June 2013

Emergency Funding for the Federal Courts

On June 7, the President transmitted to the Congress the request of the Federal Judiciary for $72.9 million in an emergency supplemental appropriation to mitigate the damage to the courts resulting from sequestration cuts. The emergency appropriation would provide $41 million for federal public defenders and $32 million for court operations.

The White House has declined to send any request for supplemental appropriations for any agency of the Executive Branch, including the Department of Defense. Under a 2011 law, the Judicial and Legislative Branches may request supplemental appropriations, without approval or change by the White House.

In its May 14, 2013 letter to the Office of Management and Budget, Judicial Conference officials warned of a series of ways that sequestration cuts are impacting public safety. Court staffing cuts for probation and parole, GPS and electronics monitoring, and drug testing, substance abuse and mental health treatment for defendants and offenders mean “less deterrence, detection and response” and greater risk to public safety.

The most serious impact of sequestration has arisen in federal defender services through court-appointed counsel for indigent defendants, through Federal Defender Offices and Criminal Justice Act-appointed private counsel. More than 90 percent of FDO budgets are earmarked for salaries, linking budget cuts directly to cutbacks in staffing and services. All FDO staff are being periodically released on 20 unpaid furlough days between now and the end of the 2013 fiscal year, September 30. Payments to private court-appointed counsel also will be delayed in September. Some courts have indicated they will curtail court sessions if insufficient defender services are available to avoid the prospect of claims for ineffective assistance of counsel.

The Administrative Office of the U.S. courts has built a sequestration page on the Federal Judiciary website.

Judicial Nominations and Vacancies

Here are the vacancy numbers, as of June 5:

  Vacancies Nominees Pending
Courts of Appeal 16 8
District Courts 65 19
US Court of International Trade 0 0
Total 81 27


Of the 81 vacancies, 33 are characterized by the Administrative Office of the U.S. Courts as "judicial emergencies."

Six vacancies were filled since last month and the number of pending nominees increased by five since that same time. Most notably, in a sign of rare bipartisanship, the Senate on May 23 confirmed Sri Srinivasan to the D.C. Circuit Court of Appeals, with a vote of 97-0. As a highly regarded appellate attorney who’s argued more than 20 cases before the Supreme Court, Srinivasan becomes the first South Asian federal appellate judge.

Four of the Supreme Court’s nine justices got their judicial start, like Srinivasan, on the U.S. Court of Appeals for the District of Columbia Circuit, regarded by many as the nation’s second-most important court. With Srinivasan’s addition, the court now has eight active judges and three long-standing vacancies. Those vacancies prompted President Obama on June 4 to nominate three lawyers all at once to the circuit court in what will likely become a nasty confirmation battle. Obama nominated two female lawyers, Patricia A. Millett and Cornelia T.L. Pillard, and an African American federal judge, Robert L. Wilkins. The three are part of a broader push by the president to diversity the federal bench in his second term. In trying to fill the three vacancies at once, Mr. Obama will be adopting a more aggressive nomination strategy.

Key Senate Republicans have signaled that the new nominees will face stiff resistance in their confirmation path, in part because Republicans do not believe the D.C. appellate court’s caseload is heavy enough to demand that each position be filled. “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, said in a statement. Grassley insists that the D.C. court “is the least busy circuit in the country,” a contention that doesn’t square with workload statistics measuring the number of pending appeals divided by the number of active judges. Measured that way, the Court of Appeals for the Eighth Circuit, encompassing seven states in the Midwest, including Grassley’s home state of Iowa, has the lowest workload of any circuit.

In April, Grassley introduced the "Court Efficiency Act of 2013" with eight other Senate Republicans that would reduce, from 11 to 8 the number of circuit judges appointed to the circuit court. Rep. Tom Cotton, (R-AR) introduced the “Stop Court Packing Act” on June 4 to similarly eliminate three of the court’s judgeships.

In any event, the clearance process for the three D.C. Circuit nominees is likely to stretch into the fall and potentially beyond, notwithstanding the candidates’ qualifications. Meanwhile, frustrated Senate Democrats are again calling on Majority Leader Harry Reid (D-NV) to use change Senate procedures to make it more difficult to mount and sustain filibusters.

Immigration Reform
The Judicial Conference has recently communicated to Senate and House Judiciary Committee leaders its concerns over unmet resource needs contained in the immigration legislation coming to the Senate floor. The Conference believes that the judicial workload that the Senate legislation will generate is significant and will necessitate increased funding for judicial resources. Increased funding for the Executive Office of Immigration Review within the Justice Department is authorized (but not appropriated) by the legislation, but is silent on additional funding for the Judicial Branch.

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