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[Senate Report 110-256]
[From the U.S. Government Publishing Office]

110th Congress 
 2d Session                      SENATE                          Report
                                                                110-256
_______________________________________________________________________

                                     

                                                       Calendar No. 556

 
 TO PRESERVE EXISTING JUDGESHIPS ON THE SUPERIOR COURT OF THE DISTRICT 
                              OF COLUMBIA

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 550

 TO PRESERVE EXISTING JUDGESHIPS ON THE SUPERIOR COURT OF THE DISTRICT 
                              OF COLUMBIA

                January 8, 2008.--Ordered to be printed
 Filed, under authority of the order of the Senate of December 19, 2007
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
                    Beth M. Grossman, Senior Counsel
  Jennifer L. Tyree, Counsel, Subcommittee on Oversight of Government 
    Management, the Federal Workforce, and the District of Columbia
Lisa M. Powell, Chief Investigative Counsel, Subcommittee on Oversight 
 of Government Management, the Federal Workforce, and the District of 
                                Columbia
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
         Amanda Wood, Minority Director of Governmental Affairs
    Jennifer A. Hemingway, Minority Staff Director, Subcommittee on 
  Oversight of Government Management, the Federal Workforce, and the 
                          District of Columbia
  David W. Cole, Minority Professional Staff Member, Subcommittee on 
  Oversight of Government Management, the Federal Workforce, and the 
                          District of Columbia
                  Trina Driessnack Tyrer, Chief Clerk

                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background.......................................................1
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Estimated Cost of Legislation....................................5
 VI. Evaluation of Regulatory Impact..................................5
VII. Changes in Existing Law..........................................5

                                                       Calendar No. 556
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-256

======================================================================

 TO PRESERVE EXISTING JUDGESHIPS ON THE SUPERIOR COURT OF THE DISTRICT 
                              OF COLUMBIA

                                _______
                                

                January 8, 2008.--Ordered to be printed

 Filed, under authority of the order of the Senate of December 19, 2007

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 550]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 550) to preserve 
existing judgeships on the Superior Court of the District of 
Columbia, having considered the same reports favorably thereon, 
without amendment, and recommends that the bill do pass.

                         I. Purpose and Summary

    The purpose of S. 550 is to preserve existing judgeships 
within the Superior Court of the District of Columbia 
inadvertently impacted by the 107th Congress under the Family 
Court Act of 2001.

                             II. Background

                DISTRICT OF COLUMBIA LOCAL COURT SYSTEM

    The local District of Columbia Courts consist of the 
Superior Court of the District of Columbia and the District of 
Columbia Court of Appeals. The District of Columbia Courts 
constitute the Judicial Branch of the District of Columbia, and 
they are separate and distinct from the legislative and 
executive branches of the District of Columbia.\1\
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    \1\D.C. Code Section 1-204.31 (2003); 2002 Annual Report of the 
District of Columbia Courts, p. 11.
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    Under the terms of the National Capital Revitalization and 
Self Government Act of 1997, Congress oversees the District of 
Columbia court system, which is funded by the federal 
government.\2\
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    \2\Public Law No. 105-33, 111 Stat. 251. For a history of the 
District of Columbia court system, see Senate Report No. 107-108, 
Appendix 1.
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    Judges on both the District of Columbia Court of Appeals 
and the Superior Court are selected through a process that 
includes the involvement of both local and federal entities. 
When a vacancy occurs on the Court, notice is sent to the 
District of Columbia Judicial Nominations Commission, a 
District of Columbia agency composed of seven members.\3\
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    \3\D.C. Code section 1-204.34 (2003) (One member is appointed by 
the President, two members are appointed by the Board of Governors of 
the unified District of Columbia Bar, two members are appointed by the 
Mayor, one member is appointed by the D.C. Council, one member is 
appointed by the chief judge of the U.S. District Court for the 
District of Columbia).
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    The Judicial Nominations Commission solicits applicants for 
the vacancy, conducts an investigation and review of each 
applicant, and selects three possible candidates to fill the 
vacancy. The names of those three candidates are sent to the 
President, who then selects one of the names to fill the 
vacancy on the Court. Once the nomination is made, it is sent 
to the Senate for confirmation.\4\
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    \4\D.C. Code section 1-204.33 (2003).
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               SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

    The Superior Court of the District of Columbia is the local 
trial court of general jurisdiction in the District of 
Columbia.\5\ It is organized into divisions--including civil, 
criminal, probate, and the Family Court--that provide 
specialized handling of cases in those areas.
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    \5\D.C. Code section 1-204.31 (2003).
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    The last major reform of the District of Columbia Courts 
occurred in 2002. On January 8, 2002, President Bush signed 
into law the District of Columbia Family Court Act of 2001 
(Act).\6\ The purpose of that Act was to restructure the then-
family division of the Superior Court into a new Family Court. 
The Act was intended to promote the efficiency and consistency 
in the assignment of judges to the Family Court, improve the 
handling of cases involving families and neglected children, 
and help recruit and retain experienced judges to serve in the 
Family Court.\7\
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    \6\Public Law No. 107-114.
    \7\See Senate Report No. 107-108.
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    Section 11-903 of the District of Columbia Code establishes 
an overall limit on the number of judges that may be seated on 
the Superior Court. The current limit is 58, in addition to a 
chief judge. Section 3(a) of the Family Court Act, among other 
things, allows the limit to be exceeded to appoint additional 
Family Court judges if the number of judges in the Family Court 
is less than 15 and if certain other conditions are met.\8\
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    \8\These other requirements include: (1) there are no other judges 
already on the Court who are willing to volunteer for a transfer into 
the Family Court from another division, (2) the chief judge obtains 
permission from the Joint Committee on Judicial Administration with the 
Court, and (3) the chief judge reports to Congress on the need to 
exceed the cap. D.C. code Sec. 11-908A(a)(3).
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    Section 3(b) of the Act required the Court to complete a 
transition plan and submit it to Congress within 90 days of 
enactment. Section 3(c) of the Act required that the transition 
plan include a determination of the numbers of judges then-
serving as Superior Court judges who meet the qualifications, 
and are willing and able, to serve as Family Court judges. In 
addition, section 3(c) required that, should the number of 
judges in the Family Court be less than 15, then a 
corresponding number of vacancies would be created on the 
Superior Court.
    On April 5, 2002, the Chief Judge submitted to Congress the 
required transition plan. Under the plan, the Chief Judge 
determined that the number of judges qualified and willing to 
serve on the Family Court was 12 and, therefore, pursuant to 
the Family Court Act, three new vacancies were created on the 
Family Court, notwithstanding the overall limit to the number 
of judges on the Superior Court in section 11-903 of the 
District of Columbia Code.\9\ In other words, three 
``vacancies'' on the Court were created, but the overall cap on 
the number of associate judges on the Superior Court remained 
at 58, as the Act failed to account for the new seats in the 
overall limit set forth in section 11-903.
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    \9\See District of Columbia Family Court Transition Plan, April 5, 
2002, p. 30.
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                  THE PROBLEM AND NEED FOR LEGISLATION

    On January 21, 2003, the President nominated Judith Nan 
Macaluso, Jerry Stewart Byrd, and Joseph Michael Ryan III to 
fill the three newly-created Family Court seats. Those 
nominations were referred to the then-Senate Governmental 
Affairs Committee, as the committee of jurisdiction over the 
District of Columbia Courts. In addition to the three 
nominations to fill the three newly-created Family Court seats, 
several judges were nominated in 2003 to fill vacancies created 
by retiring judges.
    On June 27, 2003, the Senate confirmed Judge Macaluso to 
fill a Family Court vacancy and Fern Flanagan Saddler, who was 
nominated to fill a general Superior Court vacancy created by a 
retired judge. On October 24, 2003, the Senate confirmed Craig 
Iscoe and Brian Holeman as Superior Court judges. The two 
remaining Family Court nominees--Judge Byrd and Judge Ryan--
were then confirmed, under the provisions of the Family Court 
Act which allowed the limit on the total number of Superior 
Court judges to be exceeded under certain conditions to allow 
for the appointment of Family Court judges. With these two 
confirmations, the Family Court had its full complement of 15 
dedicated judges. The Superior Court, however, now had 60 
associate judges.
    Moreover, on September 25, 2003, while the four previous 
nominations were still pending in Committee, the Committee 
received the additional nomination of Gregory E. Jackson to 
fill the seat of the retired judge Mildred M. Edwards. The 
Senate, however, could not confirm him for the position at that 
time, however, because he would have been the 61st associate 
judge on the Superior Court, and confirming him would have 
meant exceeding the statutory maximum number of judges set out 
in D.C. Code Sec. 11-903. Instead, Mr. Jackson had to wait for 
additional retirements to bring the total number of Superior 
Court judges below the statutory maximum; as a result it was 
over a year before his nomination was reported out of Committee 
and confirmed by the Senate.
    Since then, that unfortunate pattern has continued, with 
individuals nominated for ``vacancies'' on the Superior Court 
upon the retirement of a judge, but then forced to wait until 
the overall number of judges is reduced through subsequent 
retirements before the candidate can be confirmed. Often, this 
has resulted in significant delays in consideration of 
nominees--and inconvenience or hardship for nominees whose 
status and employment remain in limbo.
    Should section 11-903 not be amended, moreover, the result 
may be a permanent decrease in the number of judges serving in 
the non-Family Court divisions of the Superior Court, including 
civil and criminal, as judges retire but cannot be replaced 
immediately.
    Such a decrease in the number of judges would worsen 
existing case backlogs. In 2002, when the Family Court Act of 
2001 went into effect, the civil division of the Superior Court 
had nearly 98,000 cases available for disposition, and the 
Family Court had over 38,000 cases available for 
disposition.\10\ Since that time, the caseload of the civil 
division has increased somewhat, while the Family court has 
reduced its caseload somewhat. In 2006, the civil division had 
116,306 cases available for disposition, while the Family Court 
had 27,420 available for disposition.\11\ Although the civil 
division and the Family Court have high clearance rates,\12\ 
because of the large scale of the court's operations, they both 
carry large case backlogs. At the end of 2006, the civil 
division had 38,636 cases pending, while the Family Court had 
14,482 cases pending.\13\
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    \10\2002 Annual Report of the District of Columbia Courts, p. 65. 
Cases available for disposition include cases pending at the beginning 
of the year, plus new cases filed and cases reactivated during the 
course of the year.
    \11\2006 Annual Report of the District of Columbia Courts, p. 29.
    \12\In 2006, the Family Court division had an overall clearance 
rate of 90 percent. The civil division had a clearance rate for civil 
actions of 128%--i.e., it disposed of more civil action cases than were 
added--although its overall clearance rate for all cases (including 
landlord-tenant and small claims) was not available. 2006 Annual Report 
of the District of Columbia Courts, p. 29.
    \13\2006 Annual Report of the District of Columbia Courts, p. 29.
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    Insufficient judicial staffing and the resulting delays in 
case resolution have detrimental effects on the parties to the 
cases, delaying access to justice while increasing the cost and 
prolonging the uncertainty involved in litigation. S. 550 would 
address these issues by increasing the number of associate 
judges from 58 to 61.

                        III. Legislative History

    The legislation was introduced as S. 550 by Senators Akaka, 
Voinovich, and Lieberman on February 12, 2007, and was referred 
to the Committee on Homeland Security and Governmental Affairs 
on the same date. Previous versions of the bill, S. 1561, 
introduced by Senators Collins, Voinovich, and Durbin in the 
108th Congress, and S. 2068, introduced by Senators Collins, 
Voinovich, and Akaka in the 109th Congress, passed the Senate 
by unanimous consent. No action was taken in the House of 
Representatives. On February 15, 2007, the Committee considered 
S. 550 and ordered the bill reported favorably by voice vote 
without amendment. Members present were Lieberman, Akaka, 
Carper, Pryor, Landrieu, Tester, Collins, Voinovich, and 
Coburn.

                    IV. Section-by-Section Analysis

    Section 1 amends section 11-903 of the District of Columbia 
Code to increase the limit on the number of judges on the 
Superior Court of the District of Columbia from 58 to 61.

                    V. Estimated Cost of Legislation

                                                 February 22, 2007.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 550, a bill to 
preserve existing judgeships on the Superior Court of the 
District of Columbia.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 550--A bill to preserve existing judgeships on the Superior Court of 
        the District of Columbia

    S. 550 would amend the District of Columbia Code to 
increase the number of associate judges on the Superior Court 
of the District of Columbia from 58 to 61. Under current law, 
the Superior Court is subject to a cap of 58 judgeships. Based 
on information from the Superior Court, CBO estimates that 
increasing the cap on judgeships to 61 would cost about $1 
million a year for salaries and benefits of additional judges 
and support staff, subject to appropriation of the necessary 
amounts. Enacting the bill would not affect direct spending or 
revenues.
    S. 550 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                  VI. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. CBO states that 
there are no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and no costs on 
state, local, or tribal governments. The legislation contains 
no other regulatory impact.

                      VII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic and existing law, in which no 
change is proposed, is shown in roman):

                       DISTRICT OF COLUMBIA CODE

         TITLE 11, ORGANIZATION AND JURISDICTION OF THE COURTS

         CHAPTER 9. SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

11-903. COMPOSITION

    The Superior Court of the District of Columbia shall 
consist of a chief judge and [fifty-eight] 61 associate judges.

                                  
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