The Latest on Public Policy and Advocacy Developments from FBA National
Judicial Vacancies, Nominations, and Confirmations
Overall, seven of President Biden’s judicial nominees have been confirmed, while seventy-eight Article III vacancies remain. Here are the current vacancies:
Current Article III Vacancies According to the Administrative Office of the U.S. Courts
Eighty-two of 890 active federal judicial positions, including the United States Court of Federal Claims and the United States territorial courts, are vacant. Twenty-nine more judicial vacancies are anticipated by mid-2022.
Thirty-seven 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. More than one-half (23 to be exact) of the judicial emergency vacancies are in the Ninth Circuit, with seven in the appeals court and sixteen in the California district courts.
Judicial Nominations. President Biden nominated one circuit court and five district court nominees in June:
On June 23, the Senate held a hearing on 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 eighty-sixth National President of the Federal Bar Association from 2013-2014. 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 the two circuit court and five district court nominees in June:
Judge Ketanji Brown Jackson was confirmed to the D.C. Circuit Court of Appeals on a 53-44 vote, receiving support from three Senate Republicans (Collins, Graham and Murkowski). Democratic leaders eye her as a top candidate for the Supreme Court and hope to maintain bipartisan support for her nomination to the High Court if a vacancy were to open.
House Approves FBA Foundation Charter Legislation
The House of Representatives on June 23, 2021, approved the Foundation of the Federal Bar Association Charter Amendments Act of 2021 (H.R. 2679), which will facilitate changes to the governance and operation of the Foundation of the Federal Bar Association. Upon passage of the legislation, the Foundation issued the following statement:
“The Foundation of the Federal Bar Association, which is the only institution chartered by Congress to facilitate the administration of justice and foster improvements in the practice of federal law, commends the House of Representatives for approving by an overwhelming margin critically needed legislation to assist the Foundation in modifying its Congressional charter to achieve greater efficiencies for decades to come. The legislation will provide the Foundation with the organizational flexibility necessary to grow and honor its mission on a nonpartisan basis. We are very grateful to bill sponsors Congressman Steve Chabot and Congressman Jamie Raskin for their diligent efforts in securing House passage and their longstanding commitment to our federal legal system. We also want to thank Judiciary Committee Chairman Jerrold Nadler and Ranking Member Jim Jordan for expediting consideration of H.R. 2679. We look forward to working with our champions in the U.S. Senate to ensure that this legislation receives favorable consideration and that it will become law in the near future.”
Upon House passage, the legislation was referred to the Senate Judiciary Committee for consideration and action.
Federal Courts Funding Bill Approved by House Panel
The House Appropriations Committee on June 29, 2021, approved fiscal year 2022 Financial Services and General Government funding legislation (H.R. 4345) that includes funding for the federal courts. The bill, which on June 24 had been approved by the FSGG Subcommittee, was approved by the full appropriations panel on a 33 to 24 vote.
The Federal Bar Association earlier had urged the Committee to approve the Federal Judiciary’s FY 2022 budget request and security-related supplemental funding request. “These requested funds are critical to assure the federal courts are able to fulfill their constitutional and statutory responsibilities,” FBA President W. West Allen stated in an FBA letter to the Committee.
The bill as approved by the House Appropriations Committee provides a total of $8,152,134,000 in discretionary funding for the Judiciary in fiscal year 2022. This is a $432,302,000 increase above fiscal year 2021 levels and largely responds to the Judiciary’s budget request. Included in the bill is funding for a new Diversity Fellowship Program within the Judiciary’s Defender Services Program that will increase the diversity of attorneys qualified to join Federal Defender Offices.
The FSGG Subcommittee report on the bill commends the Supreme Court for its “continued success with real-time audio oral arguments” and its optimism for the continuation of the same public access to the courts made available by technology during the COVID-19 pandemic. “The Committee is also keenly interested in how technology and telework will play a role in the Judiciary’s future as courts reopen; jury trials resume; and defender, probation, and pretrial workloads increase.”
The Subcommittee report also expressed concern over the safety of all Judicial employees, mindful of recent threats and attacks upon Judicial staff. It also noted concern over the high level of filings and the robust caseload within the Central District of California. It directed the Judiciary to brief the Committee on “how the number of judgeships can be expanded in the Central District of California as well as how more judges can be located in the Eastern Division.” The Federal Judiciary in its 77-new district judgeships request to Congress earlier this year asked for 30 judgeships in the four California districts, including including 15 in the Central District.
Comprehensive legislation responsive to the Judiciary’s judgeships request has not yet been introduced in the House or Senate.
Senate Judiciary Committee Approves Two Cameras Bills Over Judiciary’s Opposition
The Senate Judiciary Committee on June 24, 2021, approved two bills to authorize cameras infederal courtrooms over the objection of the Judicial Conference of the United States, the policy-making body of the federal judiciary. The Judiciary Committee approved the Cameras in the Courtroom Act of 2021, S. 807, by a bipartisan 15-7 vote and the Sunshine in the Courtroom Act of 2021, S. 818, by a bipartisan 16-6 vote. The Cameras in the Courtroom Act, introduced by Sen. Richard Durbin (D-IL), requires the Supreme Court to permit television coverage of all open sessions of the Court unless it decides by majority vote that allowing such coverage in a particular case would violate the due process rights of any of the parties involved. The Sunshine in the Courtroom Act, introduced by Sen. Chuck Grassley (R-IA), establishes a framework to allow federal court proceedings—in district courts, in circuit courts, and at the Supreme Court—to be photographed, recorded, broadcast, or televised. Specifically, it authorizes the presiding judge to permit media coverage of court proceedings, subject to requirements and limitations. The authorities for district courts would expire after three years, at which point lawmakers could decide whether to renew the measure.
During the committee markup, Sen. Ted Cruz (R-TX) offered two amendments to the Cameras in the Courtroom Act. One would require the court to post audio of arguments the same day they were heard, and the other would set the number of justices on the court at nine. Both amendments failed.
The Judicial Conference has historically opposed the Sunshine in the Courtroom Act, and a letter from Administrative Office Director Hon. Roslynn Renee Mauskopf to the Senate Judiciary Committee reiterated that opposition. “The Judicial Conference has consistently expressed the view that camera coverage can do irreparable harm to a citizen’s right to a fair and impartial trial. The intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly negative impact on the trial process,” she wrote. The Judicial Conference did not take a position on the standalone Supreme Court legislation.
Remote federal court proceedings, including remote oral arguments at all federal appeals courts and the Supreme Court, have been livestreamed in an unprecedented fashion during the pandemic over the past year. It’s unclear whether the courts will continue to do so once the national emergency created by the pandemic ceases.
In her letter, Judge Mauskopf noted that the judiciary “has learned a great deal about the benefits and risks of providing audio and video access during emergency situations, and is endeavoring to determine whether, and under what circumstances, conferencing platforms and real-time audio could be used in the district courts.”
The Federal Bar Association historically has maintained a neutral stance toward cameras in the federal courts, favoring discussion of the competing considerations. The FBA Issues Agenda provides support for “discussion of the competing considerations vis-a-vis proposed legislation which would authorize federal judges, in their discretion, to permit photographing, electronic recording, broadcasting, and televising of federal court proceedings in appropriate circumstances.”
SCOTUS Commission Receives Expert Views on Reform Proposals
The Presidential Commission on the Supreme Court of the United States held a hearing on June 30 to receive expert testimony on a broad range of court reform proposals, including expanding the size of the court, increasing its transparency and limiting the tenure of justices and the court’s jurisdiction. 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.
Expert witnesses at the June 30 hearing testified on: the origins of Supreme Court reform efforts, the court’s role in the American constitutional system, the court’s case-selection process, and transparency issues. Witness testimony and hearing video may be found here; SCOTUSBlog coverage is here.
The next Commission hearing is scheduled for July 20 to hear expert testimony on the confirmation process, court reform, term limits and turnover, the composition of the court, and reflections on the Supreme Court and constitutional governments. The commission will continue to accept public comments until November 15. The final three meetings of the Commission – tentatively scheduled for October 1, October 15 and November 10 – will review draft versions of the commission’s report.