The federal courts were asked to do a lot with a little in 2012, on the bench and in budgets.
A slew of judicial vacancies went unfilled, with the White House facing pushback from Senate Republicans over nominees. Confirmations picked up during the lame duck session, but many courts will still enter 2013 with empty seats. Come February, for instance, the 11-member U.S. Court of Appeals for the D.C. Circuit will be saddled with four vacancies.
Impending spending cuts in 2013 had court administrators on edge. Even if lawmakers reached a deal to avoid the cuts, known as sequestration, no new courthouse construction projects were approved in last year’s and the upcoming year’s budgets. Judges did get some good news, though: In October, a full sitting of the U.S. Court of Appeals for the Federal Circuit ruled that Congress couldn’t revoke cost-of-living adjustments the judges had been promised.
More money, more problems? Court watchdog groups decried an influx in outside spending in state court elections this year, calling it a threat to judicial independence. Many cited the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission as opening the floodgates, while others identified bitterly divisive partisan politics as a factor.
According to the Brennan Center for Justice and Justice at Stake — nonpartisan groups aimed at keeping courts fair and impartial — close to $28 million was spent in this year’s election on TV ads in state supreme court races, $4 million more than the previous record from the 2004 election cycle. More than half of those ads were bought by non-candidate groups, compared with about 30 percent in 2010.
With Citizens United in place, interest groups have called for tougher disclosure rules and limits on contributions in the new year.
UPS AND DOWNS
The federal courts, along with every other federal agency, ended 2012 on the edge of the so-called “fiscal cliff” — mandated tax increases and spending cuts that would axe $555 million from the federal judiciary. The Administrative Office of the U.S. Courts warned that the loss of funds would be “devastating,” forcing layoffs, furloughs and cuts to courthouse security.
It was a year of ups and downs for the judiciary when it came to money. In February, the A.O. announced that a better-than-expected appropriation for 2012 meant it could lift a freeze on promotions and pay for employees (judges did not benefit from these developments). But the judiciary got some unwanted attention over the summer when lawmakers criticized the tab of the Ninth Circuit’s judicial conference in Hawaii, which is part of the circuit.
And then came the possibility of funding cuts, also known as sequestration. U.S. District Senior Judge Thomas Hogan, director of the A.O., said it is preparing for the worst.
When it comes to the U.S. Court of Appeals for the D.C. Circuit, President Barack Obama is hoping the second (or fourth) time’s a charm. Often considered the nation’s unofficial second-highest court because of how many judges end up on the U.S. Supreme Court, Obama failed to get any nominees to that court confirmed during his first term.
The 11-member court will have four vacancies come February, when Chief Judge David Sentelle plans to take senior status. In June, Obama nominated Sri Srinivasan, principal deputy solicitor general of the United States, as well as Caitlin Halligan, general counsel with the New York County District Attorney’s office.
He’s struck out so far. Srinivasan hadn’t gone before the Senate Judiciary Committee as of press time. Halligan’s nomination was returned to the White House three times since she was first named in 2010; Obama re-nominated her for a fourth time in September after Senate Republicans rejected her this summer.
It may have been a bad year to be a judicial nominee, but current federal judges got some good news in the form of a ruling this fall from the U.S. Court of Appeals for the Federal Circuit. In an October 5 decision, a full sitting of the court found that Congress couldn’t revoke cost-of-living adjustments promised to federal judges.
Judicial salaries haven’t changed since 2009 — district judges earn $174,000 and circuit judges take home $184,500 — according to data from the Administrative Office of the U.S. Courts. The six retired and current federal judges who brought the constitutional challenge to Congress’ withholding of increases over the past two decades called judicial pay an issue that was “vital” to the integrity of the courts.
The Federal Circuit, in a 10-2 decision, found that Congress couldn’t block the pay increases laid out in the Ethics Reform Act of 1989, which were designed to compensate for restrictions on judges’ ability to earn outside income.
For many of Obama’s judicial nominees, 2012 was a year of waiting. And waiting. And waiting. Federal court vacancies became partisan battlegrounds in 2012, with even noncontroversial district court nominees sitting in limbo. Democrats blamed Republicans for blocking confirmations; Republicans said the problem wasn’t the pace of confirmations, but that Obama was too slow in naming nominees.
Confirmations seemed to pick up in December, at least compared with how things were running earlier in the year. Still, a recent study from the Brookings Institution showed that, unlike his immediate predecessors, Obama’s first term ended with more vacancies than when he started.
All pending nominations expire come January, so all sides will start 2013 with a clean slate.
Los Angeles ended the year much closer to getting a new federal courthouse than it was at the start of 2012, but the rest of the judiciary wasn’t so lucky. The budget crunch extended to courthouse construction, with no new courthouse projects being funded in last year’s and the upcoming year’s budgets.
Money woes forced the Administrative Office of the U.S. Courts to announce plans to close six judicial facilities this year that didn’t have a full-time resident federal judge. At least one district judge has warned that if significant mandated spending cuts take effect in 2013, he’ll have to temporarily close certain courthouses.
The one bright spot was the progress made on the Los Angeles courthouse, a long-time priority for the judiciary. The U.S. General Services Administration awarded a contract for the building in early December.
Obama may have had a harder time getting judicial nominees confirmed than past presidents, but he’s surpassed them so far in changing the face of the bench. Studies of Obama’s nominees to date show that he’s named more women and minorities in one term than some presidents achieved in two.
A study of Obama’s first three years by the liberal Alliance for Justice showed that he nominated 75 women (not all were confirmed yet), compared with 71 women confirmed under George W. Bush, and 33 African Americans, compared with 24 African-American judges confirmed under Bush.While the bench diversified, the makeup of judicial clerks did not, according to statistics released in May by the Administrative Office of the U.S. Courts. The data showed that the number of minority clerks went down from five years ago.
TAKING A RECESS
As Republicans and Democrats duked it out over Obama’s judicial nominees, the courts also served as the venue for conflicts between Republicans and the White House.
A fight over access to U.S. Department of Justice documents on Operation Fast and Furious — a controversial gun sting — spilled into the U.S. District Court for the District of Columbia in August. The House Committee on Oversight and Government Reform filed a civil lawsuit against Attorney General Eric Holder Jr., shortly after the House voted along party lines to find Holder in contempt for not turning over documents related to the operation. A hearing on a motion to dismiss is set for January 10.
Federal judges were also tasked with weighing in on Obama’s recess appointments. The U.S. courts of appeals for the D.C. Circuit and the Seventh Circuit heard arguments this year in challenges to those appointments — opponents argued the Senate was technically in session — but have yet to rule.
Federal district and appellate courts weren’t the only ones facing an emergency in 2012. Thanks to the expiration of legislation allowing for so-called “temporary” judgeships, the U.S. bankruptcy courts teetered on the edge of a crisis at the beginning of the year. Absent an extension of the temporary judgeships by Congress, the bankruptcy courts wouldn’t be allowed to fill any newly created vacancies, creating the potential for backlogs and overworked judicial officers.
In May, however, Congress approved the extension and it was signed into law by the end of the month. By that time, two districts had already lost bankruptcy judge seats. “That was very needed,” said Hogan, director of the A.O.
THE BUSIEST JUDGE?
In a study that turned heads this fall, the Transactional Records Access Clearinghouse, or TRAC, released 70 months’ worth of analysis on criminal sentencings in the federal courts. The spotlight landed on U.S. District Judge Robert Brack of the Las Cruces, N.M., court, who the study showed had handled more than 7,000 sentencings. The federal courthouse in McAllen, Texas, came in second, with an average of about 5,500 sentencings.
Brack said he wasn’t surprised, since courts in the southwestern United States often have voluminous dockets thanks to their proximity to the U.S.-Mexico border. But he warned that just looking at numbers could be misleading, as not all cases are the same when it comes to their complexity and time it takes to resolve.
And the nickname he earned from members of the media as America’s “busiest” judge? “I don’t buy that,” he said. “I don’t work any harder than any other judge.”
Contact Zoe Tillman at email@example.com.