I was deeply saddened by the passing last month of Craig Shaffer, U.S. Magistrate Judge for the District of Colorado. Judge Shaffer was a kind, brilliant, thoughtful, and highly respected judge. He authored a number of seminal decisions during his tenure on the federal bench, including an early, important opinion on the discovery of electronically stored information. He was also deeply committed to improving the justice system behind the scenes, as a member of the federal Advisory Committee on Civil Rules, a member of the Sedona Conference, and a frequent author on legal matters.
Judge Shaffer was also a lovely person, generous with his time and ideas. I consulted him from time to time about my own ideas on the discovery and rulemaking process, and he unfailingly offered observations that both clarified and magnified my original thoughts.
My sympathies to Judge Shaffer’s family and the entire legal community. He will be sorely missed.
The National Constitution Center has posted video of its entire program on Judicial Independence and the Federal Courts. It features an all-star group of panelists. I started watching a bit of the second panel (moderated by Jeffrey Rosen), and it is terrific. I will surely watch all three panels in short order. Highly recommended.
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.
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.
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.
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.
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.