This week the Fifth Circuit held en banc argument in the Texas quorum clause litigation. When I was with Senator McConnell, he filed an amicus brief at the panel stage supporting the government. He did the same at the en banc stage — represented by my partners Bill Barr and Justin Romeo. There was a lot of interesting discussion of Senate rules at the argument. I’ll just say the Senate should be glad that they only deal with one parliamentarian and not a half dozen of them.
There is also a detailed article by Tierney Sneed at CNN about the case, which makes a small point that bears some unpacking. She notes, “The appropriations bill also created three temporary judgeships, raising questions about how any precedent against the funding law’s constitutionality could be used to challenge decisions by those judges.” That’s not quite right — the judgeships were extended, not created — but it gets to a real problem.
The Financial Services and General Government Title of the fiscal year 23 Omnibus Appropriation (the law challenged in the litigation) carried temporary judgeship extensions in its report language. This is standard fare and a little confusing. How can federal judgeships be temporary if they are for life?
Congress writes around this apparent paradox by saying that a future vacancy won’t be filled. For example, this was the language authorizing the temporary judgeship in Charlotte, N.C., to which Judge Bob Conrad had been appointed: “The first vacancy in the office of district judge in each of the offices of district judge authorized by this subsection, occurring 10 years or more after the confirmation date of the judge named to fill the temporary district judgeship created in the applicable district by this subsection, shall not be filled.” So after a drop date, the seat shall not be filled, and the court will return to the prior number of authorized judgeships. That’s how the seat is “temporary.”
Congress does this because it’s an accounting gimmick. Each judgeship scores at around $1 million per year, and it shows up in long-term budgeting. The fiction of temporary judgeships is that those scores don’t persist past, say, a ten-year budget window. It’s all fake.
The thing is they stay around forever. Chuck Grassley hates adding judgeships (see the cost above) and usually wants to eliminate ones in sleepy districts to balance the books. At the same time, no one wants his state’s judgeships taken away, so nothing happens, and the Appropriations Committee just extends the drop date in must-pass legislation like the FY23 Omnibus.
The result is a confusing patchwork of authorizations and reauthorizations for different judgeships that used to drive the White House executive clerk crazy. Luckily Ted Cruz — thanks to the tenacity of then–Chief Counsel, now-Judge Nick Ganjei — passed a bill to make all the judgeships permanent on December 23, 2024.
Here’s the problem: If the FY23 Omnibus was never enacted because its vote was unconstitutional, those temporary-judgeship extensions never took place.
Let’s stick with the Charlotte seat. Per the original authorization, a vacancy “occurring” ten years after the confirmation of its nominee (Conrad) shall not be filled. Conrad was confirmed on June 2, 2005, so the original drop date was June 2, 2015.
The FY23 Omnibus further amends that date from 18 years to 19 years. That means the drop date would go from June 2, 2023, to June 2, 2024. Recall the FY23 Omnibus was enacted at Christmas 2022.
Conrad himself went senior on May 17, 2023. Absent the extension, would his vacant seat have been unfillable because of the drop date? Perhaps not, because it’s the first vacancy, “occurring” may imply a new vacancy. But this isn’t obviously correct.
Furthermore, there was a subsequent new vacancy: Frank Whitney went senior on December 1, 2024. This would undoubtably be the first vacancy occurring after June 2, 2023. Recall that the seat only became permanent on December 23, 2024, so there was a temporary seat in the Western District of North Carolina until Christmas 2024.
There are some complicated questions embedded in all of this. December 1, 2024 (when Whitney went senior) is also after June 2, 2024 (as extended in the Omni), right? I would need to dig around to confirm, but it’s a very good bet that the continuing resolutions throughout 2024 carried the FY23’s authorization (they typically do). But what if that authorization never happened? Then the judgeship may have simply ended. Can Congress extend a seat that “shall not” be filled? Or, perhaps, can it extend an authorization that was never enacted to begin with? Probably not.
These are thorny questions and I doubt any of them have been litigated before. But my example was just one of the temporary judgeships — currently held by one of the excellent pair of Susan Rodriguez or Matt Orso, depending on which seat was first “occurring” after June 2, 2023. The FY23 Omni carried more; who knows what the math shows for the others. Regardless, every criminal who got the book thrown at him by Rodriguez or Orso is going to try to find out if the appointment was valid, as will felons in other jurisdictions.
Sometimes abstract legal principles sound good in theory but are catastrophes in practice. In those cases, judges should ask themselves: “Do I want to be Alito or Gorsuch?” The potential collateral consequences of invalidating the FY23 Omni on abstract, untested constitutional grounds are significant — as McConnell and Barr laid out in their brief and, as we see here, up to and including springing felons in Charlotte. The eventual vote lineup there may be a good, well, proxy for that question.