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December 2006

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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.

Very few 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 year.

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 post-Booker.

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 White House.

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.