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State & Local News Vol. 23, No. 3, Spring 2000 WASHINGTON'S LABYRINTHINE WAYSThe Challenges of Long-Term Stewardship at Brownfield Sites: Designing and Implementing Land-Use Controls
By Otto J. Hetzel A Most Critical Issue for the 2000 Elections: Judicial Appointments. Perhaps the highest stakes in the fall elections is who will appoint and what the political philosophies will be for as many as three replacements for current Supreme Court Justices. A new president also makes a mark on government through the philosophies of those appointed to courts of appeal and federal district courts as well. These judicial appointments are likely to have a profound impact on the development of the law during the next decade. Thus far, Democrats, through sheer numbers of sitting appointees nominated by each party, have recently achieved rough parity. For the first time for a number of years, there are more appointees nominated by Democratic administrations (389) in district courts than those appointed by Republican administrations (386), according to the Alliance for Justice. In the thirteen courts of appeal, there are ninety-nine Democratic appointees and eighty-one Republican appointees. Before assessing the impact of judicial philosophies on litigation, however, several other considerations are relevant. First, obviously by whom one is nominated is not necessarily an accurate basis for characterizing philosophies of individuals nominated, as the decisions of numerous Justices over time have demonstrated. Appointment by a particular president of one party or the other does not necessarily indicate a concurrence on philosophy with the appointee on many matters. It often is used, however, as a shorthand basis of reference to political philosophy and perhaps was more focused on political philosophy when litmus tests were applied to candidates a number of years ago. Second, despite a slightly higher total of Democratic appointed judges, in nine of the appeals courts Republican appointees hold a majority. The collective range of philosophies in a court of appeals is often used to characterize a court's approach to various types of cases and can often be a factor affecting en banc considerations. Anemic Rate of Consideration of Judicial Candidates by Senate. Current ABA-supplied figures indicate that by February 20, 2000, there were currently twenty-six courts of appeal and fifty-one district court vacancies. Of these, no nominee for six courts of appeal and thirty-two district court vacancies had been named. Thus, twenty courts of appeal and nineteen district court nominees were pending with the Senate Judiciary Committee. Of the overall vacancies, twenty-nine have been designated judicial emergencies indicating an urgent need for the additional jurists. The vacancies include nine new district court judgeships created in the Omnibus Appropriations Act approved November 29, 1999. In mid-February 2000, the Senate finally approved one court of appeals appointment to the Third Circuit and a district court appointment for New Jersey. Neither confirmation was controversial, but they had been delayed by "holds" that individual senators may exercise, even for unrelated matters. In effect, the appointments are held "hostage." In this instance, however, the Majority Leader, Senator Trent Lott (R-Miss.), exercised his authority to override the hold and force a vote. Lott's action was taken despite efforts by nineteen conservative senators to block any further judicial nominations during the remainder of Clinton's term. On a procedural vote prior to the confirmation vote, Senator James Inhofe (R-Okla.) could only garner nineteen of the forty-one votes needed to sustain a filibuster, so the two judges were confirmed once the vote was taken. Apparently Inhofe's position was in retaliation for what he felt was an excess number of "recess" appointments by the President that were made without Senate approval during Congress' holiday break. Recess appointments are temporary and terminate at the end of the congressional term, but they avoid what can be in some cases a controversial confirmation process. For instance, the Assistant Attorney General for Civil Rights has been acting on the basis of recess appointments and Clinton also gave recess appointments after Congress adjourned in December to a Deputy Director of the Office of Management and Budget, the Undersecretary of State for Arms Control, the Ambassador to Slovakia, and a Director of the Mint, among others. How many more judicial candidates will come up for a vote is problematic. The only two judicial candidates currently scheduled for a vote, by March 15, 2000, are two nominees from California. While estimates vary, it appears unlikely that more than fifteen additional nominees of those pending before the Committee will be confirmed during the remainder of Clinton's term. So, if you or your friends haven't yet been nominated, confirmation is probably a distant dream. Senator Lott's Candidate Nominated by Clinton to Federal Elections Commission. Lott's override of the holds on judicial appointments noted above may have been related to the President's acquiescence to nominate a Lott candidate to the Federal Elections Commission. The appointment was quite controversial since the candidate generally opposes many of the current positions of the FEC. Is It Now "Rule of Five" Rather Than Four for Supreme Court Review? Every lawyer has been taught that the U.S. Supreme Court will grant certiorari if four judges vote to take the case up. In early February, however, while four Justices had voted to hear the case involving whether the electric chair constituted cruel and unusual punishment, the Court lifted a stay of execution for an Alabama death row inmate. The case, In re Tarver, was presented directly to the Court as a writ of habeas corpus rather than on appeal from a lower court. Thus, at least in habeas corpus cases, it would appear the Supreme Court may have adopted a rule of five for exercising its discretionary jurisdiction. The Court provided no explanation for its action. Earlier this Term the Court agreed to hear and then dismissed an appeal from Florida after the legislature there provided for lethal injections as the preferred method of execution. Similar legislation has now been introduced in Alabama. Tougher Bankruptcy Laws Approved by Senate. In early February, the Senate passed tougher bankruptcy legislation that would make it harder for debtors to use bankruptcy to discharge their debts. There are substantial differences in the versions passed by the House last year and the Senate version, in addition to the Minimum Wage Increase rider attached to the Senate bill, discussed below. A controversial provision preventing persons convicted of crimes against abortion clinics from using bankruptcy to avoid civil damages was also included when the Vice-President flew back specially to preside over the Senate for the vote and break a tie if necessary. Opposition to the provision dissipated once Gore arrived and the provision then passed easily. The tougher law was pushed heavily by the banking industry. It imposes new income requirements and closes a loophole that allowed debtors to exempt fully their homes from payments under bankruptcy. The bill also forces credit card issuers to disclose interest rates and fees more prominently, i.e., with larger fonts. The House bill contains even stricter requirements termed unacceptable by the White House because of the lack of flexibility. Both bills would restrict consumers currently authorized to discharge unsecured debts, and try to make Chapter 13 reorganizations rather than Chapter 7 discharges the primary vehicle for bankruptcies. This may not be much of an improvement for creditors since in two-thirds of Chapter 13 plans the debtor fails to complete the repayment plan successfully. Car dealers and those who finance cars will benefit from a provision that prevents debtors from discharging a portion of their outstanding car loans (the difference between current value and amount owed) if bankruptcy occurs within five years of its purchase. In 1998 1.4 million bankruptcies were filed; in 1999, 112,000 fewer occurred. The Consumer Federation of America has attacked the measure that proponents contend closes loopholes that are being abused, pointing out that the Senate bill "will deny many families in financial crisis a fresh start while spurring more reckless and irresponsible lending by credit card issuers." The Senate version would prevent persons from discharging all debts if it is determined they can repay $15,000 over five years, or 25 percent of unsecured debts, whichever is lower. The House bill is more extensive in this regard, denying those who can repay $6,000 from discharge of all their debts. Determining a debtors' ability to repay is relatively inflexible in both bills which use IRS expense and means standards that are not necessarily applicable to lower income debtors. One result could be extended litigation over this determination, reducing amounts ultimately available for creditors. The Senate bill also limits the debt repayment requirements to those who make more than 100 percent of the median income in their state or region or up to 150 percent if a trustee exercises his discretion to exclude specific debtors. Exclusion of equity in a house from bankruptcy in the Senate bill is capped at $100,000; in the House bill it is $250,000, but state legislatures are permitted to opt out of those limits, likely scenarios in five states, including Florida and Texas, where houses regardless of value are fully excluded from bankruptcy or attachment. Attaching Minimum Wage Increase to Bankruptcy Legislation Creates Uncertainty. The Republican Congressional Leadership has a hot potato this term since they want to avoid an up-down vote on increasing minimum wages to $6.15 per hour in this election year without handing Democrats an election issue. The Senate bill incorporates an increase of $1 phased in over three years in the bankruptcy legislation. This may provide an opportunity to avoid a direct vote on the minimum wage, so that the only vote is on the bankruptcy bill overall. Omnibus legislation often provides greater flexibility for members than being held responsible for votes on specific measures. The Senate version also includes a sweetener of some $76 billion in tax breaks assertedly to help small businesses adjust to the new wage levels. The bill's tax cuts have been criticized in a letter to Senate conferees from all Democratic senators as poorly targeted and favoring upper income persons. If the House accedes to the Senate version of the bankruptcy bill which includes the minimum wage increase, as part of the compromise that comes out of the Conference Committee, House members may avoid having to vote directly on the minimum wage increase. It is an unpopular measure for many conservative members. Some changes in the Senate measure in Conference Committee may still be necessary, however, since the President has threatened to veto a minimum wage increase that is not made effective within two years. Your correspondent Otto J. Hetzel is a Professor of Law Emeritus at Wayne State University and practices law in Washington, D.C.
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