The Federal Judicial Center, the research arm of the federal courts, has updated its website. It’s terrific — clean, easy to search, and filled with important and interesting studies commissioned by the Judicial Conference and its various committees over the years. A must for researchers or any individuals interested in the workings of the federal courts.
Tag: federal courts
The President’s unforced error on ABA vetting
There are more than 100 openings on the federal district courts, most of which will be filled by nominees who have never held judicial office. A strong early rating from the ABA would not only smooth the confirmation process, but would send a positive signal to the public.
President Trump has apparently decided not to invite the American Bar Association’s Standing Committee on the Judiciary to review the professional qualifications of his lower federal judicial nominees, stating that “the administration does ‘not intend to give any professional organizations special access to our nominees.'” This move is not unprecedented, but it is deeply short-sighted.
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Federal criminal prosecutions fall to lowest level since 1997
The Pew Research Center breaks down the latest statistics. The drop was fueled by significant declines in prosecutions for drug, immigration, and property offenses.
The 3% drop in criminal filings last year was offset by a 5% increase in federal civil filings, so the federal district courts overall experienced a 3% increase in filings for Fiscal Year 2016.
Interdependence classics: Justin Crowe, The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft
I have recently become fascinated with the work of William Howard Taft, a man who approached the Presidency like a judge and the Chief Justiceship like an executive. Taft was an extraordinary judicial reformer, not because of his judicial opinions (although he authored hundreds during his time on the Court) but because of the “executive principle” he brought to managing the federal court system. In just nine years as Chief Justice, Taft personally lobbied for and secured legislation increasing the number of federal judges, dramatically reducing the Supreme Court’s mandatory caseload, and authorizing the courts to developing internal administration through what would become the Judicial Conference of the United States. Taft also set the groundwork for the Rules Enabling Act (allowing the federal courts to develop their own uniform procedural and evidentiary rules).
Professor Justin Crowe’s article, The Forging of Judicial Autonomy, vividly and concisely describes how Taft turned a highly dependent, decentralized federal court system into a modern organization in less than a decade. Crowe focuses his article around two major pieces of legislation: a 1922 Act which added 24 new federal judges and created the Judicial Conference’s predecessor, the Conference of Senior Circuit Judges; and the Judiciary Act of 1925, which eliminated most of the Supreme Court’s obligatory caseload. These Acts were not, Crowe argues, inevitable — or even desired — by Congress. Rather, they were the result of a “judicial autonomy” forged by Taft, who combined relentless entrepreneurship with existing social networks and willingness to embrace modern management theories.
Federal judge who blocked executive order receives death threats
Several news outlets have reported that Judge Derrick Watson, of the United States District Court for the District of Hawaii, has received death threats in the wake of his March 15 order enjoining the enforcement of President Trump’s revised travel ban.
This is not the first time American judges have been threatened, and certainly won’t be the last. Fortunately, the U.S. Marshals and local police take such threats very seriously.
New release of federal criminal justice data — only 3% of cases go to trial
The Bureau of Justice Statistics has released its newest data on the federal criminal justice system, from 2013-14. Among the highlights:
- During 2014, federal law enforcement made 165,265 arrests, a 12% decrease from 188,164 arrests in 2013.
- In 2014, the five federal judicial districts along the U.S.-Mexico border accounted for 61% of federal arrests, 55% of suspects investigated, and 39% of offenders sentenced to federal prison.
- There were 81,881 federal immigration arrests made in 2014—one-half of all federal arrests.
- Ninety-one percent of felons in cases terminated in U.S. district court in 2014 were convicted as the result of a guilty plea, 6% were dismissed, and 3% received a jury or bench trial.
While the data themselves are about two years behind, they obviously inform current policy debates. The entire statistical package also gives a better sense of the coordination between the federal courts and the DEA, U.S. Marshals, federal prison system, and federal prosecutors.
Leib and Brudney on legislative underwriting of judicial decisions
Over at Prawfsblawg, Ethan Leib has called attention to his new article (coauthored with James Brudney) on legislative underwrites: As the first part of the abstract explains:
This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.
This is a very interesting piece, and I encourage you to read the whole thing. Lieb and Brudney identify an important area of communication and cooperation between the legislative and judicial branches. Interbranch communication as a general matter is understudied, and (as the authors note) when it is examined, it it usually in the context of collisions between the branches.
I do wish Leib and Brudney had given more substantial credit (beyond a brief mention) to a little-known but important “statutory housekeeping” program initiated nearly thirty years ago by Robert Katzmann when he was still heading the Governance Institute (an arm of the Brookings Institution). Through that program, the federal appellate courts transmitted to Congress selected judicial opinions identifying problems in the text of a statute — for example, statutory provisions containing ambiguous language, or statutes whose text required the court to fill a gap to determine their appropriate scope. The transmissions were purely informational: the courts did not comment on the enclosed opinions other than to say they might be of interest, and Congress was under no obligation to make any modifications to the statute. A 2007 review of the program concluded that Congress was making sufficient use of the opinions to justify the program’s continuation.
The program itself was the product of close collaboration between the federal courts, key members of Congress, the administrative staffs of both the judicial and legislative branches, and the Governance Institute. As importantly, it set the stage for open communications between the Congress and the judiciary that was reasonably benign and suspicion-free. Given the judiciary’s reluctance to engage Congress directly on most matters unless expressly invited to do so, the housekeeping protocols allowed courts to flag important statutory glitches for legislators without concern that they would be viewed as overstepping their bounds. It was, in a sense, the equivalent of pointing out that someone’s shoe is untied — a small gesture, typically meant to gently assist, but which could be viewed as suspicious or even mocking if a relationship is strained or unfamiliar.
The legislative underwriting that Leib and Brudney identify is broader in scope and much more ambitious than mere “housekeeping” measures. Among other things, they imagine transmissions that travel not just from the courts to Congress, but back the other way. This is fair enough, but the eventual success of any more expansive underwriting program will owe a significant debt to the groundwork laid by the “statutory housekeeping” program. By exchanging information and communications frequently when the stakes are small, both entities have begun to build the trust to communicate and collaborate when the stakes are larger.
Updates on cameras in the courtroom
This has been a busy week for policies governing the use of courtroom cameras.
- Senators Charles Grassley (R-IA) and Dick Durbin (D-IN) introduced S.643, which I have seen alternately referred to as the Cameras in the Courtroom Act of 2017 or the Sunshine in the Courtroom Act of 2017. The Act would require open proceedings in the United States Supreme Court to be televised. Similar legislation has already been introduced in the House. Variations of this Act have been introduced for many years, without success.
- Several media outlets declared this week “Sunshine Week,” leading to editorials calling for allowing cameras into both state and federal courtrooms.
- On its own volition, the Third Circuit Court of Appeals has started posting video of its oral arguments online. The always terrific Howard Bashman has the details in a new column for the Legal Intelligencer. The Third Circuit’s press release, which provides more context for its decision to make videos available, is here.
The numbers supporting the push for more federal judges
On Tuesday, the Judicial Conference of the United States agreed to recommend to Congress to create 57 new federal judgeships — 5 in the circuit courts and 52 in the district courts. The Conference further recommended that eight temporary or part-time district judgeships be converted to permanent status.
In its press release, the Conference emphasized the growth of the federal courts’ overall docket since 1990, when the last comprehensive judgeship bill was enacted. In that quarter-century plus, district court filings have grown 38 percent (with nearly equal growth in criminal and civil filings), and appellate courts have grown by 40 percent.
But the recommendations are more narrowly tailored than a simply 40 percent boost in judges nationwide. Only one of the thirteen appellate courts (the Ninth) is a suggested recipient of more judges, and only 27 of the 94 district courts are deemed to need new judgeships.
An examination of some of these targeted districts, and why it matters, after the jump.
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AO releases 2016 Annual Report and Statistics
The Administrative Office of the U.S. Courts has published its 2016 Annual Report and statistical tables. Although many of the most interesting tables are not publicly released, those that are released provide a wealth of information on federal court dockets and operations. I will likely have more to say about the 2016 statistics in the coming days, once I have a chance to go through the tables a bit.
The Interdependent Third Branch 