Are The Federal Courts In Republican Sights In What Remains of the 109th Congress? Handicapping The Judiciary In The Lame Duck Session

By CARL TOBIAS

Friday, Nov. 17, 2006

Last week's federal elections leave unclear precisely what the 109th Congress can achieve in the lame duck session that opened this week. The federal courts constitute one important area in which this lack of clarity is critical.

Since the midterm elections end the Republicans' reign in Congress as of January 2007, they will undoubtedly attempt to pass their favorite initiatives in the short time they have left as the majority party. Numerous efforts will likely fail. Nonetheless, Democrats should be inclined to cooperate with Republicans in some areas that are crucial to the federal judiciary, and such cooperation will benefit the political parties, the courts and the country.

Opposing Ideas That Would Undermine The Independence Of the Federal Judiciary

Democrats will probably oppose a number of ideas whose passage would seriously threaten judicial independence.

The Republican-controlled House of Representatives has advanced many ideas that would undermine the judiciary, including creating the position of Inspector General with the responsibility of reviewing the activities of the federal courts. Proponents contend that this official is needed to monitor judicial misconduct, yet the proposal leaves unclear the conduct to be regulated.

Moreover, the recent Breyer Committee Report on judicial misconduct, and the Judicial Conference's new requirements governing "judicial junkets" and computerized conflict of interest monitoring shows that the judiciary is taking seriously the responsibility to police itself.

The House Judiciary Committee has concomitantly opened a formal impeachment investigation into allegations that Central District of California Judge Manuel Real inappropriately attempted to assist a party to litigation in his court. This effort will probably die in the lame duck session.

Another piece of legislation would revise Federal Rule of Civil Procedure 11, which covers sanctions for the filing of improper papers, to reinstate the 1983 amendment of the provision, increasing the likelihood of sanctions for litigators. The vast majority of federal judges strongly oppose this idea because it would promote unnecessary, costly litigation.

A perennial concept popular among conservatives and proposed yet again is splitting up the U.S. Court of Appeals for the Ninth Circuit - branded by some as the most liberal circuit -- purportedly because the nation's biggest tribunal in terms of cases, judges and geographical size is too large. Yet, numerous advocates have sharply criticized the court's substantive opinions even while publicly couching their arguments vis-à-vis court administration. The overwhelming majority of active Ninth Circuit judges oppose division.

Promoting Bipartisan Confirmation Of Judges To Fill Numerous Vacancies, Creation of New Judgeships, And Reform

A principal area for Democrats and Republicans to cooperate and secure advances in the lame duck session is the confirmation of federal judges. There are now 51 federal court openings for which President George W. Bush has submitted 37 nominees. Just this week, however, on November 15, despite promising bipartisan cooperation after the elections, the president sent a list of 10 nominations, including the renomination of six controversial appellate nominees whom the Senate has twice returned. Bush's action promises to complicate the confirmation process. (Potential repercussions of the president's action are discussed in John Dean's column for this site today.)

Democrats may find that a number of the nominees are highly intelligent, independent and industrious, possess moderate ideological perspectives and have balanced judicial temperaments and decide to work with Republicans to confirm those individuals. Democrats should push for quick floor votes on nominees whom the Senate Judiciary Committee has already approved, expeditiously approve candidates awaiting committee votes, and promptly afford hearings for the remaining nominees so that they can be confirmed.

Closely related would be adoption of a comprehensive judgeships bill, the first thorough measure since 1990. The Judicial Conference, the courts' policy making entity, suggested that Congress approve 50 new judicial seats, recommendations it bases on conservative projections of dockets and judicial workloads.

Another possible field for affirmative efforts is patent court reform legislation. The House has already passed a bill that would establish a 10-year pilot project in at least five of the 94 federal district courts. The experiment would encourage the development of more expertise in patent cases by funneling them to judges who possess skill, and interest, in deciding patent suits. This measure, which enjoys the bipartisan support of California Representatives Darrell Issa (R) and Adam Schiff (D), who rarely agree, has already passed the House and could well pass the Senate. The bill would implement a constructive effort to test a promising approach.

The American voters expressed a desire for change in last week's election. Democrats and Republicans should be responsive to this call for reform. One important starting place may be the federal courts in the lame duck session starting this week.

If all members of Congress work together in on federal courts issues, Congress can improve the judiciary, the coordinate federal branch which is a bulwark of American democracy.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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