Legislation & Lobbying

House committee advances sweeping judicial reform bills as ABA president urges caution

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ABA President Bob Carlson is expressing concern about four federal court bills being considered by the U.S. House of Representatives that would “profoundly affect litigants who seek redress.”

The House Judiciary Committee approved three of the bills on Thursday, according to press releases here, here and here. Those bills can now advance to a vote before the House of Representatives.

One would restructure the San Francisco-based 9th U.S. Circuit Court of Appeals; another would ban nationwide injunctions in cases that are not class actions; and a third would make a variety of judiciary reforms. Carlson had urged delay on all of three bills, except for a provision to create more judgeships, in a letter sent to leaders of the House Judiciary Committee on Thursday.

Carlson wrote that the bills were only recently introduced and they deserve thorough review before they are acted on. The three bills that passed through the committee were H.R. 6755, H.R. 6754 and H.R. 6730.

H.R. 6755, known as the Judiciary ROOM Act, “covers a remarkable range of subjects,” Carlson said in the letter. The judicial reform bill, introduced by U.S. Rep. Darrell Issa, R-Calif., would:

• Add 52 new permanent district court judgeships and convert eight of the 10 existing temporary district court judgeships to permanent status. According to Fix the Court, Democrats on the committee objected to immediate creation of the judgeships. The bill was amended to delay the new judgeships until Jan. 22, 2021, and that provision was in the bill approved by the committee.

• Require the Judicial Conference to issue a code of conduct for all federal judges, including Supreme Court justices.

• Require physical exams for federal judges and Supreme Court justices, with increasing frequency as they get older. Physicals would be required every five years for judges and justices age 70 and younger, every two years for those who are older than 70 and younger than 81, and every year those who are 81 and older. Physicians who identify a condition that may impact the ability of the judge or justice to carry out his or her duties must submit their findings to the appropriate chief judge or chief justice.

• Require broadcast access to court proceedings. According to Fix the Court, the broadcast provisions would require appellate courts (but not the Supreme Court) to livestream arguments, and would require the Supreme Court to release same-day audio within a year of the bill being enacted and provide live audio within two years.

• Require the Supreme Court to release a notice online when a justice recuses that would include an explanation for the recusal.

The ABA supports some provisions in Issa’s multifacted reform bill, but it has no policy on most of them.

The ABA has long supported comprehensive legislation to authorize the creation of new judicial positions, to address a need identified by the U.S. Judicial Conference. “We thank Representative Issa for holding a hearing on this important issue this past June and supporting the Judicial Conference’s recommendation for new district court judgeships,” Carlson wrote.

The ABA has also supported increased electronic media coverage of federal court proceedings, but it says the rules should be enacted by the U.S. Judicial Conference rather than legislation, Carlson said.

The many other provisions in the bill “cover too many divergent subjects for consideration at one time,” Carlson said. He urged the committee to consider only the section of the bill dealing with additional federal judgeships and to delay consideration of the other provisions.

H.R. 6754, known as the CIRCUIT Act, would restructure the 9th Circuit into three regional divisions. It is also sponsored by Issa. The Northern Division would consist of Alaska, Idaho, Montana, Oregon, and Washington. The Middle Division would be comprised of the existing Northern and Eastern Districts of California, Guam, Hawaii, Nevada, and the Northern Marianas. A Southern Division would consist of Arizona and the existing Central and Southern Districts of California. A Circuit Division which would hear certain cases, including cases when divisions reach decisions that conflict.

The Circuit Act resurrects legislation proposed in 1998 by the congressionally created White Commission. The commission recommended restructuring the 9th Circuit into the three regional divisions because of its preference for smaller decisional units, rather than the commission’s findings and conclusions, Carlson said. Since then, even the most ardent supporters of restructuring haven’t agreed on how it should be split, Carlson pointed out.

H.R. 6730, known as the Injunctive Authority Clarification Act, is sponsored by Rep. Bob Goodlatte, R-Va., and would ban nationwide injunctions. The ABA has no policy on nationwide injunctions. Carlson said the issue that was fairly obscure until a few years ago, and the proper scope of injunctions “deserves thoughtful and dispassionate bipartisan consideration.” If problems are identified, he said, nonstatutory solutions also should be considered.

Carlson also opposed a fourth bill to that would make it easier to invoke diversity jurisdiction to get cases into federal court. That bill remains in committee.

The diversity bill, H.R. 3487, is sponsored by Rep. Steve King, R-Iowa, and would change the long-standing requirement that diversity of citizenship can be invoked only when each plaintiff is from a different state or jurisdiction than each defendant. The proposed “minimal diversity” requirement would require diversity only between one of the plaintiffs and one of the defendants.

A minimal diversity requirement would create “untenable caseloads” that would create delays throughout the federal courts, Carlson said. “We believe that federal courts should be preserved as a distinctive forum of limited jurisdiction in our system of federalism, and any expansion of federal court jurisdiction should occur only when there is a demonstrated need,” Carlson said.

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