September 2013

Federal Court Funding and the Impact of Sequestration

Recent important developments have included:

FBA Senate Testimony on July 23 – Government Relations Committee Chair West Allen delivered testimony before the Senate Subcommittee on Bankruptcy and the Courts at its hearing, “Sequestering Justice: How the Budget Crisis is Undermining our Courts.”  West’s testimony was well-received and played an important role in educating Congress on the specific ways that sequestration is undermining the administration of justice.  West also answered a series of post-hearing questions raised by Sen. All Franken (D-MN), a member of the Subcommittee.

Letter of Chief Judges to Congress – On August 13, the chief judges of 87 federal district courts, describing themselves as “the boots on the ground in our nation’s federal trial courts,” sent a letter to Congressional leaders stating that reduced funding and sequestration have "...forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts."

Coordination of Coalition on Court Funding – In July, FBA began to create a coalition of groups in the legal community to devote coordinated, broad support for federal court funding in Congress. On August 12, FBA hosted a briefing for legal groups at FBA headquarters by officials from the Administrative Office of the U.S. Courts on sequestration and the federal judiciary’s operational responses, FY 2014 and 2015 scenarios, and potential legislative remedies for relief.   It is now working with the groups on the transmittal of a joint letter from the legal community to Congress in support of adequate funding for the federal courts.

Continuing Resolution -- The Congress appears headed toward adoption of a Continuing Resolution (CR) that would keep the government funded largely at current funding levels through December 15.  The House version of the CR would provide $26 million in additional funding for Defender Services – a positive development.  This is intended to provide funding for three weeks of payments in September to Criminal Justice Act counsel that were pushed over to FY 2014. Between now and mid-December, negotiations between White House and Congressional leaders will continue on FY 2014 funding and the shape of sequestration in 2014.  The debt ceiling will be reached later this fall, and the response to that also will figure into the discussions. 

While the House and Senate Appropriations Committees’ funding allocations for the federal courts for FY 2014, if enacted, would provide adequate funding, concerns remain over the consequences of additional budget cuts if a final appropriation for the federal courts is not enacted and a Continuing Resolution, continuing sequestration into FY 2014, becomes law.  The attached talking points, drafted by the Federal Judiciary, provide further details. 

If the courts were to receive flat funding under a Continuing Resolution, operating budgets for court units nationwide would drop 5 percent. The 5 percent drop in funding would result in an estimated loss of 1,000 additional employees through the end of FY 2014.  This staffing loss would come on top of the nearly 2,100 staff the courts have already lost since July 2011 – resulting in a 22 percent loss in on-board probation officers and clerks' office staff, compounded by even greater staffing losses in federal defender offices. 

According to the Federal Judiciary, a staffing contraction of this magnitude would result in sharply reduced supervision and treatment services for convicted felons released from prison; a severe backlog in processing of civil and bankruptcy cases; a drastic reduction in public hours in clerks’ offices; and cancellation or significant delays in the implementation of critical information technology applications.  The bottom line is that flat funding for the Judiciary in FY 2014, in addition to the FY 2013 $350 million cut resulting from sequestration, will have a devastating impact on the administration of justice in this country.

Chapters and members continue to remain engaged on the issue, through articles published in local and regional media and other outlets.  

FBA Government Relations Counsel Bruce Moyer also appeared on a Federal News Radio program on the impact of sequestration on the federal judiciary on August 23 and a National Public Radio segment on the cost-effectiveness of budget cuts of federal defender services on August 24.

Judicial Nominations and Vacancies
Here are the vacancy numbers, as of September 11:

  Vacancies Nominees Pending
Courts of Appeal 17 9
District Courts 75 33
US Court of International Trade 0 0
Total 92 42

This represents an increase of 9 vacancies since the time of our last GRC meeting in mid-July, and an increase of 12 nominees awaiting confirmation.

Of the 92 vacancies, 37 are characterized by the Administrative Office of the U.S. Courts as “judicial emergencies.” 

New Federal Judgeships

On July 30, Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee Chair, and Senator Chris Coons (D-Del.), chair of the subcommittee overseeing the federal courts, introduced the Federal Judgeship Act of 2013, S. 1385.  The legislation would authorize the creation of 91 new federal judgeships.  It would create five permanent and one temporary circuit court judgeships, 65 permanent and 20 temporary district court judgeships, and would make permanent eight temporary district court judgeships.  Two circuits and 32 federal districts across 21 states would benefit from the proposal.  The legislation is based on the recommendations of the Judicial Conference of the United States, the policy-making body of the Federal Judiciary. 

The Senate Judiciary Subcommittee on Bankruptcy and the Courts on September 10 held a hearing on the legislation.  Sen. Chris Coons (D-DE) presided.  Witnesses included Judge Timothy Tymkovich, for the U.S. Court of Appeals for the Tenth Circuit and chair of the Standing Committee on Judicial Resources for the U.S. Judicial Conference; Judge Sue Robinson, for the U.S. District Court for the District of Delaware; Jay Sekulow, chief counsel for the American Center for Law and Justice; and Michael Reed, chair of the Standing Committee on Federal Judicial Improvements for the American Bar Association and partner at Philadelphia law firm Pepper Hamilton.

The Federal Judgeship Act of 2013 creates five permanent judgeships and one temporary judgeship to the courts of appeals; creates 65 permanent judgeships and 20 temporary judgeships to the district courts; and gives permanent status to eight temporary district court judgeships.

Article III district courts nationally have experienced a 38 percent growth in caseload since 1990, the last time Congress passed a comprehensive judgeship bill.  During that same period, there has been only a 4 percent increase in judgeships. With the establishment of a federal judgeship costing an estimated $1 million, federal budget pressures will depress the authorization of any judgeships on the scale proposed by the federal judiciary.  Judge Tymkovich pointed to five district courts requiring immediate attention “that are struggling with extraordinarily high workloads, with 700 or more weighted filings per authorized judgeship: Eastern District of California, the Eastern District of Texas, the Western District of Texas, the District of Arizona and the District of Delaware.  These are the districts that are most likely to see Congressional action, if any.

Congress Pushes Supreme Court on Ethics Rules

A group of Democratic members of Congress have reintroduced a bill to require Supreme Court justices to follow the same ethical rules as other federal judges.  Senators Richard Blumenthal (D-CT), Chris Murphy (D-CT), and Sheldon Whitehouse (D-RI), along with Rep. Louise Slaughter (D-N.Y.), are the principal sponsors of legislation, the Supreme Court Ethics Act of 2013 (S. 1424, H.R 1424), that they say would block the practice of holding the Supreme Court to a lower ethical standard.  The current situation, they believe, undermines the Court’s appearance of independence and impartiality. 

The bill would make the Code of Conduct for United States Judges mandatory for the Supreme Court. The code, which guides the behavior of lower federal court judges regarding recusals, fundraising and demeanor, has never applied to the justices themselves, although they have said that they look to it for guidance. The justices decide whether or not to bow out individually, with no requirement to explain, no resort to other justices or the full court, and no precedent to guide them, critics contend.


On July 12, Bruce Moyer participated in the FBA Section and Division Leadership Training Program to explain FBA’s government relations program and demonstrate ways that sections and divisions can generate a more robust role in legislative and policy issues in their respective substantive areas.

On September 20, West Allen and Bruce Moyer will present a government relations update to the Ninth Annual Tri-State Chapter Conference (Idaho, Utah and Wyoming Chapters) in Deer Valley, Utah.

West Allen will present a report on the activities of the GRC to the FBA Board of Directors on September 25 and to the National Council on September 28 during the Annual Meeting and National Convention in San Juan, Puerto Rico.  (The read-ahead GRC reports to the Board of Directors and the National Council were earlier sent to the membership of the GRC.)

On October 9, Bruce Moyer will present a government relations update to the South Florida Chapter in Miami, Florida at its monthly luncheon program.


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