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June Government Relations Update

The Latest on Public Policy and Advocacy Developments from FBA National

Judicial Vacancies, Nominations, and Confirmations

Current Article III Vacancies (as reported by the US Courts website on June 1, 2021)

The Senate is expected in June to approve the first of President Biden’s judicial nominees, including two federal appeals court picks. Last month on May 20, the Senate Judiciary Committee approved the first set of Biden’s judicial nominees, including the two federal appeals court and three district court nominees. The panel advanced the nomination of Judge Ketanji Brown Jackson to the U.S. Court of Appeals for the District of Columbia Circuit by a vote of 13 to 9, as well as Candace Jackson-Akiwumi to the 7th U.S. Circuit Court of Appeals by a near party-line vote of 12-10. The committee also gave bipartisan approval of the nominations of both Judge Zahid Quraishi and Julien Neals to the U.S. district court in New Jersey, and Regina Rodriguez to the federal district court in Colorado.

Viewing the nominations process under President Biden more broadly, the President has nominated agency heads and leadership throughout the federal government at a faster pace than his recent predecessors, but the number of confirmations to date is fewer, the Wall Street Journal reported recently. At a point more than four months into his presidency, Biden has made 244 nominations to Senate-confirmed positions, surpassing the pace of nominations by Presidents Bill Clinton, George W. Bush, Barack Obama and Donald Trump. The pace has more than doubled the nominations made at this stage of the administration of President Trump.

Presidential Commission on the Supreme Court

President Biden’s Supreme Court commission met publicly for the first time on May 19, 2021, focusing primarily on housekeeping business. During the meeting, several of the commissioners previewed the issues under study, including proposals to increase the number of justices, impose term limits, curtail the court’s jurisdiction, and mandate that only a supermajority of the court’s members can invalidate an act of Congress.

The commission, whose 36 members are comprised of legal scholars, retired judges and practicing lawyers, is tasked with researching the merits of the reform proposals and submitting a report to the president by November 15, 2021, but not necessarily with recommendations.

The commission is expected to hold six public meetings over the next six months. At least two of those meetings will feature public testimony, with additional opportunity by members of the public to post comments on the commission’s website by August 15, 2021.

Additional Federal Judgeships

House and Senate bills establishing additional federal appeals court and district court judgeships have not yet been introduced. The Judicial Conference of the United States on March 16 recommended to Congress that it create two new court of appeals judgeships and 77 new district judgeships. The Conference also recommended that nine temporary district judgeships be converted to permanent status.

Judicial Security

House and Senate bills addressing judicial security have not yet been reintroduced in the 117th Congress. The House Judiciary Committee and New Jersey Senators Menendez and Booker continue to confer on reintroduction of the “Daniel Anderl Judicial Security and Privacy Act of 2020” (S. 4711).

Free PACER and Federal Court Records Modernization

The Open Courts Act (HR 8235 in the 116th Congress) has not yet been reintroduced in the 117th Congress, despite its passage in the House late last year. The measure would require a complete overhaul of the federal courts’ electronic platform (Case Management/Electronic Case Filing or “CM/ECF”) for online filing in the appellate, district and bankruptcy courts. The legislation also would terminate charges for non-commercial users of the federal courts’ Public Access to Court Electronic Records (PACER) system, which allows users to access documents in current and recently closed federal cases.

The Federal Bar Association has raised concerns about the necessity and cost of a federal court records overhaul and remains opposed to increases in litigant fees to finance the initiative. Any federal court records system overhaul will require the utmost assurance of greater protection and funding against cybersecurity breaches. The Senate Homeland Security and Governmental Affairs Committee on May 11 held a hearing on the SolarWinds attack, which may have compromised highly-sensitive, sealed documents contained within CM/ECF. The cyberattack also hit nearly a dozen federal government agencies and approximately 100 corporate enterprises.

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