October 2014

Funding for the Federal Courts

Avoiding controversy and the threat of a government shutdown, both Congressional chambers in September passed a short-term government funding bill – technically known as a Continuing Resolution (CR) -- that kept the government running into the new fiscal year that began October 1. The CR maintains current funding levels – including those for the federal courts -- until mid-December.

Congress is expected to return for a lame duck session following the midterm elections in November and pass either an omnibus FY 2015 budget or approve another CR that extends government funding at current levels, likely into the spring of 2015.

Judicial Vacancies

During the brief legislative session in September, the Senate Judiciary Committee reported out ten judicial nominees who are likely to receive floor confirmation during the lame duck session later this year.

Also in September, the President announced several judicial nominees, including three to vacancies in the high caseload-burdened Southern District of Texas. Two of the three vacancies are considered “judicial emergencies” by the federal judiciary because of their age and high caseloads. The President’s nominees – two Texas state court judges and a federal magistrate judge – were recommended by their Texas home-state Senators (Sen. John Cornyn and Sen. Ted Cruz) after being screened by their bipartisan Federal Judicial Evaluation Committee after a long delay. Two vacancies in the Southern District of Texas yet remain and are without nominees; one of the vacancies has existed over 3 years.

The vacancy report, as of October 1, reflects:

  Vacancies Nominees Pending
Courts of Appeal 7 0
District Courts 51 31
US Court of International Trade 3 1
Total 61 32

The Senate is on record-setting pace to achieve the highest number of judicial confirmations in the fifth year of a presidency. That pace has been energized by the prospect of Democratic loss of control of the Senate in the November elections. Polls continue to reflect the likelihood that Republicans will retake the Senate, casting doubt on the confirmation of many Obama judicial nominees during the remainder of the President’s term in 2015 and 2016.

The pace of confirmations in the Senate would likely slow down considerably in a Republican-controlled Senate, even if the so-called nuclear option remains in place. The nuclear option refers to the Democratic-invoked change in the Senate rules – requiring only a bare-majority of 51 votes on executive and most judicial nominations – that occurred last November and eased the confirmation of a record-number of judicial nominees so far this year. If Republicans claim 51 or more seats coming out of the election, they are likely to block more judicial nominees in committee and use procedural tools to frustrate confirmation floor votes. "We would have substantially lessened productivity on nominations, which on the judicial front has actually been one of the unsung success stories of this Congress," a senior Democratic aide recently told Vox. These developments are spotlighted in an upcoming Washington Watch column by Bruce Moyer in The Federal Lawyer.

Similarly, if a Supreme Court vacancy arises, Republicans would have the power to block any nominees that President Obama may offer. The ages of the Democrat-appointed members of the Supreme Court, and the likelihood that several could not outlast a Republican installed in the White House, has created heightened attention on the potential of retirement announcements by one or more justices next year.

AG Holder’s Resignation

The resignation announcement by Attorney General Eric Holder on September 25 will likely set the scene for a bruising confirmation battle for his successor during the upcoming lame duck session. Senate Democrats will want to push through the confirmation of Holder’s successor during the lame duck session, while they retain undisputed control. Republicans will push to delay the confirmation in order to subject the nominee to a much more contentious floor fight next year.

Judicial Pay

Recent court decisions in 2012 and 2013 elevating the compensation of federal judges will ultimately cost $1.2 billion over the coming decade, according to a recent estimate by the Congressional Budget Office.

Those court decisions, including Beer v. United States and Barker v. United States, established that the Congress may not withhold automatic salary increases for certain judges and that Congress improperly withheld such increases on six separate occasions (in 1995, 1996, 1997, 1999, 2007, and 2010).

Beer held that the denial of certain cost-of-living adjustments for judges violated the Compensation Clause and that a 2001 amendment that barred judges from receiving additional compensation except as Congress specifically authorized did not override the provisions of a 1989 law that provided automatic pay increases for judges. As a result of Barker, a class action suit that extended Beer to all Article III judges, judicial salaries rose by 14 percent on January 1, 2014, as the years of missing cost-of-living adjustments were added to their paychecks. The chief justice now is paid $255,500, and associate Supreme Court justices have a $244,400 salary. U.S. Circuit Court of Appeals judges are receiving $211,200 a year, and the annual salary of a U.S. District Court judge is $199,100.

Restitution for the denial of the salary adjustments has resulted in payments of at least $25,000 to eligible judges. Retirement benefits, which are based on salary levels, also will be adjusted upward.
CBO pointed out that the pay of most federal judges is considered “mandatory spending,” meaning it is not subject to the annual appropriations process. Assuming that the necessary amounts are appropriated for the discretionary salaries of judges at the maximum level permitted, CBO estimates that the additional discretionary costs will total about $190 million over the next 10 years.

The CBO report is here.

PACER System Access

Controversy erupted in late summer over the federal judiciary’s management of PACER, the online system for accessing public court records. The dispute erupted over upgrades to the legacy systems of four federal appellate courts (2nd, 7th, 11th and Federal Circuit) and one district court (Central District of California) in the PACER system. PACER is an interconnected network of district and circuit court archives managed by the Administrative Office of the U.S. Courts and funded through a fee structure based on document access. It is not a universal database.

News reports initially suggested that the AO planned to remove thousands of court documents from the PACER system during the transition to the “NextGen” version of PACER. Congressional inquiries followed, and the AO ultimately assured lawmakers, in a letter from AO Director Judge John Bates, that documents initially removed from the PACER system would be restored as system upgrades continue.

Judge Bates’ letter is here.
For further coverage: http://wapo.st/1uOw7Bq

Proposed Amendments to the Federal Rules

The Judicial Conference of the United States recently approved changes to court rules, including ones that could reshape how discovery is handled in civil litigation. The Judicial Conference, the federal judiciary's policymaking body, adopted the amendments during its biannual meeting on September 16.

The proposed changes to the Civil Rules include language narrowing the scope of pretrial discovery requests to assure demands are "proportional" to the needs of a particular case. Proponents say the new rules would help bring down the skyrocketing costs of litigation. Opponents counter that the changes would benefit big business at the expense of plaintiffs with legitimate claims.

The rules changes will take effect on December 1, 2015, pending approval of the U.S. Supreme Court, or unless Congress steps in to oppose the amendments or to make adjustments.

The changes involve Civil Rules 1, 6, 16, 26, 30, 31, 33, 34, 37, and 55, and proposed abrogation of Rule 84 and the Appendix of Forms (approved in September 2014).

Information about the amendments can be found in the March 2014 and September 2014 Reports of the Judicial Conference Committee on Rules of Practice and Practice. Those reports can be found here: http://1.usa.gov/1ruT7H1

In addition there are two sets of proposed amendments to federal court rules that are now subject to public comment:

The Judicial Conference Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules on August 15, 2014 proposed amendments to their respective rules and forms, and requested that the proposals be circulated to the bench, bar, and public for comment through February 17, 2015. Hearings will be held on the proposed amendments between October and February. Information on the proposed amendments is here: http://1.usa.gov/1ksGwez

The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States released for public comment on September 2, 2014 a draft of proposed amendments to the Judicial Conference's Rules for Judicial-Conduct and Judicial-Disability Proceedings. The Committee has invited public comment on the draft amendments through November 3, 2014. Information on the amendments is here.

Erwin Chemerinsky and “The Case Against the Supreme Court”

As the Supreme Court prepares to convene a new term on October 6, a notable Constitutional scholar has deeply criticized the Court and its jurisprudence in a new book. Erin Chemerinsky, the left-leaning dean of the law school at the University of California at Irvine, has published a 342-page critique, “The Case Against the Supreme Court” that concludes that the Supreme Court historically has too often made mistakes in meeting its obligation to protect individuals against discrimination and the tyranny of the majority. “The court has frequently failed, throughout American history, at its most important tasks, at its most important moments. This is not easy for me to conclude or to say,” Chemerinsky writes.


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