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August Government Relations Update

The Latest on Public Policy and Advocacy Developments from FBA National

Judicial Vacancies, Nominations, and Confirmations

Overall, nine of President Biden’s judicial nominees have been confirmed, while 80 Article III vacancies remain. Here are the current vacancies:

Eighty-four of 890 active federal judicial positions, including the United States Court of Federal Claims and the United States territorial courts, are vacant. Thirty-two more judicial vacancies are anticipated by mid-2022, with four nominees named in advance.

Thirty-eight judicial emergencies vacancies remain, based on caseload and/or the length of the vacancy, according to the Administrative Office of the U.S. Courts. Almost half of the judicial emergency vacancies are in the Ninth Circuit, with 18 in the California district courts.

Judicial Nominations. President Biden named two new circuit court, four district court, and two court of federal claims nominees on June 30 and none in July.

On July 22, the Senate Judiciary Committee voted 12-10 in favor of the nomination of Hon. Gustavo Gelpi to the First Circuit Court of Appeals. Judge Gelpi, currently a district court judge for the District of Puerto Rico, previously served as the 86th National President of the Federal Bar Association from 2013 to 2014. If confirmed, Judge Gelpi will be the second judge of Hispanic origin to serve on the United States Court of Appeals for the First Circuit and the second judge from Puerto Rico ever to sit on the First Circuit.

Judicial Confirmations. The Senate confirmed one federal court nominee in July: Tiffany Cunningham for the Federal Circuit.

Senate Action Pending on FBA Foundation Charter Legislation

As reported in July, the House of Representatives passed the Foundation of the Federal Bar Association Charter Amendments Act of 2021 (H.R. 2679), and the bill has been referred to the Senate Judiciary Committee. The Federal Bar Association is urging the Senate Judiciary Committee Chair and Ranking Member to promptly consider and approve this noncontroversial legislation, which will provide the Foundation with greater operational flexibility and sustain the mission of the Foundation into the future.

Judgeships Bills Filed in Both Houses

On July 29, 2021, Senators Todd Young, R-Ind., and Chris Coons, D-Del., introduced the Judicial Understaffing Delays Getting Emergencies Solved (JUDGES) Act (S. 2535) to address the shortage of judicial resources in federal courts across the country. Based upon the recommendations of the non-partisan Judicial Conference, the JUDGES Act would add 77 federal district court positions in jurisdictions with the heaviest caseloads. In an attempt to avoid giving either political party an advantage in filling the new seats, the bill provides that half the new positions would be nominated by the president inaugurated in January 2025 and the other half by the president inaugurated in January 2029.

A companion to the JUDGES Act (H.R. 4885) is sponsored in the House by Republican Reps. Darrell Issa, R-Cal., and Victoria Spartz, R-Ind., and Democratic Reps. Scott Peters and Juan Vargas of California.

In addition, on July 30, Rep. Hank Johnson, D-Ga., Chairman of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet, introduced the District Court Judgeships Act of 2021 (H.R. 4886), that would immediately add 203 U.S. district judges in 47 federal judicial districts. Congressman Johnson’s bill is co-led by Judiciary Committee Chairman Rep. Jerrold Nadler, D-NY, Congressman Ted Lieu, D-Cal., Immigration and Citizenship Chair Zoe Lofgren D-Cal., Crime, Terrorism, and Homeland Security Chair Shelia Jackson Lee, D-Tex., Constitution, Civil Rights, and Civil Liberties Chair Steve Cohen, D-Tenn., and Antitrust, Commercial and Administrative Law Chair David Cicilline, D-RI. Other original cosponsors include Rep. Eric Swalwell, D-Cal., Rep. Matt Cartwright, D- Penn., Rep. Mondaire Jones, D- NY, Rep. G.K. Butterfield, D-NC, Rep. Deborah Ross, D-NC, Rep. Pramila Jayapal, D-Wash., Rep. Madeleine Dean, D-Penn., Rep. Joe Neguse, D-Colo., Rep. Ted Deutch, D-Fla., Rep. Val Demings, D-Fla., Rep. Alexandria Ocasio-Cortez, D-NY, and Rep. Karen Bass, D-Cal.

The last comprehensive judgeships legislation was enacted in 1990, and the number of federal judges has not increased since 2003. In March of 2021, the Judicial Conference recommended 79 new judgeships, including two for the U.S. Circuit Court of Appeals for the Ninth Circuit. According to the JCUS, caseloads in federal district courts, as of the end of fiscal year 2019, increased 47 percent since the last omnibus judgeships bill was enacted in 1990. Appellate caseloads have risen 12 percent since then. The FBA has submitted letters to both House and Senate Judiciary Committee leadership supporting the expeditious consideration of legislation to increase the number of judgeships.

Judicial Security Legislation Introduced in Both Houses

A bipartisan group of Senators led by Robert Menendez, D-NJ, re-introduced the Daniel Anderl Judicial Security and Privacy Act (S. 2340) on July 14, 2021. Rep. Mike Sherrill, D-NJ, and Rep. Brian Fitzpatrick, R-Pa., introduced the House companion bill (H.R. 4436) on July 16. The legislation would improve the safety and security of the federal judiciary by prohibiting data brokers and other businesses from disclosing the personally identifiable information of federal judges and their families. Both the Senate and House bills are currently pending before their respective Judiciary Committees.

The FBA has taken a position of strong support for the enactment of Daniel Anderl Judicial Security and Privacy Act and the protection of personally identifiable information about members of the federal judiciary. FBA President W. West Allen wrote to leadership in the 116th Congress last fall and urged the Senate and the House, in correspondence respectively dated October 14 and October 20, 2020, to pass the Daniel Anderl Judicial Security and Privacy Act of 2020 (H.R. 8591) and (S. 4711).

SCOTUS Commission Concludes Public Hearing Series on Reform Proposals

The Presidential Commission on the Supreme Court of the United States conducted its final public hearing on July 20, 2021. The commission received expert testimony from Supreme Court practitioners on various topics including the confirmation process, Supreme Court reform, term limits and turnover on the Court, and the composition of the Court. Much of the discussion focused on proposals for implementing term limits, their constitutionality, and the implementation of them.

Witness testimony and hearing video may be found here; SCOTUSBlog coverage can be found here.

The bipartisan, 36-member commission is tasked by Executive Order 14023 with studying potential reforms and submitting a report to the president by November 30. With more than 3,000 written comments already submitted, the commission will continue to accept public comments until November 15. The FBA is preparing comments for submission which urge the commission to view proposed changes in light of fundamental constitutional principles, the pursuit of better judicial administration, and in accord with the will of the American people. At its final three meetings, which are scheduled for October 1, October 15 and November 10, the commission will review draft versions of the report.


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