January-February 2014: Court Funding and Judicial Vacancy Challenges Persist

Washington Watch | January/February 2014
By Bruce Moyer

Two familiar issues may dominate the federal judiciary’s policy agenda in Washington in the year ahead. Budget pressures created by continued fiscal austerity will continue to impose operational constraints in certain parts of the federal court system. In addition, the confirmation of judicial nominees to a persistently large number of vacancies on the federal bench will remain a challenge. The Federal Bar Association will continue its advocacy on these issues in support of an independent judiciary and the effective administration of justice during the year ahead, including during the FBA Capitol Hill Day on April 24, 2014.

Tight Funding for the Courts

While the budget deal reached by Congress in December will temper the overall impact of sequestration, severe budget pressures will remain for the federal courts. Chief Justice John Roberts in his year-end report on December 31, 2013 warned Congress and the White House that continuing budget shortfalls and sequestration cuts could create a “bleak” future for the fair administration of justice in the nation’s federal courts without adequate funding for the Third Branch. “The budget remains the single most important issue facing the courts,” Roberts said in his report.

In early December, the Judicial Conference of the United States requested from Congress a FY 2014 funding level of $7,042,067,000 in mandatory and discretionary appropriations. This represented a small increase over last year’s post-sequestration funding amount and included the additional $60 million to satisfy the new mandatory costs associated with the restoration of cost-of-living adjustments for federal judges authorized by the Beer litigation last year.

The Federal Bar Association supported the Judicial Conference’s funding request in two letters to Congressional appropriations leaders in November and December. This included a letter that FBA coordinated and co-signed with four other national bar and legal groups, including the American Bankruptcy Institute, Corporate Counsel Association, National Association of Criminal and Defense Lawyers, and The Constitution Project.

Judicial Vacancies Remain

As 2014 began, there were more vacancies (93) on the federal bench than existed a year ago. As the second session of the Congress began in early January, President Obama resubmitted the names of 55 judicial nominees to district and circuit court posts. That means that nearly half of the vacancies are yet without nominees.

The district court vacancies are most pronounced in Pennsylvania (10), Texas (7) and Arizona (6). Although action on judicial vacancies typically slows down during an election year, that number could still come down considerably over the next several months as the result of the Senate’s change in its rules for confirming most judicial and executive branch nominees. That rule change, invoked as the so-called “nuclear option” in November 2013, will make it easier to confirm Senate nominees by requiring only a simple majority of 51 votes (not 60 as before) to overcome filibusters of judicial and executive nominees. (Supreme Court nominees are excluded from the rule change).

While the rule change will make it easier for the majority party in the Senate to finalize floor action on nominees, other tools of obstruction will remain available to the minority party to slow down or block the path of approval, particularly earlier in the confirmation process within the Senate Judiciary Committee, before nominees reach the Senate floor. The most common delay tactic will involve withholding of a nominee’s “blue slip” by home state Senators of the minority party.

When a Presidential nominee for a judgeship is referred to the Judiciary Committee at the start of the confirmation process, the two senators from the nominee’s home state are informed by a letter on light blue paper. The letter invites each senator to check a box indicating whether he or she approves or disapproves of the nomination. Blue slips are not authorized or mentioned in the Constitution, in federal law, or even in the rules of the Senate, and are only a Senate tradition, in use since the early twentieth century. In the past, the chairman of the Senate Judiciary Committee, regardless of party, has refrained from scheduling action on a judicial nominee, whether for a district or circuit court post, until their respective home-state Senators have turned in their “blue slip,” signaling their support of the nominee.

The Federal Bar Association will continue to urge the President  and the Senate to promptly name and consider well-qualified judicial  candidates to assure that the federal bench is staffed at levels  established by law.

Bruce Moyer is government relations counsel for the FBA. © 2014 Bruce Moyer. All rights reserved.

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