Updated: Oct 25, 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
Eighty-five of 890 active federal judicial positions, including the United States Court of Federal Claims and the United States territorial courts, are vacant. Thirty-one more judicial vacancies are expected by mid-2022, with five nominees named in advance.
Thirty-eight 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. Three emergencies are in Circuit Courts, and almost half (18) are in the California district courts.
Judicial Nominations. In September, President Biden named fourteen district court nominees.
Judicial Confirmations.The Senate has confirmed eight federal nominees since August:
On October 18, the Senate Judiciary Committee voted 51-42 to confirm the nomination of Hon. Gustavo Gelpi to the First Circuit Court of Appeals. Judge Gelpi, currently a chief judge for the district of Puerto Rico, previously served as the eighty-sixth National President of the Federal Bar Association from 2013-2014. Judge Gelpi is 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.
Judgeships Bills Stagnant in Both Houses
Legislation to create new federal judgeships continues to languish in both the Senate and House Judiciary Committees. In order to focus Congress’ attention on these bills among the hundreds pending, FBA members must highlight the crisis facing courts across the nation. To that end, the GRC has sent proposed email language and contact information to GRC members and Chapter Presidents, with a request that each individual contact their Senators and Representatives urging expeditious consideration of judgeships bills.
Proposed Amendments to Federal Rules of Practice and Procedure
On June 22, 2021, the Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee) approved publication of proposed amendments to the Appellate, Bankruptcy, Civil, Criminal, and Evidence Rules. The bar, bench, and public are encouraged to submit written comments and may also request to testify at public hearings on the proposed amendments. The comment period will close on February 16, 2022.
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. Nevertheless, it is far from clear that bipartisan, bicameral agreements on funding will be reached by December, and 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. At its final meeting on November 10, the Commission will review draft versions of the report, which is due to the President by November 30, 2021.
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.
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