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The Courts and Congress - Annual Report 2013

Administrative Office staff inform Congress about Conference positions and policies related to potential legislation, and explain bills being proposed by the Conference. AO staff are in daily contact with Congressional staff on a wide variety of matters relating to court administration and activities. Providing Member and staff briefings, responding to Congressional inquiries and constituent concerns, and other informational exchanges are part of this ongoing dialogue.

Congressional Hearings

FY 2014 Budget Hearings

In March 2013, Judge Julia S. Gibbons, chair of the Judicial Conference Budget Committee, testified before the House Appropriations Subcommittee on Financial Services and General Government, along with Judge Thomas F. Hogan, then Director of the Administrative Office. Gibbons told Congressional appropriators of sequestration’s dire consequences for the federal courts; “the Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the Constitutional mission of the federal courts.”

The Judiciary sought $7.22 billion in appropriations, a 2.6 percent overall increase above the assumed fiscal year 2013 appropriations levels. This is the lowest requested increase on record and as Gibbons pointed out, “the minimum amount required to meet our Constitutional and statutory responsibilities.” The request also represented a current services budget that limits to just 2.3 percent the growth of the Judiciary’s largest account, the Salaries and Expenses that funds the bulk of court operations.

Senate Hearing on Sequestration Impact

Judge Julia Gibbons, chair of the Judicial Conference Budget Committee testified before the Senate Judiciary Subcommittee on Bankruptcy and the Courts at a July 2013 hearing on “Sequestering Justice: How the Budget Crisis Is Undermining Our Courts.”

Gibbons stated that the number of personnel working in U.S. courts was at the lowest level since 1999, that federal court clerks and probation and pretrial services staff could be furloughed for close to 70,000 hours this fiscal year, and nearly 165,000 furlough hours would be imposed in defender services organizations.

“If sufficient funding is not provided to the courts, we cannot provide the people of the United States the type of justice system that has been a hallmark of our liberty throughout the nation’s history,” Gibbons said. She and the Federal Public Defender for the Eastern District of Virginia, Michael Nachmanoff, who also testified, called special attention to the funding problems facing the Federal Defender program, which incurred a $52 million cut due to sequestration. About 90 percent of federal criminal defendants require court-appointed counsel.

Senate Hearing on Mandatory Minimum Sentences

Sentencing reform is an issue under consideration in both chambers of the 113th Congress. The Senate Judiciary Committee focused on the issue of sentencing reform in the first session of the 113th Congress. On September 18, 2013, the Senate Judiciary Committee held a hearing titled "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences." Judge Robert Holmes Bell, in his capacity as chair of the Criminal Law Committee, submitted a letter in lieu of testimony, which Chairman Leahy submitted for the record.

Several sentencing reform bills are currently pending before the Senate Judiciary Committee, one of which is S. 619, the “Justice Safety Valve Act of 2013.” At its September 2013 meeting, the Judicial Conference endorsed seeking legislation “such as the 'Justice Safety Valve Act of 2013,' . . . that is designed to restore judges' sentencing discretion and avoid the costs associated with mandatory minimum sentences.” As the Senate Judiciary Committee considers this and other sentencing reform legislation, AO staff will continue to represent the Conference positions on Capitol Hill.

The House Judiciary Committee appointed a task force on over-criminalization, led by Representative F. James Sensenbrenner, Jr. (R-WI), the former full committee chairman and current chairman of the Crime Subcommittee, and Representative Robert C. “Bobby” Scott (D-VA), the former chairman and current ranking member on the Crime Subcommittee. After the task force was organized in May 2013, Judge Hogan sent a letter to Representatives Sensenbrenner and Scott emphasizing the Conference's longstanding concerns about the issues of over-criminalization and particularly over-federalization of criminal law and offering to assist the task force as it considers these important issues. AO staff are monitoring the task force closely, to ensure that the Judiciary's views are given due consideration.

House Hearing on Federal Courthouse Planning

In mid-April, the House Subcommittee on Transportation and Infrastructure held a hearing titled “Are Additional Federal Courthouses Justified?” The hearing was prompted by the Government Accountability Office (GAO) report “Federal Courthouses: Proposed Construction Projects Should Be Evaluated Under New Capital Planning Process.” GAO recommended a moratorium on courthouse projects and suggested that the Judiciary duplicate analyses already provided to the Office of Management and Budget and Congress by the General Services Administration.

Judge Michael Ponsor, chair of the Judicial Conference Committee on Space and Facilities, testified before the subcommittee, noting that the Judiciary has taken the lead in developing objective planning criteria that ensure that projects with the highest level of urgency come first. Ponsor told the subcommittee that any delay in proceeding with the Judiciary’s Five Year Courthouse Construction Plan would be grossly unfair to the communities that have been waiting many years for desperately needed new courthouses.

House Hearing on Judicial Conduct and Disability

In April 2013, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, held a hearing, “An Examination of the Judicial Conduct and Disability System,” at which Judges Anthony Scirica and David Sentelle testified on behalf of the Judiciary.

The hearing looked at how the Judiciary administers the Judicial Conduct and Disability Act and what has been done to implement the procedural rules adopted in 2008 by the Judicial Conference. Scirica and Sentelle responded to subcommittee questions about the process by which complaints against judges are handled, along with questions about the Judiciary’s auditing and whistleblower protection measures.

Legislative Activity

Judgeship Requests

Article III Judgeship Recommendations

On March 26, 2013, short-term extensions for nine existing temporary Article III judgeships that were scheduled to lapse were included in the Consolidated and Further Continuing Appropriations Act of 2013 (Pub. L. No. 113-6). The nine judgeships were in the Northern District of Alabama, the District of Arizona, the Central District of California, the Southern District of Florida, the District of Hawaii, the District of Kansas, the Eastern District of Missouri, the District of New Mexico, and the Eastern District of Texas.

On April 5, 2013, then-AO Director Judge Thomas Hogan sent a letter to members of Congress transmitting the Judicial Conference’s request for 91 additional Article III judgeships and the conversion of eight existing temporary judgeships to permanent status. The AO Director also noted that five district courts are struggling with extraordinarily high and sustained workloads and urged Congress to establish, as soon as possible, new judgeships in the Eastern District of California, the Eastern District of Texas, the Western District of Texas, the District of Arizona, and the District of Delaware. Each of these districts has 700 or more weighted filings per authorized judgeship, averaged over a three-year period.

On May 9, 2013, during the Senate Judiciary Committee’s markup of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act (the Senate’s comprehensive immigration bill), Senator Dianne Feinstein (D-CA) introduced an amendment that would authorize eight new Article III judgeships: three in the Eastern District of California, two in the District of Arizona, two in the Western District of Texas, and one in the Southern District of Texas. The amendment also converted the temporary judgeships in the District of Arizona and the Eastern District of California to permanent status. The amendment was adopted by voice vote.

On July 25, 2013, Senator Tom Udall (D-NM) introduced the Financial Services and General Government Appropriations Act, 2014 which would authorize 12 new permanent district judgeships, specifically two in the District of Arizona, four in the Eastern District of California, two in the Western District of Texas, and one in each of the following districts: Delaware, Minnesota, New Mexico, and Texas-Southern. In addition the bill would convert from temporary to permanent three existing judgeships in the District of Arizona, the Central District of California, and the District of New Mexico.

On July 30, 2013, Senator Chris Coons (D-DE) introduced S. 1385, the Federal Judgeship Act of 2013, to authorize all of the Judicial Conference’s recommended Article III judgeships previously transmitted to Congress in April 2013. On August 2, 2013, Representative David Valadao (R-CA) introduced H.R. 3058, the Central Valley Judicial Relief Act of 2013, which would authorize six new judgeships for the Eastern District of California, and also convert the temporary judgeship in that district to permanent status.

In September 2013, Judge Timothy M. Tymkovich, chair of the Judicial Conference Committee on Judicial Resources, appeared before the Senate Judiciary Subcommittee on Bankruptcy and the Courts, to testify on the Article III judgeship needs of the federal Judiciary and the process used to determine judgeship needs.

Bankruptcy Judgeships

In March 2013, the Judicial Conference adopted the Bankruptcy Committee’s recommendations that Congress create 31 new bankruptcy judgeships and convert 20 existing, temporary bankruptcy judgeships to permanent status. At its June 2013 meeting, the Committee recommended that the Judicial Conference give the AO Director authority, in consultation with the Committee, to seek legislation to convert to permanent status any or all of the temporary judgeships included in the Committee’s recommendation.

Temporary Judgeships

House and Senate versions of the FY 2014 Financial Services and General Government appropriations bills included one-year extensions for eight temporary district judgeships set to expire in FY 2013: the Northern District of Alabama, the District of Arizona, the Central District of California, the Southern District of Florida, the District of Kansas, the Eastern District of Missouri, the District of New Mexico, and the Eastern District of Texas (the expiring temporary judgeship for the District of Hawaii was not included in the House bill). In January 2014, the Consolidated Appropriations Act, Public Law No. 113-76, extended these temporary judgeships for one year.

S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act (the Senate-passed comprehensive immigration bill) includes language to convert the temporary judgeships in the District of Arizona and the Eastern District of California to permanent status. H.R. 3058, the Central Valley Judicial Relief Act of 2013, includes provisions to convert the temporary judgeship in the Eastern District of California to permanent status.

GAO Mandates Revision Act of 2012

The President signed the GAO Mandates Revision Act of 2012 into law in December 2012 (Pub. L. No. 112-234). The Act repealed or modified certain GAO mandates, including the elimination of GAO’s requirement to conduct cyclical audits of the Judicial Survivors’ Annuities System (JSAS) every three years. The purpose of the audit was to determine whether participating judges’ contributions to the JSAS fund for each three-year cycle accounted for 50 percent of the costs, and if not, what adjustments in those contribution rates would be needed to achieve the 50 percent ratio. The AO also is tracking the Government Accountability Office Improvement Act (H.R. 1162), which would increase GAO’s investigative and audit authorities.

Immigration Reform

A major immigration reform bill has passed the Senate, while several related bills are being worked on in the House. While the Judiciary has taken no position on the underlying substantive policy issues, Judicial Conference committees are reviewing discrete facets of these initiatives affecting judicial administration and workload.

Several aspects of the proposals would present major budgetary concerns for the Judiciary. At this time, it is not possible to estimate the potential short- and long-term impact of the legislation on the Judiciary, as the resulting workload will depend largely on Executive Branch decisions and actions. For example, increased border enforcement efforts on the Southwest Border and other areas will inevitably increase prosecutions throughout the federal courts. Legalization provisions and workplace employment provisions also include several avenues for both administrative and judicial review. But the current proposals do not provide for a specified funding source for the Judiciary to meet all of its obligations under the legislation. Letters were sent to the House and Senate urging Congress to ensure that the Judiciary has the resources it needs as immigration reform legislation, if enacted, is implemented over time. The Senate bill also includes language to create eight new district judgeships and convert two existing temporary judgeships to permanent status.

Parole Commission Extension

H.R. 3190, the United States Parole Commission Extension Act of 2013, was introduced on September 26, 2013, and scheduled for markup by the House Judiciary Committee on October 1. The markup, however, was canceled in light of the government shutdown. Judge Bates, as Secretary of the Judicial Conference, sent a letter to House Judiciary Committee leadership on October 11, expressing the Conference’s support for extending the Commission, or a successor agency, to conduct parole revocation hearings for “old law” prisoners. On October 14, the House of Representatives passed H.R. 3190 by unanimous consent, bypassing the Judiciary Committee’s markup process. A similar letter was sent to Senate leadership on October 23. On October 30, the Senate also passed H.R. 3190 by unanimous consent, and the President signed it into law on October 31 (upon which date the United States Parole Commission’s current authorization was scheduled to expire).