Fair Courts E-lert: Sequester Delays Administration of Justice

July 18, 2013

BUDGET

Sequester Delaying Administration of Justice

The sequester has already begun to impact the administration of justice in our country and may lead to a constitutional crisis, according to an Atlantic article by Andrew Cohen. Cohen notes, “The sequester's impact upon the federal courts is bad, and getting worse, and will reach constitutional crisis next year around this time if the budget cuts reach into the next fiscal year.” U.S. District Judge John E. Jones of the Middle District of Pennsylvania told Cohen, “To us, it's a gathering storm. We are seeing presently the effect of furloughs in our federal defender’s office. So we are ending up not being able to schedule criminal cases on particular days because of the unavailability of federal defenders.” According to the Federal Defender’s Office, “The Judiciary’s Office of Finance and Budget is predicting a $100 million shortfall in the Defender Services account for Fiscal Year 2014—roughly 10 percent of the Defender Services budget.” U.S. District Judge William Young of Massachusetts also spoke to Cohen, stating, “Next year, with additional sequester cuts, I predict (but I'm not positive) that we will run out of money for civil juries before the end of the fiscal year…Now, on that day, the Congress will be engaged in a direct attack on the constitutional rights of all American citizens. Because it is a constitutional right to sit on the nation's juries.” In an interview for the Texas Public Radio program The Source, federal public defender Maureen Franco discussed how the sequester has affected Texas’s western district, noting, “It’s not sustainable…At some point, we’re going to have to begin denying representation… because the resources are too limited for us to be able to continue.”
Sources: Andrew Cohen, How the Sequester Is Holding Up Our Legal SystemThe Atlantic, July 12, 2013; Laura Beth Booper, Impact of Sequestration Felt in Public Defender’s Office, Gavel Grab, July 11, 2013; Paul Flahive, The Source: Cuts At The Federal Public Defender's Office | Contemporary Islamic Art At SAMA, Texas Public Radio, July 9, 2013; Federal Defenders of New York, Federal Defender Fact Sheet, July 16, 2013.

FEDERAL JUDICIARY

D.C. Circuit Court Nominees Face Difficult Confirmation Process

Senate Republicans are prepared for a difficult struggle over President Obama’s three D.C. Circuit court nominees, according to a USA Today article. Senators Chuck Grassley, Mike Lee, and Ted Cruz “accused Obama of trying to ‘pack’ the court in order to win favorable rulings for his executive actions, noting the D.C. Circuit court has unique jurisdiction over federal agencies and regulations.” Patricia Millet’s confirmation hearing began last Wednesday on Capitol Hill, where Senator Cruz promptly informed her, "You find yourself in the midst of a broader battle. And a battle on issues many of which are unconnected to your professional background qualifications, but issues sadly that have consumed the D.C. Circuit for decades…unfortunately, the D.C. Circuit has been a battleground on both sides, for the politicization of judicial nominations." Senator Chuck Grassley, R-Iowa, recently introduced a bill that would eliminate the three vacant judgeships from the D.C. Circuit court. In the USA Today article, Senator Grassley argues, “By nearly every measure, the facts show that the D.C. caseload is low and getting lower.” It is highly unlikely that the bill will pass in the Democrat-controlled Senate, but Senate Republicans can still potentially block confirmation of all three Circuit court nominees.

In a New York Times article, Jeremy W. Peters notes that there has been a shift in White House strategy when it comes to nominations. The administration appears only to be focusing on agency appointees, demonstrated by Senate Majority Leader Harry Reid’s threat of a “nuclear option,” which would have lowered the votes required to approve executive nominees from 60 to 51, but would have left judges vulnerable to the threat of filibuster. Under pressure from Republicans over appointees, Democrats have continued to argue that “a president has the right to assemble his own team of like-minded cabinet officials and other high-level policy makers.”
Sources: Richard Wolf, Republicans signal a fight over Obama's court nomineesUSA Today, July 10, 2013; Todd Ruger, For D.C. Circuit Court Of Appeals Nominee, Credentials Are Not The Controversy, Daily Report, July 12, 2013; Jeremy W. Peters, Democrats Plan Challenge to G.O.P.’s Filibuster UseNew York Times, July 8, 2013; Susan Davis, Senate agrees to stop 'nuclear' optionUSA Today, July 16, 2013. 

Using Judicial Appointments to Leave a Lasting Legacy

In a recent Huffington Post blog, Scott Porch argues the Obama administration should focus on filling judicial vacancies as a way to leave a lasting legacy. Porch contends that our split House and Senate will make it extremely difficult for Obama to pass significant legislation in his second term. A few months ago, Ryan Lizza noted that “Washington has been most productive when one party controlled both Congress and the White House." With this in mind, Porch comments, “By the end of 2016 – regardless of what happens in the 2014 midterm elections – Obama's legislative brag list will be only marginally different than it is today.” Because there will be limited opportunities to pass aggressive new legislation in the next four years, Porch maintains that the president should direct his attention to the judiciary. In a National Journal article, Jill Lawrence echoed this sentiment, saying, “Federal judges, whose rulings shape every area of American life, typically outlast the presidents who appointed them by years, even decades. And in most cases, especially on controversial issues, their legal outlooks tend to mirror the worldviews of the presidents who picked them.” Many lament the slow rate at which President Obama has nominated individuals to vacant judgeships, and Porch notes that “the White House has named only 31 nominees to fill 84 District Court and Court of Appeals vacancies. Of the 23 seats that have been vacant for 18 months or longer, the president has named only nine nominees – mostly in red states where issues important to President Obama, like voting rights, Medicaid expansion, etc., are most at risk – effectively writing off many of those judgeships.” Porch recognizes the slow pace at which the Senate has confirmed judicial nominees, but argues that this doesn’t explain why President Obama has failed to nominate individuals for more than half of the vacant judgeships.
Sources: Scott Porch, Obama Legacy Project Should Focus on Judicial Appointments, Huffington Post, July 8, 2013;  Ryan Lizza, The Powerless PresidencyThe New Yorker, March 5, 2013; Emily Heil, Senate finds pace on judicial nomineesThe Washington Post, June 18, 2013; Jill Lawrence, The Senate Deal Doesn’t Help Obama on Judges, and That’s What Matters MostNational Journal, July 17, 2013.

STATE JUDICIAL ELECTIONS

Arkansas Republican Party Judicial PAC Sparks Criticism

The Arkansas Republican Party recently announced plans to create a PAC dedicated to supporting conservative judicial candidates. Johnny Rhoda, a spokesman for the party, said,"The Arkansas judicial establishment is today dominated by judges who do not reflect nor represent the views and values of Arkansas voters.” After the announcement, David Stewart, a retired executive director of the Arkansas Judicial Discipline and Disability Commission who currently serves by appointment as a state court district judge in Fayetteville, was outspoken in his criticism of the PAC. Although it has been stated that the PAC will operate independently from the Republican Party, Stewart argues, “The objective is to elect judges who represent the public policy positions taken by the current conservative Republican Party majorities in the Arkansas legislature.” He goes on to state that “When judges are either elected or appointed with the purpose of reflecting partisan beliefs rather than the law, we have reduced, if not eliminated, the independence of the judiciary. Such a case would severely endanger our democratic foundations.” Speaking from his previous experience as an elected judge, Stewart comments, “Bluntly put, judges should not be subject to the political whims of PACs. (Judges should not be elected in the first place, but that is another story for another time.) Not only does the judge become subject to actual impropriety, [but] the appearance of impropriety can be huge. There is zero chance that an elected judge can avoid knowing who or what organizations were instrumental in raising and spending money on his or her behalf.” Stewart argues that judicial elections must be treated differently than legislative and executive elections, so that individuals and groups cannot buy judicial influence.
Sources: Editorial, Republican justiceArkansas Times, July 4, 2013; David Stewart, Money and judicial elections in ArkansasArkansas Times, July 11, 2013.

PUBLIC FINANCING

The Effects of Ending Public Financing in North Carolina

A recent New York Times blog post weighed in on North Carolina’s decision to end its public financing system for judicial elections. Author Dorothy J. Samuels commented on the significance of the program, saying, “Enacted in 2002, the program set a laudable national example by allowing candidates for the bench to reduce their reliance on the special interest campaign money that now dominates state races for important judicial posts across the country…” Samuels argues that the 2010 Citizens United ruling weakened the public financing program, but instead of strengthening it, the North Carolina legislature is drafting a budget that would eliminate all funding for the program. Further increasing the influence of politics in judicial elections, Samuels notes that “[a] bill expected to be introduced this week would turn the state’s non-partisan judicial elections into partisan elections with heightened involvement of the political parties.”
Source: Dorothy J. Samuels, The Decline of North Carolina, ContinuedNew York Times, July 16, 2013.