Congressional Relations

Communicating and working with Congress remains one of the AO’s highest priorities as it supports the Judicial Conference and its committees.

During its second session, the 108 th Congress considered several bills of interest to the Judiciary. Judicial Conference representatives testified at hearings in support of legislative proposals of the Judicial Conference and in response to other issues that could affect the Judiciary.

Courthouse Construction

Faced with a limited availability of funds from Congress and continued shortages in the Judiciary’s operating budget, the Judicial Conference took two actions this year to slow down and reduce costs of the courthouse construction program. At its March meeting, the Conference determined that its FY 2005 funding request for courthouse construction would include only the four space-emergency courthouse projects— Los Angeles , CA ; El Paso , TX ; San Diego , CA ; and Las Cruces , NM —rather than all 19 projects originally scheduled on the five-year plan. At its September meeting, the Conference voted to place a two-year moratorium on all courthouse construction projects except those already under design or construction, and on all courthouse repair and alteration projects except system upgrades.

After the March 2004 Conference decision, the Director submitted to Congress the Judiciary’s FY 2005 request for the four space-emergency courthouse construction projects that totaled $735 million. When the President’s FY 2005 budget was developed without adequate funding for these projects, the Judiciary responded.

The combined efforts of Judge Jane R. Roth (3 rd Circuit), chair of the Conference Committee on Security and Facilities, other judges, Director Mecham, and Administrative Office staff who worked throughout the year with the appropriate congressional delegations and committees to obtain courthouse funding, were successful. The final omnibus appropriations bill for FY 2005 included funding for all four of the space emergency courthouse construction projects at a total funding level of $442 million, and the 10 repair and alteration projects totaling $216 million.

Following the Conference decision in September to place a moratorium on courthouse construction and repair and alteration projects, Administrative Office staff briefed the appropriate congressional committees about the reasons for and the impact of the moratorium. Congress has expressed concern about further delays in the completion of courthouse construction projects. However, congressional committees also understand that unless the construction program is slowed down and space is reduced, and unless the Judiciary’s operating budget is sufficiently increased, the Judiciary will not be able to meet its rental obligations on the new facilities without substantial staff reductions nationwide. The Committee on Security and Facilities and Administrative Office staff are reviewing all pending courthouse construction and repair and alteration projects, the U.S. Courts Design Guide, and space-planning assumptions and projections to determine where reductions might be made.

Judicial Operations

In the First Session of the 108 th Congress, the Director, on behalf of the Judicial Conference, transmitted to Congress a proposed Federal Courts Improvement Act. The legislation included several provisions that address administrative, financial, personnel, and benefits needs of the Judiciary, including an authorization for the Judiciary to provide its employees with a supplemental benefits package that would be competitive with those already offered throughout the private sector and by state and local governments. The Judicial Resources Committee has proposed deferring any new benefits in 2005 and 2006, should such legislation be passed. Another provision would create a new federal crime punishing any person who files a false lien against the property of a federal judge.

This legislation was introduced in both the House and Senate and received some bipartisan support but was not passed in either house. While the full omnibus bill was not passed, a few of its provisions (including several new places of holding court) were enacted as part of S. 2873, P. L. No. 108-455.

Judicial Pay

Federal judges received a 2.5 percent Employment Cost Index adjustment, along with members of Congress and Executive Schedule employees, effective January 1, 2005 . Judges have received cost-of-living increases in seven of the past eight years, keeping pace with inflation over this period. But these increases have still not made up for previously denied pay adjustments in the 1990s. The overall compensation of federal judges continues to lag seriously behind the growth of salaries and benefits received by comparable legal positions in private firms and academia.

Judicial Resources

In the First Session of the 108 th Congress, the Senate approved a bill that would create 12 new permanent district court judgeships, and two new temporary judgeships, and convert temporary judgeships in nine states into permanent judgeships. The House later amended that bill to largely reflect the entire Judicial Conference judgeship request submitted by AO Director Mecham to Congress in March 2003—nine permanent and two temporary judgeships to the courts of appeals, 29 permanent and 17 temporary judgeships to the district courts, and conversion of five existing temporary judgeships to permanent positions. It would also confer Article III status on the judgeships authorized for the Northern Mariana Islands and the U.S. Virgin Islands. However, a provision added to the bill in the House to split the Ninth Circuit Court of Appeals into three separate circuits ran into stiff opposition in the Senate. The Congressional session ended without action on this legislation. House majority leaders said there would be no new judgeships unless the Ninth Circuit is split into at least three circuits.

By the end of the 108 th Congress, 103 nominees were confirmed—18 court of appeals judges and 85 district court judges. At the close of the 108 th Congress, there were a total of 33 judicial vacancies—14 in the U.S. courts of appeals and 19 in the U.S. district courts. The vacancy rate for district courts has fallen to 2.8 percent but the rate for appellate courts has risen to 7.8 percent. Nine circuit nominees were blocked on the Senate floor by minority senators.

Ninth Circuit Split

The Administrative Oversight and the Courts Subcommittee of the Senate Judiciary Committee held a hearing on the several proposals to split the Ninth Circuit Court of Appeals into either two or three new circuits and to create new judgeships for the reconfigured circuits. Several judges from the Ninth Circuit testified at the hearing, including Chief Judge Mary Schroeder and Senior Judge J. Clifford Wallace, who argued against the proposal. They noted the costs and administrative hassles that would result, cited recent statistics, and described the implementation of new internal procedures to generate significant improvements in the workload and operations of the court. Judges Diarmuid O’Scannlain and Richard Tallman presented numerous sets of statistics concerning the geographic and workload burdens associated with the current composition of the circuit and argued that the plans for the Nakamura courthouse in Seattle could be modified to house a circuit headquarters at minimal cost increases over expected expenditures.

Late in the session, the House approved an amendment to the pending judgeship bill to create a three-way circuit split. The Senate failed, however, to take up the bill before adjournment.

Victims’ Rights and DNA

On October 30, 2004 , the President signed into law the Justice for All Act of 2004. The law includes provisions pertaining to victims’ rights and DNA testing. The victims’ rights provisions require the Department of Justice to notify victims of federal crimes of the various rights afforded them, including the right to be reasonably protected from the accused; the right to notice of any public court or parole proceeding involving the crime, or of any release or escape of the accused; the right not to be excluded from any such public court proceeding; the right to be reasonably heard at any public proceeding in district court involving release, plea, or sentencing, or at any parole proceeding; the right to confer with the attorney for the government; the right to full and timely restitution as provided by law; the right to proceedings free from unreasonable delay; and, the right to be treated with fairness and respect for dignity and privacy.

The law further provides that if there is an allegation that any of these rights has been denied by the district court, the victim or government may petition the court of appeals for a writ of mandamus. The Administrative Office must submit annual reports to Congress stating, for each federal court, the number of times that relief is denied upon assertion of a victim’s right, the reason for such denial, as well as the number of times a mandamus action is brought, and the result reached.

The DNA provisions address the large backlog of DNA evidence that awaits analysis, authorize funding to promote use of DNA evidence, and establish rules for post-conviction DNA testing of federal prison inmates and for the preservation of biological evidence in federal criminal cases.

E-Government Act

On August 2, 2004 , the President signed into law amendments to the E-Government Act of 2002 to implement Judicial Conference policies on privacy and public access to electronic case files. In requiring Supreme Court rules to protect privacy and security concerns related to electronic filings and public availability of electronic documents, the new law allows for a rule that would protect personal data identifiers, including social security account numbers, from public disclosure.

Dental and Vision Benefits

On December 23, 2004, the President signed P. L. 108-496 authorizing the Office of Personnel Management to establish supplemental group dental and vision benefits coverage programs by 2006 for all federal employees—including judges—their dependents, and retirees. Coverage would be available regardless of whether an individual was enrolled in the federal health benefits program. The program would be voluntary and enrollees would pay the entire cost of the premiums.

Other Legislation

The Judiciary also was interested in several bills that could have affected its operations but were not enacted. Judges, Director Mecham, and Administrative Office staff worked to raise congressional awareness of relevant Judicial Conference positions as the legislation, summarized as follows, was considered.

Bankruptcy Reform Legislation

Early in the 2004 session, the House took up a bill passed by the Senate in 2003 to extend Chapter 12 of the bankruptcy code (family farmers), but substituted the language of bankruptcy reform legislation that had previously passed the House.

The reform legislation included several provisions of concern to the Judiciary, including a bankruptcy judgeship provision superseded by the Judicial Conference recommendation of September 2002, and creating a duty on the part of the bankruptcy clerks to maintain and control access to federal tax returns filed by debtors. It also specified a duty on the part of the bankruptcy clerks and the Administrative Office to collect and report financial data of debtors, revision of filing fees and re-allocation of derived revenues to the Executive Office for United States Trustees, and direct appeal of bankruptcy cases. The Senate took no action on the House-passed bill before adjournment.

Drug Crimes

The House Judiciary Crime Subcommittee approved drug crime legislation with various provisions opposed by the Judicial Conference. These included mandatory minimum sentences, direct amendment of the sentencing guidelines, and narrowing of the “safety valve” provision enacted in 1994 to ameliorate some of the harshest results of mandatory minimum sentences with respect to first-time non-violent drug offenders.

Social Security Account Numbers

The House Ways and Means Committee reported out legislation to prevent misuse of Social Security account numbers. The bill would prohibit the public disclosure of redacted Social Security account numbers by a “judicial agency” effective six years after the promulgation of implementing regulations by the Attorney General, unless those regulations provide for an exemption. It would subject access and control of Social Security account numbers by Judiciary employees to regulation by the Commissioner of Social Security.

Congressional Oversight of Government Telecommunications Program

AO staff testified before the House Committee on Government Reform regarding the collaboration of the Judiciary with the General Services Administration to provide the federal courts with a comprehensive set of integrated, cost-effective and highly reliable voice and data services.

Class Action Fairness Act

Class action legislation passed the House in the first session and was considered by the Senate late in the second session, but the 108 th Congress ended without class action reform. The bill would generally have provided for original federal jurisdiction over class actions involving minimal diversity between adverse parties where the amount in controversy exceeds $5 million in aggregated damages. The legislation would also have provided special rules for the removal of class actions from state to federal court.

The Judicial Conference adopted a position in March 2003 recognizing that the use of minimal diversity of citizenship may be appropriate to the maintenance of significant multi-state class action litigation in the federal courts. The Conference continued to oppose class action legislation with jurisdictional provisions that are similar to those in the bills introduced in the 106 th and 107 th Congresses.

The Fairness in Asbestos Injury Resolution Act of 2004

During the first session, the Senate Judiciary Committee favorably reported asbestos legislation by a slim margin. Revised asbestos legislation introduced and debated in the Senate during the 108 th Congress was not passed. The legislation would have established a non-adversarial administrative processing system for the resolution of asbestos personal injury claims to have been administered by the Department of Labor. The legislation would generally have applied to pending asbestos cases in federal and state courts.

During consideration of asbestos legislation in the 108 th Congress, the Judicial Conference reiterated its support for a national solution, which it first urged Congress to support in 1991. It also commented on provisions in the asbestos legislation affecting the administration of the federal courts.

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