Last week, lawmakers on Capitol Hill announced a breakthrough in budget negotiations that could eventually soften the pain of steep cuts to federal judiciary funding. But the word from the budget staff at the Administrative Office of the U.S. Courts: It’s too early to tell.
Congress would first have to pass the bipartisan budget agreement, which aims to avoid another government shutdown and reign in the across-the-government spending cuts known as sequestration. House and Senate sub­committees then must decide whether their priorities under that spending level would include restoring all or part of last year’s $350 million cut to the federal judiciary budget.
There is reason for the judiciary to be optimistic. This fall, appropriations committees in both houses of Congress approved budgets that would, at a minimum, roughly restore money to the judiciary to presequestration levels.
There is no firm timetable for this latest budget process. If Congress remains at an impasse on Jan. 15, there could be another government shutdown.
Amid the political fighting, Judge Julia Gibbons of the U.S. Court of Appeals for the Sixth Circuit and chairwoman of the U.S. Judicial Conference’s budget committee, and U.S. District Judge John Bates, director of the administrative office, sent letters to lawmakers on Dec. 5. They once again described the “devastating impact” of 3,100 staffing cuts to the clerks of court and probation and pretrial services since July 2011 and cuts to the federal defender organizations and courthouse security.
“The judiciary cannot continue to operate at sequestration funding levels in fiscal year 2014,” Gibbons and Bates wrote in the letter. — Todd Ruger
REPUBLICANS GIVEN VOICE IN HIGH COURT
The U.S. Supreme Court last week granted Senate Republicans argument time on Jan. 13 when the justices hear historic debate over the constitutionality of President Obama’s recess appointments to the National Labor Relations Board.
As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on Nov. 25 for additional time on behalf of his client, Senate Minority Leader Mitch McConnell (R-Ky.) and 44 other senators who object to Obama’s appointments. He will have 15 minutes, in addition to the 30 minutes allotted to Noel Francisco of Jones Day, who represents the appellee Noel Canning Corp., a Pepsi bottler in Yakima, Wash. For balance, the court extended the government’s argument time from 30 to 45 minutes.
In seeking the extra time, Estrada told the high court that the senators have “incomparable ­interest in the constitutional issues involved,” and an “unmatched stake” in defending the Senate’s prerogatives to establish its own procedures — including regarding when to adjourn. The senators needed the opportunity, Estrada said, to describe the “adverse separation-of-powers consequences of allowing the Executive to seize control of congressional procedure.” — Tony Mauro
D.C. CIRCUIT WEIGHS ACCESS TO COUNSEL AT GUANTÁNAMO
The U.S. Department of Justice is fighting over rules at the Guantánamo Bay, Cuba, naval facility that require detainees to undergo what critics describe as invasive groin-area searches before being allowed to meet with lawyers.
DOJ attorney Edward Himmelfarb, arguing last week before the U.S. Court of Appeals for the D.C. Circuit, said the searches were like frisks of airline passengers who did not want to go through X-ray machines. “It’s not as bad as it sounds,” Himmelfarb told the appellate panel — Chief Judge Merrick Garland and judges Thomas Griffith and Karen LeCraft Henderson — during the Dec. 9 oral argument.
Not as bad as it sounds? A lawyer for detainees, David Remes, said in a letter to the D.C. Circuit the next day: “In fact, the procedure is far worse.” Remes said detainee refusals to permit the searches “are becoming ever more widespread.”
“Clients who are willing to see me, or to have calls with me, describe a search procedure that is far more invasive and degrading than the light pat-down passengers get at airports,” Remes wrote, describing the scope of the searches.
Senior Judge Royce Lamberth in July blocked the searches, concluding they were religiously and culturally offensive and that the policy interfered with the ability of detainees to meet with their lawyers. “The motivation for the searches is not to enhance security but to deter counsel access,” Lamberth wrote.
Himmelfarb said in court that Lamberth lacked authority to reject the policy. — Mike Scarcella
WALD RETAINS POST ON PRIVACY PANEL
Retired federal appeals judge Patricia Wald will continue serving on a White House panel that’s looking at privacy law in the context of national security. The Senate approved her renomination Dec. 12.
Wald, chief judge of the U.S. Court of Appeals for the D.C. Circuit from 1986 to 1991, has served on the newly revived Privacy and Civil Liberties Oversight Board for more than a year. The board held two public meetings this year focused on National Security Agency surveillance programs — details of which were leaked to the press by Edward Snowden.
The Senate reapproved Wald to the board in a 57-41 vote amid an end-of-the-year push to finish legislative business that included a slate of noncontroversial judicial and executive nominee confirmation votes.
The Senate also confirmed in a 54-41 vote the second term of Chai Feldblum, currently on leave as a Georgetown University Law Center professor, on the Equal Employment Opportunity Commission. Obama renominated Feldblum in May to the commission, which enforces federal laws against workplace discrimination. — Todd Ruger
AEREO DOESN’T OPPOSE HIGH COURT REVIEW
In an unusual move that raised the stakes in a major copyright battle between broadcast television networks and the upstart Aereo service, Aereo Inc. on Dec. 12 urged the U.S. Supreme Court to resolve the dispute, even though it won in the court below, the U.S. Court of Appeals for the Second Circuit. Broadcasters have argued that Aereo’s individualized transmission of shows to its customers ­threatens the industry by bypassing cable and satellite systems that pay for permission to broadcast their programming. Aereo, represented by veteran Supreme Court advocate David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, filed the brief — one that was not in opposition. Frederick’s brief was simply called “brief for respondent,” signaling that Aereo wanted the justices to go ahead and decide the case. The brief was the latest move in what is shaping up as one of the top business and intellectual property cases to land on the high court’s docket in years. — Tony Mauro
REP. RANGEL’S CENSURE SUIT DISMISSED
The lawsuit Rep. Charles Rangel (D-N.Y.) brought against House Speaker John Boehner and other House leaders was thrown out last week in Washington federal district court. Rangel, represented by New York solo practitioner Jay Goldberg, claimed he was denied due process during the disciplinary proceedings that led to his censure in 2010. Rangel’s complaint, U.S. District Judge John Bates said, posed significant separation-of-powers problems. “[M]ost problematic is Rangel’s unprecedented view that this Court may order the House to, in effect, un-censure him,” Bates wrote on Dec. 11. “Rangel’s quarrel is with the House, and it must stay there; he may not under these circumstances enlist the Court’s involvement in that quarrel.” Goldberg said he planned to file an appeal. — Zoe Tillman