May 2013


Sequestration and the Courts

Capitol Hill Day

FBA’s Capitol Hill Day on April 25 was a real success, as twenty FBA leaders and members from across the country met with Senators, Members of the House of Representatives, and senior Congressional staff to urge Congressional action on some of the foremost challenges facing the federal courts. Discussions focused particularly on adequate funding for the federal courts and prompt White House and Senate action to fill judicial vacancies. The FBA issue briefs associated with these two issues are attached. FBA delegations met with nearly all Senators (or their respective staff) on the Senate Judiciary Committee.

FBA urged support for the Federal Judiciary’s expected request for an emergency supplemental appropriation to mitigate the impact of sequestration. The appropriation will especially assist in reducing the dire funding situation faced by Federal Defender Offices, which are expected to undergo one-day-a-week furloughs between now and September 30. This will cause some federal courts to cancel criminal proceedings on furlough days. Federal budget cuts also have caused delays in at least one terror-related court case in New York and prompted a federal judge in Nebraska to say he is "seriously contemplating" dismissing some criminal cases.

FBA advocates during meetings with Senate offices also encouraged prompt Senate 2 consideration of pending judicial nominees. Of the 87 current vacancies, 36 are characterized by the Administrative Office of the U.S. Courts as "judicial emergencies." 

Judicial Nominations and Vacancies

Here are the vacancy numbers, as of May 1:

  Vacancies Nominees Pending
Courts of Appeal 16 5
District Courts 68 15
US Court of International Trade 2 2
Total 86 22

On April 26, Ninth Circuit Vice-President Alison Bachus, Ninth Circuit Vice-President and Government Relations Chair West Allen and FBA Counsel Bruce Moyer met with Chris Kang of the White House Counsel’s Office to discuss the state of judicial vacancies. Their discussion focused particularly on obstacles the White House faces in securing recommended judicial nominees from home-state senators, both Democrat and Republican. Discussion also focused on the bottlenecks created by judicial nominating commissions established by home-state senators to aid in vetting candidates.

On a related note, Russell Wheeler of the Brookings Institution recently authored a paper about the high number of federal judicial vacancies without a nominee. His conclusions included:

-- Considerably fewer of the vacancies without nominees on April 12, 2013, could reasonably be expected to have had nominees by then, based on patterns in the previous two administrations;
-- Of the vacancies without nominees, almost half are in states with two Republican senators, and those vacancies are older than those in other states;
-- There are many more nominee-less vacancies now than at this point in President George Bush’s presidency;
-- Of the vacancies that have received nominations, the time from vacancy to nomination was greater in states with two Republican senators.

Wheeler also addressed possible causes: “We can only speculate, but no doubt both the  Obama White House and at least some of the senators bear some responsibility for the  high number of long-lasting nominee-less vacancies, and the long times from vacancy to  nomination. The 391 days on average from date of district vacancy to nomination in two-  Democratic senator states under Obama is longer than the overall time for all district  nominations under Bush to this point—276 days on average.”

Judicial Pay

On April 22, the U.S. Supreme Court, without comment, refused to hear the government’s appeal of a lower appeals court's decision finding that Congress violatedthe Constitution's Compensation Clause when it withheld cost of living salaryadjustments from federal judges six times during a 17-year period. The denial of reviewin U.S. v. Beer affirms the independence of the judiciary and the Constitution'sadmonishment to Congress to refrain from diminishing the salaries of judges.

The en banc U.S. Court of Appeals for the Federal Circuit ruled last October that a 1989law required Congress to uphold the law 's "precise and definite commitment" toautomatic yearly cost of living adjustments for members of the federal judiciary.

The Supreme Court's action in denying review helps to provide a path for the restorationof back pay for the six plaintiff judges in the Beer case. The case now resumes in the U.S.Court of Federal Claims for the computation of damages. The briefing schedule should beconcluded in May. The government and the Beer plaintiffs have agreed on the amount ofgross pay for Article III judges, as well as offsets for taxes and pension contributions.The government opposes the claim for prejudgment interest and argues that there shouldbe a deduction for life insurance premiums. That dispute could potentially result in aninterlocutory appeal.

Meanwhile, a class action lawsuit brought by seven federal judges on November 30,Sarah Evans Barker, et al. v. United States, continues in the U.S. Court of Federal Claims,seeking back pay for all Article III judges who are serving or served any time from 2006to the present. They similarly are seeking damages for cost-of-living adjustments theydid not receive in six of the past 17 years.

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