October 2012

Congress is currently in election recess. Both chambers will return on November 12 to begin a post-election lame-duck session that likely will stretch to the holidays. The Supreme Court began its 2013 term this week, with highly anticipated decisions likely during the term on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily make the 2013 term very consequential once again.

Sequestration and the Courts

FBA President Fern Bomchill on September 12 sent correspondence to House and Senate Congressional leaders, warning of the devastating impact that budget sequestration will have on the federal courts and the administration of justice. FBA received expressions of gratitude for the letter from officials at the Administrative Office of the U.S. Courts and the Judicial Conference.

Congressional Quarterly in its recent Weekly Report edition focused on the impact of sequestration on the federal courts and referred twice to FBA's letter.

Meanwhile, details continue to emerge regarding the efforts of a bipartisan group of senators around an ambitious three-step process to avert the automatic tax increases and deep spending cuts in January. Their efforts are continuing quietly during the ramp-up to the November elections. According to their plan, Congress during the upcoming post-election session would reach agreement on a broad deficit reduction target and framework — likely to be around $4 trillion over 10 years — through revenue raised by an overhaul of the tax code, savings from changes to social programs like Medicare and Social and cuts to federal programs. Once that framework is approved, lawmakers would vote on expedited instructions to relevant Congressional committees to draft the details over six months to a year.

If those efforts failed, another plan would take effect, called Simpson-Bowles 2.0, in reference to its origins in a similar proposal by President Obama’s fiscal commission, led by former Senator Alan Simpson and former Clinton chief of staff Erskine Bowles. The commission’s recommendations included changes to Social Security, broad cuts in federal programs and actions that would lower tax rates over all but eliminate or pare enough deductions and credits to yield as much as $2 trillion in additional revenue. The third part of the plan would delay sequestration and the tax increases scheduled to hit all at once in January, but with some deficit reduction down payment to signal how serious Congress is.

For more details: Jonathan Weisman, Leaders at Work on Plan to Avert Mandatory Cuts, New York Times, October 2, 2012.

John Bresnahan and Jake Sherman, Gang of 8 Plots Secret Retreat, Politico, October 2, 2012.

Judicial Nominations and Vacancies

As of this date, there are 77 vacancies in the federal courts. They are as follows:

   Vacancies Nominees Pending
 Courts of Appeal  14  7
 District Courts  61  26
 US Ct of International Trade  2  1
 Total  77  34

Examples of Impact of Judicial Vacancies. Recent media coverage of judicial vacancies has focused on these developments:

* Example 1 - Pennsylvania. Pennsylvanians are suffering from delayed dockets and understaffed courts, according to recent news coverage on the eight judicial vacancies in the Eastern District and the Middle District of Pennsylvania. The two vacancies in the Middle District, the largest judicial district in Pennsylvania, are considered “judicial emergencies” by the Judicial Conference due to the length of the vacancies and their caseloads. Both vacancies have existed for more than two years, due both to White House delay in naming nominees and delay in the Senate in confirming them. Both nominees to the posts — Malachy E. Mannion and Matthew W. Brann — were endorsed in the Senate Judiciary Committee by voice vote, which signaled that there were no substantive objections by members of either party. Both nominees have received the support of the state's two senators, Democrat Bob Casey and Republican Pat Toomey, who have publicly lobbied their Republican colleagues this year to allow the nominations to come to a vote on the Senate floor. So far, those efforts have failed. Meanwhile, six Middle District judges in senior status, all of them in their 70’s and 80’s, are attempting to pick up the slack for the empty full-time benches. President Obama has yet to nominate any nominees to the six Eastern District vacancies.

The vacancies are impacting the speed of justice delivered in Pennsylvania. "Inevitably, what it leads to is extra time to decide almost any motion that is filed," U.S. District Judge Jones (M.D. Pa) said. "... [T]he federal courts are stacked up with motions to dismiss and motions for summary judgment which are very fact specific and require a great deal of time. When you have fewer judges, and the judges who are in service have more motions, everything is delayed." The judge calls it the "justice delayed syndrome" and it impacts individuals … as well as large corporations who must factor into their business plans the "uncertainty" inherent in long, drawn-out litigation.

Rebecca Kourlis, a former justice of the Colorado Supreme Court and now executive director of the Institute for the Advancement of the American Legal System, is even more blunt. "Vacancies in the judiciary create holes in the judicial system," Kourlis said, "and civil cases are the most likely to fall through those holes. What this means is that civil cases suffer increased continuances and delays and the possibilities of changing judges in mid-stream. For civil litigants, this means untenable disruptions to their lives and businesses, the possibility of increased costs, and overall, a breach of the promise of access to justice."
Andrew Cohen, In Pennsylvania, the Human Costs of Judicial Confirmation Delays, The Atlantic, September 9, 2012.

* Example 2 - Nebraska. A recent op-ed in the Omaha World-Herald points out the toll that judicial vacancies are having on Nebraska, especially in light of the recent announcement that “Judge Michael Melloy, who sits on the United States Court of Appeals for the Eighth Circuit, will take senior status, effectively entering retirement in January.” The commentary states, “When a district goes without enough judges, cases pile up and justice then becomes a waiting game, usually won by whichever side has the most money to afford waiting the longest. It slants the playing field in favor of the plaintiff or defendant with the deepest pockets. This is not how our American justice system is supposed to work…. Many nominations that advanced out of the Judiciary Committee with strong bipartisan support cannot even get a vote on the floor. In February, Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, said in an address on the Senate floor that ‘these delays are as damaging as they are inexplicable.’”

Carol Bloch and Jan Schneiderman, Judicial Vacancies Adversely Affect Midlanders, Omaha World-Herald, August 30, 2012.

* Example 3 - Impact of Continuances and Delays. A recent academic study found a considerable negative impact on time to trial as a result of continuances and delays associated with failure to rule on matters promptly. The Institute for the Advancement of the American Legal System and the American Institute of Certified Public Accountants conducted the study. These findings are largely consistent with findings in recent national attorney surveys on civil litigation that also suggest a likely connection between delay and increased costs. Generally speaking, when expert witnesses prepare for a case, delays in the process — on account of continuances or untimely rulings on motions — require duplication of efforts to get back up to speed after the delay. As a result, rules and procedures that disfavor continuances and promote prompt rulings on motions will likely lead to cost savings in financial expert time.

The study results suggest that the court’s calendar and the timing of its responses to motions affect the work and costs of financial experts. Specifically, the study suggests that continuances drive up financial expert witness costs. With respect to how continuances impact the hours spent preparing for a trial, a plurality of respondents (44 percent) said continuances increase the hours of preparation 11-25 percent and about one third (32 percent) said continuances increase the hours of preparation more than 25 percent. Notably, only two percent of respondents reported that continuances do not impact the hours of preparation.
Institute for the Advancement of the American Legal System and the American Institute of Certified Public Accountants, Another Voice: Financial Experts on Reducing Client Costs in Civil Litigation, September 2012. 

Diversity on the Federal Bench

With the confirmation in September of Stephanie Rose by the Senate to the District Court for the Southern District of Iowa, President Obama has set a record for female judicial appointments in a single term with 72 appointments. That equals former President George W. Bush’s total female judicial appointments during his two terms in office. Former President Clinton holds the record for the highest number of female appointments with 111, of which 61 were made during his first term. Judge Rose will be the first woman on the District Court for the Southern District of Iowa.

Media Coverage of the Supreme Court

According to a politically progressive media watchdog group, primetime news coverage has largely overlooked the future direction of the U.S. Supreme Court as a key election issue, failing to note that the candidate who wins in November will likely appoint justices and shape how the court will decide important issues. While other news outlets have acknowledged the significance of Court nominations for the next president, the three news networks in their primetime newscasts have devoted little coverage to these implications underlying November’s presidential election.

Sergio Munoz, CBS and NBC Evening News Shows Ignore Importance of Supreme Court In Election Coverage, Media Matters Blog, September 26, 2012.

Independence of the Judiciary

In 2010, Iowa voters recalled three Iowa state supreme court justices who threw out a state law prohibiting same sex marriage as inconsistent with the state constitution. The three justices had earlier joined in a unanimous 2009 decision legalizing marriage for same-sex couples. Now another Iowa state supreme court justice is subject to a recall vote in the upcoming elections.

And the same events are rolling into play in Florida. Three Florida supreme court justices face a popular vote to remain in office this fall under the state's merit retention law, which was created in the 1970s to insulate the high court from political pressure. Recently the state Republican Party announced it would start a campaign to oust the three justices who rejected a 2010 amendment to the state constitution intended to counter President Obama’s Affordable Care Act.

A conservative advocacy group also has begun running an Internet ad criticizing the Florida Supreme Court. Twenty-three former Florida state bar presidents released a statement calling the group a “well-financed and ill-conceived political campaign.” The resolution states, “We are concerned that the lack of public understanding of our judicial system and how it now serves to protect the public from the evils of judges being subjected to political influence, will enable well financed politically motivated groups to effectively destroy our system through unwarranted attacks on Florida Supreme Court Justices.”

Justice R. Fred Lewis, one of the justices up for retention this year, is quoted in the Bradenton Herald as saying, “If we allow politics to overtake the three branches of government, we no longer will have the democracy we’ve enjoyed for 200 years… I’m trusting that somewhere in the middle there are fair-minded individuals who believe the court system is too valuable to kill through partisan politics.”

Judicial Pay

The Federal Circuit appeals court on September 7 reheard en banc the judicial pay appeal in Beer v. United States. The Federal Bar Association joined with five other legal organizations in an amicus brief urging the Federal Court of Appeals for the Federal Circuit to rehear the appeal by federal judges contesting the validity of the Federal Circuit’s earlier decision upholding Congress’ denial of four annual pay raises for the federal judiciary.

On October 5, 2012, a Federal Circuit Court of Appeals issued its en banc opinion in Beer v. U.S., finding that Congress violated the Constitution by blocking cost-of-living salary increases for federal judges. The government now could petition for certiorari review by the Supreme Court. The opinion is available online.

Media coverage is here:
Wall Street Journal
Business Insider
Constitution Center Blog

Civic Education

Wisconsin is implementing a program called “Open Courts,” which is intended to increase the public’s understanding of the state and federal court systems. The program was launched in Colorado and “[t]o date, volunteer attorneys and judges have made more than 350 presentations to over 11,000 people.” According to the Wisconsin State Bar Association, “A 2008 study commissioned by the State Bar shows that a lack of information for adults about our court system negatively impacts their perception of the courts as fair and impartial.”

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