Two federal bankruptcy courts move to combat forum shopping

Mayer Brown’s blog, Real Bankruptcy Intel, explains:

Following the controversy surrounding Purdue[‘s careful filing of a bankruptcy petition designed to land specifically with Judge Robert Drain], as well as a lull in filings nationwide, in November, the SDNY elected to adopt a random case assignment system. Specifically, subdivision (f) of Local Bankruptcy Rule 1073-1 now states:

    1. Mega Chapter 11 Cases. Notwithstanding subdivision (a) of this rule, the Clerk shall assign a mega chapter 11 case to a Judge in the District by random selection irrespective of the courthouse in which the case is filed. A chapter 11 case qualifies as a mega chapter 11 case if the assets or liabilities of the debtor are equal to or greater than $100 million. A multi-debtor chapter 11 case qualifies as a mega chapter 11 case if the cumulative assets or cumulative liabilities of the filing debtors are equal to or greater than $100 million.[5]

Therefore, as of December 1, cases filed in the SDNY are to be assigned on a random basis to judges irrespective of the courthouse in which they are filed. As part of this rule, any SDNY judge can preside over a case in a courthouse where he or she is not usually assigned. Chief Judge Cecelia G. Morris explained that she hopes the adoption of this system will result in a more balanced utilization of judicial resources.[6] Judge Drain himself also commented that he “supported the change unanimously.”[7] Such adaptation now places the SDNY on par with the District of Delaware—another longstanding hotspot for mega chapter 11 cases—which already had a random assignment system in place. This move is likely to prevent debtors from “judge shopping” within the district.

Within a month of the SDNY’s announcement, the Bankruptcy Court for the Eastern District of Virginia (the district that contains Richmond and Alexandria) also implemented a similar rule.[8]

GAO questions judiciary’s system for prioritizing courthouse construction

Here is a very interesting example of the federal judiciary’s interdependence with the rest of the federal government. The responsibility for maintaining and operating the 420 federal courthouses across the country is shared by the judiciary, the U.S. Marshals Service, the General Services Administration, and the Federal Protective Service. And construction or maintenance of courthouses but also be authorized and funded by Congress, with oversight assistance from the General Accounting Office (GAO).

The upshot of this entanglement is that significant changes or improvements to federal courthouses must work their way through multiple layers of bureaucracy before anything gets done.

And so it is here. In 2008, after one significant wave of courthouse construction had been completed, the federal judiciary implemented an Asset Management Process (AMP) to prioritize courthouses most desperately in need of upgrades or new construction. Five years later, the GAO signed off on the process. The Administrative Office of the U.S. Courts (AO) then began the laborious task of assessing the condition of every federal courthouse in the country. By 2020, it had completed assessments of 385 courthouses, or 92 percent, with respect to security, space standards, functionality, the condition of judges’ workspaces, and the general condition of courtrooms and facilities. The judiciary assured the GAO that its assessments were accurate as of the time they were completed.

But the GAO was not satisfied. Asked to review the AO’s courthouse assessments, it concluded that several had become outdated and were therefore over- or under-prioritized for improvements. (For example, two courthouses were destroyed by recent hurricanes, yet their condition was not updated by the AO.) Yesterday the GAO issued a 62-page report outlining its concerns, as well as specific steps that the AO must take to improve the assessment process.

Some might look at the GAO as a necessary watchdog to make sure that the government does not spend money in the wrong places. Others might see this as wasteful bureaucracy run amok. The point here is simply that the business of operating courts is inextricably, and often invisibly to the public, tied to the demands, whims, and queries of many other actors. And that is interdependence in a nutshell.

Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

When senior status becomes political

Josh Blackman has some interesting comments on two federal appellate judges — one a Reagan appointee, the other a Clinton appointee —  who  rescinded their decisions to take senior status after learning, to their dissatisfaction, the identity of the nominees who would replace them. (Note the excellent reporting by David Lat.)

There is something deeply unseemly about this. Two rescissions do not necessarily represent a trend, but as Professor Blackman points out, conditioning senior status on the appointment of a chosen successor would effectively give judges a veto power over presidential nominations. This poses obvious problems for both the general balance of power in the federal government and our Constitutional fabric. 

The question is what to do about it. I see nothing in the governing statute that expressly forbids this type of gamesmanship. But there are certainly some opportunities for soft power responses. For one thing, the President need not kowtow to a judge’s demand for a specific nominee; if President Biden and his successors simply refuse to allow sitting judges to influence the nomination process, the likelihood of particularized conditional declarations of senior status will probably just dry up. 

It’s also possible for powers within the federal court system to respond. Neither the Chief Justice nor the Judicial Conference has coercive power to prevent judges from declaring conditional senior status. But they do have other forms of influence. It is hard to believe that a call from the Chief Justice, or a sternly worded communique from one’s peers about preserving the legitimacy and apolitical culture of the judiciary, wouldn’t make a difference to many on the bench.

To be sure, the federal court system needs judges to take senior status periodically. It is an important means of bringing in new blood and coping with voluminous dockets (since senior judges do not count against each district and circuit’s statutory allocation of active judges). But the internal culture also has to be preserved, and slowing some judges from taking senior status in order to maintain legitimacy is surely the right call.

 

A tentative settlement in the PACER fee lawsuit?

Reuters reports that a settlement is brewing in the class action lawsuit alleging that the federal judiciary overcharged users for PACER access. Terms of the deal were not disclosed, but after several years of litigation, including a trip to the Court of Appeals, it appears that the case may be coming to a private resolution in the next few months.

I shared thoughts on the PACER lawsuit, and the larger questions it poses for the court system, here.

Joe Biden buries the lead on his own judicial nominees

Joe Biden’s Very Bad Week continues with this unnecessarily tone-deaf press release about his latest round of federal judicial nominees. The nominees themselves are outstanding and highly qualified, and most have judicial experience at the state or federal level. Indeed, several of the nominees have been federal magistrate judges, which gives them special insight into the nuts and bolts of common procedures like arraignments (on the criminal side) and discovery disputes (on the civil side). 

But that evidently matters less to the President (and his advisors) than the nominees’ race and gender. The primary focus of the press release is on the number of Latina and Black nominees in this slate. Nothing is said up front about any of their accomplishments (except in very vague and broad language) or (in several cases) their relative youth, assuring the potential for a multi-decade career on the bench. It’s an insult to the nominees, at what should be a great moment in their legal careers, to reduce them to demographic avatars for the purpose of promoting a political agenda.

Let’s give the nominees some of the credit they deserve. Buried deep in the press release, we learn about this slate’s extraordinary diversity of legal experience: on the bench, as both prosecutors and public defenders, in the legal academy, and in private practice in areas ranging from family law to intellectual property. Some even have experience with social work and public education. That range of experience, and the different perspectives is must inculcate, will help the entire federal judicary — both in the courtroom and behind the scenes.

Congratulations to all the nominees.

What is fueling the federal courts’ response to the judicial recusal crisis?

Everyone wants the same thing and Congress seems ready to act. So why is the court system trying to keep legislation at bay?

Recently, I have been diving back into organizational theory — a set of theoretical frameworks about how organizations operate which inspired the creation of this blog in 2017. I have been particularly curious about the extent to which the behavior of courts and court systems — as opposed to individual judges — can be explained by external pressures from the courts’ environment. Although much of organizational theory began as a way of explaining the behavior of private firms, it has been extended to the public sector, and I am now convinced that it can profitably explain a wide range of court system behaviors.

Take a very recent example: the Wall Street Journal investigation this month, which revealed that more than 130 federal judges had presided over cases involving companies in which they owned stock. Such financial conflicts clearly require recusal, and while many (perhaps most) of the judges who did notJudge_Jennifer_Walker_Elrod recuse gave plausible explanations that they had simply failed to keep tabs on their trades, the situation has been highly embarrassing for the federal judiciary. The Administrative Office of the U.S. Courts said that the report was “troubling” and that it was “carefully reviewing the matter.” And this week, Fifth Circuit Judge Jennifer Walker Elrod appeared before a subcommittee of the House Judiciary Committee to reaffirm that the federal courts “have taken and will continue to take action to ensure ethical obligations, including recusal and reporting requirements, are met.”

Such assurances may not be be enough for Congress. Bipartisan bills have been introduced in both houses to tighten recusal and reporting requirements. The Senate bill would also require the AO to develop a publicly accessible, searchable online database of judges’ financial disclosures. The federal court system therefore finds itself scrambling to avoid a legislative mandate by showing that it is able to police its financial conflicts internally. Even then, it may not be able to stave off new legislation.

This may seem like ordinary damage control. But the court system’s specific behaviors to date, and range of possible responses going forward, can also be understood through the lens of an organizational theory known as neo-institutionalism. And that theory suggests that the court system’s response is very deliberate and very calculated. Continue reading “What is fueling the federal courts’ response to the judicial recusal crisis?”

Federal cases take about a year to resolve on average — but don’t read too much into that average

The Juris Lab has a nice, approachable statistical overview of federal civil case disposition over the past twenty years. It notes that the “average” case takes about 344 days from filing to termination, although that number varies widely depending on case type, jurisdiction, and nature of disposition. (Cases ending in a trial verdict take another year to resolve on average.)

The oveview does not attempt to account for all the variation in disposition time, and does not even mention obvious factors like judicial vacancies, complex procedural settings like MDLs, the influence of ADR on filings, CJRA-style reporting pressure, or settlement pressure. But it is still very useful.

I have only recently come across The Juris Lab, which aims to wed legal issues with big data. It seems like a promising site, and worth checking out on a regular basis.

Five Biden appointees advance to confirmation votes

Five of President Biden’s judicial nominees advanced out of the Senate Judiciary Committee yesterday. Two court of appeals nominees, including D.C. Circuit nominee Ketanji Brown Jackson, passed on narrow majorities. Three dsitrict court nominees sailed through with large majorities.

Judge Jackson won the support of two Republican Senators, Lindsay Graham and John Cornyn, and passed to the full Senate with a final committee vote of 13-9. That someone as accomplished as Jackson received nine “no” votes is a clear sign of our political dysfunction. Senator Chuck Grassley, who voted against Jackson, explained that “unless a circuit court nominee can show me that he or she is affirmatively committed to the constitution as affirmatively understood, I don’t think that he or she should be confirmed.”

One point to Senator Grassley for honesty, but a three-point deduction for damaging partisanship. Yes, the D.C. Circuit has become the most ideological of the circuit courts, and yes, there is reason for the GOP to be concerned about the Democrats’ transparent effort to pack that court and then funnel all federal elections challenges through it. But elections have consequences, and no one should expect that a Biden nominee will be a committed originalist. Grassley’s bright-line rule for appellate nominees places him squarely in the camp of noted Third Branch emasculators Kamala Harris and Mazie Hirono.

Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.)  And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.