January 2011:
Congress and the Courts: The Outlook for 2011

Washington Watch | January 2011
By Bruce Moyer

As a result of November’s historic midterm elections, the new Congress will witness three important changes in its dealings with the federal judiciary. First, a new set of Republican lawmakers in the U.S. House of Representatives will be responsible for oversight and legislation concerning the federal courts. Second, when it comes to judicial nominations, an even more contentious atmosphere will exist in the Senate. Third, the prospect of harsh spending cuts for the federal government could mean significant cuts in the operations and output of the federal courts.

On a broader scale, the ramp-up to the 2012 presidential elections could cause partisan divisions to intensify, with legislative gridlock on Capitol Hill on many issues for the next two years the likely result.

Switch in House Chairmanships
As Republicans take over control of the House of Representatives, the chairmanships of all House committees and subcommittees will switch hands. For the House Judiciary Committee, that means that Rep. Lamar Smith (R-Texas) takes the reins from Rep. John Conyers (D-Mich.). Smith, a lawyer and 13-term conservative lawmaker from San Antonio, is likely to take a considerably more aggressive approach toward the Judiciary Committee’s oversight of the federal courts, the Department of Justice, and the Obama administration in general. Smith has  frequently criticized “activist judges” on the federal bench, such as District Judge Vaughan Walker, who struck down California’s ban on gay marriage. Smith is a fierce opponent of abortion  rights and an ardent supporter of Arizona in its testy battle with the federal government over immigration enforcement. Smith says that his priorities as committee chair will focus on national security, immigration, patent reform, lawsuit abuse, and child sexual exploitation.

In the Senate, with the Democrats clinging to a narrow three-seat majority, Sen. Patrick Leahy (D-Vt.) will remain as chair of the Senate Judiciary Committee. Sen. Charles Grassley (R-Iowa) will become the top Republican on the committee. Grassley, a longtime Senate watchdog on government fraud, waste, and abuse, has criticized the federal judiciary in the past for courthouse construction overruns and what he deems insufficient courtroom sharing by judges. Grassley also has argued for greater transparency by the federal judiciary and has backed the use of televised federal court proceedings, including coverage of oral arguments in the U.S. Supreme Court.

Judicial Nominations Even More Contentious?
Republican gains in the Senate are also likely to intensify battles on the Senate Judiciary Committee over judicial nominees. Filibusters and the use of senatorial private holds on nominations could slow the pace of judicial confirmations even more—leading to even longer waits for judges and trials in our federal courts. In the early days of the new Congress, the Senate could adopt reforms to its own rules to curb the use of obstructionist tactics. A group of Senate Democrats has promoted a list of changes, from tempering the filibuster rule to eliminating the prerogative of a single senator to place a “hold” on a bill.

Senate partisan warfare over nominees for district and circuit courts could also create an even harsher setting for Supreme Court nominees over the next two years, should an opportunity rise for President Obama to name yet another candidate.

Federal Spending and the Courts
Finally, deep federal spending cuts could impose considerable pain for the federal courts. Presumptive House Speaker John Boehner (R-Ohio) has announced that the first item of business by the new House in early 2011 will be the approval of budget legislation that returns federal spending for FY 2011 to FY 2008 levels.

A reduction in federal court spending to FY 2008 levels could impose a significant hit on future courthouse construction and court operations. Courthouses are expensive federal spending ventures, and a moratorium on future projects could certainly be in the works.

More immediately, because so much of the federal courts’ operating budget is absorbed by personnel costs, significant budget cuts for the federal courts could result in job furloughs and reductions in court personnel. That could slow down court operations and create litigation delays. It is far too early to tell whether significant court cuts will be enacted—or how resistant the Obama administration will be to such cuts—but dark clouds could be forming on the horizon.

Bruce Moyer is government relations counsel for the FBA. © 2011 Bruce Moyer. All rights reserved.


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