That’s one immediate and important takeaway from the Annual Report of the Director of the U.S. Courts, published today. I shall have more to say about this once I have digested it — but business appears to be booming.
I have chronicled several recent stories discussing the mental health issues faced by lawyers and judges. It is no secret that the practice of law can be a stressful job, featuring (as it does) time pressure, a sometimes-unhealthy desire for excellence at all costs, and fact patterns that often reveal humanity at its worst.
There are resources for lawyers and judges to help with some of the consequences of these pressures–be they substance abuse, anxiety, depression, or countless other mental health concerns. And increasingly, those who have experienced these conditions are finding the courage to speak about it publicly. The Daily Business Review has a good story on a recent conference that brought these issues out into the open.
Like first responders, medical professionals, and social workers, lawyers and judges often find themselves on the front lines of society’s most difficult and troubling moments. There is no shame in seeking help to relieve some of the mental burden that they carry home from those encounters.
Political theater, to be sure — but of the potentially useful variety.
U.S. Supreme Court Justices Samuel Alito and Elena Kagan will reportedly testify before the House Appropriations Subcommittee on financial services and general government on March 7, to discuss the Court’s annual budget request. It will be the first public hearing on the Court’s budget since 2015; over the last several years, Justices have met privately with Congressional leaders.
The tradition of federal judges (including Supreme Court Justices) testifying before Congress dates back at least to the 1920s, when then-Chief Justice Taft and selected colleagues repeatedly appeared before Congress to discuss pending legislation affecting the courts. But that was in an era before television cameras and Twitter. The purpose and meaning of such hearings has long changed, and the presence of Justices, sans robes, at the witness table is sufficiently unusual these days as to attract quite a bit of attention.
Even though the scheduled testimony is technically about the Court’s budget, everyone seems to understand that financial minutiae will only be a small part of the discussion. Subcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.
The hearing itself is unlikely to break any new ground. The Justices have a strong tradition of circling the wagons on their internal matters, and Justice Kagan in particular has a smooth temperament that helps her avoid stepping into controversy. (She did manage to effectively wrangle the Harvard Law faculty for several years, after all.) Alito and Kagan both understand the nature of the production, as well as the ultimate goal: to get out unscathed.
To the extent Congress and the courts need to coordinate on important issues, one can only hope that they are doing so behind the scenes. The courts have been understandably cautious about communicating directly with Congress on matters of legal interpretation, given separation of powers concerns. But administrative issues are a different animal altogether, and there is ample space for the courts to work with Congress on funding and operational issues which are of important interest to both branches.
Still, while Thursday’s hearing may not produce much that is immediately newsworthy, it is still an important exercise. The Supreme Court has been famously reticent to align many of its practices with modern public expectations, from failing to adopt an ethics code to rejecting calls for courtroom cameras. Congressional hearings put the Justices on the spot to justify the Court’s positions in a public forum, thereby forcing the Court to periodically reconsider whether its existing practices help or harm its public legitimacy.
Neither the Supreme Court nor the federal court system should allow itself to be bullied by Congress or public demand, but there is still room for continuous improvement. The occasional public hearing can be a useful pressure point to bring that improvement to fruition.
Professor Marin Levy has posted a new article, Visiting Judges, on SSRN. It’s a very useful piece which describes the origins of the visiting judges program in the federal courts, and provides some insider perspective on the use of visitors on the federal courts of appeal (drawn from 35 interviews with appellate judges and staff).
One persistent theme in the judicial interviews is that visiting district judges benefit from learning about the appellate process and appellate culture. That makes good sense: a trial judge who better understands and appreciates how appellate panels think is more likely to structure a written opinion with appellate reviewers in mind. And many of the circuit courts in the study had formal programs that invited new district judges within the circuit to sit by designation in their first few years on the bench.
The appellate judges recognized that they, too, would benefit from sitting by designation more frequently on the district courts. Their circuits, however, had no meaningful tradition of doing so, and indeed, many of the appellate judges worried about their own competence on the trial bench.
But the benefits of trial experience for appellate judges are just as strong, if not stronger, than the benefits of appellate experience for trial judges. Appellate panels are routinely called upon to determine whether the trial court abused its discretion, or whether its assessments of witness credibility withstand scrutiny. Having to sit as a trial judge–to rule on evidentiary objections, instruct jurors, pore through records on summary judgment, sentence a defendant, or make quick decisions on motions for preliminary injunctions–would give appellate judges an essential perspective on the litigation trenches. (It’s worth noting that many judges interviewed stated that they had already served as trial judges or at least trial attorneys. But of course, that it not the case for all appellate judges, many of whom come from academia, state appellate courts, or some other non-trial practice.)
One might even imagine a formalized shadowing or training system, in which district and appellate judges take the time to show each other the ropes of their respective benches. Of course, such a program would require administrative planning and quite likely Congressional support and approval, but it would allow the benefits of experience to inure to both levels of the federal judiciary.
Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?
What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.
I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.
Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.
I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”
In January, President Trump renewed the nominations of more than 50 people to serve as federal district and appellate judges. (These individuals had been previously nominated, but there nominations were not acted up before the end of the year, and had to be re-nominated for a new Congress.) Yesterday, 44 of the nominees passed the Senate Judiciary Committee, and will advance to the full Senate for a vote.
Several of the nominees passed on a 12-10 party-line vote. Others (primarily district court nominees) received little opposition from Senate Democrats. Courthouse News Service has a good roundup here.
I will leave commentary on Senator Cory Booker’s increasingly absurd committee histrionics for another day.
That’s the only reasonable interpretation of her stunning announcement that she will preemptively oppose any federal appellate court nominee put forth by President Trump. This is naked politics in its worst form: in an effort to score points with her political base and show off her willingness to resist the President, she is ready to deprive an entire branch of government the basic resources it needs to operate.
One might conclude that it’s all sound and fury, given that the Republicans control the Senate, and Harris’s Judiciary Committee vote will rarely be dispositive. But what an ugly precedent it sets. Should the junior senator from California succeed in her presidential aspirations, she will have set the stage for others to reject her own nominees sight unseen.
And of course, the judiciary is the body that truly suffers from this silly posturing. There are currently twelve vacancies on the federal circuit courts of appeal, half of which are on Harris’s home circuit, the Ninth Circuit. Those vacancies put pressure on the remaining judges to process heavy dockets with inadequate resources, leading to worse outcomes for criminal defendants, civil litigants, and the entire court system.
Senator Mitch McConnell was rightly criticized for failing to schedule a vote on the nomination of Judge Merrick Garland to the Supreme Court in 2016. That was ugly power politics, and this is no different. Democrats should reject unequivocally Senator Harris’s absurd and counterproductive policy.