June 2014

Judicial Vacancies

Judicial vacancies on the federal bench continue to decline, with the number of circuit and district vacancies dropping to their lowest level since the early days of the Obama administration. The vacancy report, as of June 3, reflects the following vacancies and pending nominations:

  Vacancies Nominees Pending
Courts of Appeal 10 4
District Courts 58 26
US Court of International Trade 0 0
Total 68 30

The progress over the past month in erasing more vacancies included Senate confirmation in May of six nominees to the Arizona district court bench, providing much-needed relief to that court. The court is one of the busiest in the nation, having declared a judicial emergency in 2011. The judicial nominees included Diane Humetewa, who became the first Native American woman to serve on the federal bench. She was approved by a 96-0 vote.

President Obama's 49 judicial appointments to the appeal courts have led to a significant change in the composition of the federal appellate bench. After the presidency of George W. Bush, 10 of the 13 U.S. Courts of Appeals had a majority of Republican judicial appointees, two were evenly split between Republican and Democratic appointees, and only one had a majority of Democratic appointees. According to the Alliance for Justice, as of May 23, nine of the 13 appellate courts now have a majority of Democratic judicial appointees, and four have a majority of Republican appointees.

Currently, there are 10 vacancies on the U.S. Courts of Appeals. One is awaiting a Senate confirmation vote, and three nominees are pending consideration by the Senate Judiciary Committee.

Patent Litigation Reform Dies in the Senate

Efforts in the Senate to pass legislation that curbs abusive patent infringement lawsuits collapsed on May 21, as Senate Judiciary Committee Chairman Patrick J. Leahy terminated sensitive negotiations over the legislation and pulled the bill from further consideration by the Committee. Leahy faulted continuing disputes between tech firms and pharmaceutical enterprises that have taken opposite sides in the debate, which blocked progress on the bill.

The House in December easily passed its own measure, H.R. 3309, which would discourage frivolous litigation by taking steps such as requiring plaintiffs to provide more information about the nature of their infringement claims; limiting the discovery process in cases until after judges interpret terms in the patent at issue; and ordering the losing party to pay the winning party’s legal costs in most cases. That would be a significant change from current law, in which attorney’s fees are only awarded to the winners in “exceptional” cases. The House legislation also bypassed the Rules Enabling Act and established rules for patent cases superceding the Federal Civil Rules of Procedure. The speed of House approval of its measure heightened the stakes for action in the Senate, leading in part to the standoff between opposing interests.

The collapse of the Senate’s efforts also may have been triggered, in part, by recent decisions by the U.S. Supreme Court that afford district courts greater flexibility and responsibility in safeguarding parties from abusive practices. In particular, the Court in a pair of recent cases, Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Icon Health and Fitness held that district courts have full discretion, on a case-by-case basis, to decide whether attorneys’ fees are appropriate in “exceptional” cases considering “the totality of the circumstances,” and obligating the Federal Circuit to respect the discretion of the district courts. The Supreme Court further held in Nautilus, Inc. v. Biosig Instruments that lower courts may determine a patent to be invalid for indefiniteness if its claims do not inform “with reasonable certainty” the scope of the invention, suggesting that courts may be more critical of ambiguous patents.

House Restricts Funds to Detail DOJ Employees to Clemency Initiative

House lawmakers on May 30, during consideration of FY 2015 funding for the Department of Justice, adopted an amendment to block the Department from using funds to detail employees to the Office of Pardon Attorney to screen clemency petitions. The amendment, by Rep. George Holding (R-NC), a former United States Attorney, targets the Department's initiative to identify incarcerated inmates, particularly those sentenced prior to 2010 on crack cocaine trafficking charges, who might qualify for Presidential clemency. Attorney General Holder has said he expects the Department’s plan to trigger clemency requests from “thousands” of inmates to apply for pardons or the commutation of their sentences. The House also rejected an amendment that would have provided an additional $2 million to the Department for additional resources to screen the clemency petitions.

Constitutional Amendment Proposal on Campaign Financing

The Senate Judiciary Committee on June 3 held a hearing to consider a Constitutional amendment regarding the applicability of the First Amendment’s protections of free speech to campaign spending. The amendment would give Congress and the states the ability to regulate political spending by outside groups. The amendment responds to the Supreme Court’s recent McCutcheon decision, striking down the Federal Election Commission’s aggregate limits on how much an individual may donate to multiple candidates in federal elections.

Coverage is here: http://nyti.ms/1xiMWXh

Emerging Support for Supreme Court Term Limits

U.S. Supreme Court and appellate judges should face term limits, argues political scientist Norm Ornstein in The Atlantic.

Ornstein suggests that term limits are an appropriate reaction to unprecedented polarization within our highest court, noting, “As politics have become polarized and as two-party competition intensified, control of the courts — which are increasingly making major policy decisions — became more important. With lifetime appointments, a party in power for two or four years could have sway over policy for decades after it left power.” Ornstein favors an 18-year term limit.

Research suggests public support for Ornstein’s position on term limits; at least 70 percent of those surveyed, in a survey conducted by Greenberg Quinlan Rosner Research, support abolishing lifetime appointments for Supreme Court members. The poll reveals a poor public opinion of the Supreme Court. Only 35 percent of respondents gave the Court a favorable job rating, and, “by a nearly two-to-one ratio, Americans say Supreme Court justices often let their own personal or political views influence their decisions rather than deciding cases based on legal analysis.” http://bit.ly/1oxTV8V

Respondents were also shown seven possible reforms that could make the Court more transparent and accountable. The most popular reform, supported by 85 percent of respondents, would be to require justices to adhere to the U.S. Judicial Code of Conduct. While other federal judges are bound to this Code, Supreme Court justices are not. Eighty percent of respondents strongly supported requiring justices to “disclose any outside activities paid for by others.” The poll also found that the majority of respondents would like to “abolish the practice of lifetime appointments” and “allow television cameras to film the Court’s proceedings and broadcast them live to the American people.”


FBA Executive Director Karen Silberman and FBA Counsel for Government Relations Bruce Moyer met with Judge John Bates, Director of the Administrative Office of the U.S. Courts, and Scott Harris, Clerk, Supreme Court of the United States, in separate meetings on May 29. The meetings provided an opportunity to extend mutual appreciation and share information on current FBA initiatives.


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