THIRDNewsletter

of the

Federal

Courts

Vol. 38

Number 10

October 2006BRANCH

INSIDE

THE

House Judiciary Committee OK’s IG Bill ............................pg. 3Pay Woes Threaten Recruitment & Retention .....................pg. 5IN-DEPTH: A Fair and Independent Judiciary ..................pg. 7 See CR on page 5

See Conference on page 2

Handling Complaints Against Judges: Good, But Can Be Improved

The federal Judiciary does well overall in handling complaints against judges but improvement is needed in high-visibility cases, a committee led by Supreme Court Justice Stephen Breyer has concluded.

After two years of research, the committee reported to Chief Justice John G. Roberts, Jr. that it found “no serious problem with the Judi-ciary’s handling of the vast bulk of complaints” filed under the Judicial Conduct and Disability Act.

See Complaints on page 4

Conference Moves to Enhance Judges’ Accountability, Ethical Compliance

The Judicial Conference approved at its biannual meeting in Wash-ington, DC, last month, two poli-cies aimed at aiding and enhancing judges’ compliance with established ethical obligations.

The Conference voted to require all federal courts to use conflict-checking computer software to iden-tify cases in which judges may have a financial conflict of interest and should divest or disqualify themselves. It also approved a new policy requiring greater disclo-sure by both those who provide privately funded educational programs for judges and the judges who attend such programs.

In recommending the manda-tory conflict-checking policy, the Conference’s Committee on Codes of Conduct said it seeks to reassure the public of the Judiciary’s commit-ment to maintaining the highest stan-dards of ethical conduct. According to the Committee report, “A fair

reading of the Judiciary’s record shows that federal judges take their recusal obligations very seriously, and this commitment will be under-scored by adoption of a mandatory automated conflict screening policy.” The Committee further stated, “While automated screening is not foolproof, it is an efficient and effective supple-

ment to a judi-cial officer’s individualized review.”

Auto-mated conflict screening is available for district and bankruptcy

courts through the Case Manage-ment/Electronic Case Files system. A similar mechanism is available for the courts of appeals in the Appel-late Information Management System (AIMS) and will be provided in the appellate version of CM/ECF, which is in the process of being installed.

The second new Conference policy requires non-governmental educa-tional program providers (other than a state or local bar association,

Continuing Resolution Funds Judiciary Until November

Only two appropriations bills—for the Departments of Defense and Homeland Security—were completed by Congress and signed by the Presi-dent before the start of the new fiscal year on October 1, 2006. The remaining appropriations bills, including funding for the federal Judiciary, will wait for the lame duck

In recommending the change, the Conference Committee on the Judicial Branch said

its overarching objective was “greater transparency and

accountability.”

The Third Branch n October 2006

2

Conference continued from page 1

a subject-matter bar association, a judicial association, the Judicial Division of the American Bar Asso-ciation, or the National Judicial College) to disclose certain informa-tion about their programs and their sources of funding.

Covered educational program providers that reimburse or pay judges directly for more than the threshold amount in expenses for attending a program as speakers, panelists, or students will now be required to disclose publicly all sources of support for the seminar, as well as information about the dates and location of the program, the topics to be covered, and the names of anticipated speakers. Initially, the reporting threshold will be any reimbursement exceeding $305, which is the threshold for reporting reimbursements on finan-cial disclosure statements. Judges are barred from accepting such reimbursements unless they first ascertain that the program providers have made the required disclo-sures. Judges also will be required to report their attendance within 30 days of the conclusion of the program. Both the seminar provider and judge-specific disclosures will be publicly available on the Internet.

In recommending the change, the Conference Committee on the Judi-cial Branch said its overarching objec-tive was “greater transparency and accountability.” At the same time, the Committee noted the importance of continuing education of judges in law, science, history, economics, soci-ology, philosophy, and other disci-plines. It added: “In view of the compelling need for and many bene-fits of continuing education, the Committee believes that neither the Judicial Conference nor any other entity should seek to limit judges’ access to knowledge or censor their right to increase their knowledge.”

Senator Patrick Leahy (D-VT), ranking minority member on

the Senate Judiciary Committee, released a statement in reaction to the new policies, saying the Confer-ence had made “great strides toward preserving the public’s confidence in our Judiciary.”

In other recommendations, the Conference agreed to:

• set an annual cap on rent for all future rent requirements at an average annual growth rate of 4.9 percent for fiscal years 2009 through 2016. The cap amount is subject to reconsideration when the FY 2009 budget is formulated. Rent growth has been a problem area in the Judiciary’s budget and, in addi-tion to resolving rent calculation issues with the General Services Administration, the adoption of a rent cap reflects the Judiciary’s commitment to exercising disci-pline in its budget needs;

• oppose the existing sentencing difference between crack and powder cocaine sentences and support the reduction of that difference. Under current law, 100 times as much powder cocaine as crack cocaine is needed to trigger the same five-year and ten-year mandatory minimum penalties. The U.S. Sentencing Commission has unanimously concluded that congressional objectives can be achieved more effectively by decreasing the 100-to-1 drug quantity ratio;

• seek amendments to existing statutes establishing penalties for failure to appear in response to summonses relating to jury service, to increase the max-imum amount of the fine from $100 to $5,000 and to offer an option for community service;

• seek restoration of the statutory requirement that at least three federal judges be included among the voting members of

the U.S. Sentencing Commission; and

• recommend to the U.S. Sen-tencing Commission that it estab-lish a Crime Victims Rights Advi-sory Group, analogous in struc-ture to the existing Practitioners Advisory Group and the Proba-tion Officers Advisory Group.

The Conference also agreed to support:

• an amendment to 18 U.S.C. section 3583(b) that would give the court authority to impose a longer term of supervised release based on specific findings if the unusual circumstances of a case indicate that a longer term is needed to rehabilitate the offender, protect society, and otherwise serve the interest of justice; and

• legislation that would establish “not profiting from a crime” as a mandatory condition of proba-tion and supervised release.

The Third Branch n October 2006

3

House Judiciary Committee Passes IG Billinvestigations; to restrict a miscon-duct investigation until there has been a denial of a petition by the judicial council or upon referral to the Judicial Conference; and to prohibit investigations “directly related to the merits or a decision by a judge or court.” These modifi-cations are insufficient to allay the objections to the bill established by the Conference and the Judiciary remains opposed to H.R. 5219 and any other legislation creating an IG.

In a speech at a Georgetown University Law School confer-ence on the state of the Judiciary, Chief Justice John G. Roberts Jr. described bills such as H. R. 5219 as “dangerous intrusions by other branches.” The Judicial Conference has called the creation of an IG for the Judiciary “an entirely unneces-sary and inappropriate imposition of control over the Judiciary that creates precedents for further erosion of the fundamental constitutional prin-ciple of separation of powers.” An IG would, according to the Conference, “threaten the independence of judi-cial decision making, and has serious implications for the separation of powers. Rigorous and effective systems and mechanisms for audit, review, and investigation currently

The Judicial Conference has taken action to allay concerns about judges’ financial conflicts of interest, attendance at educational semi-nars and the proper investigation of judicial misconduct. Last month, however, the House Judiciary Committee, chaired by Representa-tive F. James Sensenbrenner, signaled they’d like to go further.

Before adjourning until mid-November, the House Judiciary Committee acted on H.R. 5219, the Judicial Transparency and Ethics Enhancement Act of 2006, a bill that would establish an Inspector General within the judicial branch. The IG would conduct investigations of complaints of judicial misconduct, conduct and supervise audits, detect and prevent waste, fraud, and abuse, and recommend changes in laws or regulations governing the judicial branch. The Committee passed the bill, voting 20-6 along party lines. A number of Democrats and Republi-cans on the 39-member committee were not present.

The original bill was amended in committee to provide term limits for the IG; to allow the Chief Justice to remove the IG, provided he commu-nicates the reasons to Congress; to change the scope of permissible

Exemplary Service to the Courts RecognizedThe first Leonidas Ralph Mecham Awards for Exemplary Service

to the Courts were presented last month at the Administrative Office. The award recipients were Andy Sirotta (photo left) in the Tech-nology Division of the Office of Court Administration, and George Reynolds (second from left), chief of the Financial Disclosure Office and staff counsel to the Judicial Conference Committee on Financial Disclosure. AO Director James C. Duff (second from right) and Judge Robert B. Kugler (D. NJ) (photo right), chair of the Judicial Confer-ence Committee on the Administrative Office, presented the awards.

The Judicial Conference Committee on the Administrative Office established the awards to honor individual AO staff for significant accomplishments that have improved court admin-istration, internal controls, program effectiveness, communications, or efficiency in the courts or the AO. The award is named in honor of Leonidas Ralph Mecham, who served as Director of the AO from 1985 to 2006.

exist in the Judiciary, making the legislation duplicative, intrusive, and unnecessary.”

The prospects for the bill this Congress are uncertain, as both the full House and Senate would have to act on the bill for it to become law, and only a brief lame-duck session of Congress remains before all bills expire on January 3, 2007.

The Administrative Office already has statutory responsibility to conduct audits of the courts. Each year, over 100 financial and admin-istrative audits are conducted of Judiciary funds, financial activities, operations and systems—all in accor-dance with government audit stan-dards. Approximately 30 percent of all court units receive a financial audit annually. In addition, the Judi-ciary has had a formal program since 1988, approved and supervised by the Judicial Conference, addressing allegations of waste, fraud and abuse.

At its September 2006 meeting, the Judicial Conference also imple-mented several policies aimed at aiding and enhancing judges’ compliance with established ethical obligations. (See cover story on the Judicial Conference.)

The Third Branch n October 2006

4

Complaints continued from page 1“The committee found that the

relevant error rate, i.e. that of failing properly to process such complaints, is about 2 to 3 percent. While a perfectly operating system remains the goal, the committee recognizes that no human system operates perfectly; some error is inevitable,” the report said.

“And the committee is unanimous in its view that a processing error rate of 2 to 3 percent does not demon-strate a serious flaw in the operation of the system,” the report added.

The 1980 Act authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.”

The late Chief Justice William H. Rehnquist, in 2004, responded to criticism from Congress and others about the way in which the Act had been implemented by appointing this committee. In addition to Justice Breyer, the committee members included Judges Sarah Evans Barker (S.D. Ind.), Pasco M. Bowman (8th Cir.), D. Brock Hornby (D. Me.) and J. Harvie Wilkinson III (4th Cir.), along with Sally M. Rider, then administra-tive assistant to the Chief Justice.

Roberts made the report public on September 19, the same day the Judi-cial Conference held its semi-annual meeting in Washington.

The Act requires the chief judge of the relevant judicial circuit to consider each complaint against a judge and, where appropriate, to

appoint a special committee of judges to investigate further and to make recommendations to the circuit’s judicial council on how to resolve the complaint. The council may resolve the complaint or refer judicial misconduct to the Judicial Confer-ence for its action, including advising the House of Representatives that impeachment may be warranted.

An average of more than 700 complaints against judges are filed each year, and the committee exam-ined more than 2,000 complaints. Separately, the committee assessed high-visibility cases—those that received national or regional news media coverage, including matters that had come to the attention of (or had been filed by) members of Congress. The committee found 17 of those cases within a five-year period.

The committee concluded that the handling of five of those 17 cases was problematic. “The proper handling of high-visibility complaints has partic-ular importance. Because the matters at issue have received publicity, the public is particularly likely to form a view of the Judiciary’s handling of all cases upon the basis of these few,” the committee’s report said. “And the mishandling of these cases may discourage those with legitimate complaints from using the Act. We consequently consider the mishan-dling of five such cases out of 17—an error rate close to 30 percent—far too high.”

Available online at www.supreme-courtus.gov/publicinfo/breyercom-mitteereport.pdf, the report made 12

specific recommendations. The report recommends that two groups help chief circuit judges, judicial council members and circuit staff to understand and administer the Judi-cial Conduct and Disability Act. The two groups are the Judicial Confer-ence Committee to Review Circuit Council Conduct and Disability Orders and the Federal Judicial Center. Also recommended is that circuit councils require all courts covered by the Act to provide infor-mation about filing a complaint on the homepage of the court website, as well as to take other steps to publicize the Act’s availability.

In a September 19 news briefing, Chief Justice Roberts thanked the committee for its work, saying, “I was impressed with the thorough-ness and comprehensiveness of their work.” He referred the report to the Judicial Conference for consider-ation by its appropriate committees “and prompt action.”

Comment on the report also came from the Hill. House Judi-ciary Committee Chairman F. James Sensenbrenner (R-WI) commended the Breyer committee. “I am encour-aged the committee acknowledges there have been problems with the enforcement of the judicial discipline construct in recent years, particu-larly in high-profile cases,” he said. “I look forward to working with the judicial branch to curtail mishan-dling of complaints about judicial misconduct to ensure judges exhibit the highest standards of integrity and conduct.”

Pete Lee RetiresClarence A. (Pete) Lee Jr., the Administrative Office’s associate director for

management and operations, retired on September 29, 2006. Lee had nearly three decades of service in the executive and judicial branches of government. He joined the Administrative Office in 1987, from the General Services Admin-istration. A fellow of the National Academy of Public Administration, Lee was responsible for coordinating support and management activities within the AO for the federal Judiciary.

The Third Branch n October 2006

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See Compensation on page 6

session in November. In the mean-time, a continuing resolution funds the federal government at fiscal year 2006 levels through November 17.

The House has passed H.R. 5576, the FY 2007 Transportation, Treasury, and Housing and Urban Develop-ment, the Judiciary, District of Columbia, and Independent Agencies appropriations bill, which gives the Judiciary $6.063 billion. The Senate Appropriations Committee approved its version of the bill, with $6.098 billion for the Judiciary in FY2007.

Differences in the House and Senate bills will be resolved in conference.

Proposed funding levels have raised Judiciary concerns. Although $16 million below current services requirements for the courts’ Salaries and Expenses account, the Senate level of funding is preferred over the lower House level. At the Senate funding level, and based on current carry-forward and fee-collection estimates, courts could hire staff to address some of the critical law enforcement related workload issues facing the Judiciary, particularly

along the southwest border. To avert reductions in federal

defender organizations and deferred payments to panel attorneys, the Judiciary also is seeking a greater level of funding for the Defender Services account than is recom-mended by either the House or Senate. A funding shortfall at either the House or Senate level would result in delayed payments of appointed attorneys.

CR continued from page 1

Compensation Woes Threaten Recruitment and Retention in Federal Judiciary

“Recruiting and retaining talented judges and Judiciary employees with broad experience is essential to maintaining a credible, respected Judiciary,” representatives of the Judicial Conference told Congress last month. Judge D. Brock Hornby (D. Me.), chair of the Judicial Confer-ence Committee on the Judicial Branch, and Chief Judge Philip M. Pro (D. Nev.) delivered that message before the House Committee on Government Reform Subcom-mittee on the Federal Workforce and Agency Organization.

In his opening remarks, subcom-mittee chair Jon C. Porter (R-NV) appeared to agree with Hornby and Pro. “One of the most critical human capital issues facing the federal government today,” he said, “concerns the need to make certain that employees in the federal work-force are properly compensated for the responsibilities they undertake in serving the public.” The subcom-

mittee also heard testimony from David Walker, Comptroller General of the United States, former NASA Administrator Sean O’Keefe, and Dr. Gary Burtless, an economist with the Brookings Institution who has written extensively on executive compensation.

“The Judicial Conference believes that equitable compensation for all public servants, including high-ranking government officials such as judges, is important for the long-

term good of our nation,” said Hornby. “In the view of the Confer-ence, the compensation of these offi-cials should be raised and main-tained in proportion to their peers and to increases in the cost of living.”

Hornby noted that not only have judges’ salaries continued to lag well behind the salaries of their peers in law schools, the not-for-profit sector, and the private sector, but that, due to continued salary erosion, “the Judi-

Judge D. Brock Hornby (D. Me.) and Chief Judge Philip M. Pro (D. Nev.) urged Congress to pass legislation that would remedy pay problems in the federal Judiciary.

The Third Branch n October 2006

6

ciary is experiencing egregious salary compression and salary inversion.”

Since 1993, the compensation of federal judges has increased by 23.7 percent while the cost of living rose 31.8 percent. In contrast, the compen-sation of General Schedule employees rose by 57.5 percent, exclusive of within-grade increases, awards, and bonuses during the same time period. As a result, the basic pay of the career Senior Executive Service (SES) is now equivalent to the salaries of district judges, and the aggregate pay can be as much as $47,000 higher. In many geographic locations, the locality-adjusted pay of nearly 200 court unit executives and their deputies now exceeds the salaries of bankruptcy and magistrate judges (currently $151,984) and is equal to that of district court judges ($165,200).

Comptroller Walker, who described for the subcommittee the scope of the recent GAO Report on “Trends in Executive and Judicial Pay” (see the September 2006 Third Branch), said their findings were consistent with the National Commission on the Public Service’s findings that “salaries for top-level government officials have not been keeping pace with inflation

Compensation continued from page 5 or maintaining reasonable relation-ships to the market.”

The Judiciary also is at a serious disadvantage when competing for talent with executive branch agen-cies. Compensation levels for Judi-ciary executives are lower than those for executive branch executives, affecting the Judiciary’s ability to recruit and retain high-level, experi-enced senior professionals. Judiciary executives generally receive no more than $165,200 in aggregate compensa-tion, compared to up to $212,100 for career senior executives in the execu-tive branch. In addition, the salaries of approximately 40 percent of senior court unit executives are capped at the Executive Schedule level III salary of $152,000. Ten percent of deputy court unit executives are capped at the same salary level.

“This narrowing of the differ-entials between top executives is unfair and should be fixed,” said Hornby. “The current salaries do not adequately compensate court unit executives and other senior judi-cial officials for their higher levels of leadership and scope of respon-sibility.” He pointed out that the difference in salary levels is so small that “the financial incentive for

talented deputies and supervisors to aspire to positions of greater respon-sibility is disappearing.”

According to Hornby, Congress could fix the Judiciary’s pay prob-lems by taking the following steps:

• authorizing equal cost-of-living adjustments (COLAs) for the Judiciary and General Schedule employees;

• restoring four missed COLAs for the Judiciary and Congress; and

• raising top level salaries to alle-viate pay compression and pay inversion in the Judiciary.

While they encouraged the subcommittee to recommend that the President and Congress estab-lish a new quadrennial salary review process, Hornby and Pro also believe pay relief for judges, members of Congress and Execu-tive Schedule officials should not be put off until such a commis-sion is impaneled. “On behalf of the Judicial Conference,” they said, “we would urge Congress to enact legislation to remedy promptly the problem of judges’ and judicial exec-utives’ compensation.”

In many geographic locations within the continental U.S.,

the locality-adjusted pay of nearly two hundred court unit

executives (e.g., clerks of court) and their deputies now

exceeds the salaries of bankruptcy and magistrate judges

(currently $151,984, as set by statutory formula). Non-for-

eign cost-of-living adjustments (COLAs) for court unit exec-

utives (and comparable executive branch officials) who

are located outside the continental U.S. have pushed their

adjusted salaries above the district judge salary.

“This narrowing of the differentials between top execu-

tives is unfair and should be fixed,” said Judge D. Brock

Hornby. “The current salaries do not adequately compensate

court unit executives and other senior judicial officials for

their higher levels of leadership and scope of responsibility.

Also, the difference in salary levels is so small that the finan-

cial incentive for talented deputies and supervisors to aspire

to positions of greater responsibility is disappearing.”

Chart was prepared by: Administrative Office of the U.S. Courts (9/14/06)

The Judiciary’s Pay Compression-Pay Inversion ProblemChanges in Salaries of Federal Judges and Senior-Level Judiciary Employees

$133,600

$122,912

$165,200

$151,984

$122,850

$165,200

$114,887

$165,200

1994 2006

District Court Judges Bankruptcy/Magistrate Judges

Circuit Executives Senior Judiciary Employees

The Third Branch n October 2006

Chief Justice John G. Roberts, Jr:

“The topic of this conference, judicial independence, is far less an abstraction for me today than it was a year ago. Let me tell you why. Just about every week at the court, we have a delegation of judges or justices from an emerging democracy around the world, judges who, in many cases, the threat to judicial independence is often a threat to their physical safety, certainly to their well-being. And yet, they are striving to establish an inde-pendent Judiciary that can defend the rule of law in their country. They come to our country, and they come to the Supreme Court because they draw inspiration from the role and stature of the Third Branch in our democracy.

~ ~

Now, before going any further, I think I ought to be very clear about what judicial independence is not. It is not immunity from criticism. You don’t have to agree completely with H.L. Mencken’s definition of a judge, a law student who marks his own examina-tion papers. (Laughter) But there is a germ of truth in it, and our examina-tion papers though are at least open for criticism and grading by the public at large. They’re there for all to see, and informed criticism is certainly welcome. But it should not degenerate into attack on individual judges for the decision as a means of intimidation, and it should not take the form of institutional retribution, action against the Judiciary as a whole, that might inhibit the judges from performing their vital function.

. . . Judging is no different than any other form of human endeavor in this respect—we recognize that with independence come certain respon-sibilities. If the federal Judiciary is to ward off dangerous intrusions by other branches such as the Inspector General bill that was passed by the House Judi-ciary Committee yesterday, we must show that we are capable of managing our own house.

~ ~There is a final responsibility that

comes with judicial independence, one that I think President Reagan captured perfectly 25 years ago this week, a good week for him, the week that his first Supreme Court nominee was confirmed unanimously and took the oath of office. At a reception for judges in the White House, Presi-dent Reagan said that the Judiciary’s, quote, “commitment to the preserva-tion of our rights often requires the lonely courage of a patriot.” Those words have stuck with me since I heard them. And to the extent that attacks on judicial independence emanate from conservative quarters, I would commend to those quarters those words from the leading conservative voice of our time, “the lonely courage of a patriot.” President Reagan recog-nized that it was the job of judges to make unpopular decisions; unpopular with the populace at large, unpopular with particular social or professional elites. But he also recognized that the courage required of them was the courage of a patriot because in making those unpopular decisions, they were fulfilling the framers’ vision of a society governed by the rule of law.

On The Importance Of Having A Fair And Independent Judiciary

7

I N - D E P T H

See In-Depth on page 9

For two days in September, state and U.S. Supreme Court justices with nationally recognized leaders in law, government, business, journalism, academia, and the nonprofit sector discussed the inde-pendence of the nation’s courts.

Georgetown Law and the American Law Institute co-sponsored “Fair and Independent Courts: A Conference on the State of the Judiciary,” on September 28-29, 2006. Retired Justice Sandra Day O’Connor and Justice Stephen Breyer chaired the conference.

Organizers convened the conference “to promote discussion about the preservation of federal and state courts’ tradition of independence,” an independence seen threatened by partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resent-ment of “judicial activism.”

The following are excerpts from their remarks. Transcripts and web casts of much of the proceedings are available at http://www.law.georgetown.edu/judiciary/program.html

Chief Justice John G. Roberts Jr., Justice Stephen Breyer and retired Justice Sandra Day O’Connor delivered key speeches during the conference. Their remarks are excerpted.

Georgetown Law Dean Alex Aleinikoff, far left, and Georgetown University President John J. DeGioia, far right, stand with Supreme Court justices Clarence Thomas and David Souter, former Justice Sandra Day O’Connor, and Justice Stephen Breyer.

Photo courtesy of Georgetown University Law Center.

The Third Branch n October 2006

8

THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORJames C. Duff

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

CONTRIBUTORDick Carelli

PRODUCTIONLinda Stanton

Please direct all inquiries and address changes to The Third Branch at the above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of October 1, 2006

Courts of Appeals Vacancies 15

Nominees 9

District Courts Vacancies 32

Nominees 20

Courts with “Judicial Emergencies” 21

For more information on vacancies in the federal Judiciary, visit our website at www.uscourts.gov under Newsroom.

Appointed: Kimberly A. Moore, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the Federal Circuit, September 8.

Appointed: Francisco A. Besosa, as U.S. District Judge, U.S. District Court for the District of Puerto Rico, October 2.

Appointed: Randy Davis Doub, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Eastern District of North Carolina, July 28.

Appointed: Kevin R. Huennmekens, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Eastern District of Virginia, September 11.

Appointed: Michael B. Kaplan, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the District of New Jersey, October 3.

Appointed: Mike K. Nakagawa, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the District of Nevada, September 1.

Appointed: Robert N. Opel, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Middle District of Penn-sylvania, September 28.

Appointed: Thomas L. Saladino, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the District of Nebraska, August 31.

Appointed: Robert R. Summerhays, as U.S. Bankruptcy Judge, U.S. Bank-ruptcy Court for the Western District of Louisiana, October 2.

Appointed: Robert E. Wier, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Kentucky, September 1.

Elevated: U.S. Court of Appeals Judge Dennis Jacobs, to Chief Judge, U.S. Court of Appeals for the Second Circuit, succeeding U.S. Court of Appeals Judge John Walker, Jr., October 1.

Elevated: U.S. District Judge Hugh Lawson to Chief Judge, U.S. District Court for the Middle District of Georgia, succeeding U.S. District Judge W. Louis Sands, September 15.

Elevated: U.S. Bankruptcy Judge Paul Hyman, to Chief Judge, U.S. Bankruptcy Court for the Southern District of Florida, succeeding U.S. Bankruptcy Judge Robert A. Mark, September 26.

Elevated: U.S. Bankruptcy Judge A. Thomas Small to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of North Carolina, succeeding U.S. Bankruptcy Judge J. Rich Leonard, August 23.

Senior Status: U.S. Court of Appeals Judge Morris S. Arnold, U.S. Court of Appeals for the Eighth Circuit, October 9.

Senior Status: U.S. Court of Appeals Judge Patrick E. Higginbotham, U.S. Court of Appeals for the Fifth Circuit, August 28.

Senior Status: U.S. Court of Appeals Judge Franklin S. Van Antwerpen, U.S. Court of Appeals for the Third Circuit, October 23.

Retired: U.S. Court of Appeals Judge Gerald W. Heaney, U.S. Court of Appeals for the Eighth Circuit, August 31.

Retired: U.S. Magistrate Judge J. B. Johnson, Jr., U.S. District Court for the Eastern District of Kentucky, August 31.

Deceased: U.S. Senior Court of Appeals Judge Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit, September 16.

Deceased: U.S. Senior Judge Francis J. Boyle, U.S. District Court for the District of Rhode Island, September 11.

Deceased: U.S. Magistrate Judge Theodore Klein, U.S. District Court for the Southern District of Florida, September 27.

The Third Branch n October 2006

yes, but they follow it. People follow it. People follow it all over the country because that’s just what you do in the United States of America, and that’s called the Rule of Law.

. . . Now think of how long it has

taken us to learn that. Think of our ups and downs. Think of a Civil War. Think of slavery. Think of 80 years of segregation. Think of all kinds of other things so difficult and so awful for the country that we’ve been through. And out of that, we’ve emerged with at least one thing. We don’t agree with that rule, but we’ll do it. And that keeps those 300 million people together.

~ ~

I see in my courtroom . . . people of every race, every religion, every point of view. . . .But where are they to resolve their differences— in a court of law, not on the streets with sticks and stones?”

Justice Sandra Day O’Connor:

“We have promoted in this country the notion of the rule of law as a means for helping ensure peace around the world. In our work with the emerging nations, with the breakup of the Soviet Union, and in other countries, we have actively urged upon every nation that we be concerned with the rule of law and that the key component to that is a fair, impartial, and independent Judiciary. For a long time, I think the federal Judiciary in this country has certainly been noted in other countries and admired, and many would want to copy it. I don’t know if that could be said to be true today in the face of all the criticism that we are hearing today about activist judges. . .

9

In-Depth continued from page 7

See In-Depth on page 10

~ ~

I began by noting that Monday was Justice O’Connor’s 25th anniversary of taking the oath of office on the court. As Mr. [Charlie] Rose has mentioned, tomorrow I will celebrate my first. And as we begin another Supreme Court term, I am confident that the justices and the judges around the country will not be found lacking in the courage that President Reagan indicated is often required in discharging their responsibilities. And through confer-ences such as this, I hope that courage may be a little less lonely than Presi-dent Reagan indicated.”

Justice Stephen Breyer:

“. . . what Hamilton is saying is that the Constitution is a Constitution of limitations. It is a Constitution where nobody becomes too powerful. It’s a Constitution where we have a democ-racy, but it’s a certain kind of democ-racy that protects human liberty, and a degree of equality, and a rule of law, and separation of powers, and federalism. Nobody gets all the power in the United States of America. And those are limitations.

And we all know, as he knew, that the majority can oppress the minority. And we all know that there are lots of minorities, and we all could be minori-ties in one respect or another. And so he thought that the judges are the way to make sure that those consti-tutional protections for the minority against oppression means something. And, anyone who remembers Brown v. Board of Education knows that that made a difference.

~ ~

Now, roll the clock forward . . . until a case I just think is a marvelous case, Cooper v. Aaron, decided after Brown

v. Board of Education, and that was the case that involved for some of us old enough to remember—and I do remember—Governor Orville Faubus standing in the schoolhouse door in Little Rock saying, “I’m an elected governor. I don’t care what those judges say; I have the state militia, and me and the state militia are not going to let this school be integrated. No.”

All nine judges of the Supreme Court personally signed that deci-sion. You could have had 900. You could have had 9,000. It was Governor Faubus, with the militia, standing in the door that stopped those chil-dren from going in. The President of the United States, Dwight Eisen-hower, then decided to send the para-troopers, and he did. He sent the airborne division. They went to Little Rock. They took those black children by the hand—and I can remember it—and they walked with them into that white schoolhouse door. What a victory that was, not just for integra-tion—that was part of it—not just for the children, but for everybody because that was an enormous victory for the rule of law in America.

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Let’s take any really, really, really contentious case that the courts decided in the last few years since I’ve been there. Would you like Bush v. Gore? Would you like school prayer? Abortion? Well, you think those cases are not contentious? No, you don’t. You live in this world, where I live. Of course they are. People feel strongly. Why shouldn’t they?

. . . They’re affected by those cases in the outcome. They feel very strongly about it. And at least half of them think that the majority is wrong each time.

And maybe they are. I mean, these are not easy cases. You’re dealing with a kind of not clear Constitu-tion on such issues, where, in fact, as I say, there are three or four argu-ments each way. And it’s hard. And, it’s not surprising that people divide. But think of how angry the average person is as a result of those cases, and now think about—I like to say, remark upon—that which is, to me, the remarkable . . . .

No paratroopers. None. No bullets. No rocks thrown in the street. No fist fighting. Anger, yes. Disagreement,

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Now, directing anger toward judges has had a long tradition in our nation, I’m sorry to say. President Thomas Jefferson was a very spirited antago-nist of judges appointed by the Feder-alists. And that great former president, President Franklin Roosevelt, took issue with certainly the decisions of the Supreme Court at that time striking down some of his New Deal legisla-tion. And I well remember as a young-ster driving around the highways near the Lazy Bee Ranch and seeing Impeach Earl Warren signs all over the highways. So while scorn for some judges is not altogether new, I do think that the breadth of the unhap-piness being currently expressed, not only by public officials, but in public opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern.

Now we have often cited Alex-ander Hamilton in these discussions of judging, and he said that “a steady, upright, and impartial administra-tion of the laws is essential, because no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be the gainer today.”

. . . one last point that I think is well made, is that the public needs to understand that the notion of judi-cial independence is not only for the benefit of judges. Judicial inde-pendence is for the benefit of all of society. I made a trip in recent weeks to meet with a conference of judges in Australia, and I noted there that Australia’s tenth chief justice, Sir Gerard Brennan, said this: “Judicial independence does not exist to serve the judiciary, nor to serve the interests of the other two branches of govern-ment. It exists to serve and protect not the governors, but the governed”.”

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Panel discussions covered the justifications for and criticisms of judicial independence, judi-cial selection and removal, interbranch relations, the public’s understanding of the courts, and the media’s role in the shaping that understanding.

Judiciary looses the valuable skills and insights of the departing judge that are not easily or quickly replaced. . . .

And I can tell you, as a former offi-cial of the Department of Justice, that unrealistically low judicial salaries was probably the most important factor in a good lawyer refusing to accept a judicial appointment.

. . . I believe there is a real risk,

because of low judicial salaries, that our Judiciary, eventually, at the federal and state levels, will not be made up of a diverse group of our country’s very best lawyers.

On Interbranch Relations

Newt Gingrich, Former Speaker of the U.S. House of Representatives (R-GA):

“The Founding Fathers were very clear that they believed in a balance of power. . . The Court swears to uphold the Constitution. The Presi-dent on behalf of the second branch—the executive branch—swears to uphold the Constitution. Members of Congress on behalf of the first branch—the legislative branch—swear to uphold the Constitution. The arro-gate (sic) that a handful of lifetime appointees in the Third Branch are somehow superior to the first two branches is an explicit violation of Hamilton’s writing in the Federal-ists Papers. Hamilton says flatly, the Judiciary will always be the weakest of the three branches, because it has no capacity independently to impose its will. And I think the danger you have—and here I probably speak for a minority in this room, but not in the country—the danger you have is that a Court which imposes elite values in variance with the country, weakens its own believability and puts itself in a position to be repudiated by the legis-lative and executive branches.

. . . I am suggesting that there are historical precedents for the nation to protect itself, and that the legislative and executive branches, as the first and second branches of the Constitu-tion, deserve equal respect from the Court. And a Court which asserts that

On Improving the Judicial System

Larry D. Thompson, Former Deputy Attorney General of the United States:

“. . . I strongly believe that scandal-ously low judicial salaries is the greatest threat to the independent and effective Judiciary that we currently have.

As noted in the excellent ABA-Federal Bar Association report on federal judicial pay, the constitutional guarantees of life tenure and an undi-minished salary are the hallmarks of our federal Judiciary. They provide for independence. They provide for the integrity of judicial decision-making, in return for a commitment to public service.

And I think it is this important commitment to public service that is undermined when raw financial considerations prevent quality candi-dates from seeking an appointment to the federal bench, and when it causes sitting judges to leave the Judiciary for more lucrative jobs in the private sector.

Based on my, I think, pretty strong anecdotal evidence, judges are leaving the bench. And they are leaving the bench at an earlier age, and they are not taking senior status, in favor of returning to the private sector. To me, this is a very dangerous trend that goes directly to the heart of judicial indepen-dence at the federal level. Think about this: for a judge to be put into a situa-tion where a judicial position is merely a stepping stone to re-entry to the private sector is a clear weakness in our system. And it’s certainly inconsistent with the notion of a life-time calling of public service. And it should also be noted that when an experienced judge resigns or retires, the caseloads of the remaining [judges] increase and the

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In-Depth continued from page 9

The Third Branch n October 2006

it is supreme in deciding these things, and that there is judicial superiority is running, I think, both historically and legally, a very, very dangerous track.”

Tom Daschle, Former U.S. Senate Majority Leader (D-SD)

“. . .Our Founding Fathers lived at a time when liberty and security were really dependent on powerful men, and they saw it as their challenge to create a nation based upon laws and not upon those men. And that’s why I see what’s happening today as very chilling, very troubling. . . .

. . . The tension between the branches and among the branches is something we faced all through history. I call it the noise of democracy and it certainly beats the cacophony of anarchy or the single drum beat of totalitarianism. I think this tension is different today; it’s more insidious and I’m troubled by it. I’m troubled when the Chief Justice has to come before Congress, as he always does, to make his case for funding but argue for more security in the courts and then have to justify, rationalize and explain court decisions. I’m troubled by that.

In the 1930s, the Court made a lot of controversial decisions, but somehow was able to hold its popu-larity. And I think that the reason they were, in spite of the attacks, was that society and schools and the media had a profound appreciation of the impor-tance of the independence of the Judi-ciary. Well that independence today is threatened.

So what do we do? . . . I think we reaffirm the importance of that inde-pendence as a public value. I think we teach it our schools. I think we hold all of the branches of government accountable in our newspapers. And I think we all, regardless of our posi-tions on the issues, hold it as a high priority.”

Stephen B. Burbank, Professor, University of Pennsylvania Law School:

“I think that the current attacks on the courts, although of course not unprecedented, are unusual and potentially quite dangerous for two reasons: One, because they evidently

reflect the strategies of some interests groups and even, alas, of some politicians to attack the courts. That’s new. And two, those strategies themselves reflect the view of judges as policy agents. This is a view that judges are a means to an end and that it is appropriate to pursue chosen policy ends through the selection of judges who are committed or will commit in advance to pursue them on the bench.

It seems to me that there is ample and persuasive evidence from both the Supreme Court and lower federal court appointment experience that it is presi-dential pursuit of this policy agenda and this view of judges as policy agents and the reaction to it by senators of the opposition parties, that it’s the chief cause of the politicaliza-tion of judicial selection at the federal level.”

Warren B. Rudman, former U.S. Senator (R-NH):

“. . . I think there’s only one thing you really have to look at to understand why we must have judi-cial supremacy in the United States Supreme Court. And I would submit to you that if you didn’t have it, you would have going on in the country what now goes on in the Congress, with years and years, decades of conflict, with no solution in sight, destabilizing the body politic in Amer-ican society. The case I think of, of course . . .is Brown.

For decades, there was a cancer on this country that neither the Execu-tive Branch nor either political party had the wherewithal or the guts or the intellect to deal with. And it was dealt with by the United States Supreme Court. And it was accepted by everyone, although reluctantly, as the law of the land. . . .

. . . .in my humble opinion, there must be a final arbiter in this country and I think that final arbiter has to be the federal Judiciary in the personifica-tion of the Supreme Court.”

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2006-2007 Supreme Court Judicial Fellows Begin Program

The Supreme Court Fellows have begun their assignments for the 2006-2007 program. John Domurad, chief deputy clerk of the U.S. District Court for the Northern District of New York, joins the Administrative Office as its judi-cial fellow. Terence Lau, an assistant professor of business law from the University of Dayton, is the judicial fellow at the Supreme Court. Jon B. Gould, an associate professor of political science and law, and acting director of the Administration of Justice Program, is the fellow at the Federal Judicial Center. Lauren Bell, an associate professor of political science at Randolph-Macon College, is a fellow at the U.S. Sentencing Commission.

The Supreme Court Fellows Program offers mid-life profes-sionals the opportunity to spend a year contributing to and observing the operation of the federal Judi-ciary. Fellowship appointments are for one year.

The Conference panel on interbranch relations included (left to right), University of Pennsylvania Law School Professor Stephen B. Burbank; former Senator Warren B. Rudman; for-mer Senate Majority Leader Tom Daschle and former House Speaker Newt Gingrich. Panel moderator was Kenneth M. Duberstein, Chairman and CEO, The Duberstein Group.

Photo: Bill Petros

JUDICIAL CONFERENCE OF THE UNITED STATES, September 19, 2006

Seated: (LtoR) Chief Judge Michael Boudin (1st Cir.); Chief Judge John M. Walker, Jr. (2nd Cir.); Chief Judge Anthony J. Scirica (3rd Cir.); Chief Judge William W. Wilkins (4th Cir.); Chief Justice John G. Roberts, Jr.; Chief Judge Edith Hollan Jones (5th Cir.); Chief Judge Danny J. Boggs (6th Cir.); Chief Judge Joel M. Flaum (7th Cir.); Chief Judge James B. Loken (8th Cir.)

Standing, Second Row: (LtoR) Judge Hector M. Laffitte (D. PR); Chief Judge Kimba M. Wood (S. D. NY); Chief Judge Garrett E. Brown, Jr. (D. NJ); Chief Judge Douglas H. Ginsburg (D. C. Cir.); Chief Judge Paul R. Michel (Fed. Cir.) ; Chief Judge Mary M. Schroeder (9th Cir.); Chief Judge Deanell R. Tacha (10th Cir.); Chief Judge J. L. Edmondson (11th Cir.); Judge David C. Norton (D. SC); Chief Judge Glen H. Davidson (N.D. Miss.)

Standing, Third Row: (LtoR) Judge Charles R. Simpson III (W.D. Ky.); Judge J.P. Stadtmueller (E.D. Wis.); Judge Charles R. Breyer (N.D. Calif.); Judge David L. Russell (W.D. Okla.); Judge Lawrence L. Piersol (D. SD); Chief Judge Robert L. Hinkle (N.D. Fla.); Chief Judge Thomas F. Hogan (D.DC); Chief Judge Jane A. Restani (Ct. Int’l Trade); and James C. Duff, Director, AOUSC.

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