End of the 105th Congress Resolves Legislative Action
The second session of the 105th Congress finally ended October 21, well past the planned October 9 deadline for adjournment that was prolonged by negotiations over appropriations. And what a session it was for the Judiciary. There was finger-pointing over the pace of judicial nominations and confirmations, castigation of purported judicial activists on the floor of Congress, and the introduction of bills and amendments in both Houses on issues from prisoner release orders to judges' travel. In the end, 65 judges were confirmed in the second session, and most of the introduced bills affecting the Judiciary failed to pass both Houses.
Among the bills that failed in the 105th Congress were the so-called "judicial activism" bills, the Judicial Reform Act of 1997, H.R. 1252, and the Senate bill S. 2163, the Judicial Improvement Act of 1998. The multi-part bills included proposals to provide that a three-judge court hear challenges to state referenda and Acts of Congress, to allow peremptory challenges of judges in civil cases, and to transfer for resolution complaints for judicial misconduct to a circuit other than one in which the complained-against judge sits. A law and order amendment added to the House-passed bill would have placed limitations on prisoner release orders and terminated any existing consent decrees providing for remedies relating to prison conditions. Judicial Conference representatives testified in opposition to most parts of the House bill. There were no hearings on the Senate bill.
The Federal Courts Improvement Act, H.R. 2294, which contained many provisions to facilitate the operation of the Judiciary was passed by the House. Senator Charles Grassley (R-IA) introduced his own version, S. 2516, which was passed by the Judiciary Committee with an amendment requiring Article III judges to report annually to Congress on all travel not directly case-related. The amendment is unacceptable to the Judicial Conference. Grassley insisted on the inclusion of this amendment as a condition of the bill moving forward. As a consequence, S. 2516 did not come to a vote in the Senate.
S. J. Res. 44 and H.J. Res. 71, bills proposing a victims' rights constitutional amendment were introduced in the 105th Congress, as were S. 1081 and H.R. 1322, bills proposing a statutory alternative to the victims' rights amendment. The Judicial Conference took no position on the enactment of a constitutional amendment, but did express its strong preference for a statutory approach. None of these bills passed, but it is expected that supporters will introduce legislation again in the 106th Congress.
Comprehensive crime bills, including the juvenile crime bills S. 10 and H.R. 3, failed to move forward in this Congress, although last-minute attempts were made to conference the House and Senate juvenile justice bills. The juvenile crime bills, in particular, would have brought normally state-prosecuted defendants into the federal courts, some as young as 14 years of age. The Judicial Con-ference's long-standing position is that federal prosecutions should be limited to those offenses that cannot or should not be prosecuted in state courts, and this particularly applies to juvenile crime.
For the same reason, the Conference voiced concerns over the Hate Crimes Prevention Act of 1998, S. 1529, and H.R. 3081, a similar bill introduced in the House. Although public support for the bills was generated in the wake of two notorious murders, neither bill was enacted.
Provisions similar to the House-passed H.R. 1534, the Private Property Rights Implementation Act of 1997, and H.R. 992, the Tucker Act Shuffle Relief Act, were combined by the Senate into a different version of H.R. 1534, as S. 2271, but the bill never came to a Senate vote. The Judicial Con-ference had expressed concerns about both bills. H.R. 1534 was intended to expedite access to federal courts in property rights claims, and H.R. 992 would have affected the jurisdiction of the Court of Federal Claims, as well as the district courts, in Fifth Amendment takings cases.
The House and Senate passed separate bankruptcy reform legislation, and a conferenced version of the bill was passed by the House, but because of a filibuster threat over several provisions and with a threatened White House veto looming, the bill never came to a vote in the Senate. This also ended any hopes for the additional bankruptcy judgeships that the legislation would have created.
The Judicial Conference supported a bill, H.R. 1544, the
Federal Agency Compliance Act, which would have prohibited federal agencies
from adopting a policy of non-acquiescence to, and re-litigation of, the
precedent established in a particular federal circuit. H.R. 1544 passed
the House; however, a companion bill, S. 1166, introduced in the
Senate, was not reported out of committee. Recommendation 11 of the
Judiciary's Long Range Plan for the Federal Courts was the impetus
for this legislation.
Legislative Scorecard |
| Failed
H.R. 1252, Judicial Reform Act S. 2163, the Judicial Improvement Act H.R. 2294 and S. 2516, the Federal Courts Improvement Acts S. J. Res. 44 and H.J. Res. 71, bills proposing a constitutional amendment to protect victims’ rights S. 1081 and H.R. 1322, bills proposing a statutory alternative to the victims’ rights amendment S. 10 and H.R. 3, juvenile crime bills S. 1529, and H.R. 3081, Hate Crimes Prevention Acts H.R. 1534, the Private Property Rights Implementation Act H.R. 992, the Tucker Act Shuffle Relief Act S. 2271, Property Rights Implementation Act of 1998 H.R. 1544, S. 1166, Federal Agency Compliance Acts S. 678, Federal Judgeship Act of 1997 H.R. 1596, the Bankruptcy Judgeship Act
Passed
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Nominations and Confirmations |
| In the second session of the 105th Congress, 65 nominees for federal judgeships were confirmed by the Senate. When Congress adjourned there were still 21 nominees pending and 50 judicial vacancies. At the end of a Congress, all pending nominations are returned to the White House. In the first session of the 105th Congress, the pace of nominations and confirmations had slowed to the point where the Chief Justice, in his 1997 Year-End Report on the Judiciary, urged the President to nominate candidates “with reasonable promptness” and the Senate to act “within a reasonable time to confirm or reject them.” A Washington Post editorial called the 65 nominees confirmed in 1998 a “marked improvement . . . in the judicial nominations process,” observing that both the President and the Senate had apparently heeded the Chief Justice’s call. |
Judgeships |
Congress failed to act on the Judicial Conference request for 12 permanent and five temporary courts of appeals judgeship positions, 24 permanent district judgeship positions, and 12 temporary district court positions. A judgeship bill, S. 678, was introduced in the Senate in the first session of the 105th Congress. Senator Charles E. Grassley (R-IA) subsequently requested that the General Accounting Office review the basis upon which the Judicial Conference made its request for Article III and bankruptcy judgeships. The Senate Judiciary Subcommittee on Administrative Oversight and the Courts, chaired by Grassley, also held hearings during this Congress on judicial vacancies. Judges from all circuits except the Ninth Circuit were asked to testify on the need for new judgeships and the use of current resources. The failure to pass bankruptcy reform bills in this Congress also ended hopes for the bankruptcy judgeships provided for by the legislation. Based upon the high growth in bankruptcy caseloads in certain judicial districts, the Judicial Conference had requested the creation of seven permanent and 11 temporary bankruptcy judgeships. The House passed H.R. 1596, the Bankruptcy Judgeship Act of 1997, which would have created the 18 bankruptcy judgeships and extended a temporary judgeship in the District of Delaware. Instead of approving that bill, Grassley introduced S. 1301, the Senate’s controversial Consumer Bankruptcy Reform Act of 1998, which also would have created 18 temporary bankruptcy judgeships and extended the terms of five existing temporary bankruptcy judgeships. Neither bill passed both houses. |
Bills To Be Signed Into Law
A number of bills on alternative dispute resolution (ADR) circulated in the 105th Congress. H.R. 3528, the Alternative Dispute Resolution Act of 1998, passed the House and Senate. The President is expected to sign the bill, which requires every judicial district to have some type of ADR program, but does not require judges to make any litigant participate. The Conference supports the use of ADR by district courts and did not oppose the bill.
Congress passed S. 1021, the Veterans Employment Opportu-nities Act of 1997, a bill that initially would have required the Judicial Conference to promulgate judicial branch regulations providing a preference to certain veterans in appointment and in reductions in force. The final bill, which the President is expected to sign, continues to require the Conference to promulgate such regulations but will only affect certain employee levels in the Administrative Office, the Federal Judicial Center, and the U.S. Sentencing Commission.
Provisions of H.R. 3396, the Citizens Protection Act of 1998, were included in the Commerce, Justice, State, the Judiciary appropriations bill, which was signed by the President as the omnibus appropriations package. The provisions provide that government attorneys are subject to state laws and rules and local federal court rules.
The President also is expected to sign S. 1892, a bill barring a person closely related to an Article III judge from serving on the same court. The bill is related to the nomination of William A. Fletcher, whose mother sits on the Ninth Circuit, and who had been nominated to fill a judgeship vacancy in the Ninth Circuit. Upon his confirmation, which had been delayed for more than three years, Judge Betty Fletcher had announced she would take senior status. S. 1892 would be applicable to future nominees, not Fletcher. The Fletcher nomination was confirmed by the Senate on October 8, 1998.
The omnibus appropriations act also included enhanced methamphetamine mandatory minimum sentences. This provision will equalize the punishments for crack and methamphetamine possession by increasing the penalties for methamphetamine.
Congress also passed S. 191, which enhances penalties for using a firearm during a drug trafficking offense or crime of violence. S. 191 dramatically increases the firearms mandatory minimums contained in 18 U.S.C. § 924 (c)
| With the adjournment of Congress and the resignation, on October 31, 1998, of commission chair Judge Richard P. Conaboy, the U.S. Sentencing Commission was a seven-member commission without commissioners. The commission already had four vacancies, and three members with expired terms could serve only until Congress adjourned. Congress did not confirm or reappoint any commissioners before ending the 105th Congress, reportedly because the White House and key senators failed to agree on candidates. Some of the commission’s work—studies, research, training and legal analysis—will continue, but the sentencing guidelines may not be amended nor conflicts resolved in interpretation of the guidelines without a quorum of four commissioners. |
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 The third “Just The Beginning” Foundation (JTBF) Celebration was held in September in Detroit. Judge Damon J. Keith (6th Cir.) chaired the event attended by more than 300 African American federal prosecutors, and circuit, district, magistrate and bankruptcy judges. Among its missions, the non-profit foundation commemorates the contributions of African Americans to the federal Judiciary and educates the public on the struggles and successes of African American lawyers and judges. This year’s gathering was co-sponsored by the Damon J. Keith Law Collection of African American Legal History at Wayne State University, Detroit |
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