Another federal courthouse attacked by a mob

Violent Antifa mobs in Seattle and Portland attacked a number of government buildings on Inauguration Day, including the William Kenzo Nakamura Courthouse in downtown Seattle.

(Photo from Seattle Police Twitter feed.)

Seattle’s roving band of thugs are no doubt wholly ignorant of William Kenzo Nakamura, an American hero who lost his life fighting for the 42d Regimental Combat Team in Italy in World War II. He was hailed for his extraordinary bravery, and posthumously awarded the Distinguished Service Cross and, later, the Medal of Honor.

These domestic terrorists also set fires and damaged private businesses. Make no mistake: they are as dangerous and evil as the rioters who attacked the U.S. Capitol earlier this month.

When similar riots engulfed the Pacific Northwest last summer — disrupting businesses, injuring innocent bystanders, and destroying Portland’s federal courthouse — state and local officials only made excuses for the violence. Will these cowardly politicians finally stand up for the citizens they took an oath to protect? Will the Biden Administration work to assure the safety of the federal employees who work in the courthouse and the members of the public who enter it?

Cybersecurity breach affected federal courts

The SolarWinds cybersecurity breach that affected several federal agencies and private tech companies last month apparently also infiltrated the federal court system, according to reports. The Administrative Office of the U.S. Courts yesterday announced additional safeguards to protect sensitive court records. According to the AO’s press release,

Under the new procedures announced today, highly sensitive court documents (HSDs) filed with federal courts will be accepted for filing in paper form or via a secure electronic device, such as a thumb drive, and stored in a secure stand-alone computer system. These sealed HSDs will not be uploaded to CM/ECF. This new practice will not change current policies regarding public access to court records, since sealed records are confidential and currently are not available to the public.

Shades of the cyberattack that hit the Texas courts earlier this year. That involved ransomware, but it equally exposed the courts’ vulnerabilities involving modern technology

James Duff to leave AO

James Duff, the longtime Director of the Administrative Office of the U.S. Courts, will retire from that position on January 31. Duff served two stints as Director, from 2006-2011 and again from 2015 to the present. During his tenure, he has brought many significant improvements to the federal courts system’s internal operations and external relationships, including overseeing the federal Working Group on Workplace Conduct and helping the courts quickly adjust to the challenges posed by the coronavirus pandemic. Not every initiative on Duff’s watch has been a success — the effort to bar judges from associating with the Federalist Society and the American Constitution Society was ill-advised from the start — but overall Duff has helmed the AO with a steady hand and extraordinary competence and vision.

Chief Justice Roberts has appointed U.S. District Judge Roslynn Mauskopf as the new AO Director. She will be the first woman to lead the AO in its 81-year history. We wish her the best in the new position.

John J. Parker’s failed Supreme Court nomination

Columnist Ray Hill at The Knoxville Focus has been running an interesting multi-part series on the nomination of Judge John J. Parker to the Supreme Court in 1930. Judge Parker, who was serving on the Fourth Circuit Court of Appeals, would narrowly lose his confirmation vote due to the complex political alignments of the era. He would continue to serve on the Fourth Circuit until his death in 1958.

Parker has long been an interesting character from the perspective of federal court organization and administration. A politician before he began his judicial career, Parker was very closely tied to the leadership of the American Bar Association, and was one of the principal architects of the “Queen Mary Compromise” which created the modern Judicial Conference of the United States. (Interested readers can learn more here.)

Ray Hill’s pieces paint a vivid history of the Parker nomination, from the surprise opening on the Court occasioned by Justice Edward Sanford’s untimely death (after a routine dental appointment), to the rift within the Republican Party, to the shifting political demographics of the South. Although all four parts collectively feel repetitive at times, it’s a valuable overview of a fascinating moment in history.

The four parts of the series can be found here, here, here, and here.

 

Chief Justice issues 2020 Year End Report

Per longstanding tradition, while you were anxiously coaxing 2020 into oblivion last night, the Chief Justice quietly issued his Year-End Report on the Federal Judiciary. Also per tradition, this year’s report features more musty anecdotes about the courts, this time focused (predictably) on pandemics. The Chief Justice congratulates the entire court system on its turn to video hearings and trials in the wake of the COVID-19 spread.

Kudos are indeed in order for reacting relatively swiftly, but I will save my formal congratulations for when the federal courts embrace technology with foresight and a commitment to transparency. Here’s an area where the federal courts could learn much from their state counterparts, if they are willing.

Federal courts announce audio livestream pilot

From today’s press release:

Thirteen district courts around the country will livestream audio of select proceedings in civil cases of public interest next year as part of a two-year pilot program.

Some of the courts already have begun making proceedings available via audio livestreams. The Northern District of Georgia on Dec. 7 streamed audio of a hearing on a presidential election-related lawsuit, which drew over 42,000 listeners. In September, the Eastern District of Missouri streamed audio of a status conference in the case of U.S. v. City of Ferguson. The remaining courts will be livestreaming by February 2021.

The 13 district courts participating in the pilot are in Northern California, Southern Florida, Northern Georgia, Kansas, Montana, Eastern Missouri, Nevada, Northern New York, Western Pennsylvania, Rhode Island, Eastern Tennessee, Eastern Washington, and Washington D.C.

The livestreams will give the public access to real-time courtroom audio on the courts’ designated YouTube channels. Audio streaming of civil proceedings under the pilot requires the parties’ consent and is subject to the presiding judge’s discretion. The pilot excludes trials and civil proceedings involving jurors and witnesses, and also sealed, confidential, and classified materials.

While the pilot temporarily suspends a prohibition on broadcasting federal court proceedings in the designated courts, the livestreams may not be recorded or rebroadcast.

It’s an interesting followup to the now shuttered pilot program that enabled video recording (and subsequent rebroadcasting) of selected district court proceedings. Of course, many state courts implemented video livestreaming months or years ago, without any ill effect.

Making sense of the new PACER bill

There is plenty of room for constructive compromise, but it requires everyone to acknowledge that “free” PACER is not actually free.

Last week, the House of Representatives passed the Open Courts Act of 2020, H.R. 8235, by a voice vote. The bill would radically reform access to federal court records by requiring (among other things) that the courts’ PACER system be modernized and its contents made free to the public. The bill drew praise from open courts advocates, and furious pushback from the Judicial Conference and the Administrative Office of the U.S. Courts (AO). Indeed, the Judicial Conference’s reaction was probably the most vigorous response I have seen from the courts in many years.

It is a rare piece of legislation these days that can simultaneously garner bipartisan support and solicit institutional panic from the judicial branch. So it’s worth examining closely. What we find is an opportunity for the court system to improve its transparency and its own performance, albeit not on the schedule or in the manner it would prefer. Continue reading “Making sense of the new PACER bill”

Salt Lake City federal courthouse to be named for Orrin Hatch

Congress can still agree on a few things, it seems. A bill to rename the Salt Lake City, Utah federal courthouse after retired Senator Orrin Hatch passed both houses of Congress unanimously this week. The bill has been sent to the President for signature.

Senator Hatch served Utah for 42 years in the Senate, and was a leading voice on the Senate Judiciary Committee. Much of that time overlapped with another old Judicary Committee hand, Joe Biden. It is a fitting tribute to name the Salt Lake City courthouse in his honor.

Durbin to be top Democrat on Senate Judiciary Committee

In a secret ballot vote, Senate Democrats have approved a plan to let Senator Dick Durbin of Illinois lead the party on the Senate Judiciary Committee for the next Congress. The move was made possible after Senator Dianne Feinstein of California chose not to remain in that leadership position.

It’s not clear to me whether Durbin will be much of a change from Feinstein, whose recent tenure was marked both by moments of embarassing partisanship and sensible statesmanship. But Durbin cannot be worse (I hope) than his primary rival for the position, Senator Sheldon Whitehouse of Rhode Island. A valuable friend to the federal courts not too long ago, Whitehouse approached the lunatic fringe as of late, threatening the Supreme Court directly and ranting about dark money funding of judicial nominees. Let’s hope Durbin (or someone) can exert control and insist that Senators live up the standard of decorum and reasoned debate that the American people rightly expect of them.

Western District of Pennsylvania to halt jury trials for three months

As COVID-19 cases begin to rise in the Pittsburgh area, the U.S. District Court for the Western District of Pennsylvania has announced a halt to nearly all jury trials until at least February 8, 2021. Law.com explains:

The unavailability of health care workers, high-risk citizens, those who rely on now-limited public transit, “and those who will face substantial childcare challenges arising from the renewed closure of schools … creates a serious impact” on jury selection, the court said.

The situation would demand “ever-larger jury venire pools for potential service and potentially diminish … the representative nature of the pool of summoned jurors,” the court said.

For criminal defense lawyers, they are experiencing huge challenges in being able to communicate with their clients behind bars, a necessity for a fair defense, the order said.

Unfortunately, this is probably just the first of many orders that will similarly affect state and federal courts this winter.