May 2010:
FBA Launches Campaign to Fill Judicial Vacancies

Washington Watch | May 2010
By Bruce Moyer

The FBA has launched a grassroots advocacy campaign to urge the White House and Congress to more promptly fill judicial vacancies in the federal district and appellate courts.

The FBA is calling on its members and chapters to tell their senators to promptly provide an up-or-down vote on nominees to the federal appellate and district courts. Check out the FBA Web site for advocacy resources to help you get involved in the campaign; the Web site lists the circuit and district courts where vacancies exist, along with model letters for chapters and members to use in contacting their senators.

In March, the FBA’s Board of Directors identified the vacancy crisis in the federal courts as a major area of concern. As the magazine went to press, federal court vacancies had escalated to 103 openings, with two dozen more expected before the end of the year. District courts have 85 vacancies and appellate courts have 18. More than one-third of these vacancies have existed for at least 18 months, leaving considerable caseloads unattended and prompting their designation as “judicial emergencies” by the Judicial Conference of the United States, the policy-making body of the federal judiciary.

To date, the Obama administration has named nominees for just 57 of those slots, and only 18 of those nominees have been confirmed. More recently the administration has accelerated the pace of nominations sent to Capitol Hill.

In March, FBA President Lawrence Baca wrote to both President Obama and Senate leaders to urge aggressive attention to the vacancy crisis. “Prompt action by the President in naming judicial candidates and prompt Senate action in acting upon those nominations will ultimately reduce the number of vacancies to a more tolerable level,” Baca said.

The FBA takes no position on the credentials or qualifications of specific nominees to the federal bench, but the association believes that, as a matter of policy, judicial vacancies undermine the capacity of the circuit and district courts to function at their authorized strength, thereby leading to harmful delay in the prompt and effective administration of justice.

Bankruptcy Judgeships Approved by the House
The U.S. House of Representatives in March passed legislation supported by the FBA that will create 13 additional permanent bankruptcy judgeships, convert 22 existing temporary bankruptcy judgeships to permanent status, and extend two current temporary judgeships. The House passed the Bankruptcy Judgeship Act of 2010 (H.R. 4506) by a 345-5 vote. The judgeships created by the legislation correspond to the recommendations made by the Judicial Conference of the United States. Nationwide, in 2009, bankruptcy filings in the federal courts rose by 31.9 percent, more than 1.4 million bankruptcies were filed last year, up from the 1.1 million filed in 2008—an increase of 34.5 percent.

In testimony last year before the House, District Judge Barbara M.G. Lynn called the need for additional bankruptcy judgeships “critical, with filings increasing to near-record levels.” The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has further added to the complexity and workload of bankruptcy judges because of additional proceedings on motions now permitted by the new law.

The legislation approved by the House also increases bankruptcy filing fees by $1.00 for filings under Chapter 7 and Chapter 13 of the Bankruptcy Code and by $42.00 for filings under Chapter 11 of the code to pay for the 13 new permanent bankruptcy judgeships.

Supreme Court Requires Lawyers to Warn Clients of Deportation Risk
In the January issue of TFL, this column pointed to three cases before the Supreme Court that posed significant implications for the ethical responsibilities of attorneys. The Supreme Court lived up to that billing in the 7-2 decision it rendered on March 30 in Padilla v. Commonwealth of Kentucky (08-651). The Court ruled that lawyers who have immigrant clients facing criminal charges have a constitutional obligation to inform their clients that a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment guarantee of effective counsel extends to advice about the risk of having to leave the country. “It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the mercies of incompetent counsel,” Justice John Paul Stevens wrote for the majority.

Correction
In the March/April issue, I mistakenly reported the number of circuit judicial nominees confirmed by the Senate during the 111th Congress. The correct number is six nominees.

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.

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