Category: federal courts

The coming impact of the shutdown on the federal courts

The United States Courts will run out of funding this coming Friday, January 11. If the federal government is not funded and operating by that date, case processing will be immediately affected. While the likely impact will vary from district to district, it is certain that civil cases will suffer first, with trials and hearings being postponed as the courts dedicate their essential staff to criminal proceedings. Bloomberg Law has a good look at how the courts are handling the situation.

We are already starting to see some negative effects on civil cases in certain districts. Should the shutdown linger, one would expect to see existing civil cases settle at higher rates, and future cases filed either in state courts or in private arbitration settings. None of this, of course, is good business for the federal court system. Let’s hope there is a resolution soon.

 

Chief Justice releases Year-End Report

Per tradition, at 6 p.m. EST on December 31, Chief Justice John Roberts released his Year-End Report on the Federal Judiciary. Each year, the report focuses on one specific topic. For 2018, the topic–appropriately–was the work of the federal Working Group on Workplace Conduct.

Many have already focused on the #MeToo aspect of this year’s report. I want to highlight something a bit different. Far beyond discussing the specific outcomes of the Working Group’s activities, Roberts spent quite a bit of time discussing the internal mechanisms by which the Working Group’s suggestions were implemented. He highlighted the roles of the Judicial Conference of the United States, the Administrative Office of the United States Courts, and the various Judicial Conference subcommittees that studied and implemented the Working Group’s recommendations. The enduring image is one of a slow, careful, and multi-layered process–exactly the image the Chief Justice was likely aiming for.

Although it never goes on for more than a few pages, the Year-End Report may be the most deliberately written document that the Chief Justice writes all year. One has the sense that every word had been carefully and repeatedly vetted. That the Chief would dedicate significant space to describing (even at a high level) the federal courts’ internal committee work is telling, and a welcome development for students of court organization.

Happy New Year to all.

Federal courts will still operate during shutdown

The United States Courts will use court fees and reserve resources to operate during the current government shutdown. The Courts can continue to operate for about three weeks, until January 11, 2019.

No more federal judicial confirmations this year

The Hill reports: Feeling heat from the left, Dems reject judges deal.

A Senate Democratic aide said Wednesday that [Chuck] Schumer would not agree to approve the final slate of judicial nominees as the Senate prepares to wrap up its work for the year.

Progressives skewered Schumer for agreeing to two previous deals this year, one in August and the other in October, when he signed off on a group of court picks in exchange for letting vulnerable incumbents head back to their home states to campaign before the November midterm election.

Current number of vacancies in the federal courts: 143.

 

New developments in lawsuits concerning judicial elections in Alabama and Arkansas

Two lawsuits involving judicial elections–one each in Alabama and Arkansas–were the subject of new developments this past week.

In Alabama, the NAACP and Lawyers Committee for Civil Rights filed a federal lawsuit alleging that the state’s method of electing state appellate judges discriminates against African-American voters. The lawsuit claims that the absence of black judges on any state appellate court is the result of discriminatory vote dilution tactics. The state moved to dismiss the case on the grounds of sovereign immunity, but U.S. District Judge W. Keith Watkins denied the motion to dismiss, and set the case for a bench trial. Attorneys for the state have now taken their case to the Eleventh Circuit Court of Appeals, asking that court to overturn Judge Watkins’s refusal to dismiss the case.

The Arkansas case involved a controversial attack ad against incumbent state judge Courtney Goodson, who was seeking reelection. The Judicial Crisis Network, a conservative group, had been running the ad on several stations in northwest Arkansas when a county judge barred its further broadcast in May. The corporate owner of a Little Rock television station appealed the injunction. But last week, the state court of appeals ruled that the issue was now moot, since Justice Goodson has won reelection, and the ad was no longer airing. The issue may be moot for now, but the larger issues–prior restraint of political speech, the influence of “dark money” in elections, and the wisdom of electing judges in any event–remain.

Federal courts appoint first Judicial Integrity Officer

Back in January of this year, Chief Justice John Roberts appointed a Workplace Conduct Working Group in response to several public allegations of workplace harassment within the court system. The Working Group made its recommendations in June. Now, the court system had followed up on one of the most significant recommendations by appointing a Judicial Integrity Officer: Jill Langley, formerly the Director of Workplace Relations for the Tenth Circuit.

According to the press release:

One of Langley’s first responsibilities will be to set up a new office that will serve as an independent source of information and referral. This will include answering individuals’ questions, providing guidance on conflict resolution, mediation, and formal complaint options.

The new Judicial Integrity Office also will track and monitor data and any recurring workplace issues to identify trends and conduct systemic analyses and reviews. In addition, Langley will provide training throughout the Judiciary and serve as a resource for workplace conduct staff throughout the court system, including coordination with the Ninth Circuit’s director of workplace relations, the D.C. Circuit’s workplace relations coordinators, and other similar positions in the courts.

 

Chief Justice Roberts: “We do not have Obama judges or Trump judges”

Responding to President Trump’s characterization of a federal district judge who had ruled against the administration’s asylum policy as “an Obama judge,” Chief Justice John Roberts issued a statement rejecting the notion entirely.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

In a tweet, the President later responded, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

The situation is a bit more nuanced than either side’s statements suggest, of course. The Chief Justice is correct that the federal judiciary is composed of extraordinary individuals who try to do their best, irrespective of the parties or issues in a case. But each judge also cannot help but apply the law in a manner informed by personal experience and beliefs. It is far too crass for the President to assert that his legal setback was due to an “Obama judge,” but he is not entirely wrong that the judge in question might have viewed the issue differently than some of his peers on the district court bench.

Still, three cheers for the Chief Justice, trying to maintain the legitimacy of the judiciary in the face of ongoing populist attacks.

Senate Republicans aim to confirm more than 40 more federal judges by year-end

Senate Judiciary Committee Chairman Chuck Grassley indicated today his party’s desire to confirm 41 additional nominees to the federal bench by the end of the year. That number would include a replacement for Judge Brett Kavanaugh on the D.C. Circuit.

The bad blood between the Democrats and Republicans on the Judiciary Committee, and more generally in the Senate, will make this a more difficult project. I can only hope that the Senators look beyond their partisan political aims and recognize the importance to the public of having a fully staffed judiciary. This is especially true for the 39 district court nominees, many of whom have been nominated to fill long-vacant seats on the bench.

Update on legislation affecting the federal courts

Members of Congress have recently introduced several bills that would affect the staffing, administration, or jurisdiction of the federal courts. Among them:

  • The Injunction Authority Clarification Act of 2018 would prevent a court from enforcing an injunction against a non-party to the suit, “unless the party is acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” Howard Wasserman has a good analysis of the bill here.
  • The Electronic Court Records Reform Act of 2018 would ensure free public access to public records on the federal courts’ PACER system. Members of the public are currently charged 10 cents per page to access documents online, unless they obtain a fee waiver from the individual court in which the case is pending. I know PACER can be a meaningful source of income for the court system, but I have long supported opening up PACER access without fee restrictions.
  • The ROOM Act would add 52 new federal district judges, and would require the Supreme Court (by audio) and Courts of Appeal (by video) to stream their oral arguments live when possible, and otherwise with an archive delay. None of these proposals is new, and indeed the addition of district judges has long been requested by the courts themselves.

We’ll see if, and how, any of these nascent pieces of legislation develop.

Federal magistrate judges on the move

Over the past ten days, while everyone has focused on Brett Kavanaugh’s Supreme Court nomination, the Senate has quietly confirmed the appointments of fifteen new federal district judges. Twelve of the fifteen judges were confirmed by voice vote.

Interestingly, this new batch of federal judges already has extraordinary judicial experience. Ten of the fifteen are currently sitting on the bench in a different capacity, and seven are on the federal bench, either as magistrate judges or bankruptcy judges. Each of their respective seats will need to be filled in short order — although they will be filled by local committees rather than presidential nomination. It’s another example of judicial appointment cascades that naturally result from the rapid filling of federal vacancies.

The federal judges moving down the hall to district court chambers include:

  • Terry Moorer (Magistrate Judge, Southern District of Alabama)
  • R. Stan Baker (Magistrate Judge, Southern District of Georgia)
  • Charles Barnes Goodwin (Magistrate Judge, Western District of Oklahoma)
  • Susan Paradise Baxter (Magistrate Judge, Western District of Pennsylvania)
  • C.J. Williams (Magistrate Judge, Southern District of Iowa)
  • Robert Summerhays (Bankruptcy Judge, Western District of Louisiana)
  • Alan Albright (Magistrate Judge, Western District of Texas)

One other note: the Senate also confirmed a batch of six district judges on August 1, and none of them had prior judicial experience. So perhaps the confirmation of so many sitting magistrates at once is purely a coincidence. An interesting trend nonetheless…