The Latest on Public Policy and Advocacy Developments from FBA National
Judicial Vacancies, Nominations, and Confirmations
Overall, twenty-eight of President Biden’s judicial nominees have been confirmed, while seventy-nine Article III vacancies remain. Here are the current vacancies:
Current Article III Vacancies - As of Decebber 14, 2021 According to the Administrative Office of the U.S. Courts
Seventy-nine of 890 active federal judicial positions, including the United States Court of Federal Claims and the United States territorial courts, are vacant. Forty-one more judicial vacancies are expected by mid-2022, with nine 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. One emergency is in the 11th Circuit, and over half (18) are in the California district courts.
Judicial Nominations
So far in November, the President named six district court nominees.
Judicial Confirmations
The Senate confirmed two nominees in the month of November.
Senate Makes Progress on Judicial Security Legislation
On December 2, the Senate Judiciary Committee voted to recommend favorably the bipartisan Daniel Anderl Judicial Security and Privacy Act (S. 2340) 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. The companion bill (H.R. 4436) continues to await action by the House Judiciary Committee. The FBA urged support for these bills in Capitol Hill Day meetings and continues to do so via follow-up contacts with members of both Judiciary Committees.
House Moves 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), sponsored by Representatives Deborah Ross (D-NC), Darrell Issa (R-Cal), Jerrold Nadler (D-NY), Hank Johnson (D-Ga), Chip Roy (R-Tex), Sheila Jackson Lee (D-Tex), and Ralph Norman (R-SC). 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. Lead sponsors of the Senate version 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).
Judgeships Bills Remain 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.
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 GRC has solicited and received comments from the relevant FBA Sections and is considering a proposed public comment.
FY2022 Funding for the Judiciary and Judicial Infrastructure
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.
SCOTUS Commission Finalizing Report on Reform Proposals
The Presidential Commission on the Supreme Court of the United States provided its final report to President Biden on December 7, taking no position on any of the proposed reforms it considered. Although the report notes that proposals for term limits “enjoyed considerable bipartisan support,” the Commission does “not take a position on whether or how term limits ought to be implemented but rather seeks to define and inform the debate over these questions.” The report does, however, include several suggestions for enhancing transparency, as well as recommendations that the Court adopt an advisory code of conduct and continue live-streaming audio of oral arguments.
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.
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