July 2014

FY 2015 Funding for the Federal Courts

Despite optimism earlier this year that Congress would return to “regular order” and pass the full slate of annual appropriations bills, rather than default to a Continuing Resolution (CR) that extends current funding levels, there is now growing likelihood that Congress will resort to the CR option. Senate Democratic leaders are apprehensive about subjecting vulnerable Democrats up for reelection to tough votes that could come on some amendments to the funding bills when brought to the floor. That has blocked passage of any funding bills in the Senate and elevated the CR scenario.

For the federal courts, a CR will present new spending challenges for court units and administrative units, though not as severe as sequestration imposed last year. The Federal Judiciary had requested a 3 percent increase in discretionary spending for FY 2015, and FBA has supported that funding request. Flat funding under a CR will require some absorption of increasing costs, including GSA rent, which represents 20 percent of the courts’ entire budget.

Judicial Vacancies

The upsurge in Senate action filling judicial vacancies continued in June. At this point in 2014, the Senate has confirmed 54 nominees, compared to 43 in all of 2013. The current number of judicial vacancies, 61, represents the lowest seen during the Obama administration. The vacancy report, as of July 14, reflects:

  Vacancies Nominees Pending
Courts of Appeal 10 3
District Courts 50 25
US Court of International Trade 1 0
Total 61 28

What has triggered the rapid pace of confirmations? In a recent analysis, Brookings Scholar Russell Wheeler suggests that the Senate rules change effected last November has had some impact, but the greatest factor has been Senate Democrats’ desire to secure as many nominations as possible before the November elections, with the possibility of losing majority control of the Senate.

On June 26, President Obama nominated three candidates to judgeships in the Eastern and Western Districts of Texas, which have long been vacant. Eight of eleven vacancies pending in Texas yet remain. Overall, Texas remains in a state of judicial emergency. According to the Judicial Conference of the United States, Texas needs at least eight new judgeships to meet its growing federal caseload, in particular criminal cases, which have skyrocketed in recent years.

In Pennsylvania, another state with a high number of vacancies, President Obama in mid-June nominated four candidates in the Eastern District of Pennsylvania. If confirmed, the nominees will fill four of the five current vacancies in that district. Ironically, none has judicial experience. They include a former Pennsylvania attorney general, an ex-lawyer for the Philadelphia School District, and the president of the Pennsylvania Bar Institute.

The willingness of Senate Majority Leader Harry Reid to use up floor time, which could be spent on other legislative priorities, remains a major factor. In his first remarks after the July 4 holiday, Leader Reid threatened to change the Senate rules further by limiting the minority’s ability to force lengthy debates on non-contentious nominations. Existing rules allow for up to 30 hours of debate on cabinet nominations and circuit judges, and 8 hours on sub-cabinet nominations. A significant number of executive and judicial nominations (145) are pending on the Senate calendar, with relatively few legislative days remaining between now and the end of the session. Congress will be in session for the remainder of July, then off for August, back for a few days in September, then head home for the October campaign surge before Election Day. They could return for a lame duck session, where hope springs eternal, but little gets actually done.

FBA Public Affairs

FBA President Gustavo Gelpi is featured in an “On Topic” audio interview on the Federal Judiciary’s website. Judge Gelpi discusses FBA’s mission, his presidential priorities, and FBA’s advocacy efforts and other topics.

Veterans and Military Law Section Letter to Congress

The Veterans and Military Law Section on June 24 expressed concern, in a letter to Congressional leaders, over provisions in the House and Senate-passed veteran bills that, the Section believes, could lead to the politicization of the senior career ranks of the Department of Veterans Affairs and make it increasingly harder for the Department to attract and retain highly qualified talent to its ranks.


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