November 2014

Impact of the Mid-Term Elections

The GOP takeover of the Senate will fundamentally realign the power dynamics in Washington, with direct impact upon the federal courts.

Control of the Senate calendar and committees for the next two years will give Republicans a stronger hand in the shaping of the federal judiciary, particularly if a vacancy occurs on the Supreme Court.

President Obama’s judicial nominees during the last two years of his presidency will likely face tougher scrutiny and a slower confirmation process within the Senate Judiciary Committee. Whether confirmations will slow to a trickle, as some have predicted, remains to be seen. Some current and former Senate aides have promoted reinstating the filibuster – more specifically, the 60-vote cloture threshold – for lower court (and executive-branch) nominees. Senate Democrats in November 2013 changed the Senate rules to require only 51 votes to break off debate and proceed to a vote on all executive and judicial nominees (except Supreme Court nominees).

In the meantime, Senate Democrats will feel extra pressure to squeeze as many judicial nominees as possible through the confirmation turn-style during the lame duck session. Sixteen nominees await floor confirmation. The confirmation of Loretta Lynch as Attorney General has been pushed over to the next Congress.

In the upcoming 114th Congress, chairmanship of the Senate Judiciary Committee will turn from Sen. Patrick Leahy (D-VT) to Sen. Charles Grassley (R-IA), a 34-year Senate veteran. It will mark the first time a non-lawyer has been elected chairman of the Senate Judiciary Committee in its 198-year history. In the House, chairmanship of the House Judiciary Committee will remain with Rep. Bob Goodlatte (R-VA).

The mid-term electorate sent a message, not a mandate, to Congress. Public anger with dysfunctional Washington and a rudderless White House led to a Republican wave, but without a clear Republican mandate on policy prescriptions, including tough issues like immigration, taxes and foreign affairs. Senate and House Republicans will face new pressure to govern responsibly, and incremental gains over trade and energy issues in the early days of the Congress could potentially forge a new dynamic. But political tensions within and between the parties will increase next year as attention turns to the 2016 presidential elections. With Republican control of both chambers, more bills are likely to pass both chambers and arrive on the President’s desk, potentially generating more vetoes – and sustained gridlock.

Judicial Vacancies

The vacancy report, as of November 18, reflects:

  Vacancies Nominees Pending
Courts of Appeal 7 2
District Courts 54 32
US Court of International Trade 3 1
Total 64 35

Sixteen district court nominees have been cleared by the Senate Judiciary Committee and await Senate floor confirmation, which could occur during the lame duck session.

Court Funding

Prior to the mid-term elections, House and Senate committee staff had been laying the groundwork for an omnibus appropriations bill, cobbling together the 12 government funding bills into one catchall measure.  Much of the framework of the omnibus had already been set by the Murray-Ryan budget agreement reached last year.  Passage of an omnibus would clear the way for incoming GOP leaders to start a fresh appropriations process next year.  Many Republicans have said their goal is to return to "regular order" in passing 12 separate spending bills annually, a goal not achieved by Congress in years.

However, some House and Senate Republicans in recent days have raised the possibility of supporting only a short-term funding extension that only carries over current funding levels into early 2015, not to the end of the fiscal year in September.  A short-term extension would provide republicans with an opportunity in early 2015 to counter a potential executive order by the President on immigration through passage of another funding extension that denies funding for activities implementing the executive order.  Potentially, a likely Presidential veto of the measure could widen into a government shutdown, despite pledges in principle from House Speaker Boehner and incoming Senate Majority Leader Mitch McConnell against a shutdown.

Supreme Court Declines Challenge to Senate Filibusters

The Supreme Court on November 3 denied certiorari in an appeal challenging the constitutionality of the Senate filibuster.   A progressive coalition, including four House lawmakers and Common Cause, brought the appeal and sought to overturn the ruling by the U.S. Court of Appeals for the District of Columbia which found that the district court properly dismissed the lawsuit on the grounds that the plaintiffs lacked standing.  It argued the filibuster, as permitted by the Senate rules, was unconstitutional because it created a 60-vote threshold to pass legislation and has led to congressional gridlock.  The Senate had argued that it has the authority to create its own rules. Courts can’t order the Senate to change its rules, and a review of the filibuster would overstep the separate branches of government, lawyers for the Senators said.

James Duff to Return as AO Director in January 2015

Chief Justice John G. Roberts, Jr. announced on November 4 that he has appointed James C. Duff as Director of the Administrative Office of the U.S. Courts, effective Jan. 5, 2015. Duff succeeds Judge John D. Bates, who will return full-time to the U.S. District Court for the District of Columbia. Duff previously served as AO director from 2006 to 2011. Since 2011, he has served as president and CEO of the Freedom Forum and CEO of the Newseum and Newseum Institute.   


Connect With Us...