The Latest on Public Policy and Advocacy Developments from FBA National
In recent weeks, FBA leaders and some grassroots FBA members have joined with GRC counsel in advocacy outreach on some of FBA’s top public policy priorities. Highlights have included FBA President Anh Kremer’s meetings with Senators Whitehouse, Smith and Klobuchar and Congressman Emmer, to build support for the JUDGES Act, an Article I Immigration Court, the Daniel Anderl judicial security bill, and the FBA Foundation Charter Amendments Act, and GRC Chair Rachel Rose’s two days of meetings with members of Congress and senior staff in November and December, as a result of which Rep. Correa joined the Daniel Anderl judicial security bill as a cosponsor and is considering cosponsoring one of the judgeships bills. Finally, as a result of outreach by Rachel Rose and several FBA and GRC members in Texas, Florida, and other “red” states, several FBA member judges agreed to send notes or call their Republican Senators to let them know that the FBA seeks action this year on legislation to increase the number of judgeships.
1. Judicial Security Legislation Moves to Full Senate for a Vote
On December 2, the Senate Judiciary Committee voted to recommend favorably the bipartisan Daniel Anderl Judicial Security and Privacy Act (S. 2340), with minor amendments, to the full Senate. The legislation is intended to 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. One change of interest made in the Committee markup is the expansion of the definition of “Federal Judge” to specifically include Court of Appeals for Veteran Claims, Court of Appeals for Armed Forces, and Tax Court judges. The companion bill (H.R. 4436) continues to await action by the House Judiciary Committee.
2. House Passes Judiciary Financial Disclosures Bill
On December 1 by a vote of 422-4, the House approved the Courthouse Ethics and Transparency Act (H.R. 5720). The bill would amend the Ethics in Government Act of 1978 to require judges to submit securities transactions reports as do other federal officials. The legislation also calls for the Administrative Office of the U.S. Courts to create a searchable public online database of judicial financial disclosure forms and to post forms within 90 days of their filing. The Senate companion bill (S. 3059) remains pending before the Senate Judiciary Committee.
3. Legislation to Create Additional Judgeships Remains Stagnant in Both Houses
Legislation to create new federal judgeships continues to languish in both the Senate and House Judiciary Committees. Because FBA members are uniquely positioned to provide firsthand information about the overwhelming caseloads facing our federal courts, the FBA is continuing grassroots and other efforts to educate members of Congress about the need for more judgeships.
4. Awaiting Senate Action on FBA Foundation Charter Legislation
The Federal Bar Association continues to urge the Senate Judiciary Committee Chair and Ranking Member to facilitate expeditious Senate approval of the House-passed Foundation of the Federal Bar Association Charter Amendments Act of 2021 (H.R. 2679). As of the date of this report, no opposition to approving the bill has surfaced, and we remain hopeful that the Senate will approve the bill by unanimous consent in the new Session of Congress.
5. Federal Judiciary and Judicial Infrastructure Still Operating with FY 2021 Budget
Congress has not made substantial progress on FY 2022 funding legislation and, as a result, has passed a Continuing Resolution maintaining FY 2021 funding levels through February 18, 2022.
In July, the House of Representatives passed a package of appropriations legislation (H.R. 4502), which includes the FY 2022 Financial Services and General Government (FSGG) bill that funds the judiciary and judicial infrastructure. Three spending bills remain on the Union calendar for full House consideration.
In August, the Senate Appropriations Committee marked up three of its 12 annual spending bills: Energy and Water, Agriculture, and Military Construction/Veterans Administration. On October 18, Appropriations Committee Chairman Patrick Leahy (D-VT) released the text of the remaining nine bills, but the Committee has not yet held markups to consider, amend, or vote on them. The full Senate has not approved any funding measures.
6. Additional Items of Note
Judge Roslynn R. Mauskopf, in her capacity as secretary of the Judicial Conference of the United States, sent letters to Congress this week urging lawmakers to defer action on the Open Courts Act of 2021 (H.R. 5844 and S. 2614), until a “meaningful two-way dialogue” between the two branches of government can take place to resolve important concerns.
In a letter to Committee Chairman Hank Johnson, Mauskopf listed several concerns with the legislation, noting that it would create a substantial risk to litigants’ access to justice by raising filing fees; it would disrupt current revenue streams needed for modernization efforts that are already underway, and its prescriptive language could hamper the flexibility needed for such a complex technology project.
1. State of the Federal Courts
On December 31, 2021, U.S. Supreme Court Chief Justice John Roberts released his 2021 Year End Report on the Federal Judiciary. An interesting tidbit is that the Judicial Conference is celebrating its Centennial. In his report, Chief Justice Roberts highlights three key items: (1) financial disclosures and recusal obligations; (2) inappropriate behavior in the judicial workplace (note - the FBA addressed the issue in 2018 and Sheri Mecklenberg, a former GRC Member was very involved and made significant contributions); and (3) judicial assignment and venue of patent cases.
Chief Justice Roberts, towards the end of the report, concludes with this sentiment - “Chief Justice Taft was prescient in recognizing the need for the Judiciary to manage its internal affairs, both to promote informed administration and to ensure independence of the Branch.”
2. Judicial Vacancies, Nominations, and Confirmations
Current Article III Vacancies - As of January 12, 2022 According to the Administrative Office of the U.S. Courts
Seventy-seven of 890 active federal judicial positions, including the United States Court of Federal Claims and the United States territorial courts, are vacant. Thirty-six more judicial vacancies are expected by mid-2022, with seven nominees named in advance.
Thirty-one judicial emergencies in vacancies remain, based on caseload and/or the length of the vacancy, according to the Administrative Office of the U.S. Courts. One emergency is in the 11th Circuit, and fifteen (15) are in the California district courts.
So far in January, the President named sixteen federal court nominees.
The Senate has confirmed one nominee in the month of January.
*This is for a future vacancy.
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