September 2016: A Mixed Scorecard on Court Funding, Vacancies

Washington Watch | September 2016
By Bruce Moyer

As the nation’s attention turns to November’s elections, it’s a good time to take stock of how well Congress has attended to its constitutional responsibilities in ensuring that the federal courts are adequately funded and that the judicial bench is properly staffed. The results are mixed.

Federal Court Funding
First, the good news. The federal courts have been the beneficiary of strong financial support from Congress for the past three consecutive years, ever since the nightmare of sequestration in 2013. In FY2014, FY2015, and earlier this year, Congress approved the judiciary’s modest funding requests, annually providing roughly $7 billion each year, enough to keep the wheels of justice running at moderate speed. The Judiciary clearly has won over the hearts and minds of congressional appropriators, who have publicly noted their satisfaction with the federal courts’ record of stewardship and efficient administration. In fact, Congress last year approved eight courthouse construction projects, after an era without courthouse funding, to address space constraints and security challenges in aging federal courthouses.

The strife of election politics this year is complicating funding progress. In July the House of Representatives approved the federal judiciary’s FY2017 funding request, as part of the Financial Services and General Government appropriations measure (HR 5485). The Senate version of the measure, however, has stalled. The House and Senate, in fact, have failed to send any of the 12 regular FY2017 appropriations bills to the president for signature, necessitating congressional approval in September of a stop-gap measure that continues government funding into the new fiscal year, starting Oct. 1, and likely past the November elections, and possibly into next Spring.

When House and Senate lawmakers return to Washington in September (from a seven-week summer recess), they’ll spar over how long the funding extension should stretch. Democrats will favor an extension until early December, when a lame duck session of Congress will decide what to do next. Some Republicans favor taking action in September that kicks the budget can farther down the road further, stretching the extension into March of next year. If lawmakers ultimately agree to a December extension, they still may decide in December to punt to the spring, depending on the outcome of the elections.

Judicial Vacancies
Judicial vacancies in the federal courts continue to climb, largely due to the pileup of judicial nominations in the Senate without action. When the Senate returns in September, 19 noncontroversial district judicial nominees will await a final Senate vote, the last step of the confirmation process. In addition, two Circuit, two International Trade and five Federal Claims court nominees await approval. But how many of them will get a vote is uncertain. Republican senators frequently note that President Barack Obama already has secured the confirmation of more judicial nominees than occurred during the entire term of George W. Bush. They appear more willing to accept political parity in court picks as the standard rather than the real needs of the courts themselves.

During the last two years, Article III judgeship vacancies rose from 43 to 83. Judicial emergencies nearly tripled with Texas bearing the highest number of district vacancies and judicial emergencies (10) of any state. The problems originate with the reluctance of the two Texas senators to turn in their respective blue slips for five of their nominees to the Judiciary Committee, a step required before the Committee will hold a hearing on any nominee. The other five Texas vacancies are without nominees.

Slowness in the return of blue slips by home-state senators also exists in other states, including Indiana, Alabama, South Carolina, Nevada, North Carolina, Pennsylvania, and Kentucky. These maneuvers aren’t new and continue to define the judicial confirmation wars that have been waged by both sides of the aisle.
Bruce Moyer is government relations counsel for the FBA. © 2016 Bruce Moyer. All rights reserved.


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