June 2010

Judicial Vacancies
Filibuster Reform
Courthouse Construction
Judicial Conference on Civil Litigation in the Federal Courts
Bankruptcy Judgeships
Federal Litigation Over the Gulf Oil Disaster
Kagan Nomination
Term Limits for Supreme Court Justices
Souter Address on Constitutional Interpretation
The High Court's Ultimate Verdict on the New, New Deal
Legislative Response to Citizens United

Judicial Vacancies

As of June 3, 103 judicial vacancies remained in the Article III federal courts, with 46 nominees awaiting Senate confirmation. Here are the details:

   Vacancies  Nominees Pending
 U.S. Courts of Appeals  17  11
 U.S. District Courts   86  35
 TOTAL  103  46

Filibuster Reform

The filibuster, or threats of filibuster, of the confirmation of judicial candidates has been especially pronounced in recent years.  Senate Majority Leader Harry Reid (D-Nev.) pledged earlier this spring to take a serious look at revising the filibuster rules at the beginning of the next Congress, calling the current level of obstruction in the Senate unacceptable. The filibuster is a procedural tactic that increasingly has delayed and threatened the work of the Senate on a range of issues beyond judicial nominations.

Over the past two months the Senate Committee on Rules has held two hearings on the origins and use of the filibuster.  Senate Rules Committee Charles Schumer noted in his opening statement at the April 22 hearing: “In the first half of the 20th century, filibusters and filibuster threats were relatively rare events.  From the 1920s through the 1950s, an average of about ten cloture motions were filed per decade. That number almost tripled to 28 during the 1960s, the era of controversial civil rights legislation. But after that things really started to take off – a total of 358 cloture motions were filed in the 1990s, and from 2001 through 2009, there were 435 cloture motions filed.  Clearly, the filibuster has changed over the years. Not only is it used a lot more now, but the threat of filibusters has become an almost-daily fact of life in the Senate, influencing how we handle virtually everything debated on the Senate floor.  The filibuster used to be the exception to the rule. In today’s Senate, it’s becoming a straitjacket.”

For further reading:

Examining the Filibuster: History of the Filibuster 1789-2008, Testimony and Webcast of Hearing of the Senate Committee on Rules, April 22, 2010.

Examining the Filibuster: The Filibuster Today and Its Consequences, Testimony and Webcast of Hearing of the Senate Committee on Rules, May 19, 2010.

Sam Stein, Harry Reid Pledges Filibuster Reform, Huffington Post, March 10, 2010.

Courthouse Construction

The cost of federal courthouses was the subject of a contentious hearing before a Congressional committee on May 24. The Government Accountability Office in a draft report alleged that recently constructed federal courthouses have been built larger than necessary and have cost taxpayers $835 million in wasted construction funds since 2000.  GAO also alleged that the extra space requires $51 million annually to maintain.  The Judicial Conference and GSA separately contested the GAO findings.  Two federal judges on behalf of the Judicial Conference criticized the GAO report, saying that the federal judiciary is working hard to utilize courthouse space efficiently based on policies that balance appropriate courtroom sharing with efficient case management.  The GAO and the federal judiciary have sparred over courtroom sharing policies in the past.  The hearing was held before the House Subcommittee on Economic Development, Public Buildings, and Emergency Management.

For further reading:

Building Oversize Courts Wastes Millions, Washington Times, May 25, 2010.

Federal Courthouse Construction: Preliminary Results Show Better Planning, Oversight, and Courtroom Sharing Could Help Control Future Costs, Government Accountability Office, (GAO-10-417), May 25, 2010.

Judiciary Cites Good Stewardship in Planning Space in Federal Courthouses, Administrative Office of the United States Courts, May 25, 2010

Eliminating Waste and Managing Space in Federal Courthouses, Webcast and Testimony of Hearing of House Subcommittee on Economic Development, Public Buildings, and Emergency Management, May 24, 2010.

Judicial Conference on Civil Litigation in the Federal Courts

Access, fairness, cost, and delay in civil litigation in federal court were the focus of a conference at the Duke University School of Law on May 10-11, 2010, sponsored by the Judicial Conference Advisory Committee on Civil Rules. The 2010 Civil Litigation Conference presented new data from several empirical studies on current litigation practice and proposals for improving civil litigation in the federal trial courts.

For further reading:

The agenda, conference reports and a wealth of other resources
Webcasts of all sessions and speakers

Bankruptcy Judgeships

The Senate Judiciary Committee on May 27 favorably reported the “Bankruptcy Judgeship Act of 2010”, which creates 13 new permanent bankruptcy judgeships and converts 22 temporary bankruptcy judgeships to permanent ones, and extends the temporary authorization for 2 bankruptcy judgeships for another 5 years.

The FBA strongly supports this legislation. On May 18, FBA President Lawrence R. Baca communicated FBA’s endorsement of the legislation to the Senate Judiciary Committee. “… [W]e urge Congress to establish the additional bankruptcy judgeships authorized by H.R. 4506, given the increasing stain of caseloads that the bankruptcy courts face and the increasing complexity of bankruptcy litigation,” Baca said.

To pay for the 13 new permanent bankruptcy judgeships, the legislation increases bankruptcy filing fees by $1.00 for filings under Chapter 7 and Chapter 13 of the Bankruptcy Code and by $42.00 for filings under Chapter 11 of the Code. For a number of years, the filing fees for Chapter 7 bankruptcy cases have been $299 and the filing fees for Chapter 13 cases have been $274.

The legislation earlier had been approved by the House of Representatives on March 12, 2010.

Federal Litigation Over Gulf Oil Disaster

Seven federal judges already have recused themselves from handling oil spill cases arising from the Gulf of Mexico disaster.  That means only five of the 12 available judges in the Eastern District of Louisiana remain to hear disaster-related litigation – and that number may dwindle further as jurists consider whether they have ties that may create conflicts of interest.   A variety of conflicts have prompted the seven judges to recuse themselves.  Those conflicts include ownership of BP stock and close relatives with jobs in, related to or representing the oil industry.

For further reading:

Tresa Baldas, Make that seven judges in New Orleans recused from oil spill cases, National Law Journal, June 2, 2010.

Kagan Nomination

Widespread media attention has been devoted to President Obama's nomination of Solicitor General Elena Kagan to take the place of retiring Justice John Paul Stevens on the U.S. Supreme Court. 

Sheryl Gay Stolberg, Katharine Q. Seelye, and Lisa W. Foderaro, A Climb Marked by Confidence and Canniness, New York Times, May 10, 2010.  

Term Limits for Supreme Court Justices

Proposals for the creation of term limits for Supreme Court justices continue to pop up.  Matthew Yglesias at Think Progress on May 10 wrote: "Concerns you might have about justices being unduly influenced by political or financial considerations could be easily met by giving justices a single, non-renewable term of 9 or 10 or 12 years plus a decent pension."  According to Yglesias, fixed terms may also remedy two pressures that, under the current system, are particularly acute: the "undue weight [placed] on throwing up young appointees" and the "randomness" that results when justices stay on the bench in spite of old age in order to wait for the election of a president likely to replace them with a like-minded successor.  Jack Balkin, also a long-standing supporter of term limits for the Supreme Court, also echoed Yglesias at Balkinization, where he reiterated his call for 18-year fixed terms. 

For further reading:

Matthew Yglesias, Fixed Terms for SCOTUS, ThinkProgress, May 10, 2010

Jack Balkin, Term Limits for Supreme Court Justices, Balkinization, May 11, 2010.   

Souter Address on Constitutional Interpretation

Justice David Souter took aim at the doctrine of originalism in interpreting the Constitution in a commencement speech at Harvard University on May 27. Souter offered a rebuttal of what he termed “the fair reading model,” which calls for an analysis of the Constitution that is grounded in the language of the Constitution—at the expense of a more nuanced analysis that considers the contemporary values and outlooks that can shape judicial decisions.

For further reading:

Text of Justice David Souter’s Speech, Harvard Gazette, May 27, 2010.

Souter Presents Judicial Philosophy in Commencement Speech, Harvard Crimson, May 28, 2010.

David Souter's Harvard Graduation Speech: One for the Books, Andrew Cohen, June 2, 2010.

David Souter vs. the Antonin Scalias, E.J. Dionne Jr., Washington Post, June 3, 2010.

The High Court’s Ultimate Verdict on the New, New Deal

Barack Obama, like Franklin Roosevelt, took office at a time of economic crisis, pushed through a progressive legislative response, and now awaits a verdict on that response from a Supreme Court that is dominated by his political adversaries, Jeffrey Toobin observed in the May 24 edition of The New Yorker.  Toobin noted that “Roosevelt lost the court-packing battle, but he won the legal war over the New Deal. By the end of his long tenure in the White House, he had made eight Supreme Court appointments, and that is what guaranteed that the federal government was able to address the economic crisis. For Obama, then, the lesson of F.D.R. is simple. Kagan, plus Sonia Sotomayor, makes two appointments. The President, to secure his legacy, may need a few more.” Toobin also praises Jeff Shesol’s new book on FDR’s clash with the Supreme Court, Supreme Power.

For further reading:

Jeffrey Toobin, Activism v. Restraint, The New Yorker, May 24, 2010.

Jeff Sheshol, Supreme Power, Franklin Roosevelt vs. the Supreme Court.

Legislative Response to Citizens United

Congress continues to consider legislation in response to the Supreme Court’s decision in Citizens United v. Federal Election Commission, which gives corporations and unions considerably greater leeway to spend freely in election campaigns.  The House Committee on Administration on May 11 held a hearing on the proposed DISCLOSE Act, HR 5175, which would require corporations and other groups to disclose many details associated with their spending.

For further reading:

“Additional Discussion of H.R. 5175, The DISCLOSE ACT, Democracy is Strengthened by Casting Light on Spending in Elections”, Webcast and Testimony of Hearing of House Committee on House Administration, May 11, 2010.

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