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ACTIVE, LONG, AND CONTENTIOUS FIRST SESSION OF CONGRESS CLOSES [excerpted from The Third Branch -- February 1996

The Contract with America was the focus of intense legislative debate; the threat of a funding lapse brought the federal courts to the verge of a "constitutional crisis;" the Alfred P. Murrah Federal Building in Oklahoma City--located a block away from the federal courthouse--was blown-up; the Federal Courts Improvement Act was introduced; and Representatives Carlos Moorhead (R-CA) and Patricia Schroeder (D-CO), and Senators Howell Heflin (D-AL) and Mark O. Hatfield (R-OR)-key players in the debate over legislation and funding involving the courts- announced their retirements. And that was just the first session of the 104th Congress, which began earlier than most and adjourned five minutes before the start of the second session. It is said to be among the longest in history.

According to the Congressional Monitor, the first session was "the busiest burst of legislative activity since President Franklin Delano Roosevelt steered his New Deal legislation through Congress in the 1930s." In addition, the shift in the majority party, which gave the Republicans control of both houses for the first time in 40 years, resulted in a dramatic change in the leadership and agenda of congressional committees.

The following is a look back at the first session of the 104th Congress and some of the issues that are of particular interest to the federal Judiciary.

Contract with America

The first 100 days that the House was in session were consumed by the Contract with America. Many of the reforms called for in the contract had broad implications. Of particular interest to the Judiciary were the Fiscal Responsibility Act, the Common Sense Legal Reform Act, and a crime bill entitled the Taking Back Our Streets Act. The Fiscal Responsibility Act contained a provision that would give the President line-item veto authority. Chief Judge Gilbert S. Merritt (6th Cir.), chair of the Judicial Conference's Executive Committee, testified before a joint House-Senate committee in opposition to the inclusion of the Judiciary in the legislation. To do so, Merritt said, could threaten the ability of the Judiciary to independently discharge its constitutional duties. The House and Senate passed different line-item veto legislation and are awaiting a conference on the bills. Amendments that would have excluded the Judiciary from the line-item veto were offered and defeated on the floors of both houses.

The House began consideration of anti-crime legislation in the first week of the session, divided the primary bill into seven separate bills a week later, and passed most of them by mid-February. The Senate processed its own Violent Crime Control and Law Enforcement Act, by breaking it up into separate bills or attaching provisions to other legislation. In their various forms, the House and Senate bills address a wide variety of issues including mandatory minimum sentences, habeas corpus reform, mandatory restitution, and prisoner civil rights litigation.

Last November, Judge Maryanne Trump Barry (D. N.J.), chair of the Judicial Conference's Committee on Criminal Law, testified before the Senate Judiciary Committee in opposition to provisions in mandatory restitution legislation, which she said would be implemented at great costs with the likelihood of little or no gain. However, prior to adjournment, the Senate approved mandatory restitution legislation and is expected to conference the bill with the House, which approved its own bill early in the first session.

Although not a part of the Contract with America, anti-terrorism legislation commanded center stage following the April bombing of the Alfred P. Murrah Federal Building. The Senate acted first, passing a bill supported by the President that contained new mandatory minimum sentences for terrorist acts and added funding for law enforcement. The Senate bill also contained habeas corpus and prisoner civil rights litigation reforms. The House's anti-terrorism bill has cleared the Judiciary Committee, but has not yet been brought to the floor. Another response to the Oklahoma City bombing was the enactment of a supplemental FY 95 appropriation, which contained $16.6 million for court security.

A third provision in the Contract With America, the Common Sense Legal Reform Act, was modified and passed by the House as the Common Sense Product Liability and Legal Reform Act. The Senate has passed its own product liability legislation, but no conference has been scheduled to address the differences in the two bills.

FY 96 Funding

By spring of 1995, Chief Judge Richard Arnold (8th Cir.), chair of the Judicial Conference's Budget Committee, had presented the Judiciary's budget request to the Senate and House appropriations subcommittees. At the time, there were few hints of the coming crisis that would twice shut down major parts of government and bring the federal courts within days of suspending some operations.

During early consideration of the Judiciary's funding request, questions did arise about the Post Conviction Defender Organizations (PCDOs), which provide representation to indigent defendants in capital habeas corpus cases. In the end, Congress zeroed out the PCDOs but provided funds for them to wind down their operations by April 1. While little additional controversy existed in the Judiciary funding request, the contentious and divisive nature of business in Congress made it unlikely that an appropriations bill would be enacted by October 1, 1995.

As the federal government braced for a partial shutdown, Congress enacted an eleventh hour continuing resolution, which provided funding through mid-November. When that funding measure expired, a six-day shutdown followed, which had little impact on the courts but caused the Administrative Office (AO) to furlough about 75 percent of its staff. Following the next continuing resolution, House-Senate conferees reached an agreement on the Commerce, Justice, State, and the Judiciary appropriation. However, the President vetoed the measure for various reasons, none of which related to the courts.

With the prospect of a fiscal year 1996 appropriation appearing unlikely, the Conference's Executive Committee determined that the Judiciary could maintain operations for a short period by using fee income and a small amount of miscellaneous carry-over funds. The Chief Justice of the Supreme Court asked congressional leaders to pass a free- standing appropriation bill for the Judiciary because the Commerce, Justice, State, and Judiciary measure was caught in a struggle between the legislative and executive branches. Merritt spoke out publicly on the dire consequences of the failure to fund the courts, and AO Director Leonidas Ralph Mecham took these messages to influential members of the House and Senate and their staff. The result was that on January 5 Congress agreed to give the Judiciary a 5.1 percent increase over FY 95 for all of FY 96, while several major parts of government received only short-term limited funding. The President signed the bill the following day.

Courthouses

An early indication that 1995 would be another year of fiscal scrutiny and belt tightening came with Senate passage of a bill that included cuts to funds previously appropriated for courthouse construction. Both Chief Judge Robert C. Broomfield (D. Ariz.), the chair of the Conference's Security, Space and Facilities Committee, and his successor, Judge Robert E. Cowen (3rd Cir.), testified at congressional hearings on the steps being taken to bring greater efficiencies and cost-cutting to the courthouse construction process. At Congress' request, the Judicial Conference ranked, by priority, courthouse construction projects for FY 95 and 96. The Conference continued its review and amendment of the U.S. Courts Design Guide as the publication continued to receive congressional scrutiny. By year end, the Judiciary saw the appropriation for construction programs passed for one FY 95 and nine FY 96 courthouse projects. Authorization for pending projects was approved by the Senate, but has been held up in the House, while staff conducted a round of visits to courthouses on the east and west coasts.

Federal Courts Improvement Bill

An omnibus bill with more than 50 improvements and reforms in the administration and operation of the federal courts, the Federal Courts Improvement Act, has been introduced in the House and the Senate. The legislation contains provisions endorsed by the Judicial Conference that address the administrative, financial, and personnel needs of the judicial branch.

Senator Charles E. Grassley (R-IA) chaired a hearing on the bill and received testimony from Judge Barefoot Sanders (N.D. Tex.), chair of the Judicial Branch Committee; Judge Stephen H. Anderson (10th Cir.), chair of the Committee on Federal- State Jurisdiction; and Judge Gustave Diamond (W.D. Pa.), immediate past chair of the Defender Services Committee. A Senate mark-up of the bill is expected to occur soon, and it is anticipated that the House will conduct hearings early in the second session.

Judgeships

In 1995, a total of 55 judges were confirmed. That compares to an average of 56 judicial confirmations each year since 1979.

In January 1995, Mecham transmitted to Congress the Judicial Conference's most recent request for judgeships. The draft bill as transmitted would authorize 20 additional temporary judgeships for the courts of appeals and 18 permanent and five temporary judgeships for the district courts. No bill has been introduced in Congress and action is unlikely until after the presidential election.

In late November, President Clinton signed P.L. 104-60, which extends the term of temporary judgeships created in 1990 by P.L. 101-650. The legislation provides that the first district judge vacancy occurring five years or more after the confirmation date of the judge appointed to fill the temporary judgeship will not be filled. The bill affects temporary judgeships in 12 districts.

In the first session, Congress also began consideration of legislation that would create 11 new bankruptcy judgeships. A hearing on the bill was held in early January before the House Judiciary Subcommittee on Commercial and Administrative Law. Chief Judge Paul A. Magnuson (D. Minn.), chair of the Conference's Committee on Administration of the Bankruptcy System, and two bankruptcy judges testified in support of the bill.

Other Bills of Interest

Among the additional legislation of interest to the Judiciary are the following:

* The Judicial Cost-of-Living Increase Act: This legislation, introduced by Heflin in the Senate and Representative Roger Wicker (R- MS) in the House, would repeal the requirement relating to specific statutory authorization for increases in judicial salaries and provide for automatic annual increases in judges' compensation. For the third consecutive year, Congress and the President declined to give judges a cost-of-living increase.

* The Ninth Circuit Court of Appeals Reorganization Act: The Senate Judiciary Committee approved legislation to divide the Ninth Circuit into two circuits-the Ninth and Twelfth Circuits. Chief Judges J. Clifford Wallace (9th Cir.) and Gerald B. Tjoflat (11th Cir.), and Judge Diarmuid F. O'Scannlain (9th Cir.) testified at a Senate hearing on the bill. Senator Conrad Burns (R-MT) blocked action on all nominees to the U.S. Court of Appeals for the Ninth Circuit until the bill cleared the committee. * Court Arbitration Authorization Act of 1995: Introduced by Moorhead, this bill would require all district courts to establish rules allowing mandatory or voluntary arbitration in civil actions. Judge Ann Claire Williams (N. D. Ill.), chair of the Conference's Committee on Court Administration and Case Management, testified in support of the Conference's position that courts should not be required to establish mandatory arbitration programs.

* Prison Litigation Reform Act: An amended version of this legislation passed both houses as part of the Commerce, Justice, State, and Judiciary appropriations bill, which was vetoed by the President last December. The legislation would restrict remedial relief in prison condition cases and place restrictions on the ability of inmates to file civil rights suits. This legislation is expected to receive further congressional consideration during the second session.

* A Bill to Provide that Cases Challenging the Constitutionality of Measures Passed by State Referendum be Heard by a 3-judge Court: This bill would require 3-judge panels to consider applications for interlocutory or permanent injunctions restraining the enforcement, operation, or execution of state laws adopted by referendum on the ground of unconstitutionality. The Judicial Conference opposes the bill, which has passed the House.

* The WTO Dispute and Review Commission Act: This bill would establish a commission comprised of five federal judges from courts of appeals appointed by the President to review dispute settlements in which the U.S. is found to violate its World Trade Organization obligations. Judge Stanley S. Harris (D. D.C.), chair of the Confer- ence's Committee on Intercircuit Assignments, testified in opposition to the bill.

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