, 2013, President Obama resubmitted to the Senate the names of those 33 nominees. Eleven of them had won Senate Judiciary Committee approval but had not been not brought up for confirmation votes on the Senate floor because of Republican leaders' objections. They included four circuit nominees, all of whom had waited six to nine months for a final Senate floor vote. Among them: Third Circuit nominee Patty Shwartz of New Jersey, First Circuit nominee William Kayatta of Maine, Tenth Circuit nominee Robert Bacharach of Oklahoma and Federal Circuit nominee Richard Taranto.

Looking back, beginning when President Obama took office in 2009, the number of vacant judgeships has risen. Partisans on both sides offer different explanations, with Republicans faulting the administration for taking too long to make nominations, and Democrats faulting Senate Republicans for dragging their feet in approving Obama's nominees. Both sides are correct. A recent analysis of Obama’s judicial nominations record by Brookings scholar Russell Wheeler notes that Obama’s first term saw comparatively fewer nominations, submitted relatively later, with greater times from district vacancy to nomination and confirmation, and an increase in vacant judgeships.

As the 113th Congress began, there were 80 open seats on U.S. district and appellate courts, roughly 9% of the total. Twenty-seven of the vacant seats constitute "judicial emergencies" due to the heavy workload of their respective courts and the time during which the seats have remained vacant.

  Vacancies Nominees
Pending
Courts of Appeal 17 7
District Courts 61 24
US Court of International Trade 2 2
Total 80 33

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.

Filibuster Reform

On December 11, 2012, the Federal Bar Association in a letter urged Senate leaders during the lame duck session to promptly schedule floor votes on pending, noncontroversial United States circuit court nominees and district court nominees who had cleared the Senate Judiciary Committee with strong bipartisan support. The FBA also encouraged cooperation among Senators to avoid undue procedural delays that have slowed the judicial confirmation and compounded the judicial vacancy crisis.

Increasing partisan obstruction of Senate floor votes on judicial nominations and legislation are giving rise to calls for reform of the Senate’s parliamentary rules, including those addressing the filibuster. Technically, a two-thirds vote in the Senate is required to change any of the chamber’s rules. In practice, it can be accomplished with 51, if the majority decides to exercise that authority, especially on the first day of a new session of Congress. This is called the “nuclear option” or “constitutional option.”

Senate Democrats are continuing to discuss what reforms they favor and whether they will push for adoption of changes by a simple majority of 51 votes, likely around January 22. Four potential changes in the rules are being considered, including requiring Senators to actually engage in a “talking filibuster” like the one in the movie “Mr. Smith Goes to Washington,” rather than being allowed to stall the process by merely threatening to filibuster. Other potential reforms include limitations on obstructions to the first parliamentary step in bringing a bill to the floor, called a “motion to proceed,” as well as curbs on the blockage of convening a conference of House and Senate lawmakers to reconcile differences in bills passed by both chambers.

A bipartisan group of eight senators on December 28 offered a proposal to change some of the chamber’s rules, but not go as far as overhauling its rules concerning the filibuster. The proposal would be considered as a “standing order,” which requires 60 votes to pass and would sunset at the end of the two-year Congress.

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