Commentary: Thanksgiving and the federal courts

Special to McClatchy NewspapersNovember 21, 2012 

The federal courts have reason to give thanks this Thanksgiving. However, it remains unclear precisely how President Barack Obama and Congress will treat the judiciary, given the country's severe complications, especially the fiscal questions. Although Obama and Congress have instituted some actions that benefit the courts, they can, and should, do more.

Democrats and Republicans have worked together when assisting the federal courts in certain areas. One critical field involves judicial appointments. The judiciary now experiences 15 appellate, and 68 district, court vacancies for which Obama has proposed 49 nominees. The judiciary should be grateful that he has nominated, and the Senate has confirmed, two superb Supreme Court Justices, 30 extraordinary circuit judges, and 128 talented district judges.

Obama has aggressively sought Democratic and Republican elected officers’ advice prior to nominations and tendered prospects of even temperament, who are smart, hard-working, ethical and independent and diverse in terms of ethnicity, gender and ideology. Many critics blamed the President for nominating too slowly during 2009; however, he subsequently picked up the pace.

The courts might also thank Senator Patrick Leahy (D-Vt.), the Judiciary Committee Chair, and Senator Charles Grassley (R-Iowa), the Ranking Member, for facilitating committee evaluation and Senator Harry Reid (D-Nev.), the Majority Leader, for attempting to cooperate with Republicans on approving nominees. Hopeful signs include committee scheduling of more nominee votes and hearings in 2012.

The courts should be thankful that the Senate has returned for the lame duck session and that Obama and GOP leaders have called for bipartisan cooperation. Senators must quickly conduct floor votes on the 19 well-qualified nominees, most of whom the committee reported without merits opposition and all of whom have been languishing for months. Nevertheless, considerably more judges could have received appointment, if GOP members had not stymied votes by imposing holds on nominees and Senator Mitch McConnell (R-Ky.), the Minority Leader, had entered more voting agreements.

Democrats and Republicans must cooperate better in confirming judges, as the ten percent vacancy rate undercuts the delivery of justice.

The bench should be grateful that comprehensive judgeships legislation, which Congress has not adopted since 1990, seemingly received serious consideration in the 111th Congress. The Judicial Conference has suggested that lawmakers create 63 new seats. The courts’ policymaking arm bases those recommendations on conservative projections of case and work loads. Leahy introduced and conducted a hearing on a thorough bill, but the 111th Congress failed to pass the measure. He did not reintroduce it in the 112th Congress. The committee did agree on a rather limited measure, which authorizes more judgeships for districts with heavy caseloads. However, Senator Grassley opposed the bill partly because of economic concerns, and it appears unlikely to pass.

The judiciary should give thanks that relations between the bench and Congress have seemingly improved, even though Sixth Circuit Judge Julia Gibbons, the Judicial Conference Budget Committee Chair, testified that the judiciary’s three percent funding increase for fiscal year 2013 was the lowest requested increase ever. Nonetheless, the chair of the House Appropriations Subcommittee responsible for court funding admonished that “it’s likely to be more than the Nation can afford.” If sequestration occurs, the courts will probably have to suspend civil jury trials while the systems for probation and paying criminal defense attorneys could experience disarray.

The federal judiciary apparently has much for which to be grateful this Thanksgiving. However, the hopeful news will only bear fruit if Democrats and Republicans cooperate with each other and President Obama for the good of the courts, the Congress and the country in the lame duck session which recommences Monday and the 113th Congress.


Carl Tobias is the Williams Chair in Law at the University of Richmond.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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