Updated: Nov 30, 2021
The Latest on Public Policy and Advocacy Developments from FBA National
Judicial Vacancies, Nominations, and Confirmations
Current Article III Vacancies - As of October 21, 2021 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-five more judicial vacancies are expected by mid-2022, with seven nominees named in advance.
Thirty-three 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. Seven emergencies are in Circuit Courts, and almost half (18) are in the California district courts.
In October, President Biden named one court of claims nominee. So far in November, the President has named six U.S. District Court nominees.
The Senate has confirmed twelve federal nominees since October 15:
* Former FBA National President
Judgeships Bills Stagnant in Both Houses
Legislation to create new federal judgeships continues to languish in both the Senate and House Judiciary Committees. The FBA supports the creation of new judgeships to alleviate the burden on the federal courts and is urging the House and Senate Judiciary Committees to prioritize this issue.
FY2022 Funding for the Judiciary and Judicial Infrastructure
Although in July, the House of Representatives passed the FY 2022 Financial Services and General Government (FSGG) appropriations bill as part of a larger six-bill package (H.R. 4502), by September 30 -- the end of the federal government’s fiscal year -- the Senate had not passed any funding measures. Consequently, Congress passed a Continuing Resolution (“CR”) extending the FY 2021 funding levels through December 3, 2021. Operating under a CR hamstrings the courts by prohibiting new starts and can even prevent the realignment or elimination of programs that are wasting money. With the NDAA consuming Senate floor time before Thanksgiving and Congress in recess from November 19-29, it does not appear likely that appropriations bills will be finalized by December 3, meaning that another CR is expected. Whether bipartisan, bicameral agreements on funding can be reached by year-end remains to be seen. It is possible that another CR will extend FY 2021 spending levels into the new year.
SCOTUS Commission Finalizing Report on Reform Proposals
The Presidential Commission on the Supreme Court of the United States is in the final stages of preparing its report to the President regarding Supreme Court reform, having held four public hearings to receive testimony and to deliberate on the report. The tentative structure of the report includes five chapters, beginning with the genesis of the reform debate and the Commission's mission, moving to an assessment of the Court’s membership and size, the length of service and turnover of Justices, the Court's role in the Constitutional system, and the Court’s processes and practices for case selection and review.
The Commission has added another public meeting to its schedule and has postponed the delivery of its final report from November 30 to December 15, citing a need for more time to deliberate. At its fifth public meeting on November 19, the Commission will discuss revised discussion materials it plans to release the day prior. The Commission plans to prepare and release a draft report one day before its final meeting, which is scheduled for December 7.
Senate Action Pending 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 before the end of the year.
Judicial Security Legislation Pending in Both Houses
The Daniel Anderl Judicial Security and Privacy Act (S. 2340 and H.R. 4436), introduced in July, also is awaiting Committee action on the Hill. 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. The FBA urged support for these bills in Capitol Hill Day meetings and continues to do so via follow-up contacts.
Judiciary Financial Disclosures
The GRC will be monitoring bipartisan legislation recently filed in both houses of Congress in response to a Wall Street Journal article reporting that a number of federal judges have handled cases involving companies in which they or their family members owned stock. The Senate version of the bill, the Courthouse Ethics and Transparency Act (S. 3059), would amend the Ethics in Government Act of 1978 to require judges to submit securities transactions reports as do other federal officials under the STOCK Act. 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.
Lead sponsors of the Senate bill are John Cornyn (R-Tex), and Christopher Coons (D-Del). Other cosponsors are Senate Judiciary Committee Chairman Dick Durbin (D-Ill), Ranking Member Chuck Grassley (R-Iowa), Sheldon Whitehouse (D-RI), John Kennedy (R-La), and Ted Cruz (R-Tex).
Representative Deborah Ross (D-NC) introduced a companion bill (H.R. 5720) cosponsored by House Judiciary Committee members Darrell Issa (R-Cal) and Chairman Jerrold Nadler (D-NY).
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