This article is in the news archives --- for current news go to the Third Branch News.
109th Congress and Pending Legislation Wrap Up
The 109th Congress ended December 8, 2006, without passing most of the fiscal
year 2007 appropriations bills, including one funding the Judiciary. Instead, a
continuing resolution providing funding until February 15 will keep government
operating into the new year. The first session of the 110th Congress begins
officially on January 4, 2007.
Among the bills passed by the 109th
Congress in the hours before adjournment was legislation to extend a capital
gains rollover provision to federal judges. The Judiciary worked with Congress
to include this provision in the package of tax credit extensions. The provision
will enable judges, who sell financial interests to avoid conflicts of interest,
to defer capital gains taxes until the substitute financial interests are
subsequently liquidated. Members of the executive branch already are covered by
such a provision. The President is expected to sign the bill.
bills were passed at the end of the 109th Congress. Some of the legislation it
considered was opposed by the Judiciary and some was needed by the federal
courts. Among the unsuccessful bills was H.R. 5219, the Judicial Transparency
and Ethics Enhancement Act of 2006. The bill would have imposed an independent
Inspector General on the Judiciary, a move opposed by the
Judicial Conference. The July 2006 issue of The Third Branch has more
on the House hearing on this bill.
The Conference also strongly opposed
H.R. 1279 and S. 155, criminal gangs legislation introduced in
both Houses that would have brought for the first time a large number of
juveniles into a federal system ill-equipped to handle them. The House bill
contained a number of mandatory minimum sentence provisions, which, as the
Conference expressed in a letter to congressional leadership, “would
inappropriately constrain the Judiciary in ensuring fair sentencing for each
individual offender under federal law.” The bills are now dead this
Moot for now are any pending legislative responses to the January
2005 Supreme Court decision in U.S. v. Booker. Judge Paul G. Cassell
(D. Utah), chair of the Judicial Conference Committee on Criminal Law, informed
Congress in March there was no need for “Booker fix”
legislation because federal judges’ practices in sending convicted criminals to
prison remain much the same as they were before the Supreme Court invalidated
mandatory sentencing guidelines last year. The April 2006 Third Branch
newsletter covered the House oversight hearing on federal sentencing practices
Congress again failed to pass a comprehensive
judgeship bill; the last such bill was passed in 1990. The Judicial
Conference recommended the creation of nine permanent and three temporary
judgeships in the courts of appeals, and 44 permanent and 12 temporary
judgeships for the district courts. Two bills creating judgeships were
introduced, but they coupled new judgeships with a split of the Ninth Circuit.
These bills ultimately failed to move.
Despite continued concerns about
judges’ safety, a court security bill failed to become law.
H.R. 4472 and a similar Senate bill, S. 1968 contained provisions that would
have required the U.S. Marshals Service to coordinate and consult with the
federal Judiciary on security requirements of the judicial branch, criminalized
the malicious filing of fictitious liens, and allowed judges who have completed
a training requirement to carry firearms. A related House bill, H.R. 1751, also
would have established mandatory minimum penalties for certain federal offenses
but also included a provision on broadcast media coverage of
federal court proceed ings at both the appellate and trial court level, at the
discretion of the presiding judge.
Throughout the 109th Congress, the
Judicial Conference supported judicial security provisions, but opposed both the
mandatory minimums, which severely distort and damage the federal sentencing
system, and the provision on cameras in courtrooms. Other House and Senate bills
attempted to introduce cameras into the Supreme Court and to district
courtrooms, but they also were blocked by opposition.
Confirmations and Nominations
The 109th Congress confirmed 2 Supreme Court justices and 52 judges, 16 to the
U.S. Courts of Appeals and 35 to the U.S. District Courts, and one judge to the
U.S. Court of International Trade. There were 52 vacancies on the federal courts
as of December 1, 2006, with 16 vacancies in the U.S. Courts of Appeals and 36
vacancies in the U.S. District Courts. Thirty-six nominees were pending. With
the end of the 109th Congress all pending judicial nominations returned to the
In the 108th Congress, 104 judges were confirmed; 18 to the
U.S. Courts of Appeals and 86 to the U.S. District Courts, including one judge
to the U.S. Court of International Trade. At the end of the 108th Congress in
2004, there were 29 vacancies on the federal courts, with 13 vacancies in the
U.S. Courts of Appeals and 16 in the U.S. District Courts.