Thanksgiving and the Federal Courts: The Recent Choices by and Regarding the Courts For Which We Should Truly Be Grateful

By CARL TOBIAS

Wednesday, Nov. 21, 2007

This Thanksgiving, we have numerous important positive developments regarding the federal courts for which to give thanks. Here, I'll provide a list of the measures for which we should be grateful:

Initiatives Seeking an Inspector General for the Federal Courts Were Blocked

First and foremost,is the fact that Democrat Party majorities have blocked several ill-advised legislative initiatives that were introduced in the Senate and the House of Representatives, and that would have seriously threatened judicial independence.

For example, the House sought to create an Inspector General (IG) to oversee the federal courts. Proponents contended that an IG was necessary to regulate judicial misconduct, but the measure left unclear exactly what the IG would monitor. Moreover, federal judges voiced concerns that the advocates of the proposal intended that the IG would not only address clear misconduct, but also affect substantive judicial decisionmaking, thus grossly interfering with the courts' independence.

The Breyer Committee Reports Reflects Improved Court Self-Regulation

Second, also due to the Democratic takeover of Congress, relations between lawmakers and the judiciary have improved. Last year's publication of the Breyer Committee report, authored by the committee headed by Justice Stephen Breyer, was a good sign. The report covered judicial discipline, Judicial Conference strictures against "judicial junkets," and the need for computerized "conflict of interest" checking to ensure judges do not (perhaps inadvertently) decide cases in which they have any financial or other stake.

All these measures indicate that the federal bench is taking seriously the duty to regulate itself. However, compliance with some of these requirements has been mixed, so numerous lawmakers remain concerned about judicial self-policing.

Rule 11 Modifications Are Rightly Headed for Rejection

Another suggestion would have revised Federal Rule of Civil Procedure 11, which covers sanctions for filing improper papers, to reinstitute the 1983 amendment. The 1983 amendment included unclear standards for sanctions' imposition and made them mandatory, thus prompting the rule's overuse.

The overwhelming majority of federal judges have rejected this idea, because it would promote expensive satellite litigation. Fortunately, it's plain that the current Congress will not pass this measure,should it bereintroduced.

Division of the U.S. Court of Appeals for the Ninth Circuit Won't Happen Soon

A third proposal would have divided the U.S. Court of Appeals for the Ninth Circuit purportedly because the tribunal is too large, although a number of champions vociferously opposed the court's substantive determinations. Division is a bad idea because this 117 year-old institution operates remarkably well to maintain consistent law across the West.

An overwhelming 24 of 27 active Ninth Circuit judges, of various political strips, who have refused to support publicly the split idea. Fortunately, they can enjoy their holiday secure in the knowledge that no bifurcation will occur soon, even though a split bill has been reintroduced.

New Cooperation on Judicial Selection Is Encouraging, But More Work Is Necessary

Progress has been made on judicial selection, too. There are currently 47 federal court vacancies, for which President George W. Bush has nominated 27 individuals. Fortunately, Senator Patrick Leahy (D-Vt.), the Democratic Chair of the Judiciary Committee, and the Democrats have cooperated with the Republicans on confirming judges. Although more judges could be confirmed if President Bush would work closely with Democrats, at least bipartisanship on this issue is off to a good start.

On one hand, in January, President Bush wisely decided against renominating several controversial appellate nominees whom the prior Senate had twice returned - thus preventing further division. On the other hand, however, Bush's nomination of certainindividuals whom home-state senators oppose has frustrated the process.

Moreover, there is work to be done on the Democrats' part, as well. The White House submission immediately before Thanksgiving of a large batch of nominees (seven for the bench, four U.S. Attorneys and two U.S. Marshals) will complicate approval, because the Committee lacks resources to investigate all of them expeditiously. Democrats should decide which judicial nominees will be very intelligent, independent and industrious; possess moderate ideological perspectives; and have displayed the balanced temperament suited to a judgeship, and work to approve those candidates.

After so doing, Democrats could seek expeditious floor votes on judicial nominees whom the Senate Judiciary Committee has approved, prompt action on those who have not secured Committee votes, and ensure quick hearings for the remaining nominees. The closer the federal judiciary comes to having a full bench, the more likely it will be that judges can resolve cases promptly, inexpensively and fairly.

Another Reason for Thanks: The Prospect of Comprehensive Judgeship Legislation

Judges should also be thankful that comprehensive judgeships legislation, the first such bill since 1990, might pass. The Judicial Conference has proposed that lawmakers authorize more than 60 new judicial seats -- a recommendation that the courts' policymaking arm premises on quite conservative projections of the likely increases in workloads and filings. The House Republican leadership had made adoption contingent upon splitting the Ninth Circuit, but the Democratic takeover is very likely to alter this dynamic.

In sum, we, and our federal judiciary, have much for which to be thankful on this Thanksgiving, with respect to the administration of justice in the federal courts. However, the judiciary will only realize the apparent benefits enumerated above, if Democrats and Republicans terminate their partisan wrangling and work together in a bipartisan manner for the good of the courts, Congress and the nation.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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