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Full text of "The third branch"

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The 1999 Year-End Report on the Federal Judicial 




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Overview 



The 1999 Year-End Report on 
the Federal Judiciary — my 14 th as 
Chief Justice — provides an oppor- 
tunity to review the state of the 
Judiciary not only for the past year, 
but also to reflect briefly on its status 
this past century, which, I hasten to 
point out, has another year to run. 
Just ask the makers of 2002: A Space 
Odyssey. Our society 
experienced enormous 
technological and industrial 
advances in the 20 th century. 
We entered the century 
traveling in horse and 
buggy, on steamboat, or by 
rail, and we leave it thinking 
of man's landing on the 
moon as old news, to use 
but one example. Changes 
in the federal Judiciary in 
the 20 th century may appear 
less extreme by comparison, 
but are nonetheless remark- 
able. 

One hundred years ago, 
there were 108 authorized 
federal judgeships in the 
federal Judiciary, consisting 
of 71 district judgeships, 28 
appellate judgeships, and 9 
Supreme Court Justices. 
Today, there are 852 — 
including 655 district 



judgeships, 179 appellate judgeships 
and 9 Supreme Court Justices. In 
1900, 13,605 cases were filed in 
federal district courts, and 1,093 in 
courts of appeals. This past year, 
over 320,194 cases were filed in 
federal district courts, over 54,600 in 
courts of appeals, and over 1,300,000 
filings were made in bankruptcy 
courts alone. 

These changes in the federal 
Judiciary reflect not merely a growth 



I 




Notwithstanding changes and 
adaptations within the federal 
Judiciary over the last 100 years., 
perhaps the greatest contribu- 
tion it has made to our society 
and the way in which we govern 
ourselves has been its stability 
and relative predictability." 



in the population of the United 
States, but also have been in re- 
sponse to the increasing jurisdiction 
of federal courts. Some increase in 
federal jurisdiction has been a 
natural result of the industrial- 
ization and technological develop- 
ment and the corresponding re- 
gulation of it in America in the 
20 th century; some in recent years, 
however, has resulted from un- 
necessary federalization of traditional 
state law matters. Of course, 
technological advances 
have had other profound 
impacts on the Judiciary. 
A century that began with 
some federal judges still 
riding the circuits con- 
cludes with judges commu- 
nicating by video 
conferencing, using a 
Federal Judicial Television 
Network, and in some 
instances reviewing briefs 
filed electronically. 

Notwithstanding changes 
and adaptations within 
the federal Judiciary over 
the last 100 years, perhaps 
the greatest contribution 
it has made to our society 
and the way in which we 
govern ourselves has 
been its stability and rela- 
tive predictability. These 

see Report on page 2 



traits — consistent throughout the 
century — have been secured by 
the Judiciary's independence and 
are dependent on a healthy sup- 
port of the other branches of govern- 
ment. 

Public recognition of the strengths 
of the federal Judiciary is encourag- 
ing. In a February 1999 Gallop 
Poll, 80 percent of Americans sur- 
veyed stated that they had a "great 
deal" or "fair" amount of trust in 
the judicial branch of government, 
far exceeding figures for the other 
branches. And a February 1999 
report of an American Bar Associa- 
tion nationwide survey on the 
American system of justice con- 
cluded that "at least conceptually, 
there is strong support for the justice 
system. The data indicated that 80 



Eliminating 

unwarranted 

federalization of 

crime will help 

control growth in 

federal courts and 

preserve them as 

courts of limited 

jurisdiction." 





percent of all respondents either 
strongly agree or agree . . . that in 
spite of its problems, the American 
justice system is still the best in the 
world." 

The public's views are a function 
of more than the structure of our 
government and the independence 
of the Judiciary. Those views 
are shaped by the dedication and 
hard work of federal judges who 
continue to dispense justice despite 



an increasing workload and a 
relatively decreasing salary. We are 
particularly indebted to our senior 
federal judges who continue to help 
with the courts' workload with little 
incentive other than devotion to 
public service. 

The past year has been one of 
improvement in the Judiciary. 
Last year at this time, I singled 
out three significant problems 
facing the Judiciary that needed 
immediate attention: (1) the need 
to appoint all seven Commissioners 
of a vacant United States Sentencing 
Commission; (2) the continuing 
relative decline in judicial salaries; 
and (3) the growing caseload in 
the federal Judiciary. I noted that 
all three problems were soluble. 
This year, I extend thanks on behalf 
of the entire Judiciary to 
Congress and the Exec- 
utive Branch for the sig- 
nificant progress we 
have made on two of the 
three problems, and for 
efforts made to address the 
third. 

First, I am pleased to 
report that the political 
impasse on the appoint- 
ments to the United 
States Sentencing Commis- 
sion was overcome in 
1999. All seven Commis- 
sioners were confirmed 
by the Senate in Novem- 
ber, and U.S. Circuit 
Judge Diana E. Murphy 
of Minneapolis, Minnesota, 
is the new Chair. The 
Sentencing Commission, among 
other things, reduces disparity in 
sentencing, establishes sentencing 
policies and practices in federal 
courts, and advises Congress and the 
Executive Branch in the development 
of crime policy. This much-needed 
Commission may now address a 
backlog of work caused by the 
vacancies and can promulgate 
guidelines to implement a significant 
amount of sentencing and crime- 



related legislation enacted by the 
105 th Congress. 

Second, for only the second time 
since 1993, 1 can report some adjust- 
ment in the salaries of federal judges. 
Effective today, federal judges will 
receive a 3.4 percent Employment 
Cost Index adjustment in accordance 
with the Ethics Reform Act of 1989 
(2 U.S.C. § 461). The Judiciary is 
appreciative of the adjustment, but it 
should not be confused with a raise 
in salary. We must continue to work 
for more appropriate compensation 
for federal judges to maintain the 
quality and morale of the federal 
Judiciary. 

And, third, I commend the Senate 
Government Affairs Committee and 
its Chair, Senator Fred Thompson, 
for holding hearings on May 6, 1999, 
on the issue of controlling the 
federalization of crimes that are 
better left to state laws and courts to 
handle. The hearings were held in 
part as a response to issues I raised 
in last year's Report, and focused 
also on the American Bar 
Association's Task Force on Feder- 
alization of Criminal Law, a biparti- 
san Task Force chaired by former 
Attorney General Edwin Meese. The 
Task Force concluded that the 
ultimate safeguard for maintaining 
our balanced Constitutional system 
must be a "principled recognition by 
Congress for the long-range damage 
to real crime control and to the 
nation's structure caused by inappro- 
priate federalization." As Chairman 
Meese elaborated at the hearings, 
the 

"expanding coverage of federal 
criminal law, much of which has 
been enacted without any dem- 
onstrated or distinctive federal 
justification, is moving the na- 
tion rapidly towards two broadly 
overlapping, parallel, and essen- 
tially redundant sets of criminal 
prohibitions, each filled with dif- 
ferent consequences for the same 
conduct. Such a system has little 



The Third Branch m January 2000 



K 

" 2 - to conimen ^ i f an( l nwich to con- 
r\ -vdemnit." 

Eliminating unwarranted federali- 
zation of crime will help control 
growth in federal courts and preserve 
them as courts of limited jurisdiction. 
I urge the Congress to continue to 
examine this issue, and to refer to 
guidelines on federal courts' criminal 
jurisdiction set forth in the Long 
Range Plan for the Federal Courts 
adopted by the Judicial Conference 
in 1995 as detailed in my Year-End 
Report last year. 

In the meantime, certain federal 
courts continue to feel the effects of 
an increased workload. Congress 
responded to this problem in 1999 by 
creating nine new judgeships — four 
in the Middle District of Florida, 
three in Arizona, and two in Nevada. 
The Judicial Conference of the United 
States seeks additional judgeships in 
approximately 25 percent of the 
judicial districts in the United States. 
Federal courts in U.S. border areas 
face a crisis in workload created by 
an unmanageable number of immi- 
gration and drug-related cases. The 
Judicial Conference has been seeking 
additional judgeships for a number of 
years, particularly in those areas most 
affected by such cases, including the 
Southern District of California, the 
Southern and Western Districts of 
Texas, and the Districts of Arizona 
and New Mexico. More judges are 
also needed in four Courts of Appeals 
in the country — the First, Second, 
Sixth, and Ninth Circuits need judges 
to meet their workloads and to 
maintain the quality of justice 
provided in those courts. 

Clearly, the Judiciary does not 
advocate growth for growth's sake, 
but must respond to its workload. In 
that regard, the workload in some 
jurisdictions of the federal Judiciary 
is such that some vacancies will not 
need to be filled. Four vacancies are 
thus affected: the existing vacancy in 
the United States District Court for 
the District of Columbia, and prospec- 



AAtv 



five vacancies in the United States 
District Courts of the District of 
Delaware, the District of Wyoming, 
and the Southern District of West 
Virginia will not need to be filled. The 
Judicial Conference has so advised 
the Executive and Legislative 
Branches. 



Panel Attorney Compensation 

Some progress has been made on 
another issue I raised last year, but 
more work remains: in 1999, the 
Judiciary embarked on a major 
initiative to obtain funding to 
increase the rates of pay for private 
"panel" attorneys accepting appoint- 
ments under the Criminal Justice Act 
(CJA). By statute, the Judiciary bears 
the responsibility for ensuring that 
defendants who cannot afford 
counsel in federal criminal cases 
receive legal representation. In 1986, 
Congress amended the CJA to 
authorize the Judicial Conference to 
set maximum hourly rates of up to 
$75 and to implement cost-of-living 
adjustments. While the Judicial 
Conference has determined that the 
$75 rate is needed in every judicial 
district, funding has not been 
available for its nationwide imple- 
mentation, and in most judicial 
districts panel attorneys have been 
paid only $65 for hours in court and 
$45 for out-of-court time. 

Inadequate compensation for 
panel attorneys is seriously hamper- 
ing the ability of courts to recruit and 
retain qualified panel attorneys to 
provide effective representation. 
The maximum CJA hourly rates have 
been eroded by inflation and are 
substantially below prevailing rates 
in the legal profession. Accordingly, 
the Judiciary requested funding in 
fiscal year 2000 to make the $75 rate 
applicable in every district. Congress 
approved a $5 raise, to $70 in court, 
$50 out of court. 

While providing some relief, 
compensation rates still do not meet 
many attorneys' non- reimbursable 



overhead costs. Adequate pay for 
appointed counsel is important to 
ensure that a defendant's constitu- 
tional right to counsel is fulfilled. 
Thus, there is widespread support 
among the components of the federal 
criminal justice system for the $75 
rate, including judges, the Depart- 
ment of Justice, private bar associa- 
tions, former federal prosecutors, 
and federal defenders. 

Since 1984, most judicial districts 
have received only two $5 increases 
(including the one in fiscal year 
2000). At its September 1999 session, 
the Judicial Conference decided to 
renew its request for the $75 rate in 
fiscal year 2001 in the event that 
Congress did not provide funding for 
that rate in fiscal year 2000. Because 
of the urgency of this need, once 
again, I respectfully ask Congress to 
make adequate compensation for 
panel attorneys a high priority, and 
to fund the Defender Services 
appropriation at a level sufficient to 
pay the $75 rate. 

Information Assistance to Foreign Judiciaries 

Representatives from judicial 
systems from around the world 
continue to seek to learn more about 
our Judiciary. This year more than 
475 representatives of over 95 foreign 
judiciary systems formally visited the 
Supreme Court of the United States 
seeking information about our 
system of justice. Several other 
judicial entities also play an impor- 
tant role in educating international 
visitors and providing technical 
assistance to judicial systems world- 
wide, including the Federal Judicial 
Center, the Administrative Office of 
the U.S. Courts, and the International 
Judicial Relations Committee of the 
Judicial Conference. 

Appellate Court Structure 

Although the most effective way of 
preserving our federal Judiciary' s 
ability to perform its function is by 



The Third Branch m January 2000 



restraining unnecessary expansion of 
its jurisdiction, structural adjust- 
ments are occasionally necessary as 
well. Last year, several members of 
the Senate introduced legislation to 
implement the December 1998 
recommendations of the legislatively 
created Commission on Structural 
Alternatives for the Federal Courts 
of Appeals, chaired by retired Justice 
Byron R. White. I am grateful to 
Senator Charles Grassley and 
Representative Howard Coble for 
holding hearings on these recom- 
mendations, and I urge Congress to 
act on the Commission's proposals. 
Congress' immediate concern in 
creating the Commission was the 
size of the Court of Appeals for the 
Ninth Circuit. As requested, how- 
ever, the Commission proposed 
legislation that would accommodate 
the inevitable growth of other courts 
of appeals as well, while preserving 
the regional circuits. I hope that 
Congress, which asked for this 
study, will give the recommenda- 
tions full and complete consider- 
ation. 




The Federal Courts' Caseload 

In 1999, there were 54,693 filings 
in the 12 regional courts of appeals. 
These figures include, for the first 
time, certain original proceedings. 
If original proceedings are not 
included, there has been a 3 per- 
cent decline in filings in the courts 
of appeals since last year. If in- 
cluded, however, there has been a 
2 percent rise in filings in the courts 
of appeals in 1999. Overall growth 
in appellate court caseload this 
year was due to a 349 percent 
upsurge in original proceedings. 
This sudden expansion resulted 
from newly implemented re- 
porting procedures, which more 
accurately measure the increased 
judicial workload generated by the 




Prisoner Litigation Reform Act and 
the Antiterrorism and Effective 
Death Penalty Act, both passed in 
1996. Declines in filings were 
recorded for all other types of 
appeals with civil, criminal, bank- 
ruptcy, and administrative agency 
appeals decreasing 2 percent, 3 
percent, 8 percent, and 14 percent, 
respectively. 

District court activity 
was characterized by an 
increase in criminal 
filings and a smaller 
increase in civil filings. 
Criminal case filings rose 
4 percent from 57,691 in 
1998 to 59,923 in 1999, 
and the number of 
defendants grew 2 
percent from 79,008 to 
80,822. Criminal case 
filings per authorized 
judgeship went up from 
89 to 93 cases. Civil 
filings changed little from 
the previous year, 
increasing 1 percent 
to 260,271. Filings in 
the U.S. bankruptcy 
courts dropped 6 percent from 
1,436,964 to 1,354,376 and, in doing 
so, broke a four-year trend of rapid 
growth. 

The current levels of criminal case 
and defendant filings are higher than 
in any year since 1933, the year the 
Prohibition Amendment was re- 
pealed. This year's increase, as last 
year's, was significantly impacted by 
filings related to drugs and illegal 
immigration in the southwestern 
border districts, although drug- 
related filings also increased in more 
than 50 other districts. Nationwide, 
immigration filings rose 14 percent 
to 10,641 cases, and drug filings rose 
7 percent to 17,483. Weapons and 
firearms filings grew 20 percent to 
4,367. 

The increase in criminal filings 
resulted in a 2 percent gain to 80,154 
in the number of defendants ser- 
viced by pretrial services. The 



number of defendants interviewed 
went up 1 percent, and the number 
of pretrial reports also increased 1 
percent. Pretrial case activations 
have risen for five consecutive years, 
and this year's total is 43 percent 
higher than that for 1994. During this 
period, pretrial reports prepared rose 
42 percent, persons interviewed 
grew 32 percent, and defendants 



The current levels 

of criminal case 

and defendant 

filings are higher 

than in any year 

since 1933, the 

year the Prohibition 

Amendment was 

repealed." 



released on supervision increased 25 
percent. 

The number of persons on pro- 
bation, which is less directly 
affected by criminal filings, went 
up by 4 percent. Supervised re- 
lease following a period of incar- 
ceration now accounts for more than 
60 percent of the probation popula- 
tion, and there is an average lag of 
several years before defendants 
found guilty and sentenced to prison 
appear in the probation numbers. 
Of the 59,450 persons serving terms 
of supervised release, 54 percent 
had been charged with a drug- 
related offense. 

The overall 1 percent increase in 
filings of civil cases was related 
primarily to cases involving the 
United States as a plaintiff, while 
filings involving the U.S. as a defen- 
dant and private cases involving 
both federal question jurisdiction 



4 



The Third Branch m January 2000 



(i.e., actions under the Constitution, 
laws, or treaties of the United States) 
and diversity of citizenship declined 
slightly. 

Total U.S. cases increased 13 
percent from 57,852 to 65,443, with 
filings involving the U.S. as plaintiff 
increasing 33 percent and filings in- 
volving the U.S. as a defendant de- 
clining less than 1 percent. The rise 
in U.S. -plaintiff filings was primarily 
a result of a 54 percent jump in cases 
related to the recovery of overpay- 
ments and enforcement of judgments. 
Student loan recoveries continued to 
climb sharply, growing from 14,080 
filings in 1998 to 21,915 in 1999. This 
56 percent rise reflects the continued 
intense debt collection procedures 
implemented by the Department of 
Education in the late 1990' s. 

The decrease in cases involving 
the U.S. as a defendant largely 
reflected a 4 percent decrease in 
Social Security cases and a 9 percent 
decline in motions to vacate sen- 
tence. Social Security disability 
insurance and supplemental security 
income filings each dropped, at 6 
percent and 3 percent, respectively. 

Motions to vacate sentence fell by 
535 cases, likely the continued effect 
of the 1995 Bailey v. United States 
Supreme Court ruling restricting the 
imposition of enhanced penalties for 
using firearms. 

Federal question jurisdiction and 
diversity of citizenship filings each 
declined, at 1 percent and 4 percent, 
respectively. Federal question 
jurisdiction fell from 146,827 to 
144,898 (down 1,929 filings), mainly 
because filings related to personal 
injury cases decreased 13 percent, 
with product liability filings (mostly 
breast implant cases) dropping 58 
percent. Habeas corpus petitions 
filed by state prisoners increased 9 
percent. Diversity of citizenship 
filings declined from 51,992 to 49,793 
(down 2,199 filings) as a result of a 
large reduction in the number of 
personal injury/ product liability 
breast implant cases. 



Prior to 1995, bankruptcy filings 
had declined for two years after 
eight years of continuous growth. 
This year's decline resulted from 
decreases in filings of both personal 
and business petitions, with drops in 
chapter 7 and chapter 13 petitions 
primarily responsible for the overall 
decline. 

Following seven years of decline, 
filings of petitions under chapter 11, 
which represent about 1 percent of 
all bankruptcy filings, rose 2.5 
percent. Filings under chapter 7, 
which accounted for 71 percent of all 
bankruptcy filings, fell 6.5 percent. 
Chapter 13 filings, which constituted 
28 percent of all bankruptcies, 
declined 4 percent. Filings under 
chapter 12, which made up less than 
0.1 percent of all bankruptcy filings, 
dropped 8 percent. 

In 1999, some progress was made 
by the Senate and the President on 
judicial confirmations with 34 new 
judges confirmed. Although the 1999 
confirmation rate did not match the 
rate accomplished in 1998 when 65 
new judges were confirmed, the 
number of judicial vacancies has 
been reduced over the last two 
years. 

The Supreme Court of the United States- 
Caseload Statistics 

The total number of case filings 
in the Supreme Court increased 
from 6,781 in the 1997 Term to 7,109 
in the 1998 Term — an increase of 
slightly more than 4.8 percent. 
Filings in the Court's in forma paup- 
eris docket increased from 4,694 
to 5,047 — a 7.5 percent rise. The 
Court's paid docket decreased by 23 
cases, from 2,085 to 2,062— a 1.1 
percent decrease. During the 1998 
Term, 90 cases were argued and 84 
signed opinions were issued, com- 
pared to 96 cases argued and 93 
signed opinions in the 1997 Term. 
Two cases from the 1998 Term were 
scheduled for re-argument in the 
1999 Term. 



Administrative Office 
of the United States Courts 



The Administrative Office of the 
United States Courts celebrated its 
60 th anniversary this past year as the 
central support agency for the 
administration of the federal court 
system. A century ago, federal court 
administration was almost entirely 
decentralized. Each district court 
handled its own affairs, relying on 
the district's United States Marshal 
for some administrative services. 
For those necessarily centralized 
activities, such as submitting a 
budget request to Congress, the 
federal Judiciary had to rely upon 
the Department of Justice, the chief 
litigant in the federal courts. This 
arrangement presented problems 
obvious to both the courts and the 
Justice Department. 

Congress established the Admin- 
istrative Office in 1939 and stated its 
intention to "furnish the Federal 
Courts the administrative machinery 
for self-improvement, through which 
those courts will be able to scrutinize 
their own work and develop effi- 
ciency and promptness in their 
administration of justice." Since 
then, under the supervision of the 
Judicial Conference and the leader- 
ship of six directors, the Administra- 
tive Office has advanced the 
Judiciary's legislative agenda with 
Congress; secured funding to carry 
on the work of the courts; provided 
facilities, services, and supplies to 
support the needs of judicial officers 
and court staff; collected statistics 
and reported on the work of the 
courts; developed and implemented 
automated systems; and provided 
program leadership, oversight, and 
assistance. 

Among the Administrative 
Office's key functions are preparing 
and submitting the Judiciary's 
budget to the Congress, and execu- 
ting the budget. Because of the tight 



The Third Branch m January 2000 



budget caps for discretionary 
domestic spending imposed by the 
Balanced Budget Act of 1997, the 
fiscal year 2000 budget process was 
a challenging one for the Judiciary. 
Originally, neither the House nor the 
Senate appropriations bills provided 
enough funding to maintain court 
operations at 1999 service levels. 
Administrative Office Director 
Leonidas Ralph Mecham and his 
staff, the Judicial Conference Budget 
Committee Chair Judge John G . 
Heyburn II and members of the 
committee, and many others of us 
within the Judiciary led a successful 
effort to obtain substantially more 
appropriated funds than either the 
House or the Senate had originally 
allotted. 

In the interest of continuing 
improvement and preparing for 
future needs, the Administrative 
Office is currently conducting or 
overseeing an unprecedented 
number of strategic studies of 
Judiciary programs and operations. 
An independent assessment of the 
Judiciary's space and facilities 
program by an outside consultant 
is under way to make recommen- 
dations for future facilities plan- 
ning, budgeting, and management. 
Another expert consulting firm 
will be considering the future 
information technology needs of 
the courts and how the Judiciary 
can best organize and manage 
resources to carry out its information 
technology program to meet these 
needs. 

An independent study of the court 
security program will consider ways 
to provide adequate security to the 
Judiciary more efficiently and 
effectively. Experts will conduct a 
strategic assessment of the probation 
and pretrial services programs to 
make recommendations to ensure 
the future quality and success of 
these programs. 

Work measurement studies will 
be used to develop new staffing 
formulas for the appellate, district, 



and bankruptcy courts, as well as 
probation and pretrial services 
offices. Another study managed by 
the Administrative Office, the 
Federal Judicial Center and the 
Sentencing Commission is assessing 
judicial branch training needs. 

Enhancing communications with 
the courts remains a high priority for 
the agency. The Administrative 
Office is the biggest user of the 
Federal Judicial Television Network, 
currently broadcasting 80 hours of 
live and taped educational and 
informational programming per 
month to more than 240 viewing 
sites located throughout the Judi- 
ciary. This year, agency staff rede- 
signed the "J-Net," the Judiciary's 
intranet web site, making it easier for 
judges and court personnel to access 
time-sensitive and important infor- 
mation. Using the Judiciary's data 
communications network, the 
Administrative Office has begun 
sending official Administrative 
Office correspondence addressed to 
chief judges and other court execu- 
tives by electronic mail. This pro- 
vides for nearly instantaneous 
communication of important infor- 
mation. 

The Administrative Office, 
working closely with court users, 
develops, implements, and sup- 
ports new systems and technolo- 
gies for the courts. One of the 
most significant projects under 
way is to replace automated sys- 
tems and technology supporting 
the current case management 
systems in the appellate, district, 
and bankruptcy courts. These 
systems will have electronic filing 
capabilities, which will allow a 
court to receive, store, and retrieve 
documents in an electronic format, 
potentially reducing paper volume 
and enabling easier access to case 
information. In 1999, the agency 
completed implementation of an 
automated library management 
system and launched a web-based 
virtual law library. A web-based 



electronic public access network 
providing the public with access to 
court records and other information 
via the Internet was implemented. 
The Administrative Office is also in 
the midst of implementing new 
systems for jury administration, 
financial accounting, and the pro- 
cessing of criminal justice act pay- 
ment vouchers. 



The Federal Judicial Center 



The Federal Judicial Center 
improves federal court operations 
through analysis and education. 

This year, the FJC's Board, which 
I chair, selected Judge Fern M. 
Smith of San Francisco as the FJC's 
eighth Director. Judge Smith became 
a federal district judge in 1988. She 
brings a wealth of experience to the 
FJC, having served on both the 
federal and state bench, as well as 
having chaired the Judicial 
Conference's Advisory Committee 
on the Rules of Evidence from 
1996-99. 

FJC research and education 
helps the judicial branch deal with 
vexing policy questions created by 
modern litigation. FJC education 
programs provide federal judges 
the continuing education they 
need to manage their dockets 
effectively. They also offer a range of 
perspectives on complicated areas of 
the law and non-legal subjects that 
intersect with the law, such as 
economics. 

To cite but two examples, the 
FJC's study of mass tort litigation 
constituted a major element of the 
volume submitted to me earlier this 
year by the Judicial Conference's 
Mass Tort Working Group. Under 
the direction of a Board of Editors 
chaired by Judge Stanley Marcus, the 
FJC is preparing a revision of its 
frequently used Manual for Complex 
Litigation. 

Also, as decisions of the Supreme 
Court fix the responsibilities of 



The Third Branch m January 2000 



district judges to determine the 
admissibility of expert witness 
testimony, the FJC continues to 
assist judges in how to exercise 
these responsibilities. It is complet- 
ing, for release next year, the 
second edition of its Reference 
Manual on Scientific Evidence. Over 
75,000 copies of the first edition 
have now been printed by either 
the government or private publish- 
ers. The FJC is also updating its 
earlier monograph on effective 
utilization of visiting judges, 
which will help ensure maximum 
deployment of judicial resources. 

The FJC uses technology to 
diversify the means by which it 
meets its responsibilities to educate 
judges and court employees. In 
1999, the great majority of the over 
30,000 participants who benefited 
from FJC education did so through 
alternatives to traditional classroom 
programs, thus minimizing travel 
costs. 

The Federal Judicial Television 
Network, which the Center operates 
for the Judiciary, broadcast over 
1,400 hours of educational and 
informational programming to 
federal courts nationwide. For one 
example, interactive FJC broadcasts 
helped probation and pretrial 
services officers supervise defen- 
dants and offenders through pro- 
grams on substance abuse and the 
pharmacology of drugs. 

The FJC has also used technology 
to promote understanding of federal 
court history. The FJC's web page 
will soon include a wealth of histori- 
cal information, including the first 
complete list of all federal district 
and appellate judges and Justices, 
along with basic information about 
them and their courts. It will allow 
scholars and others to answer many 
questions about the men and women 
who have served on the federal 
bench and about the changes in the 
make up of the federal Judiciary over 
its 200-year history and in more 
recent times. 



The United States 
Sentencing Commission 



On November 10, 1999, the 
Senate not only confirmed the 
President's nomination of U. S. 
Circuit Judge Diana E. Murphy of 
Minneapolis, Minnesota, to be the 
new Chair of the U.S. Sentencing 
Commission, it also confirmed as 
new Commissioners Judge Ruben 
Castillo of Chicago, Illinois; Judge 
Sterling Johnson, Jr. of Queens, New 
York; Judge Joe Kendall of Dallas, 
Texas; Professor Michael O'Neill 
of Chevy Chase, Maryland; Judge 
William K. Sessions, III of Cornwall, 
Vermont; and Mr. John R. Steer of 
Fairfax Station, Virginia. These seven 
voting commissioners join ex officio 
members Mr. Michael J. Gaines and 
Mr. Laird C. Kirkpatrick. The 
Commission had been without any 
voting commissioners since October 
31, 1998. 

Judge Murphy is a judge of the 
U.S. Court of Appeals for the Eighth 
Circuit; Judge Castillo serves as a 
U.S. district judge for the Northern 
District of Illinois; Judge Johnson is 
a U.S. district judge for the Eastern 
District of New York; Judge Kendall 
serves as a U.S. district judge for the 
Northern District of Texas; Professor 
O'Neill is an assistant professor of 
law at George Mason University 
School of Law; Judge Sessions serves 
as a U.S. district judge for the District 
of Vermont; and John Steer had 
previously served as the general 
counsel of the Commission. 

The Commission already has 
made a preliminary determination to 
focus its policy agenda on promul- 
gating guideline amendments to 
implement the crime and sentencing- 
related legislation enacted by the 
105 th Congress. The Commission's 
shortened amendment cycle ends 
May 1, 2000. 

In addition, as it has in the past, 
the Commission also proposes to 



resolve a limited number of conflicts 
among the circuit courts on sentenc- 
ing guideline interpretation. The 
Commission is working with the Cri- 
minal Law Committee of the Judicial 
Conference, the United States 
Department of Justice, and other 
interested participants in the federal 
criminal justice system to identify 
which circuit conflict issues the 
Commission should resolve this 
amendment cycle, with the goal of 
enhancing the consistency with 
which the guidelines are applied. 

In fiscal year 1999, the Commis- 
sion also received documentation on 
more than 50,000 cases sentenced 
under the guidelines. 

During fiscal year 1999, Commis- 
sion staff trained approximately 
3,304 individuals at 48 training 
sessions (including ongoing pro- 
grams sponsored by the Federal 
Judicial Center and other agencies). 
Commission staff continue to work 
collaboratively with the Federal 
Judicial Center and the Administra- 
tive Office of the U.S. Courts to plan 
and develop educational and infor- 
mational programming for the 
Federal Judicial Television Network. 
In May 1999, as part of the 
Commission's effort to address the 
long-established need for defense bar 
training, the Commission and the 
Federal Bar Association once again 
co-sponsored the Eighth Annual 
National Seminar on the Federal 
Sentencing Guidelines. During the 
year, the Commission's "HelpLine" 
provided guideline application 
assistance to approximately 200 calls 
per month. 



In Memoriam 



This year, the Judiciary and nation 
lost a friend and colleague when 
Harry A. Blackmun passed away on 
March 4, 1999. Justice Blackmun was 
appointed to the Supreme Court by 
President Richard M. Nixon and 
served from June 1970 until his 



The Third Branch m January 2000 



retirement in August 1994. During 
his 24 years on the Court, Justice 
Blackmun was careful and meticu- 
lous in his judicial work. He was also 
a thoughtful and compassionate 
man, who will be remembered for 
his integrity, his sense of justice, and 
his exemplification of decency and 
modesty. 



Conclusion 



Our judicial experiences in 1999 
and throughout the 20 th century have 
confirmed the wisdom of the funda- 
mental structure provided for our 
government by our founders. It is a 
system that is capable of adjusting to 
change without altering its core 
functions. Although we can no more 
foresee the technological advances 
that will come in the 21 st century 
than our predecessors did 100 years 
ago, we enter the new century with 
some confidence that the Judiciary 
can adapt to and utilize those 
developments based upon our past 



experiences. To ensure this, however, 
we must be careful that the funda- 
mental structure of our federal 
Judiciary is not undermined either 
through neglecting our judges' needs 
or by expanding our courts' jurisdic- 
tion unnecessarily. 

The Judiciary continues to prepare 
for the challenges it will surely face. 
I point to the Long Range Plan for 
the Federal Courts and the 1998 
Report of the Commission on 
Structural Alternatives for the 
Federal Courts of Appeals chaired by 
retired Justice Byron White as but 
two relatively recent examples of 
forward thinking about the Judiciary. 

Chief Justice Melville Fuller 
observed toward the close of the last 
century that, "the new century may 
be entered upon in the spirit of 
optimism . . . essential to the accom- 
plishment of great ends." On balance, 
I believe I can make the same observa- 
tion over 100 years later. 



Jr/ L tUUi^ 



<<*&,<-* 



<J 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 
Our homepage address is 
http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



Please direct all inquiries and address 
changes to The Third Branch at the 
above address or to 
Karen_Redmond(6>ao. uscourts.gov. 



THE THIRD BRANCH 

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Washington, D.C. 20544 



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THE 



RD 



&X& 



ANCH 



Newsletter 

of the 

Federal 

Courts 



Vol. 32 
Number 2 
February 2000 




And the Last Shall Be First... 

The Senate confirmation of Judge 
Richard Linn to the Court of Appeals 
for the Federal Circuit went right 
down to the wire in the waning hours 
of the 106 th Congress' first session. "I 
realized when the Senate confirmed 
me on November 19, just before they 
adjourned," said Linn, "that mine 
would be the last judicial confirma- 




Judge Richard Linn is sworn in by Chief 
Judge H. Robert Mayer. Mrs. Patricia Linn 
holds the bible. 

tion of the 20 th century." He men- 
tioned that historical fact to his 13- 
year-old nephew, Christopher, 
whose great grandfather was Judge 
Orrin Lewis (E. D. Va.) and whose 
father and grandfather are attorneys. 
Christopher considered for a mo- 
ment, then, with the legal acuity he'd 



obviously inherited, suggested his 
uncle therefore should be the first 
federal judge sworn in of the new 
century. 

"I proposed to Chief Judge H. 
Robert Mayer that I be sworn in at 
the court on New Year's Eve and he 
was very supportive," said Linn, who 
couldn't have chosen a better time or 
location for his ceremony. The 
chambers of Chief Judge Mayer look 
out on the Washington Monument, 
where fireworks and other festivities 
were scheduled as part of the 
nation's millennium celebration. 

In due course, family and friends 
gathered in Chief Judge Mayer's 
chambers. Judge Alan Lourie (Fed. 
Cir.) had synchronized his watch 
with the cesium clock in Colorado, to 
assure to the second the accurate 
time, and at the stroke of midnight 
Judge Linn placed his hand on the 
bible to take the oath. "Just at that 
moment the fireworks erupted around 
the Monument," relates Linn. "I was 
naturally focussed on the oath and 
making sure I didn't leave out 
something, but it was difficult with 
all the fireworks going off." With 
theatrical flair, a crescendo of fire- 
works broke over the Mall as Linn 
finished the oath. "I'll never, ever 
forget it," said Linn, the nation's first 
new federal judge in the brand new 
21 st century. &^ 



INSIDE 



Senate Judiciary Committee Reports on Judiciary pg. 2 

Firearms Cases Rise in District Courts pg. 4 

New USMS Director Talks About Security pg. 10 



White House Requests 
Funds Fur Year 2001 
Courthouses 

The early news on the 
President's fiscal year 2001 
budget is that there is about 
$500 million in the General 
Services Administration budget 
request earmarked for the 
Judiciary's courthouse construc- 
tion program as well as a new 
courtroom sharing policy devel- 
oped by the Office of Manage- 
ment and Budget. The funding 
is a change of heart for the White 
House and OMB, which has 
turned down GSA's requests 
for courthouse construction funds 
for the past three years. The 
action follows a top level White 
House meeting in December 
attended by Judges Jane Roth 
(3 rd Cir.) and John Heyburn 
(W.D. Ky.), and Administrative 
Office Director Leonidas Ralph 
Mecham. The decision to fund 
these urgently needed court- 
houses also is due to early 
appeals by judges and Members 
of Congress with courthouse 
projects in, respectively, their 
districts and states. Administra- 
tive Office staff conducted a 
non-stop information campaign 
directed at congressional staff 
on why the courthouses are 
considered necessary. "After 

See Courthouses on page 2 



Courthouses continued from page 1 
three years of funding neglect, the 
list of courthouse construction 
projects is long and the need for the 
facilities is even greater," said 
Mecham. "However, we've done our 
part to prioritize the projects, each of 
which adheres to the construction 
cost-savings and efficiencies of the 
U.S. Courts Design Guide. Now it's up 
to Congress." 

The GSA budget request for 
courthouses has been reduced 
from original estimates based on a 
new courtroom sharing policy, 
developed by OMB, that would 
require the sharing of courtrooms at 
the ratio of two courtrooms for every 
three judges at a court location. 
When computing the ratio, the 
number of judges includes all active, 
senior, magistrate and bankruptcy 
judges. The policy affects all projects 
in the FY01 plan. 



In March 1997, the Judicial 
Conference reaffirmed its policy 
on courtroom sharing that pro- 
vides for one courtroom for each 
active district court judge. With 
regard to senior judges and to 
visiting judges, the policy sets forth 
a non-exclusive list of factors for 
circuit judicial councils to consider 
when determining the number of 
courtrooms needed at a facility. 
Courts are encouraged to provide 
for flexible and varied use of court- 
rooms. 

The courthouses for which 
funding has been included in the 
President's FY01 budget are 

Los Angeles, California. 

Seattle, Washington. 

Richmond, Virginia. 

Gulfport, Mississippi. 

Washington, D.C. 

Miami, Florida. 

Little Rock, Arkansas. 



Y2K ? No Worries 

So, the year 2000 is here and 
you're wondering what the fuss 
was all about. 

"For the most part, Y2K was a 
non-event for the judicial commu- 
nity," Administrative Office 
Director Leonidas Ralph Mecham 
reported. "But this is the direct 
result of the hard work and prepa- 
ration put into our Y2K efforts by 
people throughout the Administra- 
tive Office and the courts." 

Howard Grandier, the Judici- 
ary's Y2K Program Manager, was 
one of those people. He and his 
team spent countless hours check- 
ing nationwide computer systems 
and software applications, assisting 
courts as they made locally modi- 
fied programs Y2K compliant, 
and, finally, preparing contin- 
uity plans to minimize possible 
service interruptions. 

For Grandier, none of this was a 



waste of time or manpower. "I 
know that when we tested our 
nationally supported Integrated 
Case Management System, which 
is used in virtually every federal 
court, the system would not docket 
properly for events occurring in 
2000. We made it Y2K compliant," 
said Grandier. "Similar testing was 
done on all the nationally supported 
applications, including the person- 
nel/payroll and financial systems, 
and if they had not been fixed, 
there would have been problems." 
A number of courts conducted 
system testing on New Year's Day. 
Judiciary support staff also were 
on-duty in Washington, as well as 
in the Technology Training and 
Support Center in San Antonio, 
Texas, to respond to any problems. 
According to Grandier, there were 
a few Y2K-related glitches reported 
for the nationally supported appli- 
cations, but most were actually 
repaired by the on-site team that 
worked on New Year's Day. £v^ 



Hatch Releases Report 
on Judicial Branch 

Citing the special relationship the 
Senate Judiciary Committee enjoys 
with the judicial branch, committee 
chair, Senator Orrin Hatch (R-UT) 
released a Report on the State of the 
Federal Judiciary, in the last days of 
1999. 

Hatch concluded that, "At the 
end of the first session of the 106 th 
Congress, the federal Judiciary is 
once again sufficiently staffed and 
funded to perform its function 
under Article III of the Constitu- 
tion." 

The report described the year's 
progress in four areas: the vacancy 
rate, the Sentencing Commission, 
funding, and jurisdiction of the 
courts. 

By the end of the first session, the 
committee could report 56 judicial 
vacancies, "yielding a vacancy rate 
of just 6.6 percent — the lowest 
vacancy level since the expansion of 
the Judiciary in 1990." 

Hatch's report also noted the 
confirmation in 1999 of all seven 
nominees to the U.S. Sentencing 
Commission. After a year without 
any commissioners, the report said, 
the commission faces substantial 
challenges, among them a number 
of circuit splits over interpretation 
of the guidelines. The commission 
also has a number of congressional 
directives to act upon, including 
penalties for sexual predators, and 
for the cloning of wireless tele- 
phones. 

There was an overall funding 
increase for the judicial branch in 
1999, "despite," Hatch said, "sub- 
stantial budget pressures facing 
every branch of government." This 
modest increase allowed for the 
payment of a "long overdue" 3.4 
percent cost-of-living increase for 
federal judges, the authority for the 
Administrative Office to pay 
increases in premiums for judges 4 



The Third Branch m February 2000 



over age 65 under the Federal 
Employees Group Life Insurance 
program, and a $5 per-hour increase 
in the fees paid to panel attorneys for 
services in representing indigent 
parties before federal courts. 

Funding challenges remain, 
however. "While current law re- 
quires the Executive Branch to 
submit the Judiciary's annual 
budget request to Congress 'with- 
out change,' the Administration's 
Office of Management and Budget 
(OMB) has time after time decreased 
the Judiciary's current year operating 
budget request indirectly through 
the use of negative allowances," 
Hatch reported. "Moreover, the 
Administration has zeroed out the 
Judiciary's reasonable requests for 
courthouse construction funding for 
the last several years." Hatch said 
he joined with fellow Senators 
Thad Cochran (R-MS), Patrick Leahy 
(D-VT), Ted Stevens (R-AK), William 
Roth (R-DE) and Susan Collins 
(R-ME) to introduce the Federal 
Courts Budget Protection Act, 
which will allow the Judiciary to 
submit its operating budget and 
courthouse construction budget 
directly to Congress without ap- 
proval by OMB. 

In the report, Hatch noted that 
many have expressed concern over 
action by Congress that increases the 
scope of jurisdiction of the federal 
courts, a concern he says is well 
taken. "Congress should consider the 
impact on the resources and jurisdic- 
tion of the federal courts for each 
piece of legislation that it passes," 
the report stated, then went on to cite 
examples of some of the affirmative 
steps Congress has taken to reduce 
the federal caseload. Among these 
was the Prison Litigation Reform Act 
of 1995, which Hatch reported has 
helped to curb the "endless and often 
frivolous habeas petitions filed by 
prisoners," and the Antiterrorism 
and Effective Death Penalty Act of 
1996, which has "helped curb the 
number of redundant habeas peti- 



tions that produced years of needless 
delays in capital cases." 

Hatch also said two bills consid- 
ered last session, H.R. 2112, the 
Multidistrict Jurisdiction Act, and S. 
254, the Violent and Repeat Juvenile 
Offender Accountability Act of 1999, 
are examples of "consideration by 
Congress of impact on the federal 
courts." For example, S. 254, while it 
would create new federal crimes, 
avoids "numerous opportunities to 
increase federal jurisdiction over 
juvenile crimes by making grants to 
state court systems." 

Hatch gave fair warning that even 
as Congress considers the impact of 
legislation on the courts, it must 



respond to technological break- 
throughs and their consequent 
impact on national and international 
commerce with the appropriate 
legislation. "As the technology- 
driven economy expands, criminal 
practices become more sophisti- 
cated, and civil justice issues con- 
tinue to unfold," said the report, 
"Congress will respond where 
appropriate to protect the interests 
of the American people. However, 
the Committee and Congress as a 
whole will continue to take into 
consideration the impact of legisla- 
tion on the jurisdiction and resources 
of the federal courts and on our 
federal system." &^ 



USSC Commissioners Begin Work 




Photo by: Twin Lens Photo 



Back at full strength at last, the newly appointed commissioners of the 
U.S. Sentencing Commission are making up for lost time. The USSC had 
been without commissioners since October 31, 1998. New members were 
confirmed November 10, 1999. Standing, left to right, are ex-officio commis- 
sioner Laird C. Kirkpatrick; Judge Joe Kendall (N.D. Tex.); vice-chair Judge 
William K. Sessions, III (D. Vt.); Judge Sterling Johnson, Jr. (E. D. N.Y.); 
Professor Michael O'Neill; and ex-officio commissioner Michael J. Gaines. 

Seated, left to right, are vice-chair John R. Steer; chair Judge Diana E. 
Murphy (8 th Cir.); and vice-chair Judge Ruben Castillo (N.D. 111.). 



The Third Branch m February 2000 






Firearms Cases Rise in District Courts 



The number of firearms cases filed 
in the U.S. district courts rose 
sharply between 1989 and 1991, 
and fluctuated between 3,000 and 
4,000 cases filed per year from 
1991 through 1998. By the end of 
the 10-year period, the number 
of cases had risen 61 percent, com- 
pared to a 25 percent increase 
overall for criminal cases, 
according to the Administrative 
Office. Policy decisions, new 
federal laws, and a Supreme 
Court ruling contributed to the 
fluctuations. By 1998, not only 
were more firearms cases enter- 
ing the federal courts, but these 
cases involved more defendants 
and they took longer to resolve. 
With $7 million in fiscal year 
2000 for the expansion of firearms 
prosecution projects and the 
enforcement of existing federal 
firearms laws, the impact on 
federal courts in the immediate 
future is likely to be significant. 

Case Numbers Up 

Firearms cases are a significant 
portion of the criminal caseload in 
districts throughout the nation, 
unlike, for example, immigration 
cases, which are concentrated in 
the southwest border districts. 
While the total number of firearms 
cases fluctuated within a range of 
3,000 to 4,000 cases per year be- 
tween 1991 and 1998, following 
the significant rise in filings be- 
tween 1989 and 1991, the overall 
number of cases, the number of 
defendants per case, and the time 
required to close the cases in- 
creased. 

From 1989 to 1998, firearms cases 
began to involve more defendants, 
with the ratio of defendants per 
case filed rising from 1.11 in 1989 
to 1.22 in 1998. At the same time, 
the median time from filing to 



disposition for defendants charged 
with firearms offenses rose from 
5.1 months to 7.1 months, an in- 
crease of 39 percent. By contrast, 
the median time for all defendants 
charged with felony offenses rose 
23 percent. With the exception of a 
nominal decline in 1998, the median 



are resolved through guilty pleas or 
dismissals. 

Along with the growing number 
of defendants per case, the case 
weight is also an indicator of the 
resource intensive nature of fire- 
arms cases. A case weight of 1.69 
for firearms cases demonstrates 



Firearms Cases Filed in U.S. District Courts 



4,000 



3,500 -- 



3,000 



2,500 -- 



2,000 




1989 1990 1991 



1992 1993 1994 1995 1996 1997 

Fiscal Year 



1998 



disposition time for firearms offenses 
increased every year, even in the 
years when the number of filings 
declined. 

Overall, fewer defendants went 
to trial in district court between 
1989 and 1998, even though both 
the number of defendants convicted 
and the conviction rate rose during 
that time. The rate of firearms 
defendants disposed after jury 
trials also declined, but at a much 
slower rate than for other offenses. 
In 1989, 17 percent of drug de- 
fendants were disposed of after 
jury trials, compared to 14 percent 
of firearms defendants. By 1998, 
11 percent of firearms defendants 
resolved their cases via jury trials, 
compared to 7 percent of drug 
defendants. Defendants who have 
their cases resolved after a jury 
trial use significantly more court 
resources than those whose cases 



the amount of time required by 
judges to resolve a firearms case 
in comparison to other types of 
cases. The average civil or cri- 
minal defendant would receive a 
weight of 1.0. The case weight of 
1.69 for firearms defendants means 
that a judge will spend 70 percent 
more time on a firearms defendant 
than for the average civil case or 
felony defendant. 

The number of firearms cases 
has grown significantly since 1989 
and it is expected that the number 
of these cases brought into dis- 
trict court will continue to rise in 
the near future. Congress has ear- 
marked $7 million from the Depart- 
ment of Justice (DOJ) appropriation 
for FY00 to "continue and expand 
intensive firearms prosecution 
projects, to enforce federal laws 
designed to keep firearms out of 
the hands of criminals, and to 4 



4 



The Third Branch m February 2000 



enhance existing law enforcement 
efforts." President Clinton also has 
announced his intention to make 
enforcement of existing firearms 
laws a higher budget priority. 
Historically, initiatives such as these, 
including legislation, personnel 
increases, and changes in enforce- 
ment policies have led to more 
firearms cases filed in the federal 
courts. 

Rise in Case Numbers Follows 
Legislation, Initiatives 

District courts saw the first 
substantial increase in firearms 
cases since the 1970s following the 
passage of the Anti-Drug Abuse 
Act of 1988. A provision of this act 
enhanced the penalties for using 
certain firearms in connection with 
a crime of violence or drug traff- 



icking. Following passage of the 
act, 244 agents were added to the 
Bureau of Alcohol, Tobacco and 
Firearms, and the DOJ had hired 
more than 600 additional prose- 
cutors by 1990. These changes 
were followed by a 71 percent rise 
in the number of firearms cases 
filed in district courts in just two 
years. 

A 1991 national policy initiative 
by DOJ, Project Triggerlock, had 
a similar effect. The initiative used 
federal firearms statutes to target 
the most dangerous violent cri- 
minals and it brought many defen- 
dants into federal court who might 
previously have been prosecuted at 
the state or local level. By 1992, 
firearms filings had hit what would 
be their peak within the 10-year 
period. 

Following a DOJ hiring freeze 



that affected federal prosecutors, 
and FBI, DEA, Customs, and INS 
agents, firearms cases plunged for 
two consecutive years. When the 
freeze lifted at the end of 1994, 
filings of firearms cases increased 
16 percent in 1995, due to a DOJ 
Anti-Violent Crime Initiative and 
the enactment of the Violent 
Crime Control and Law Enforce- 
ment Act. A 1995 ruling by the U.S. 
Supreme Court may have caused a 
two-year decline in firearms case 
filings in 1996. In Bailey v. U.S., the 
Court held that enhanced penalties 
for using a firearm during a drug 
trafficking offense or crime of 
violence could not be applied unless 
a defendant actively used a firearm. 
But by 1998, firearms filings had 
risen 14 percent, mirroring an over- 
all 15 percent increase in criminal 
cases. £»^ 



Judiciary's Goal: 

Outstanding Service at Reasonable Cost 



The Judiciary's continuing effort 
to operate as cost effectively as 
possible while maintaining super- 
ior service to the bench, bar, and 
public is documented in the fourth 
annual Report to Congress on the 
Optimal Utilization of Judicial Re- 
sources. Covering fiscal year 1999, 
the report also discusses initiatives 
ongoing in or planned for fiscal year 
2000. 

"The challenge has been to 
improve services and productivity, 
while reducing costs," said Adminis- 
trative Office Director Leonidas 
Ralph Mecham. "And from very 
large national projects to more 
modest local activities, all of our 
program areas are contributing to the 
effort." 

Among the initiatives for fiscal 
years 1999 and 2000, and beyond are 
the following: 



Budgetary Actions 

■ A decision to limit growth in 
nationwide staffing, given tight 
government-wide spending levels, 
reduced the FY00 budget by 
about $89 million. In addition, in 
its FY01 budget request, 

the Judiciary requested only 
modest increases in court support 
staff to accommodate growing 
workload. This reduced the 
budget request by about $51 
million. A decision not to request 
full-year funding for the new 
positions further reduced the 
request by $21 million. 

■ To minimize an expected funding 
shortfall in FY00, 189 court units 
around the country returned 
nearly $15 million in allotted 
FY99 funds that would have 
gone towards hiring needed 



staff, training, automation 
projects, and other activities. 

Automation and Technology 

■ Between $11 and $12 million in 
personnel costs are avoided 
annually by requiring access only 
through Judiciary-administered 
national gateway connections. 
This national approach also 
avoids $6.5 million annually in 
hardware and software costs. 

■ Blanket purchasing agreements 
and other competitive contracts 
reduce the administrative burden 
on courts of acquiring personal 
computers and local-area network 
hardware, which translates to 
about $50,000 annually in effi- 
ciency savings. 

■ The acquisition of Judiciary- wide 
software licenses and support 
agreements produces discounts 
for large quantity purchases, and 

See Optimal on page 6 



The Third Branch m February 2000 





Optimal continued from page 5 


mailing, and distribution costs, 


of the bankruptcy noticing 






since many national publications 


function and reduces costs 




the Judiciary expects to avoid a 


now are available on the web. 


through a series of price re- 




total of about $2 million in costs 


Over 100 court units make 


ductions over the 10-year life 




in FY99 through FY01. 


available over the Internet 


of the contract. The new con- 






filing information, local rules, 


tract generated cost avoidances 




■ Replacing with modern systems 


jury instructions, judicial opin- 


of over $700,000 in FY99. 




the aging telephone systems in the 


ions, motion calendars, and a 


Projected cost avoidances for 




Thurgood Marshall Federal 


host of other items. The Internet 


FY00 through FY03 total $5.5 




Judiciary Building and in 20 


also allows comments on pro- 


million, subject to the actual 




courts will consolidate service 


posed local rules. Probation 


number of bankruptcy filings 




on fewer lines than 


and pretrial services officers 


and associated noticing require- 




required by alternative 




ments. 




telephone solutions, and .-,...,' 








yield an annual cost M 




■ A Productivity Improvement 




avoidance of about $1.4 


H 


Exchange Web Site, available 




million while improving 


k^H 


nationwide in FY99 for courts, 




service to the public. 


Jjp^j 


now includes over 380 initia- 




1 


i£gi wf\Z^\- \ 


tives to save money, improve 




■ Implementation of the 


vjtt w^^ 


productivity, and increase effi- 




final software modules of M 


PvO : ffjffit-iZSM 


ciency or effectiveness. 




the Integrated Library :J1 








System, a system for 


mhmm*d*Mr« §* 


■ Software is being developed 




procuring lawbooks and 


*sr,<T*EmPs 


that will reduce the time spent 




maintaining inventories, 


fk Vj/^r 


on data gathering and analysis 




enhanced the productivity m 
of court library staff and 




of demographic and employ- 
ment dispute resolution statisti- 




improved library opera- 


cal data, which may save the 




tions. 


^W 


Judiciary about $100,000 
annually. 




■ Preliminary survey data 


w\miMmim^m^M*WWSMB&toesi!&*&!!*#* 






show that courtroom _ , 




■ A new National Court Inter- 




Exploring the use of technologies to improve quality 
& and efficiency continues to be a major Judiciary 


preter Database helps courts 




include video-evidence initiative. 


locate court interpreters speak- 




presentation and 




ing a multitude of languages for 




videoconferencing 


use the Internet to research 


the over 217,000 court events that 




produce efficiencies for the 


defendant histories and 


required the use of an interpreter 




Judiciary, attorneys, and 


investigate cases. Internally, the 


in FY99. 




U.S. Marshals. A June 1998 study 


Judiciary uses the J-Net for 






confirmed earlier views that 


posting policies, procedures, 


■ The Telephone Interpreting 




technology in courtrooms can 


manuals, publications, and other 


Program provides interpreter 




facilitate case management and 


information. 


services from remote locations 




decision-making, reduce trial 




by telephone at about $29 per 




time and litigation costs, and 


■ Implementation of one module 


event, where on-site services 




improve the quality of evidence 


of the Magistrate Judge Sta- 


ranged from $65 to $135 for a 




presentation, fact-finding, jury 


tistics Through Automated 


half-day, plus travel costs if 




attentiveness and understand- 


Records project produces per- 


the interpreter is not local. Anec- 




ing, and access to court pro- 


sonnel efficiencies of over 


dotal evidence shows that cus- 




ceedings. 


$100,000 annually in FY00 and 


tomer satisfaction with the Tele- 






beyond. 


phone Interpreting Program is 




■ The increased use by the Judic- 




high. 




iary of the Internet and its own 


■ A new Bankruptcy Noticing 






Intranet site, the J-Net, has saved 


Center contract expands services 


■ Expanded use of hand-held drug 


6 


time and reduced printing, 


provided to the courts in support 


testing devices to detect illicit ^ 


The Third Branch m February 2000 









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drug use by persons under super- 
\ ision is expected to produce 
annual savings of about $810,000 
in FY99 to almost $2 million by 
FY03. The devices detect illicit 
use in less than 10 minutes, versus 
the 3-4 days of the traditional lab 
analysis, and cost about $3, 
compared to $8.40 to send and 
test at an off-site lab. 



Defender Services Program 

■ The cost-management initia- 
tives in capital habeas corpus 
cases, including the preparation 
of proposed defense litigation 
budgets with the aid of an 
automated case budget and 
management program to help 
anticipate and contain costs, and 
revised compensation request 
forms to give judges a complete 
payment history, have been 
incorporated into the official 
procedures guide. In the Ninth 
Circuit alone, the average annual 
cost per capital habeas corpus 
case went from $76,506 in 1996 
to $47,675 in 1999. The Ninth 
Circuit has continued to reduce 
total costs while the number 

of representations has been 
growing. 

■ The use of national contracts to 
reduce defender office software 
costs has avoided costs of 
$350,000 in FY99 with the same 
expected in FY00 and beyond. 

Court Security 

■ The development of a manual 
with consolidated guidelines 
on security system installation 
for use by the U.S. Marshals 
Service and security contractors 
is expected to avoid costs of 
about $450,000 in at least three 
courthouse projects. Additional 
cost avoidances are expected 

in new and renovated court- 
houses. 



Education and Training 

■ Satellite broadcasting of training 
and informational programming, 
videoconferencing, and video 
and computer-based training 
programs, are expected to avoid 
significant travel costs in the 
coming years. For the video and 
computer-based training pro- 
grams alone, this could reduce 
travel costs by about $160,000 
annually. 

Among the many ongoing or 
planned projects and programs in 
FY00, working groups or indepen- 
dent contractors will study and make 
recommendations on revised staffing 
allocation formulas, the application 
of the U.S. Marshals Service court 
security officers staffing formula, 
and the effectiveness and efficiency 



of the space and facilities, court 
security, automation, and probation 
and pretrial services programs. Over 
the next year or more, the Judiciary 
will begin the conversion of its Data 
Communications Network from a 
leased line to frame relay technology 
to increase speed, and will expand 
its Public Access Network to give the 
public better access to court informa- 
tion. Also, the Judiciary is exploring 
the use of remote technologies to 
assist in the supervision of defen- 
dants and offenders and is continu- 
ing to develop the electronic dissemi- 
nation of information. In another 
effort, the Judiciary is in the process 
of implementing nationwide a single 
financial accounting system that will 
automate and streamline many 
financial recording and reporting 
activities. £-^ 



Peanut Bui 

Everyone has heard the one 


Iter Bungle 

peanut butter returned and 


about the frivolous prisoner 


replaced by what he had ordered, 


lawsuit filed over being served 


the prison guard took it back and 


chunky peanut butter instead of 


promised to replace it the next day, 


the creamy variety. In fact, a 


the prisoner was transferred 


December 1999 Third Branch article 


during the night to another prison, 


on the changing trends in prisoner 


and his account remained debited 


petition filings quoted a congres- 


for the $2.50 item that had been 


sional source on just such a peanut 


returned." 


butter lawsuit. Well, not so fast. 


The money in question may 


Judge Jon O. Newman (2 nd Or.), 


seem inconsequential to most of 


who is the author of an article* on 


us, but to a prisoner with ex- 


pro se prisoner litigation, tells The 


tremely limited funds, it is not. 


Third Branch that particular case 


However, the more important 


was not about preference in 


point, writes Newman, "is that 


peanut butter, but about unfair 


those in positions of responsi- 


docking of funds. 


bility should not ridicule all 


"The true facts," Newman 


prisoner lawsuits by perpetuating 


wrote in his letter to The Third 


myths about some of them." 


Branch, "are that the prisoner sued 


Point taken. &^ 


because the prison had wrongfully 




deducted the price of a jar of 


*Jon O. Newman, "Pro Se 


peanut butter, $2.50, from his 


Prisoner Litigation: Looking for 


commissary account. He had 


Needles in Haystacks," 62 Brook. 


asked to have the wrong jar of 


L. Rev. 519 (1996). 



The Third Branch m February 2000 



JUDICIAL MILESTONES 



Appointed: Ronald M. Gould, as U.S. 
Court of Appeals Judge, U.S. Court of 
Appeals for the Ninth Circuit, January 3. 

Appointed: Florence-Marie Cooper, as 

U. S. District Judge, U. S. District Court 
for the Central District of California, 
November 28. 

Appointed: Richard K. Eaton, as Judge, 
U.S. Court of International Trade, 
January 3. 

Appointed: Joan L. Cooper, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Western District of Ken- 
tucky, December 22. 

Appointed: Marian F. Harrison, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Middle District of Tennes- 
see, December 21. 

Appointed: Jeffrey R. Hughes, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Western District of Michi- 
gan, January 6. 

Appointed: Kristi D. Lee, as U.S. 
Magistrate Judge, U.S. District Court for 
the Southern District of Alabama, 
January 5. 

Appointed: Virginia Anne Phillips, as 

U.S. District Judge, U.S. District Court 
for the Central District of California, 
December 27. 

Elevated: Bankruptcy Judge Arthur B. 
Federman, to Chief Judge, U.S. Bank- 
ruptcy Court for the Western District of 
Missouri, succeeding Bankruptcy Judge 
Frank W. Koger, January 1. 

Elevated: Bankruptcy Judge Judith K. 
Fitzgerald, to Chief Judge, U.S. Bank- 
ruptcy Court for the Western District of 
Pennsylvania, succeeding Bankruptcy 
Judge Warren W. Bentz, January 8. 

Elevated: Bankruptcy Judge Marcia S. 
Krieger, to Chief Judge, U.S. Bankruptcy 
Court for the District of Colorado, 
succeeding Bankruptcy Judge Charles E. 
Matheson, January 5. 

Elevated: Bankruptcy Judge John C. 
Ninfo, II, to Chief Judge, U.S. Bank- 
ruptcy Court for the Western District of 
New York, succeeding Bankruptcy Judge 
Michael J. Kaplan, January 1. 



Elevated: Bankruptcy Judge Patricia 
C. Williams, to Chief Judge, U.S. Bank- 
ruptcy Court for the Eastern District of 
Washington, succeeding Bankruptcy 
Judge John A. Rossmeissl, June 15. 

Senior Status: Court of Appeals Judge 
Stephen H. Anderson, U.S. Court of 
Appeals for the Tenth Circuit, January 
1. 

Senior Status: Court of Appeal Judge 
James L. Ryan, U.S. Court of Appeals 
for the Sixth Circuit, January 1. 

Senior Status: Judge Patrick A. 
Conmy, U.S. District Court for the 
District of North Dakota, January 5. 

Senior Status: Judge Alan Cooke Kay, 

U.S. District Court of the District of 
Hawaii, January 2. 

Senior Status: Judge George M. 
Marovich, U.S. District Court for the 
Northern District of Illinois, January 2. 

Senior Status: Judge Kenneth L. 
Ryskamp, U.S. District Court for the 
Southern District of Florida, January 1. 

Senior Status: Judge George Kendall 
Sharp, U.S. District Court for the 
Middle District of Florida, January 1. 

Senior Status: Judge John E. Sprizzo, 

U.S. District Court for the Southern 
District of New York, January 1. 

Retired: Bankruptcy Judge Roland J. 
Brumbaugh, U.S. Bankruptcy Court for 
the District of Colorado, January 3. 

Retired: Magistrate Judge John E. 
Dougherty, U.S. District Court for the 
Northern District of Georgia, January 1. 

Retired: Magistrate Judge George T. 
Swartz, U.S. District Court for the 
Middle District of Florida, January 7. 

Deceased: Senior Judge Charles M. 
Allen, U.S. District Court for the Wes- 
tern District of Kentucky, January 4. 

Deceased: Bankruptcy Judge William 
J. O'Neill, U.S. Bankruptcy Court for 
the Northern District of Ohio, January 
12. 

Deceased: Senior Judge John M. 
Shaw, U.S. District Court for the Wes- 
tern District of Louisiana, December 24. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

Visit our Internet site address at 

http: / / www.uscourts.gov 

DIRECTOR 

Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 

CONTRIBUTORS 
Patrick Walker, AO 
Pragati Patrick, AO 

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



JUDICIAL BOXSCORE 



As of February 1, 2000 

Courts of Appeals 
Vacancies 
Nominees 

District Courts 
Vacancies 
Nominees 

Courts with 
Judicial Emergencies 



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



The Third Branch u February 2000 



Slicing the FY 2000 Budget Pie 




I\L. 106-113, the Consolidated 
Appropriations Act, appropriated 
$3.94 billion to the 
Judiciary for fiscal 
year 2000. This 
included a 
reduction for 
all federal 
agencies of .38 
percent, which 
reduced the 
Judiciary's 
appropriation by 
approximately $14 
million from the earlier 
conference agreement. Following 
the review and approval of the 
financial plans by the Judicial 
Conference Executive Committee, 
the funding provided to the courts 
of appeals, district courts, and other 
judicial services is divided up in 
support of staffing, services and 
programs. 

Ninety-five percent of the FYOO 
budget (Figure 1) funds the courts 
of appeals, district courts, and 
other judicial services. The remain- 
ing 5 percent is divided between 
the Supreme Court, the Court of 
Appeals for the Federal Circuit, 
the Court of International Trade, 
the Administrative Office, the 
Federal Judicial Center, 
payments to the 
Judiciary 



Courts of Appeals, District 
Courts, and other judicial 
services 

Supreme Court, 
Federal Circuit, 
Court of International 

Trade, AO, FJC, 

USSC 



Figure 




Trust Fund, and the 
U.S. Sentencing Com 
mission. 
The 95 percent of the 
total Judiciary budget 
earmarked for the courts 
and other judicial 
services can be 
broken down 
further (Figure 2). 
Eighty-three 
percent is 
allocated to 
court salaries 
and expenses. 
Ten percent is 
for the 

operation of the 
federal public defender 
and community de- 
fender organizations, 
compensation for private 
attorneys representing indigent 
defendants, and fees of 
persons providing 

investigative, expert, 
and other services. 
Five percent of 
the funds going 
to the courts 
provides for 
court security; 



Salaries & 
Expenses 

Defender 
Services 

Court Security 

Fees of Jurors 



the procurement installation, and 

maintenance of security equipment; 
and protective services including 
court security officers for the courts. 
With this funding, the U.S. Marshals 
Service administers the Judicial 
Facility Security Program. Two 
percent pays for fees and expenses 
of jurors. 

The 83 percent allotted to court 
salaries and expenses is further 
divided. (Figure 3) Fifty-two percent 
is allotted for the salaries and 
benefits of court personnel. Twenty- 
two percent goes to space and 
facilities, including space rental costs 
charged by Gen- 
eral Services 




Figure 3 



Personnel 
Salaries & 
Benefits 



Administra- 
tion; 9 
percent for 
judges' 
salaries and 
benefits; and 
10 percent 
for court 
operating 
expenses, 
including 
court 
support 

programs. Automation and technol- 
ogy in the courts receives 7 percent 
of the salaries and expenses pie and 
1 percent is devoted to other court 
programs and reserves. ^^^ 



Operating 
Expenses 

Space & 
Facilities 

Judges' Salaries 
& Benefits 

Automation & 
Technology 

Other Programs 



.9 



The Third Branch m February 2000 



INTERVIEW 



USMS Director John W. Marshall Talks Security 



10 



John W. Marshall was sworn in as the 
Director of the U.S. Marshals Service on 
February 1, 2000. He was previously U.S. 
Marshal in the Eastern District of 
Virginia, and he is the first black director 
of the USMS. 

Q # What do you see as the most 
• immediate challenge facing 
the United States Marshals Service 
(USMS)? 

A # I'd like to break that down 
• into internal and external 
challenges. Without a doubt, inter- 
nally, the greatest challenge that I'm 
dealing with is our budget. Last year 
we were faced with a budget shortfall, 
which included a hiring freeze that 
has affected all of our offices. 

It was clear we needed to change 
the way we formulate and execute the 
budget. This year, we've started a 
whole new budget review process 
we're calling a bottom-up review. We 
have support for this new program 
from the Hill and from the Depart- 
ment of Justice. We're looking at our 
headquarters components. Then we're 
going to be looking at our districts to 
see exactly the services provided and 
the amount of resources — monetary 
and staffing — needed around the 
country. Our bottom-up budget 
review is going to turn around the 
way that we ask for resources and lay 
a better foundation for requesting 
those resources. We're creating a new 
model for our districts to request 
resources, and with the terrific feed- 
back we've received on this process, 
we think we're on the right track. 

Externally, we're trying to be as 
proactive as we can with regard to our 
primary mission of protecting the 
federal Judiciary. As was evidenced 
last year with all the preparations for 
Y2K and the increase in the number of 



The Third Branch m February 2000 



terrorism cases and terrorism-related 
threats, that's an area we need to 
concentrate on and do everything we 
can to be prepared. 

An excellent train-the-trainer pro- 
gram that we have under way deals 
with the threat of chemical weapons. 
The trainers will go back to the dis- 
tricts to provide training to the court 
family on those types of threats. It's 
our job to be the leader in protecting 
the Judiciary, and to provide training 
to the court family as to what they can 
expect, how they should respond, 
and how we are going to respond. 

I'm very honored to be in the 
position I am. I look forward to wor- 
king with the Judiciary, to working 
with the Administrative Office, to 
make sure we're doing everything 
we can to safeguard and protect the 
federal Judiciary and the judicial 
system. 



Q, You are the first U.S. Mar- 
• shal to become Director of 
the U.S. Marshals Service. How has 
your previous experience prepared 
you for your role as Director? 

A # Twofold. I have about 51/2 
• years of experience as a 
marshal in the Eastern District of 
Virginia, a very large and busy 
district. I've learned a lot about the 
U.S. Marshals Service and our role. 
In addition to overseeing a district 
operation, I've had quite a lot of 
dealings with our headquarters in 
Northern Virginia. I was chairman of 
the Leadership Council, which is a 
combination of U.S. Marshals and 
chief deputies from around the 
country, and I served in an advisory 
capacity to the U.S. Marshals Service 
Director. I've also been attending the 
Director's senior staff meetings for 




John W. Marshall 



over a year. So I have a good feel for 
the Marshals Service operation in the 
field, in addition to knowing how the 
Marshals Service headquarters works. 
I also bring 14 years of experience 
with the state police in Virginia. Our 
deputies, our districts around the 
country, and even our headquarters 
to a certain extent, interact everyday 
with other local, state, and federal 
agencies in our fugitive investiga- 
tions, our asset forfeiture program, 
and other programs. I bring a good 
mix of experience dealing with the 
federal Judiciary and agencies as a 
district marshal, along with my 14 
years with the state police. 



Q 



What are the responsibilities 
and priorities of the USMS? 



A. In addition to protecting the 
• federal Judiciary, we obvi- 
ously have a lot of other programs 
that we're involved in and that we're 
also very proud of. Probably the one 
that is most publicized is fugitive 
apprehension. I think that without a 
doubt we are the best in the country 
in doing that. We annually arrest 
more federal fugitives than all the 
other federal law enforcement 
agencies combined. 

In the 20 years the witness security 
program has been in existence, we've 



never lost a protected witness who 
followed the rules and stayed in the 
program. We've made tremendous 
strides in increasing the efficiency of 
our asset forfeiture program. We 
transport prisoners daily and it's a 
very efficient system. As a matter of 
fact, I recently visited our operation 
in Oklahoma City that is the hub for 
moving all the prisoners around the 
country. 

I'm certainly very proud of all the 
operations that we conduct, but we 
were created with the federal 
Judiciary in the same act, and we 
have not lost sight that protecting 
the federal Judiciary remains our 
core responsibility. 



Q # How would you assess the 
• overall security of federal 
courthouses? 

A. We go, I think, from one 
• extreme to another. For 
example, in the Eastern District of 
Virginia, when I began in 1994, we 
were in a very beautiful, historic 
building in Old Town Alexandria. 
But as far as security, that building 
was a nightmare. There was no sally 
port; we unloaded prisoners right on 
the sidewalk. There was one eleva- 
tor, no secure prisoner corridors, and 
just a lot of things that made our job 
very difficult. We went from that 
into the new Albert V. Bryan U.S. 
Courthouse in Alexandria in 1996, 
which has a secure sally port, 
separate prisoner transportation 
routes through the building, routes 
for the Judiciary and routes for the 
public, along with all other kinds of 
security. We really went from one 
extreme to the other, and saw the 
value of the latest in technology and 
security. 

Unfortunately there still are a lot of 
courthouses around the country, a lot 
of the older courthouses, that are not 
set up structurally to adequately 
adjust to our security requirements. 
So that remains a concern and we 



certainly depend on Congress to 
fund security-related measures. I'll 
look forward to working with them 
because I know that ultimately the 
security of the Judiciary, the court- 
houses, and the court family, and the 
public is my responsibility and I'm 
going to do everything I can to 
improve that nationwide. 



Q. What are some of the other 
• challenges facing the judicial 
security program? 

A # As I mentioned, we are 
• dealing with threats of 
terrorism and threats directed 
toward members of the Judiciary. 
Our threat assessment system is 
very sophisticated. One of the first 
meetings I had, even prior to my 
confirmation as director, was with 
the threat assessment group. When 
I was a Marshal at the district level, 
we sent several inappropriate 
communications we'd received up 
here to headquarters for analysis. 
But I'd never really known what 
took place once that report made it to 
headquarters. The threat assessment 
group walked me through the 
process and I can assure the mem- 
bers of the Judiciary that when those 
types of communication are reported 
and forwarded to our headquarters, 
they are closely scrutinized. We 
have a very sophisticated system 
that gives us guidance as far as the 
level of the threat and taking appro- 
priate action. That's one area in 
which we are very proactive and the 
Judiciary can have confidence in that 
program. 

As far as other challenges that we 
face, we also are dealing with some 
staffing shortages, around the 
country. In the past, we haven't 
done a really good job of supporting 
our staffing request and that's why 
I'm confident that with this new 
budget process we're going to be 
able to better justify our resource 
request. 



Q # The Marshals Service 
• protects judges and court- 
houses. Has the nature of this work 
changed over the years and if so, 
how? 

A. In the time I've been here, I 
• think the number of threats 
has gone up. But a lot of that also 
may be attributed to getting the word 
out to the Judiciary that to be a threat 
it doesn't have to be direct, it may be 
anything that you deem an inappro- 
priate communication. So that 
probably has a lot to do with the 
overall number of threats going up. 

In the last five years, there has 
been an increase in dealing with 
terrorism around this country. I'll 
never forget: I was in a meeting of 
our court's security committee 
when the Alfred P. Murrah Federal 
Building was bombed in Oklahoma 
City. I think that incident in itself 
really shows the extent of terrorism 
and that we really need to be doing 
everything we can to safeguard our 
facilities and our Judiciary. 



Q # Courts on the southwest 
• border of the United States 
are experiencing huge caseload 
increases. What impact does this 
have on the Marshals who serve 
those districts and what is being 
done about it? 

A. As far as my priorities, right 
• below the budget and 
staffing problems, are the problems 
that we're dealing with in the 
southwest border districts. I've met 
with those five border marshals 
because I know they are going 
through a tough situation down 
there. As it is now, those five 
districts handle at least a third of 
our total prisoner population of 
all 94 districts. The Western District 
of Texas is averaging between the 
high 2,800 to 3,000 prisoners for that 
district alone. The Southern District 

See Interview on page 12 



11 



The Third Branch m February 2000 






Interview continued from -page 11 
of California is very close behind 
them. It has really taken its toll on us, 
both on the administrative side, 
which often is overlooked, and also 
operationally. In one district alone 
they're using between 40 and 50 
different facilities to house prisoners. 
There's a lot of mileage involved. 
There's a lot of cost involved with 
paying for guards to help us move 
these prisoners, along with the hours 
put in, and the security problems 
related to that high volume of 
prisoners. So, it is a serious problem. 
As I said, we are operating under a 
limited hiring freeze, but recently I 
authorized 17 administrative posi- 
tions to be distributed among those 
five districts to start to address their 
problems. We're also going to be 
making some requests to help out on 
the operational side. 



Q # Have you outlined any 
• initiatives you'd like to 
pursue during your tenure as 
Director? 

A. In addition to the budget, 
• and dealing with the border 
districts, there are some other issues 
that we are looking at. One of them 
is our promotional system. In the 
system we have in place now, it is 
time-consuming to fill a promotion. 
Our human resources division is 
working with some people from 
the field to see if we can streamline 
that process. For instance, if we 
have a chief deputy opening, right 
now we fill that opening and then, 
several months down the line, we 
fill the opening that that person left, 
and on down the line. So it takes at 
least a year to finally fill all the 
positions. I'd like to streamline that 



to where I can possibly fill all those 
promotions at once off a national list. 
We're exploring the feasibility of 
that, and I'd like us to move toward 
a little more efficient system for 
promotions. 

We also have a funding issue, to 
make sure we have adequate funds 
to move these people when they are 
promoted. Once again, it's all budget 
driven. 

We depend on vehicles nation- 
wide, and we're driving a lot of high 
mileage vehicles. That is an area 
where we're really going to be 
making a push for funding. I met 
with Attorney General Reno on this, 
and she told me that putting our 
people in safe vehicles is very high 
on her priorities. I'm trying to work 
on ways to help support her efforts 
to make sure our vehicle fleet is a 
safe fleet. £^ 



THE THIRD BRANCH 

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THE 




ANCH 



Newsletter 
of the 
Federal 

Courts 



Vol. 32 
Number 3 
March 2000 




Southwest Border Courts' Situation Alarms Judiciary 




Chief probation and pretrial 
services officers talked about "shovel- 
ing cases" and "assembly line" 
justice. Judges worried aloud if, driven 
by necessity, cutting corners was good 
for the system. In the vernacular, that's 
the dilemma faced by the southwest 
border courts. Over 130 federal judges, 
chief probation and pretrial services 
officers, and clerks from the five 
district border courts met February 14- 
15 to discuss the worsening caseload 
situation in their courts and, hope- 
fully, to find solutions. They also 
heard from a U.S. Senator who 
supports more resources for courts, 
prosecutors and prisons to handle the 
tidal wave of cases resulting from 
increased border anti-crime initiatives. 
The participants-only meeting was 



Chief Judge 
Carolyn 
Dineen King 
(5 th dr.), at the 
podium, helped 
kick off the 
conference at 
which judges 
and court staff 
met to discuss 
solutions to the 
southwest 
border courts 
situation. 



organized by the Administrative 
Office and the Federal Judicial Center, 
but the impetus for the meeting came 
from the judges themselves, led by 
Chief Judge Carolyn Dineen King (5 th 
Or.). 

They came from the Southern and 
Western Districts of Texas, the 
District of Arizona, the District of 
New Mexico, and the Southern 
District of California; these are the 
courts where 26 percent of all federal 
court criminal filings — mostly drug 
and immigration cases — are now 
concentrated. According to some 
estimates, by the year 2002 the five 
southwest border districts will 
handle almost a third of all federal 
criminal cases in the entire United 

See Border on page 7 



INSIDE 



Congress is Back and Busy 

Statutory Approach Urged On Crime Victims' Rights 
Federal Law Enforcement Report Urges Changes 



Computer Security: 
How Sate Are We? 

It's no news that the hackers 
are out there, and cyberattacks 
are on the rise. Last month, the 
Environmental Protection 
Agency took down its website to 
protect itself against hackers, and 
even the Department of Justice 
website has been "hacked." 
White House officials met last 
month with leaders of Internet 
and e-commerce companies, civil 
liberties organizations and 
security experts to announce 
actions to strengthen the Internet 
and computer network security, 
and Congress expects to hold 
hearings this session on com- 
puter security. The Attorney 
General has asked Congress for 
$37 million to expand Depart- 
ment of Justice staffing, train- 
ing, and technological capabili- 
ties to fight against computer 
crime. 

Where does the Third Branch 
of government stand in terms of 
its own cybersecurity? 

In a way, the concern for 
computer security is a measure of 
how far the Judiciary has come in 
the acquisition and use of com- 
puter technology. A dozen years 
ago, the emphasis was on making 
personal computers widely 
available. Easy access was key, 

See Cybersecurity on page 2 



Cybersecurity continued from page 1 

and passwords were seldom required. 
Sharing PCs was common. 

Today, the Judiciary is connected by 
its PCs over a data communications 
network (DCN). The courts are open- 
ing up to a wide world of electronic 
case filing, electronic bankruptcy 
noticing, virtual libraries, electronic 
mail, and access to the Internet. Judge 
Royce C. Lamberth (D.D.C.), who has 
been involved with his court's Com- 
mittee on Automation Policy since its 
earliest days, says that is the problem. 
"We have created a virtual world that 
is available to us at our desktops," said 
Lamberth. "But, therein lies the rub. 
With the entire world connected to us, 
we are more susceptible than ever to 
the risk of malicious actions by the 
many computer savvy individuals 
who will attempt to break into our 
systems." 

Judge Edward W. Nottingham (D. 
Colo.), chair of the Judicial Conference 
Committee on Automation and 
Technology, agrees that with the 
expansion has come the realiza- 
tion that the Judiciary is vulner- 
able. "Our committee has been 
concerned with computer security 
for a long time," Nottingham 
said. "Among other measures, 
we've limited access to the 
Judiciary's Data Communications 
Network, and we've required 
internal access to the Internet 
through our approved gateways. 
We're taking precautions, but 
we're not allowing ourselves to 
become complacent. When major 
Internet sites can be disrupted by 
hackers as they have been re- 
cently, we need to stay vigilant." 
Nottingham recently formed a 
new subcommittee to focus on 
computer security matters across 
the country for the Judiciary. 

Lamberth cautions that it is not 
just the hackers of the world who 
should concern us. Lax security 
by friends and court associates 
anywhere on the DCN can easily 
compromise information systems. 



According to a 1998 Computer 
Security Institute survey, 80 
percent of reported security 
breaches were committed by 
employees or ex-employees. Some 
of these security breaches may be 
accidental or committed innocently 
enough: sharing a password with 
an unauthorized person, allowing 
easy access to PCs with sensitive 
information, maintaining "always 
on" Internet access, downloading 
free software applications incom- 
patible with the operation of local 
PCs, or downloading files from a 
diskette or e-mail that contain a 
virus. Nothing malicious, yet all 
are abuses or outright breaches of 
security. 

What can a court do? Start by 
assessing current security. In 1994, 
the courts of the District of Colum- 
bia Circuit asked the National 
Security Agency (NSA) to assess 
the security of its information 



Computer security issues are very com- 
plex. The Administrative Office recom- 
mends that courts begin to address these 
systematically: 

■ Make computer security a priority 
perhaps under the auspices of an 
IT committee. 

■ Assign responsibilities for computer 
security at the unit and the court level. 

■ Draft and implement a written com- 
puter security policy for the court. 

■ Train all court employees on the policy 
and enforce it. 

■ Throughout the process, assess the risks, 
initially by reviewing the primary areas 
for improving security found on the 
computer security page of the J-Net. 

■ Report all real and suspected computer 
security incidents to the AO. 

■ Keep the policy up-to-date with the 
risks and countermeasures available. 

Courts with questions or concerns about 
security issues may contact the AO's Office 
of Computer Security and Independent 
Testing for assistance. 



systems. The study revealed areas 
the courts needed to address. But it 
doesn't take a computer whiz to 
pinpoint and deal with security 
threats. The D.C. District Court was 
among the first to establish a com- 
mittee structure in which judges, 
unit managers, and technical staff 
come together to address the issues 
raised by the technological changes. 
The group follows five basic prin- 
ciples, as outlined by the General 
Accounting Office and later en- 
dorsed by the AO in information 
bulletins: assess security risks and 
determine needs; establish a central 
management focal point; implement 
appropriate policies and related 
controls; promote security aware- 
ness; monitor and evaluate policy 
and control effectiveness. 

"Information technologies and 
security issues present a bewilder- 
ing array of new and quickly chang- 
ing concepts and terminology," said 
Lamberth, "that leave many 
of us inclined to defer these 
issues to our technical employ- 
ees." He advises that it is not 
necessary to understand all the 
technical issues to properly 
manage the processes and 
procedures to protect critical 
information. The D.C. courts 
used the NSA study as a risk 
assessment tool and as a starting 
point for managing security 
improvements. Lamberth also 
suggests that courts share 
security concerns with employ- 
ees. He points out that informa- 
tion security has not tradition- 
ally been a clear employee 
responsibility but that employ- 
ees should be aware of their 
accountability. 

The AO created the Com- 
puter Security and Independent 
Testing Office in 1996 to in- 
crease the focus on computer 
security. In keeping with the 
GAO principles, the office 
became the Judiciary's manage- 

See Cybersecurity, next page 



The Third Branch 



March 2000 



Congress is Back and Busy 

Official word is that in this pre- 
sidential election year, Congress in- 
tends to end the second session of the 
106 th Congress October 6. So the push 
is on to accomplish as much as pos- 
sible. Judicial confirmations and le- 
gislation on bankruptcy reform, vic- 
tims' rights, private property rights, 
and asset forfeiture are a few of the 
areas in which Congress has acted. 

Judicial Confirmations 

The Senate confirmed Marsha 
Berzon and Judge Richard A. Paez 
(C. D. Calif.) to the Ninth Circuit, 
ending a wait that for Paez had 
stretched into four years. Paez was 
first nominated to the circuit in 1996, 
Berzon in 1998. By early March, this 
brought the total of judicial confir- 
mations to a total of seven. The 
White House has sent three court of 
appeals and four district court 
nominations to the Senate for 
consideration. Conventional wisdom 
says that in an election year the pace 
of confirmations will slow, as 
Congress waits to see who will sit in 
the White House. 

Bankruptcy Reform and Crack Cocaine 

As expected, one of the first 
actions in the Senate in the new 
session was the consideration and 



passage of S. 625, the Bankruptcy 
Reform Act. The bill is expected to be 
conferenced with its House counter- 
part, H.R. 833, which was passed 
during the first session. Both bills 
contain provisions that would create 
18 temporary bankruptcy judgeships 
and extend existing temporary bank- 
ruptcy judgeships in five districts. 
The Judicial Conference has urged 
the creation of 13 permanent and 11 
temporary bankruptcy judgeships. 
The bill also contains a provision 
equalizing the penalties for crack 
and powder cocaine, by increasing 
the penalties for powder cocaine. 

Private Property Rights 

The Judicial Conference has made 
its concerns known to members of the 
House Judiciary Committee regard- 
ing H.R. 2372, the Private Property 
Rights Implementation Act of 2000. 
The House bill was introduced last 
session, as was a similar bill in the 
Senate, S. 1028, the Citizens Access 
to Justice Act of 1999. Both bills are 
intended to expedite access to the 
federal courts for injured parties 
whose rights and privileges under 
the Constitution have been deprived 
by agency actions at either the 
federal, state or local government 
level. Both bills could bring large 
numbers of takings cases into the 
federal courts, increasing judicial 



Cybersecurity continued from page 2 

ment focal point for computer 
security policy issues. "One aspect 
of our mission," said office chief 
Frank Dozier, "is to assess overall 
court vulnerabilities. In part, we've 
accomplished this by performing 
joint NSA/ AO information secu- 
rity assessments in several courts, 
which resulted in a document 
noting primary areas for improv- 
ing computer security in courts." 
The CSIT Office has published an 
information bulletin for the courts 
that strongly encourages them to 



implement certain administrative 
controls regarding computer 
security. Dozier also noted that the 
computer security webpage on 
the Judiciary's Intranet website, 
the J-Net, has a number of items 
courts can use to assist them, 
including a list of ways to improve 
security and copies of computer 
security policy documents formu- 
lated by several courts. A Com- 
puter Security Handbook section, 
which when completed will 
provide online information on 
computer security topics, also is 
under construction. £>^ 



workload and contributing to 
backlogs. The House Judiciary 
Committee marked up H.R. 2372 in 
early March. 

In a letter to Judiciary Committee 
members, the Judicial Conference 
noted that the House bill "would 
alter deeply ingrained federalism 
principles by prematurely involving 
the federal courts in regulatory pro- 
ceedings involving property that have 
historically been decided by state and 
local administrative bodies or courts. 
By relaxing the current requirement 
of ripeness in takings cases and 
limiting a federal judge's ability to 
abstain from hearing certain cases, 
the bill also may adversely affect the 
administration of justice and delay 
the resolution of property claims." 

Asset Forfeiture 

During the first session, the House 
passed a civil asset forfeiture reform 
bill, H.R. 1658, sponsored by Judi- 
ciary Committee chair Henry J. Hyde 
(R-IL), that would substantially alter 
the rights of individuals from whom 
property has been seized by federal 
law enforcement agencies. Included 
among new rights that would be 
granted to indigent claimants is a 
right to appointed counsel funded by 
the Judiciary's Defender Services 
appropriation. 

The Senate Judiciary Committee 
now has two forfeiture bills under 
consideration: S. 1931, introduced by 
committee chair Orrin G. Hatch (R- 
UT) and co-sponsored by ranking 
minority member Patrick J. Leahy 
(D-VT); and S. 1701, introduced by 
committee member Jeff Sessions (R- 
AL) and co-sponsored by committee 
member Charles Schumer (D-NY). 
S. 1931 would provide for appointed 
counsel for indigents, but only in 
those cases in which the seized 
property is the primary residence of 
the claimant or in which the claimant 
has been appointed counsel in a 
related criminal case. S. 1701 does 
not provide for appointed counsel 
for claimants. 



The Third Branch 



March 2000 



Conference Urges Statutory Approach to Crime Victims' Rights 



A representative of the Judicial 
Conference last month urged 
the House Subcommittee on the 
Constitution to pursue a statutory 
approach to a crime victims' 
rights initiative as opposed to a 
constitutional amendment. "A 
statutory approach," said Judge 
Emmet G. Sullivan (D.D.C), "would 
allow all participants in the federal 
criminal justice system to gain 
experience with the principles 
involved without taking the un- 
usual step of amending our 
nation's funda- 
mental legal 
charter, with its 
concomitant 
application to the 
various state 
systems." Sullivan, 
a member of 
the Judicial 
Conference 
Committee on 
Criminal Law, 
chairs the 
Committee's 
Legislative 
Subcommittee. 

In March 1997, 
the Judicial 
Conference 
resolved to take no 
position at that 
time on the 

enactment of a victims' rights 
constitutional amendment, but 
subsequently strongly endorsed a 
statutory approach over adoption of 
a victims' rights constitutional 
amendment. H.J. Res. 64, as intro- 
duced in the House, would amend 
the Constitution to protect the rights 
of crime victims. 

Subcommittee chairman, Repre- 
sentative Charles T. Canady (R-FL) 
convened the hearing to hear both 
sides of the constitutional amend- 
ment argument. "Despite the 
growing number of federal and state 



statutes and state constitutional 
amendments that extend rights to 
victims of crime," said Canady in his 
opening statement, "victims' rights 
advocates contend that such mea- 
sures provide an inadequate patch- 
work of protections. . . .Opponents of 
a victims' rights amendment argue 
that crime victims are already 
adequately protected and that a 
federal constitutional amendment 
could conflict with constitutional 
rights afforded to criminal defen- 
dants." 




"We believe that the 
interests of crime 
victims are best served 
by a system that will 
provide adequate 
protection for the rights 
of victims while balanc- 
ing the need to ensure 
a fair trial for persons 
accused of a crime..." 






Five members of Congress testi- 
fied, including Representatives 
James A. Barcia (D-MI) and Steve 
Chabot (R-OH), who co-sponsored 
H.J. Res. 64, and Senators Dianne 
Feinstein (D-CA.) and Jon Kyi (R- 
AZ.). Last session, the Senate Judi- 
ciary Committee endorsed the Crime 
Victims' Rights Constitutional 
Amendment, co-sponsored by Kyi 
and Feinstein. 

Representative Robert C. Scott 
(D-VA) shared his views on the 
proposed amendment. "I believe 
we should be extremely reluctant 



to amend the Constitution in gen- 
eral, and the Bill of Rights in parti- 
cular," said Scott. "Amending the 
Constitution should only occur in 
those rare instances where there 
exists a compelling need to establish 
rights that cannot be established 
by other means. . . .It is my under- 
standing that all 50 states either have 
a victims rights constitutional 
amendment or victims rights stat- 
utes, so that virtually every provi- 
sion in the proposed federal constitu- 
tional amendment is already law in 
50 states. So we have a 
question of exactly 
which provisions need 
a constitutional amend- 
ment." 

Testifying in sup- 
port of a constitu- 
tional amendment 
was Andrea Rehkamp, 
the Executive Director 
of the Southwestern 
Ohio Chapter of 
Mothers Against 
Drunk Driving, de- 
scribed as the largest 
crime victims' assis- 
tance organization in 
the world. She argued, 
"As long as defen- 
dants' rights are 
specified in the U.S. 
Constitution and 
victims' rights are specified in state- 
by-state statutes, the victims' role in 
the justice system will always be that 
of second-class citizen." 

In his testimony, Sullivan told 
the subcommittee that "the mem- 
bers of the federal Judiciary, like 
all Americans, share a profound 
concern for the victims of crime. . . . 
However, we believe that the 
interests of crime victims are best 
served by a system that will pro- 
vide adequate protection for the 
rights of victims while balancing 
the need to ensure a fair trial for $ 



4 



The Third Branch 



March 2000 



persons accused of a crime but who 
are presumed to be innocent. That is 
our goal. It is one we should share 
together." 

While H.J. Res. 64 appears to 
have less potential adverse impact 
on the federal Judiciary than previ- 
ous amendment proposals, accord- 
ing to Sullivan a number of funda- 
mental concerns remain. Among 
the most important of these are the 
kinds of crimes and victims to 
which the amendment will apply, 
the remedies for violations of the 
proposed rights, the implications 
that enforcement of the proposed 
rights have for our federal system, 
the need for exceptions to the pro- 
posed rights necessitated by con- 
siderations of the administration 
of justice, speedy trial rights of 
victims, and the allocation of respon- 
sibility for providing notice to 
victims. 

"Many of the principles con- 
templated in H.J. Res. 64 repre- 
sent a significant change in our 
criminal justice system, literally 
realigning the interests of defen- 
dants and victims, as well as the 
process by which criminal cases are 
adjudicated," Sullivan told the 
subcommittee. "The rights and 
protections heretofore afforded to 
citizens under the Constitution 
were largely part of the fabric of 
the law, well-known and under- 
stood by the Founding Fathers, 
while many of the concepts in the 
victims' rights area are largely 
untested, at least in the federal 
system. It could conceivably take 
years for a settled body of law and 
judicial administration to evolve. 
A statutory approach would accom- 
modate this process." 

Sullivan told the subcommittee 
that a statutory approach would 
also diminish or eliminate federal 
court involvement in the operations 
of the state criminal justice systems 
that would occur under a victims' 
rights constitutional amendment. 
Finally, unlike a constitutional 



amendment that could take years to 
ratify, a statutory approach is more 
certain and immediate, an advantage 
to victims. 

Bruce Fein, former Associate 
Deputy Attorney General, Depart- 
ment of Justice, also testified in 
opposition to a constitutional 
amendment, calling it "gratuitous." 
"Nothing in the Constitution or in 
U.S. Supreme Court precedents 
handcuffs either Congress or the 
states in fashioning victims' rights 
statutes. . . ," said Fein. He also 
addressed the pro-amendment 



argument that state laws are disre- 
spected or otherwise deficient. While 
admitting that there may be some 
truth in the first charge, Fein said, 
"The charge of deficient victims' 
rights laws seems unpersuasive, 
simply a shorthand for complaining 
that everything demanded by the 
victims' rights lobby was not incor- 
porated by various legislative 
bodies." Finally, said Fein, "pru- 
dence should be the touchstone for 
all constitutional amendments, and 
by that measure H. J. Res. 64 has 
nothing to commend." £v^ 



Judicial Business As Usual 



Last year, says Senior 
Judge Max Rosenn (3 rd Cir.), 
was one of the busiest in his 
career. That's a career in 
which he's heard over 4,000 
cases, not counting those he 
mediated. "Fortunately," said 
Rosenn, "I get to the office 
every day." We all should be 
that energetic when we turn 
90. 

On February 4 th Rosenn 
observed his birthday and 
officially joined the ranks of 
nonagenarians. But he saw no 
reason to slacken the judicial 
pace. In celebration, he 
participated in a three-judge 
panel with Chief Judge 
Edward R. Becker, and Judge 
Marjorie O. Rendell, hearing 
arguments in a case. Becker 
and Rendell were in Philadel- 
phia while Rosenn partici- 
pated in the panel by 

videoconference from the William J. Nealon Federal Building and Court- 
house in Scranton, Pennsylvania. "The [videoconferencing] technology is 
very useful under the circumstances," said Rosenn, who may be a role 
model for anyone who thinks they are too old to adopt new ways. After- 
wards, the court family at Scranton celebrated his birthday with cake, 
before Rosenn flew off to a family reunion in South Carolina. 

Rosenn was appointed to the Third Circuit Court of Appeals in 1970, 
taking senior status in 1981. £v^ 




Senior Judge Max Rosenn (3 rd Cir.) 



.5 



The Third Branch 



March 2000 



Report on Federal Law Enforcement Wants to Reverse Federalization Trend 



Federalizing common crimes — 
crimes that historically were the 
responsibility of state and local law 
enforcement agencies — has placed 
U.S. society in danger of having 
federal law-enforcement resources 
spread much too thinly, according to 
a report to Congress from the 
Commission on the Advancement of 
Federal Law Enforcement. The 
commission was established in 1997 
by the Antiterrorism and Effective 
Death Penalty Act to review and 
make recommendations to Congress 
on federal law-enforcement priori- 
ties for the 21 st Century. It submitted 
its report to Congress last month. 

While finding that federal law- 
enforcement agencies are among the 
finest in the world, the commission 
believes that several challenges 
threaten law enforcement's capacity 
to maintain and improve its system. 
It concluded that better coordination 
of law-enforcement operations and 
some consolidation of agencies is 
necessary; additional resources are 
required to combat terrorism; law 
enforcement needs to focus and 
coordinate its attack on global crime 
to match the sophistication of the 
drug cartels; and agency profession- 
alism, integrity and accountability 
can be improved. Of particular 
interest to the Judiciary was the 
finding that the growth in the 
number of crimes considered federal 
is "startling," warning that if the 
trend continues, "the United States 
will develop the type of national 
police force that we have tradition- 
ally avoided." 

The commission said that "nearly 
200 years of additions and revisions 
to the Federal Criminal Code have 
created an unwieldy and complex 
body of law, riddled with overlap, 
redundancy, inconsistencies, and 
unnecessary accretions." This 
situation "threatens to overwhelm 
federal law-enforcement capacities, 



just as dramatic and serious new 
law enforcement challenges grow 
in intensity." Steps must be taken 
to repair the damage to the law 
enforcement community at the 
federal, state and local levels 
caused by federalization of com- 
mon crime. 

"We recommend that Congress 
and the President enact a new 
Federalization Prevention Act," the 
report says, "to minimize federal 
intrusion into state and local law 
enforcement and reverse the recent 
trend toward federalizing crime." 
As part of the act, the commission 
advocates a review of the Federal 
Criminal Code (Title 18) over a five- 
year period to recommend changes. 
In addition, new provisions that 
define crimes as federal would 
expire after five years unless Con- 
gress acted to extend the definition. 

Attorney General Janet Reno, who 
took exception to the commission's 
recommendation to consolidate 
agencies, told reporters at a weekly 
news briefing in February that it is 
important for there to be appropriate 
attention to federalism, recognizing 
that state and local law enforcement 
are on the front line and that they 



know their communities' needs and 
resources better than the federal 
agencies. Reno added, however, that 
there may be situations where the 
federal government can more 
effectively deal with decisions that 
cross state and district borders. 

The Commission on the Advance- 
ment of Federal Law Enforcement 
was written into legislation following 
the Oklahoma City bombing and the 
Waco, Texas, incident. Former 
federal judge William H. Webster 
was named chair of the commission 
by Chief Justice William H. 
Rehnquist. The other members of the 
five-member commission were 
Victoria Toensing, a District of 
Columbia criminal defense lawyer, 
appointed by the Speaker of the 
House; Robert M. Stewart, a South 
Carolina law-enforcement officer, 
appointed by the President Pro 
Tempore of the Senate; Donald C. 
Dahlin, chair of the Department of 
Political Science at the University of 
South Dakota, appointed by the 
Minority Leader of the Senate; and 
Gilbert G. Gallegos, national presi- 
dent of the Fraternal Order of Police, 
appointed by the House Minority 
Leader. £v^ 



Judiciary Now Debuts 

The latest feature to be 
unveiled on the Judiciary's web 
site promotes instant access to 
the Judiciary's top news and 
features. The informative 
webpage can be reached from 
the Internet Homepage 
(www.uscourts.gov) by clicking 
on Judiciary Now. At press 
time, the page served up the 
latest statistics on judicial vacancies, live video of testimony on victims' 
rights legislation, and a rolling news ticker with headlines on the 
southwest border courts and the recent border courts conference, and on 
Law Day. Clicking on any of the headlines delivers more information on 
the topic. £v^ 




The Third Branch 



March 2000 





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Border continued from page I 

States. Administrative Office Director 
Leonidas Ralph Mecham has given 
assistance to border courts in the 
form of additional positions and 
funds in clerks' and probation and 
pretrial services offices. Personnel 
from around the country have been 
encouraged to help out in the courts 
as temporary duty officers. But it's 
still not enough. 

Senator Pete V. Domenici (R-NM) 
told conference participants, "While 
most Americans approve of the drug 
busts and the large-scale arrests of 
people seeking to 
enter this country 
illegally, I'm sure 
very few clearly 
understand the 
ripple effect these 
policies have on 
our court sys- 
tem." Domenici, 
who is chair of 
the Senate 
Budget Commit- 
tee, said it is 

"unfair and shortsighted for Con- 
gress to demand more law enforce- 
ment at the border without a corre- 
sponding increase in judicial and 
prison resources." He expressed 
support for the Judicial Conference 
recommendation to create 13 new 
district judgeship positions in the 
southwest border courts, but made it 
clear action on this proposal prob- 
ably will not occur until a new 
administration takes office next year. 
Until then, the Senator suggested, 
Congress could provide more court 
resources to lighten the load. 

This was bad news for Chief 
Judge Marilyn Huff (S. D. Calif.) 
who says her court, which has no 
judicial vacancies, needs new judges. 
"We've squeezed all the fat — if there 
ever was any — out of the system," 
said Huff. "We've experimented 
with ways to handle the caseload. 
Visiting judges are wonderful, but 
they're not the same as judges who 
can take a full draw of cases. And 



Sen. Pete V. Domenici (R-NM) 



our senior judges who help our 
district survive are extremely senior. 
What more can we do? The answer 
keeps coming back: We need new 
district judges." Statistics, according 
to Huff, show the caseload has gone 
up astronomically, while judicial re- 
sources remain flat. Only one of the 
five border courts has received new 
judgeships since 1990. Three were 
authorized for the District of Arizona 
last congressional session, but those 
positions are not filled, and recently 
two judges in the district took senior 
status. Other courts have similar pro- 
blems, and at the conference 
judges from each district 
talked about how they were 
coping. Chief Judge King 
kicked off the conference, 
noting different techniques 
that were being used to 
handle similar problems. 
Chief Judge John E. Conway 
(D. N.M.), whose district 
hosted the conference, said he 
picked up some good ideas. 
"Hopefully, others did too," 
he said. "We all share problems, and 
our solutions are each a bit differ- 
ent." 

The conference touched on differ- 
ent management concerns, for exam- 
ple, expediting jury selection so that 
jurors can avoid multiple trips to 
remote border locations; effectively 
using magistrate judges; locating and 
retaining qualified interpreters; 
providing adequate facilities where 
attorneys and defendants can meet; 
and managing the logistics of finding 
housing, transportation, and security 
for detainees, some of whom must be 
transported to the court from hun- 
dreds of miles away. 

One initiative that was discussed 
addressed a common problem in the 
border courts: what to do with 
material witnesses. "A 'coyote' 
brings 20 Mexican citizens across the 
border," said King. "He's arrested, 
indicted, and two or three Mexicans 
are held as material witnesses. Some 
courts have held them in detention, 



often for several months. The District 
of New Mexico puts the material 
witnesses in halfway houses where 
they also can get jobs. In that district, 
there have been problems with 
witnesses disappearing in only one 
percent of the cases." 

Even before the conference was 
over, King noted that some districts 
were holding their own mini- 
conferences to discuss problems and 
potential solutions. Conway said his 
district will be meeting this month in 
Las Cruces, New Mexico, one of the 
hardest hit of the border court 
locations. District clerks and proba- 
tion and pretrial services officers 
plan to talk regularly about common 
problems. Representatives from 
the Department of Justice also 
spoke at the conference about its 
Border Patrol Initiative. In the just- 
completed Phase 1, which covered 
southern California and El Paso, DOJ 
claims the initiative has given it 
"effective control," with a sharp 
decline in local crime. Apprehensions 
in southern California, according to 
spokesmen, had started at 600,000 
and were down to 200,000. Although 
many courts participating in the 
conference are inundated at even 
this level of apprehensions, the 
discussion, said King, at least 
"offered us the prospect of improved 
communication with DOJ at the 
local level." 

Participants agreed that the 
conference was as candid as it was 
productive, and a planning group 
will compile a master list of recom- 
mendations. "People were given a 
perspective on what's actually 
happening throughout the border 
districts, which is something you 
don't get sitting in one court," said 
King. "We've improved communica- 
tions among the courts. But in the 
end it is all about people and money. 
We need Congress to understand 
why we're asking for more judges, 
probation and pretrial officers, and 
clerks, and why they should support 
the Judiciary's budget." ^»^ 



7 



The nird Branch 



March 2000 



JUDICIAL MILESTONES 



Appointed: William Joseph Haynes, 
Jr., as U.S. District Judge, U.S. District 
Court for the Middle District of 
Tennessee, November 16. 

Appointed: Ellen Segal Huvelle, as 

U.S. District Judge, U.S. District 
Court for the District of Columbia, 
January 12. 

Appointed: Victor Marrero, as U.S. 
District Judge, U.S. District Court for 
the Southern District of New York, 
December 1. 

Appointed: Charles A. PannelL Jr., 

as U.S. District Judge, U.S. District 
Court for the Northern District of 
Georgia, December 1. 

Appointed: Trish M. Brown, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the District of Oregon, 
December 3. 

Appointed: Barbara J. Houser, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Northern 
District of Texas, January 20. 

Appointed: Dennis W. Dohnal, as 

U.S. Magistrate Judge, U.S. District 
Court for the Eastern District of 
Virginia, January 31. 

Appointed: Douglas N. Frazier, as 

U.S. Magistrate Judge, U.S. District 
Court for the Middle District of 
Florida, January 8. 

Appointed: Margaret J. Kravchuk, as 

U.S. Magistrate Judge, U.S. District 
Court for the District of Maine, 
January 21. 

Appointed: Christopher A. 
Nuechterlein, as U.S. Magistrate 
Judge, U.S. District Court for the Nor- 
thern District of Indiana, January 10. 

Appointed: Nita L. Stormes, as U.S. 
Magistrate Judge, U.S. District Court 
for the Southern District of California, 
January 3. 

Appointed: Linda T. Walker, as U.S. 
Magistrate Judge, U.S. District Court 
for the Northern District of Georgia, 
January 2. 



Elevated: Judge Mark W. Bennett, to 

Chief Judge, U.S. District Court for the 
Northern District of Iowa, succeeding 
Judge Michael J. Melloy, December 30. 

Elevated: Judge Ernest C. Torres, to 

Chief Judge, U.S. District Court for 
the District of Rhode Island, succeed- 
ing Judge Ronald R. Lagueux, 
December 1. 

Senior Status: Judge Ralph G. 
Thompson, U.S. District Court for the 
Western District of Oklahoma, 
December 16. 

Retired: Senior Judge Martin Pence, 

U.S. District Court for the District of 
Hawaii, January 31. 

Retired: Senior Judge Stanley 
Sporkin, U.S. District Court for the 
District of Columbia, January 15. 

Retired: Bankruptcy Judge Tina L. 
Brozman, U.S. District Court for the 
Southern District of New York, 
January 31. 

Retired: Magistrate Judge Eugene W. 
Beaulieu, U.S. District Court for the 
District of Maine, January 20. 

Resigned: Bankruptcy Judge James 
L. Garrity, Jr., U.S. Bankruptcy Court 
for the Southern District of New 
York, December 15. 

Deceased: Chief Judge D. Brook 
Bartlett, U.S. District Court for the 
Western District of Missouri, 
January 21. 

Deceased: Senior Judge Harold H. 
Greene, U.S. District Court for the 
District of Columbia, January 29. 

Deceased: Senior Judge Thomas J. 
MacBride, U.S. District Court for the 
Eastern District of California, January 6. 

Deceased: Judge Jerome Turner, U.S. 
District Court for the Western District 
of Tennessee, February 12. 

Deceased: Magistrate Judge Doyle 
A. Rowland, U.S. District Court for 
the Western District of Michigan, 
February 29. 



THE 

THIRD 

BRANCH 



Published monthly by the 
Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 

(202) 502-2600 

Visit our Internet site at 

http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Marsh 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 



As of March 1, 2000 



Courts of Appeals 




Vacancies 


25 


Nominees 


18 


District Courts 




Vacancies 


51 


Nominees 


19 


Courts with 




Judicial Emergencies 


22 



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



The Third Branch 



March 2000 



Judicial Center Launches First Ever Judges Database 



The first ever public electronic 
database of federal judges who 
served over the last 200 years was 
launched last month by the Federal 
Judicial Center. 

"We are making this unparalleled 
resource available to the public, 
the press, and the academic commu- 
nity, as well as within the Judiciary, 
to encourage study of the federal 
courts and greater understanding 
of their evolution and development," 
said FJC Director Judge Fern Smith. 

The information, available at the 
FJC's Internet site, www.fjc.gov 
includes the years of judicial service, 
and information about the career and 
education of the more than 2,800 
presidentially appointed judges who 
served in the federal courts from the 



establishment of the judicial branch 
in 1789 to the present. This informa- 
tion is one of several features of the 
FJC's new History of the Federal 
Judiciary site. 

In addition to the judges' in- 
formation, the site includes a 
Courts section, which contains 
the legislative histories of courts 
and circuits within the federal 
Judiciary, as well as lists of judges 
who served on each court and 
information on the location of 
official court records. 

A section on Landmark Judicial 
Legislation presents the text of 21 
statutes related to the organization 
and administration of the Judiciary, 
and includes short essays describing 
the historical significance of each act. 



Other features of the site are the on- 
line presentation of an exhibit of 
historic photographs of federal 
courthouses and a selection of 
reports on topics related to federal 
judicial history. 

The database function in the 
Judges section of the site allows 
users to conduct various searches 
and organize data about Supreme 
Court justices and court of appeals 
and district court judges. 

The materials presented on the 
site were compiled and written 
by the staff of the FJC's Federal 
Judicial History Office, which 
welcomes reference questions 
submitted at the site. For further 
information, call 202/502-4181 or e- 
mailuhistory@fjc.gov £«^ 



Federal Rules of Practice and Procedure Material Now Available Online 



The federal Judiciary has ex- 
panded its web site, 
www.uscourts.gov, to include 
information on the Federal Rules of 
Practice and Procedure. With just a 
click of the mouse, Internet users 
now can access the current rules, 
proposed amendments to the rules 
submitted for public comment, and 
approved proposed amendments 
pending review by the Supreme 
Court and Congress. This informa- 
tion is not currently available from 
any single source. 

"We hope that lawyers and the 
public will welcome and take full 
advantage of the easy availability 
of rules-related material," said 
Judge Anthony Scirica, chair of the 
Judicial Conference Committee on 
Rules of Practice and Procedure. 
"This expanded web site furthers 
the Judiciary's commitment to 



providing full public access to all 
aspects of the federal rule-making 
process." 

Also included on the site are 
working papers of the Judicial 
Conference Committee on Rules 
of Practice and Procedure and of 
the five advisory rules commit- 
tees, including minutes of commit- 
tee meetings, agenda reports, 
status charts on proposed rule 
amendments, a schedule of up- 
coming meetings and hearings, 
and a list of pending legislation 
affecting rules. Planned future 
additions include committee re- 
ports and copies of major studies 
undertaken by the rules com- 
mittees regarding class action, mass 
tort, and attorney conduct rules 
projects. 

Comments to proposed rules 
amendments also may be submitted 



electronically via this Internet site as 
part of a Judicial Conference pilot 
involving the Advisory Committees 
on Appellate, Bankruptcy, Civil, 
Criminal, and Evidence Rules. 

The federal rules govern proce- 
dure, practice, and evidence in the 
federal courts. They set forth the 
procedures for the conduct of court 
proceedings and also serve as a 
pattern for the procedural rules 
adopted by many state courts. 
Congress has authorized the federal 
Judiciary to prescribe the rules of 
practice, procedure, and evidence 
for the federal courts, subject to the 
ultimate legislative right of Congress 
to reject, modify, or defer any of the 
rules. 

When visiting www.uscourts.goVi 
click on About the U.S. Courts to 
access the federal rule-making 
information. £-^ 



The Third Branch 



March 2000 



INTERVIEW 



Conference Acts as Voice for Federal Trial Judges 



Judge Richard H. Mills is the chair of the 
ABA Judicial Division, National Confer- 
ence of Federal Trial Judges. He was 
appointed to the U.S. District Court for 
the Central District of Illinois in 1985 
and took senior status in 1997. 



Q # How would you describe the 
• mission or role of the Na- 
tional Conference of Federal Trial 
Judges? 

A # Our overall mission, of 
• course, is to improve the 
administration of justice by reducing 
court delay, insuring that everyone 
has access to the judicial system, and 
that all litigants in need have compe- 
tent counsel, and to instill in judges 
the necessity of conducting courtroom 
proceedings in an atmosphere that 
maintains the dignity of the court 
and recognizes the equality of all 
people. More specifically, the confer- 
ence acts as the voice of federal trial 
judges within the American Bar 
Association and proposes initiatives 
in the best interest of federal trial 
courts. We present the view of the 
federal trial bench as to appropriate 
facilities and equipment for judges, 
advocate adequate compensation 
and other benefits for the Judiciary, 
and monitor appropriate security 
for judges and for courthouses. 

One of our primary goals is to 
assure the competence of judges and 
the competence of lawyers who 
practice within the system. We are 
constantly promoting improvements 
in the jury system and have taken a 
key role in the increase of public 
understanding of and respect for the 
judicial system. In this regard, we 
encourage fair trials, free press 
conferences, and the participation of 
judges in educational programs on the 



judicial system. We are keenly aware 
that relationships among lawyers, 
among judges, and among judges 
and lawyers must constantly be 
improved. 



Q # Does the NCFTJ interact 
• with Judicial Conference 
committees? 

A. Since the federal trial judges 
• conference includes U.S. 
district, magistrate, and bankruptcy 
judges, our members frequently 
serve on various committees of the 
U.S. Judicial Conference. This affords 
an excellent liaison and sharing of 
ideas for solving common problems. 
NCFTJ has long adhered to the 
philosophy that it will not take a 
position that is contrary to that of the 
U.S. Judicial Conference on any 
particular issue that the Judicial 
Conference has acted upon. 

As chair of the NCFTJ, I act as 
liaison to the ABA Standing Commit- 
tee on Federal Judicial Improve- 
ments. That standing committee and 
our conference hold joint meetings at 
both the midyear and annual meet- 
ings of the ABA. Currently, we are 
working together for our next 
meeting in July in New York, and we 
plan to invite representatives of the 
U.S. Judicial Conference and the 
Administrative Office of the U.S. 
Courts to meet with us so that we 
may all exchange ideas and 
thoughts, find a way of unifying our 
collective efforts toward the common 
goal of the needs of the federal 
Judiciary, and discuss how we can 
better serve the public. 



Q 



Comparing a trial judge 
today with one sitting on the 




Judge Richard H. Mills 



bench 20 years ago, what has 
changed the most, if anything? Are 
the concerns, issues, and workplace 
the same? 

A # The increase in our 
• caseloads — both civil and 
criminal — have skyrocketed over the 
last couple of decades. In my district, 
our caseload has increased almost 50 
percent in the past 20 years. And in 
the past five years alone the 94 
districts in the country have seen an 
increase of 8.9 percent. That works 
out to an average of some 496 cases 
per authorized judgeship. And the 
bankruptcy court statistics are even 
more staggering. 

One particular area that also has 
changed is technology — a tool that 
is being utilized more and more 
to assist us in dealing with this 
avalanche of cases. NCFTJ has 
an extremely active technology 
committee composed of some of 
the most knowledgeable and driven 
federal judges in the country — 
those who know computers and 
high-tech thoroughly and who use 
it constantly in their courts. We 
have conducted programs on tech- 
nology in the courts and will con- 
tinue to place significant emphasis 
on this area as a real tool in case 2 



10 



The Third Branch 



March 2000 






management and handling the 
volume of work that every court 
across the land faces. 



Q # Trial judges have come 
• under intense fire from 
politicians and the public for deci- 
sions. How do (or should) trial 
judges deal with the criticism? 

A # You know it is ironic that as 
• we face these increasingly 
crushing caseloads, the public's 
perception of the legal profession, 
and respect for it, has never been 
lower. We simply have to do a 
better job of marketing the __ _ 
law and the legal system. 
Some of the ways that this 
can be accomplished, in 
our estimation, is for every 
judge to give clear reasons 
for his or her rulings, either 
orally from the bench or by 
way of a written order or 
memorandum. Judges and ^— ^— 
lawyers must get harnessed 
in tandem to provide outreach and 
educational programs for the public 
on how the system works and why 
everyone should have greater re- 
spect for the finest system of jus- 
tice in the world. We all should 
encourage more school civics 
classes to come and visit our courts; 
we all must participate in Law 
Day programs in conjunction with 
the bar associations. NCFTJ strongly 
feels that all judges should be a 
resource for bar associations and 
other groups to be called upon for 
participation in programs that both 
tell and sell the American justice 
system. 

We have become such a litigious 
society and because of all of the 
television programs involving the 
courts, prosecutions and police work, 
there is intense public interest in the 
system. It behooves us all to become 
part of the means by which the 
public is informed properly on the 
work of our system. 



Q. Civility (the lack of it) 
• appears to be an issue, not 
only in society at large, but within 
the courtroom. Does the NCFTJ have 
recommendations, guidelines or 
programs to encourage civility? 



A: 



We recognize that civility is 
a very serious problem and 
we have participated in a number of 
programs addressing this issue over 
the past few years. In addition, we 
try to weave civility into virtually 
every program, whether it is on a 
substantive topic or a procedural 
one. 



"Judges and lawyers must get harnessed 
in tandem to provide outreach and 
educational programs for the public on 
how the system works and why everyone 
should have greater respect for the finest 
system of justice in the world. " 



Since NCFTJ is made up of 
district, magistrate, and bankruptcy 
judges — by far the bulk of the federal 
Judiciary — civility is of constant and 
serious importance. We are very 
concerned about civility between the 
court and counsel, between judges, 
between counsel, and between trial 
and reviewing courts. Several 
circuits have created committees on 
civility and some have both adopted 
and published rules on civil conduct. 
I believe that the U.S. Court of 
Appeals for the Seventh Circuit was 
the first to report in this area and to 
adopt rules of civility. 



presented a presidential showcase 
program entitled, A Judge's Role in 
Case Management: Gentle Facilitator 
or Pushy Intermeddler? And, in New 
York this year, another presidential 
showcase program will be given, 
Lawyering and Judging in the 21 st 
Century: Understanding and Inte- 
grating the Legal and Scientific/ 
Technological Thinking Processes 
Using Theoretical, Ethical, and 
Practical Considerations. 

As I stated earlier, we view the 
federal trial Judiciary as a resource to 
assist in informing and educating the 
public about the courts and our 
system of justice. There are 940 U.S. 
__ district judges (active and 
senior), 495 U.S. magistrate 
judges, and 308 U.S. bank- 
ruptcy judges. What an impact 
these 1,743 judges could make 
if they would lead the way in 
community outreach to 
educate our youth and public 
in general. We are convinced 
— that judges qua judges — 

federal, state, special court, 
ALJs, etc. — must become pro-active 
in educating the public. 



Q: 



Congress continues to pass 
laws that increase the 
number of federal crimes. Mean- 
while the federal caseload rises. 
What is the NCFTJ doing to help trial 
judges manage their workloads? 



A: 



Q: 



What programs and /or 
initiatives has the NCFTJ 
undertaken? What would you like to 
see the NCFTJ tackle in the future? 



A: 



Our program committee is 
extremely active. At the 1999 
annual ABA meeting in Atlanta, we 



NCFTJ has served as a voice 
for federal trial judges to 
urge Congress to fill judicial vacan- 
cies, provide appropriate facilities, 
and address staff support and 
compensation. We have been 
working closely with the Standing 
Committee on Federal Judicial 
Improvements to achieve these 
goals. 

In addition to utilizing technology 
to assist us in handling the federal 
criminal caseload, another tool is the 
expanded role of the U.S. magistrate 
See Interview on page 12 



11 



TJie Third Branch 



March 2000 



Interview continued from page 11 

judge. Several districts around the 
country have adopted local rules that 
permit the magistrate judge to take 
pleas of guilty in felony cases, select 
both criminal and civil juries for the 
district judge, and take grand jury 
returns. These are time-consuming 
duties, and such practice frees the 
district judge to handle other mat- 
ters. Such rules also have another 
salutary side effect: encouraging 
"consents" to the magistrate judge. 
Although there are differing views, 
many believe that more magistrate 
judge positions should be created by 
the Judicial Conference rather than 
rely upon Congress to create addi- 
tional district judgeships. Varying 



and innovative experiments around 
the country to improve case manage- 
ment are being tried in the 94 
districts, and the Federal Judicial 
Center and the Administrative Office 
constantly are monitoring the new 
approaches. 



Q # Does the NCFTJ receive 
• input from state trial judges 
with similar problems? Is there some 
sharing of ideas or problems? 

A # The ABA Judicial Division is 
• composed of six conferences: 
federal trial judges, state trial judges, 
appellate judges (federal and state), 
special court judges, administrative 



law judges, and lawyers. This affords 
us a unique opportunity to not only 
discuss successes and failures at the 
state level but also with judges pre- 
siding over courts of limited jurisdic- 
tion. We also benefit from an ex- 
change of ideas and views with the 
lawyers conference, whose member- 
ship includes court administrators, 
private practitioners, and attorneys 
from government agencies and large 
firms. This interaction puts NCFTJ in 
a very positive position of being 
able to funnel information from 
all levels of government regarding 
the problems and solutions facing 
the overall system of justice and 
not limited to only the federal 
system. £^ 



THE THIRD BRANCH 

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THE 



THIRD 



BRANCH 



yijjTS a 7?V 



MAY 1 7 2000 



Congress Pays Attention to Courthouse Issues 



a?os? r 




Judge Jane Roffo (3"* Cir..) testified at 
congressional hearings last month on 
courthouse issues. 



In what may stand as a record for 
a Judicial Conference representative, 
over a two week span last month, 
Judge Jane R. Roth (3 rd Cir.) appeared 
before Congress three times, testifying 
before House and Senate authorizing 
subcommittees and a House appro- 
priations subcommittee in her capac- 
ity as chair of the Judicial Conference 
Committee on Security and Facilities. 
All three times she spoke of the bur- 
geoning caseload in the federal courts 
and the need for adequate facilities. 

"The lack of sufficient space can 
cause great waste and inefficiency in 
court operations," Roth told the 



House Subcommittee on Econo- 
mic Development, Public Build- 
ings, Hazardous Materials and 
Pipeline Transportation in a hear- 
ing at which both federal judges 
and legislators testified. "In addi- 
tion, security risks are a grave con- 
cern in all public buildings, inclu- 
ding federal courthouses." At this 
House subcommittee hearing, five 
federal judges and nine congress- 
men added their voices to hers. 
Making their views heard were 
Chief Judge John E. Conway (D. 
N.M.), Chief Judge Edward B. Davis 
(S.D. Ha.), Chief Judge Harry T. 
Edwards (D.C. Cir.), Chief Judge 
Terry J. Hatter Jr. (CD. Calif.), Judge 
William M. Skretny (W.D. N.Y.), 
Representatives Bob Clement (D-TN), 
Phil English (R-PA), John J. LaFalce 
(D-NY), Richard Neal (D-MA), Jack 
Quinn (R-NY), George Radanovich 
(R-CA), Silvestre Reyes (D-TX), Robert 
Scott (D-VA), and Gene Taylor (D-MS). 
The judges and members of Congress 
urged the subcommittee to authorize 
19 courthouse projects on the Judi- 
ciary's 5-year construction plan that 
will be ready in FY 2001 for design, 
site acquisition, or construction. 
Roth also testified, with Chief 

See Hearings on page 7 



INSIDE 



Judiciary Asks for Modest Increase for FY 2001 pg. 3 

Federal Caseload Climbs Slightly in 1999 pg. 5 

AJS Honors Judges Hunter and King pg. 9 




Vol. 32 
Number 4 
April 2000 



Judicial Conference Condemns 
0MB Courtroom Sharing Proposal 

The Judicial Conference has 
voted to "strongly condemn the 
unilateral efforts of the Office of 
Management and Budget to im- 
pose a courtroom sharing policy 
on the judicial branch as an un- 
warranted and inappropriate 
intrusion into the constitutionally 
mandated independence of the 
Judiciary." 

At its biannual meeting in 
Washington last month, the 
Conference voted to rescind the 
December 1999 decision of its 
Financial Disclosure Committee to 
withhold the release of judges' 
financial disclosure reports where 
the requester indicates the reports 
will be posted on the Internet. The 
Conference voted to instruct the 
chairs of its Codes of Conduct, 
Financial Disclosure, and Security 
and Facilities Committees to con- 
sider proposed legislative amend- 
ments to the Ethics in Government 
Act that would balance the 
public's need for information on 
judges' financial interests with 
judges' security needs. 

Courtroom Sharing Action 
Outside 0MB Authority 

In its consideration of court- 
room use, the Conference Com- 
mittee on Security and Facilities 

See Conference on page 2 



Conference continued from page 1 

noted that, historically, federal and 
state trial courts have allotted a court- 
room for each active judge. The 
ready availability of a courtroom is 
essential to a judge's ability to per- 
form his or her judicial duties. How- 
ever, the President's fiscal year 2001 
budget request assumes that three 
judges will share two courtrooms in 
all future federal courthouses. The 
immediate effect of OMB's action is 
the elimination of 27 out of 97 
planned courtrooms in seven new 
courthouse projects. 

The Director of the Administra- 
tive Office of the U.S. Courts has 
statutory responsibility to "provide" 
accommodations for the courts, 
and the General Services Adminis- 
tration (GSA) is "authorized and 
directed" by Congress to provide 
the accommodations requested by 
the AO Director. OMB does not 
have authority to deter- 
mine the number of 
courtrooms to be 
provided in a court- 
house or over the 
underlying policy 
governing courtroom 
utilization. Congress 
specifically assigned 
these responsibilities to 
the circuit judicial 
councils, which have 
authority to "approve" 
court accommodations 
as necessary. 

Following consi- 
deration by several 
Judicial Conference 
committees and two 
studies on courtroom 
use and case manage- 
ment, in March 1997 
the Judicial Conference 
reaffirmed its policy 
of providing one 
courtroom for each 
active district judge. 
The Conference also 
provided guidelines 
to circuit judicial 




councils when considering the 
number of courtrooms to approve 
for senior judges who do not draw 
caseloads requiring substantial use 
of a courtroom. 

In its March 2000 report to the 
Judicial Conference, the Commit- 
tee on Security and Facilities said, 
"This Committee strongly objects to 



Courthouse Projects Included in the 
President's FY 2001 Budget Request 


Courtrooms 


Courtrooms 
Requested by Courtrooms 
GSA and Deleted by 
Judiciary OMB 


Los Angeles, California 
Seattle, Washington 
Richmond, Virginia 
Gulfport, Mississippi 
Washington, D.C. 
Miami, Florida 
Little Rock, Arkansas 


33 9 

18 1 

9 1 

8 

9 4 
16 8 
12 4 


Courthouse Projects Not Included in the 

President's FY 2001 Budget Request, but 

Included in the Judiciary's 5-Year Plan 


*Eugene, Oregon Las Cruces, New Mexico 
Buffalo, New York *Salt Lake City, Utah 
Springfield, Massachusetts Rockford, Illinois 
El Paso, Texas Cedar Rapids, Iowa 
Mobile, Alabama Nashville, Tennessee 
Fresno, California Erie, Pennsylvania 
Norfolk, Virginia Savannah, Georgia 


* authorization not yet requested. 



Supreme Court 
Justice Ruth Bader 
Gingsburg, FJC 
Director Judge 
Fern Smith, and 
AO Director 
Leonidas Ralph 
Mecham at the 
Supreme Court 
reception following 
the Judicial 
Conference 
meeting. 



the unilateral action of OMB in 
superimposing its courtroom 
sharing policy as a requirement for 
funding current and future court- 
house projects since it has neither 
statutory authority nor experience 
and knowledge of the federal 
courts." 



New Procedures To Be 
Implemented on Financial 
Disclosure 

In its consideration 
of judges' financial 
disclosure reports, the 
Conference adopted a 
policy that states that 
while the appropriate 
Conference committees 
review the issue, when 
the Disclosure Commit- 
tee receives a request for 
a judge's report that 
may result in dissemina- 
tion to the public, the 
Committee will invite 
the judge to review the 
information contained in 
the report. If the judge 
believes it appropriate, 
the judge may request 
redaction of "personal 
and sensitive informa- 
tion that is otherwise 
confidential and could 
endanger the officer or 
other person if obtained 
by any member of the 



i 



The Third Branch 



April 2000 




public hostile to the judicial officer." 
When the Disclosure Committee 
receives such a request, it will 
consult with the U.S. Marshals 
Service, and will grant or deny the 
judge's request after determining if 
the information sought to be re- 
dacted is not otherwise easily 
available to the public and could, if 
obtained by a hostile member of the 
public, endanger the judge or other 
person. 

The Conference decided that on 
a permanent basis the Committee 
on Financial Disclosure will imple- 
ment procedures requiring judges 
who believe redactions to be appro- 
priate before public dissemination, 
to request such redactions when the 
annual disclosure form is filed. In 
deciding whether to grant such a 
request, the Committee will follow 
the procedures specified above. 

Conference Acts on 
Committee Recommendations 

In other action, the Conference 
also 

■ Adopted a zero tolerance policy 
for controlled substance use by pro- 
bation and pretrial services officers. 
The policy underscores the Judici- 
ary's commitment to maintain a 
drug-free workplace. 

■ Adopted a workplace drug testing 
program for probation and pretrial 
services, modeled after those used by 
executive branch agencies, which 
calls for random drug testing of five 
to 10 percent of all officers and 
officer assistants each year. 



The Judicial Conference Executive 
Committee members, left to right, AO 
Director Leonidas Mecham, Judge Ralph G. 
Thompson (W. D. Okla.), Chief Judge 
Charles H. Haden II (S.D. W.Va.), Judge 
James M. Rosenbaum (D. Minn.), Committee 
chair Chief Judge Ralph K. Winter Jr. (2" d 
dr.), Chief Judge Edward R. Becker (3 rd 
dr.), Chief Judge Juan R. Torruella (I s ' dr.), 
Chief Judge Boyce F. Martin, Jr. (6 th Cir.). 



■ Voted to oppose S. 1484, the 
proposed "Blind Justice Act of 1999", 
which would require both courts 

of appeals and district courts to 
assign all cases on a random basis, 
with limited exceptions for "related" 
and "technical" cases. The bill 
appears to require very extensive 
changes to existing court case assign- 
ment procedures. Every federal 
district court already has a random 
case assignment system. However, 
random assignment can, in certain 
circumstances, produce unequal 
workloads that could threaten a 
court's ability to manage its case- 
load in an effective and efficient 
manner. 

■ Amended the U.S. Courts Design 
Guide to provide that, for new 
construction or major renovation 
projects, ballistic-resistant glazing for 
windows be standard, unless the 
U.S. Marshals Service determines it 
is not needed. 

■ Elected to the Board of the 
Federal Judicial Center Judge 
Pauline Newman (Fed. Cir.), Judge 
Robert Bryan (W. D. Wash.), and 
Chief Judge Jean C. Hamilton (E. D. 
Mo.). £s^ 



Judiciary Asks for Modest 
Increase in Fiscal Year 
2001 Budget to Cope with 
Growing Needs 

Growing criminal caseloads 
throughout the federal courts, 
particularly in the hard-pressed 
southwest border courts, have 
prompted the Judiciary to ask 
Congress for a modest increase in 
funding for fiscal year 2001 . 

"We need additional funding for 
all courts experiencing growing 
workloads," Judge John G. 
Heyburn II (W.D. Ky), chair of the 
Judicial Conference Committee on 
the Budget, told a House subcom- 
mittee last month. "Over the past 
several years the Congress has 
chosen to make enforcement of our 
drug and immigration laws a high 
priority," Heyburn said. "The law 
enforcement personnel you have 
funded are doing their jobs as 
evidenced by the explosion in the 
criminal caseload. We now have an 
imbalance in the system that only 
Congress can address. The long- 
term solution is to fully fund the 
Judiciary's modest budget request 
for fiscal year 2001." As Adminis- 
trative Director Leonidas Ralph 
Mecham pointed out in his testi- 
mony, the federal Judiciary's 
budget is less than 2/10 of 1 
percent of the nation's total budget. 

Heyburn, with Judge Robert C. 
Broomfield of the U.S. District Court 
for the District of Arizona, one of 
the hardest hit of the border courts, 
Mecham, and Judge Fern Smith, 
Director of the Federal Judicial Cen- 
ter, appeared before the House 
Appropriations Subcommittee on 
Commerce, Justice, State, the 
Judiciary, and Related Agencies. 
Subcommittee chair Harold Rogers 
(R-KY) particularly welcomed Smith 
in her first appearance before the 

See Budget on page 4 



The Third Branch 



April 2000 



Budget continued from page 3 

subcommittee, then proceeded to 
hear testimony from the Judiciary's 
representatives on the need to pro- 
vide a modest funding increase to 
the federal Judiciary to handle a tre- 
mendous growth in overall work- 
load. Over the last four years, Rogers 
was told, criminal filings increased 
28 percent; the number of criminal 
defendants increased 23 percent; and 
the number of pretrial services re- 
ports to the courts increased 24 per- 
cent, while offenders under super- 
vised release increased by 12 percent. 

"However," Heyburn testified, 
"because of funding constraints, 
funded court support staff required 
to handle this tremendous growth in 
workload has actually declined 
during this period. At a time when 
Congress continues to provide more 
resources to the Department of 
Justice, overall funded court staff are 
declining by 3 percent." 

Rogers told Judiciary representa- 
tives that FY 2000 had been a difficult 
year for Congress as well as the Judi- 
ciary, "where we struggled to find 
every dollar we could for the courts 
and we still came up short." He 
warned that the prospects for FY 2001 
"were about the same as last year." 

The Judiciary is asking for a staff- 
ing increase in FY 2001 that is only 5 
percent above FY 1998 funded levels, 
"a very modest increase when 
compared to the 28 percent increase 
in criminal filings," Heyburn told 
the subcommittee. The majority of 
the staffing increase would be for 
probation and pretrial services 
officers to handle the growing 
criminal workload. Nearly $258 
million of the Judiciary's total 
request would fund base adjust- 
ments simply to continue current 
operations. The remainder, or $105 
million, would provide some addi- 
tional resources to the courts experi- 
encing workload increases, espe- 
cially those on the southwest border. 
The Judiciary is requesting a total 
FY 2001 appropriation for the courts 




Federal Judicial Center Director Judge Fern 
M. Smith, Judge John G. Heyburn II (W. D. 
Ky.), Judge Robert C, Broomfield (D. Ariz.), 
and AO Director Leonidas Ralph Mecham 
testified at House FY 2001 budget hearings 
last month. 



of appeals, district courts, and other 
judicial services of $4.2 billion. 

The Judiciary's budget request for 
FY 2001 includes 

■ a 9 percent increase in the defender 
services appropriation, or a total 
level of funding of $444 million, to 
handle a workload increase in 
Criminal Justice Act representations, 
and to increase the hourly rate paid 
to private panel attorneys. Panel 
attorneys have received only two 
hourly rate increases in 15 years, 
which is making it increasingly 
difficult for courts to recruit and 
retain qualified attorneys. The 
present rate of compensation does 
not cover the national average 
overhead costs for a private attorney. 

■ a 7 percent increase for court 
security, or a total level of funding of 
$215 million, which will include 
funding for additional court security 
officers in new or renovated facili- 
ties, replacement of outdated secu- 
rity systems, and the acquisition of 
digital radios as mandated by the 
National Telecommunications and 
Information Administration Organi- 
zation Act. 

■ a total of $60 million for the fees 
of jurors program, a reduction from 
FY 2000 that reflects a projected 
decrease in juror days. 



Heyburn expressed the 
Judiciary's deep concerns 
about the growing dispar- 
ity in pay between the 
federal and private sectors. 
"This past fall, the Congres- 
sional Budget Office conclu- 
ded that the pay and bene- 
fits of members of Congress, 
judges, cabinet officers, and 
members of the Senior 
Executive Service are less 
generous than those of executives at 
large and medium sized private 
firms," Heyburn said. "If the pay gap 
between the federal government and 
other employers continues to widen, 
the Judiciary and the political 
branches may find that they are 
unable to compete for the most 
talented individuals." Heyburn said 
the Judiciary was hopeful Congress 
would allow the mechanisms of the 
1989 Ethics Reform Act to work, and 
that all top government officials 
would be provided a cost of living 
adjustment in fiscal year 2001 . 

Heyburn also urged Congress to 
fully fund the needs of the Adminis- 
trative Office, the Federal Judicial 
Center, and the U.S. Sentencing 
Commission. 

The AO requested a 7 percent in- 
crease over FY 2000 direct obligations. 
The funding will support current pro- 
grams and improve services to the 
courts and to the public. "For the past 
several years," Mecham told the sub- 
committee, "the funding received by 
the Judiciary has not allowed the 
courts to grow to the level required 
to keep pace with their increasing 
workload. Because of this, the AO 
has been increasingly called upon to 
help in developing new systems and 
programs for the courts that will 
allow them to continue to provide 
quality services in spite of the fact 
that workload increases faster than 
resources. The AO is continuing to 
work at improving services to the 
courts and to the public." 

Mecham cited a number of initi- 
atives that focus on ensuring future 






4 



The Third Branch m April 2000 



programs achieve the Judiciary's 
goals in a cost-effective way, includ- 
ing strengthened connections be- 
tween long-range program planning 
and budgeting; updated work mea- 
surement formulas to reflect new 
work requirements, the impact of 
technology, and changing work pro- 
cesses for equitable court staffing; and 
a new financial management improve- 
ment program to elevate the overall 
financial skills level of AO and court 
personnel and to introduce financial 
process improvements and automa- 
ted financial systems. The AO also 
has undertaken major studies of space 
and facilities and the Judiciary's rapid- 
ly expanding information technology 
program, and plans studies of proba- 
tion and pretrial services system, 
court security services, and training 
needs throughout the Judiciary. "By 



taking advantage of new technolo- 
gies, improving communication, and 
placing increased emphasis on long- 
range planning and budgeting, the 
AO continues to be innovative in 
providing support services to the 
Judiciary," said Mecham. Descrip- 
tions of these and other efficiencies 
are available at www.uscourts.gov/ 
optimal00/optimal2000.pdf. 

Funds for the Federal Judicial 
Center were requested by Judge Fern 
Smith, who sought a 7.5 percent 
increase in obligations, for a 2001 
appropriation only slightly higher 
than its 1992 level. Smith said the 
"vast majority of our educational 
programs are done by distance 
learning," including the Federal 
Judicial Television Network, which 
the Center operates for the Judiciary. 
But "distance learning will never 



completely, and shouldn't com- 
pletely, displace face-to-face learn- 
ing." Chairman Rogers thanked the 
FJC and the AO for developing the 
FJTN. "I'm proud," he added, "of 
what the Center is now doing to save 
a lot of travel time." 

Smith described the FJC's efforts to 
help courts develop education pro- 
grams on critical problems, such as 
last February's southwest border 
courts conference. She also described 
the FJC's work to help judges imple- 
ment complex statutes, manage scien- 
tific and technical lawsuits, as well as 
criminal litigation in which the gov- 
ernment seeks the death penalty. The 
FJC, she added, conducts education 
and research to help courts imple- 
ment alternative dispute resolution 
and meet the challenges of trans- 
national litigation. £v^ 



Federal Court Caseload Climbed Slightly in 1999 



Bankruptcy Petitions 
Filings Fall 

The caseload of the federal courts 
continued to climb in fiscal year 
1999, although at a slower rate than 
in the two previous fiscal years, 
according to the 1999 Judicial Business 
of the U.S. Courts, released by the 
Administrative Office. Overall, 
criminal and civil filings in the 
district courts increased. The number 
of pretrial services cases and the 
number of persons under supervi- 
sion of the probation system also 
rose. Filings in the 12 regional courts 
of appeals increased due to a change 
in reporting procedure for original 
proceedings. Excluding original 
proceedings, appeals dropped. 
Bankruptcy petitions were the only 
filings to decline. However, with the 
exception of decreases in 1993 and 
1994, bankruptcy filings have 
increased for nearly a decade and 



remain well above the one million 
mark. 

Judicial Business of the U.S. Courts 
can be found on the Judiciary's 
website at www.uscourts.gov. 

Filings in the U.S. Courts of Appeals 

Filings in the 12 regional courts of 
appeals increased 2 percent to 54,693. 
The increase was caused by changes 
in the reporting procedures during 
1999 related to the Antiterrorism and 
Effective Death Penalty Act and the 
Prison Litigation Reform Act. These 
changes caused a 349 percent surge 
in the total for original proceedings. 
In the courts of appeals, original pro- 
ceedings are filed for the first time in 
the appellate courts; that is, they are 
not dependent on prior actions by 
lower courts or administrative agen- 
cies. Original proceedings include 
writs of mandamus or prohibition 
and other extraordinary writs. 

Excluding original proceedings, 
total appeals filings declined 3 



percent as filings of civil appeals fell 
2 percent, criminal appeals fell 3 
percent, bankruptcy appeals fell 8 
percent, and administrative agency 
appeals fell 14 percent. 

■ Three of the 12 circuits reported 
overall increases in appeals. 

■ The reduction in civil appeals 
filings resulted from a 4 percent 
decrease in civil rights appeals and a 
1 percent dip in prisoner petition 
appeals. The drop in prisoner 
petition appeals was due to a 17 
percent reduction in motions to 
vacate sentence and a 10 percent 
decrease in prisoner civil rights 
appeals. Habeas corpus prisoner 
petition appeals rose 16 percent. 

■ Appeals involving pro se litigants 
rose 6 percent due to a 717 percent 
surge in pro se original proceedings, 
largely in response to the change in 
reporting procedures. 

■ Since 1995, filings of appeals (not 
including original proceedings) have 
risen 4 percent. 

See Caseload on page 6 



The Third Branch m April 2000 



Caseload continued from page 5 

Filings in the U.S. District Courts 

Criminal Case Filings 

Filings of criminal cases rose 4 per- 
cent from 57,691 to 59,923 in 1999, 
the highest number since 1933, when 
the Prohibition Amendment was re- 
pealed. This followed a 15 percent 
jump in criminal cases in 1998. In 
1999, the combined filings of cases in 
the three largest criminal categories — 
drugs, fraud, and immigration — 
accounted for 60 percent of 
all criminal case filings, the 
same proportion as in 1998. 
However, the proportion of 
drug and immigration case 
filings rose and that of 
fraud case filings de- 
creased. 

■ Drug case filings 
climbed 7 percent to 17,483, 
while the number of drug 
defendants increased 4 
percent to 30,671. 

■ Immigration case filings 

in the overall criminal caseload 
climbed 14 percent to 10,641, while 
the number of immigration defen- 
dants grew 13 percent to 11,461. The 
majority of immigration cases were 
filed in district courts along the 
southwest border of the U.S. 

■ Five southwest border districts, 
the District Courts for the Districts of 
Arizona and New Mexico, the 
Western and Southern Districts of 
Texas, and the Southern District of 
California, received 27 percent of all 
criminal cases filed in the U.S. in 
1999. This was attributable mostly to 
the large numbers of immigration 
and drug trafficking cases. 

■ Overall, fraud case filings de- 
clined 8 percent. 

■ Weapons and firearms case filings 
surged 20 percent from 3,641 to 
4,367, and filings of defendants in 
such cases increased 15 percent from 
4,441 to 5,114. These represent record 
highs for filings for these offenses 



and resulted in part because U.S. 
attorneys prosecuted in the federal 
courts defendants identified by state 
and local law enforcement agencies. 

The number of defendants in 
criminal cases grew 2 percent from 
79,008 to 80,822. The median case 
deposition time for criminal defen- 
dants rose from 5.6 months in 1998 to 
5.9 months in 1999, probably because 
of the increased workload imposed 
by the large number of cases courts 
received in 1998. 




Civil Case Filings 

Civil filings in the U.S. district 
courts rose 1 percent in 1999 to 
260,271. The overall increase in 
filings of civil cases was related 
primarily to a rise in cases with the 
U.S. as plaintiff. In 1999, filings of 
cases with the U.S. as a party in- 
creased 13 percent from 57,852 in 
1998 to 65,443. 

Filings with the U.S. as plaintiff 
rose 33 percent as a result of a 54 
percent jump in cases related to the 
recovery of overpayments and 
enforcement of judgments. Student 
loan recovery filings rose 56 percent, 
because of debt collection proce- 
dures implemented by the U.S. 
Department of Education. 

Filings with the U.S. as defendant 
remained essentially stable, drop- 
ping less than 1 percent. This de- 
crease was related to a 4 percent 
reduction in Social Security cases 
and a 9 percent decline in motions to 
vacate sentence filed by federal 



prisoners. Social security disability 
insurance and supplemental security 
income filings dropped 6 percent 
and 3 percent, respectively. Motions 
to vacate sentence fell by 535 cases. 
The declines were largely offset by a 
55 percent jump in federal habeas 
corpus filings. 

■ Federal question jurisdiction cases 
declined 1 percent, mainly because 
filings of personal injury cases 
decreased 14 percent, with product 
liability filings (mostly breast im- 
plant cases) declining 58 
percent. However, habeas 
corpus petitions filed by state 
prisoners increased 9 percent. 

■ Diversity of citizenship 
filings fell 4 percent as a 
result of a large reduction in 
personal injury /product 
liability litigation involving 
breast implant cases. 

Bankruptcy Filings 

Bankruptcy filings in the 
Judiciary's fiscal year 1999 
totaled 1,354,376, down 6 percent 
from the 1,436,964 bankruptcy filings 
for fiscal year 1998. With the excep- 
tion of decreases in 1993 and 1994, 
bankruptcy filings have increased for 
nearly a decade. The reduction most 
likely resulted from last year's lower 
interest rates, low unemployment, 
and continued general economic 
prosperity, which enabled consum- 
ers to pay their debts more easily. 
Decreases in bankruptcy filings were 
seen in both nonbusiness and 
business petitions, which fell 5 
percent and 18 percent, respectively. 
Drops also were reported in filings 
under all chapters except for Chapter 
11, for which filings rose 2 percent. 

Pronation and Pretrial Services 

On September 30, 1999, the total 
number of persons under supervi- 
sion of the probation system was 
97,190, a 4 percent rise over the 
number reported as of September 30, 
1998. This year, persons under $ 



The Third Branch 



April 2000 






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supervision for drug offenses 
increased 6 percent. 

Persons serving terms of super- 
vised release following their release 
from prison grew 8 percent. Overall, 
persons serving terms of supervised 
release made up 61 percent of all 
persons under supervision, com- 
pared to 58 percent one year earlier. 
Parole cases dropped 11 percent, and 
those involving mandatory release 
fell 10 percent. Probation officers 



prepared 192,904 investigative 
reports in 1999, a rise of 3 percent 
over last year. 

In 1999, the number of defendants 
in cases activated in the pretrial ser- 
vices system increased 2 percent, to 
80,154, consistent with the growth in 
criminal filings in district courts. Pre- 
trial services officers interviewed 
59,542 defendants and prepared 
76,657 pretrial reports. In 1999, the 
number of defendants released in- 



creased 1 pen cut to 36,213. Of those 
released, 85 percent were placed into 
the custody of pretrial services offi- 
cers, and 91 percent were released 
with restrictive conditions. The most 
frequently ordered restrictive 
conditions involved substance abuse 
testing and treatment and were 
imposed on 22 percent of activated 
defendants. House arrest and 
electronic monitoring were ordered 
for 7 percent of defendants. ^^ 



Hearings continued from page 1 

Judges Davis, Edwards, and 
Hatter, before the Senate Commit- 
tee on Environment and Public 
Works, Subcommittee on Transpor- 
tation and Infrastructure, concern- 
ing the General Services 
Administration's (GSA) fiscal year 
2001 Capital Investment and 
Leasing Program, including 
courthouse construction. Opening 
statements at that hearing were 
given by Senator Max Baucus (D- 
MT), Senator Barbara Boxer (D- 
CA), and Bob Peck, Commissioner, 
Public Building Service, GSA. 

Roth's final hearing in March 
was before the House Appropria- 
tions Subcommittee on the Trea- 
sury, Postal Service and General 
Government. Subcommittee chair 
Representative Jim Kolbe (R-AZ) 
heard testimony on GSA's FY2001 
appropriations, which includes 
courthouse construction. 

FY 2001 is the first budget in 
four years that the Administration 
has requested funding for federal 
courthouse construction, but the 
President's budget included funds 
for just seven of the 19 projects on 
the Judiciary's 5-year plan. While 
Congress did appropriate funds for 
courthouses in FY 1999, a backlog 
of projects has resulted and many 
courts continue to operate in sub- 
standard conditions. These delays 
are costly in more ways than one. 
GSA estimates that construction 



k 1 k IBa***** * 


m **% 








sy^k^^^^^^* ■*■- 


Hki.v 



Chief Judges John E. Conway, Harry T. 
Edwards, Terry J. Hatter Jr., and Edward B. 
Davis (left to right) testified at congressional 
hearings. Judges Jane Roth, seated behind the 
panel, and Judge William M. Skretny also 
testified on courthouse issues. 



costs are increasing 3-4 percent for 
each year of delay, with significantly 
higher escalation in some cases. 

The courthouse projects awaiting 
authorization in FY 2001 are gener- 
ally in areas of the country where 
there is dynamic population growth, 
combined with increased law 
enforcement activities. While the 
criminal caseload in these areas has 
increased, the civil jurisdiction of 
the federal courts has broadened, 
and the number of bankruptcy 
filings also has risen substantially. 

Older courthouses cannot 
accommodate modern courtroom 
technology features and often have 
problems with deteriorating heating 
and cooling systems as well as other 
building infrastructure problems. 
Further, judges and court staff are 
conducting court business in unsafe, 
overcrowded facilities. Security for 



jurors, witnesses, court em- 
ployees, judges, and the public 
is compromised as they pass 
through the same hallways as 
individuals charged with 
serious crimes. 

Roth and other Judiciary 
representatives also expressed 
concern over the Office of Man- 
agement and Budget's (OMB) 
arbitrary decision to impose court- 
room sharing on judges, nullifying 
the Judicial Conference policy of 
one courtroom per active judge and 
an adequate number of courtrooms 
to accommodate senior and visiting 
judges in each court. This decision 
resulted in the deletion of as many 
as half of the planned courtrooms in 
some of our nation's busiest courts. 
"[T]he doctrine of separation of 
powers creates serious constitutional 
concerns if the executive branch 
should attempt to establish judicial 
process and policy," Roth said. 

Presently there is no research to 
support the concept of courtroom 
sharing, and none of the 50 state 
court systems has adopted court- 
room sharing policies. Courtrooms 
are essential tools in the delivery of 
justice, allowing the timely dispen- 
sation of cases pending before the 
court and eliminating last minute 
delays. Minimal monetary gain 
would result from deleting a 
courtroom, but the cost to efficient 
court operations would be signifi- 
cant. ^^ 



The Third Branch - April 2000 






JUDICIAL MILESTONES 



Appointed: Richard Linn, as Court of 
Appeals Judge, U.S. Court of Appeals 
for the Federal Circuit, January 1 . 

Appointed: Barbara M. G. Lynn, as 

U.S. District Judge, U.S. District Court 
for the Northern District of Texas, 
February 14. 

Appointed: Joel A. Pisano, as U.S. 
District Judge, U.S. District Court 
for the District of New Jersey, Febru- 
ary 16. 

Appointed: Carla E. Craig, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Eastern District of New 
York, February 28. 

Appointed: John E. Hoffman, Jr., as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Southern District 
of Ohio, February 25. 

Appointed: Coleman Ray Mullins, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Northern District 
of Georgia, February 29. 

Appointed: Michael G. Williamson, 

as U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Middle District of 
Florida, March 1. 

Appointed: William H. Baughman, 
Jr., as U.S. Magistrate Judge, U.S. 
District Court for the Northern District 
of Ohio, February 16. 

Appointed: Monica J. Benton, as U.S. 

Magistrate Judge, U.S. District Court 
for the Western District of Washing- 
ton, February 28. 

Appointed: William H. Baughman, 
Jr., as U.S. Magistrate Judge, U.S. 
District Court for the Northern District 
of Ohio, February 16. 

Appointed: Boyd N. Boland, as U.S. 
Magistrate Judge, U.S. District Court 
for the District of Colorado, February 9. 

Appointed: John A. Gorman, as U.S. 
Magistrate Judge, U.S. District Court 
for the Central District of Illinois, 
February 18. 

Elevated: Judge Edward R. Korman, 

to Chief Judge, U.S. District Court for 
the Eastern District of New York, 



succeeding Judge Charles P. Sifton, 
March 19. 

Elevated: Judge Michael B. Mukasey, 

to Chief Judge, U.S. District Court for 
the Southern District of New York, 
succeeding Judge Thomas P. Griesa, 
March 12. 

Elevated: Judge Dean Whipple, to 

Chief Judge, U.S. District Court for 
the Western District of Missouri, 
succeeding Judge D. Brook Bartlett, 
January 22. 

Elevated: Bankruptcy Judge Stuart 
M. Bernstein, to Chief Judge, U.S. 
Bankruptcy Court for the Southern 
District of New York, succeeding 
Bankruptcy Judge Tina L. Brozman, 
February 1. 

Retired: Senior Judge Barbara K. 
Hackett, U.S. District Court for the 
Eastern District of Michigan, March 1. 

Retired: Magistrate Judge Donald E. 
Abram, U.S. District Court for the 
District of Colorado, February 8. 

Retired: Magistrate Judge Sharon E. 
Grubin, U.S. District Court for the 
Southern District of New York, 
February 29. 

Retired: Magistrate Judge Robert J. 
Kauffman, U.S. District Court for the 
Central District of Illinois, February 17. 

Resigned: Magistrate Judge Joel A. 
Pisano, U.S. District Court for the 
District of New Jersey, February 15. 

Retired: Magistrate Judge David E. 
Wilson, U.S. District Court for the 
Western District of Washington, 
February 27. 

Deceased: Senior Court of Appeals 
Judge Charles E. Wiggins, U.S. Court 
of Appeals for the Ninth Circuit, 
March 2. 

Deceased: Senior Judge Aubrey E. 
Robinson, Jr., U.S. District Court for 
the District of Columbia, February 27. 

Deceased: Magistrate Judge Doyle A. 
Rowland, U.S. District Court for the 
Western District of Michigan, Febru- 
ary 29. 



THE 

THIRD 

BRANCH 



Published monthly by the 
Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, DC. 20544 

(202) 502-2600 

Visit our Internet site at 

http://www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECimVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 



As of April 1,2000 




Courts of Appeals 




Vacancies 


22 


Nominees 


16 


District Courts 




Vacancies 


55 


Nominees 


22 


Courts with 




Judicial Emergencies 


20 



For more information on vacancies in 
the federal Judiciary visit our website 
at wrww.uscourts.gov. 



The Third Branch m April 2000 



AJS Honors Two Who 
Serve the Judiciary 



The American Judicature So- 
ciety has recognized two federal 
judges, who in their careers have 
improved the administration of 
justice. 

Judge James Lawrence King 
(S. D. Fla.) has received the Eigh- 
teenth Annual Edward J. Devitt 
Distinguished Service to Justice 
Award. The award honors an Article 
III judge who, in an exemplary 
career, has made significant contri- 
butions to the administration of 
justice, the advancement of the rule 
of law, and the improvement of 
society as a whole. 

King developed and promoted 
differentiated case tracking and 
management, which has helped 
the Southern District of Florida 
handle an ever-expanding criminal 
caseload. As a jurist, King has been 
praised as a defender of the rights of 
minorities, immigrants, and asylum 
seekers. 




Judge James Lawrence King (S. D. Fla.) 



At Chief Justice Warren 
E. Burger's behest, he studied 
the masters' system and 
English judicial procedures 
in London, and was instru- 
mental in shaping the U.S. 
magistrate judge system. 
He has been a Judicial 
Conference member, and 
served on the Conference 
Committee On Long Range 
Planning. A former chief 
judge of the Southern Dis- 
trict of Florida serving from 
1984 to 1991, he also acted 
temporarily as chief judge 
for the administration of the 
U.S. District Court for the 
Canal Zone. King's career 
also encompasses service 
as a Florida state circuit 
judge. 

In 1970, he was appointed to the 
federal bench, taking senior status in 
1992. He continues to maintain the 
caseload of an active judge on his 
court. The federal courthouse at 
Miami, Florida, is named in his 
honor. 

The Devitt Award, administered 
by the American Judicature Society, 
honors the late Judge 
Edward J. Devitt (D. Minn.). 
Justice Ruth Bader Ginsburg 
(S.C.), Judge James L. Oakes 

f(2 nd Cir.), and Judge Ortrie 
D. Smith (W. D. Mo.) served 
on this year's selection 
committee. 

Judge Elmo B. Hunter 
(W. D. Mo.) is the recipient 
of the AJS Distinguished 
Service Award, an award 
that recognizes significant 
contributions to the work of 
the AJS and the nation in 
promoting the effective 
administration of justice. 
Hunter is the only indi- 
vidual in the 87-year history 
of AJS to serve both as its 
chair (1969-70) and presi- 
dent (1970-71). In his career, 
he also was a tireless 




Judge Elmo B. Hunter (W. D. Mo.) 

advocate for judicial merit selection 
and public education about the 
courts. 

Hunter is a former member of 
the Judicial Conference, and he 
chaired the Conference Committee 
on Court Administration from 1969 
to 1987, also serving on its Subcom- 
mittee on Judicial Improvements. 
He was a member of the Conference 
Committee on Long Range Planning. 

A former Missouri circuit court, 
court of appeals, and supreme court 
judge, in 1965 he was appointed to 
the federal bench, taking senior 
status in 1980. For his leadership in 
the federal Judiciary, Hunter re- 
ceived the Edward J. Devitt Distin- 
guished Service to Justice Award in 
1987. 

The American Judicature Society 
is a nonpartisan, nonprofit organiza- 
tion that works to improve the 
administration of justice and protect 
judicial independence. Through 
research, educational programs, 
publications, and videos, AJS focuses 
primarily on ethics in the courts, 
judicial selection, the jury, court 
administration, and public under- 
standing of the justice system. ^^ 



The Third Branch 



April 2000 



INTERVIEW 



Security and Facilities Dual Responsibilities tor Judge Roth 



Judge Jane Roth (3 rd Cir.) is the chair of 
the Judicial Conference Committee on 
Security and Facilities. She was 
nominated to the U.S. District Court for 
Delaware in 1985 and elevated to the 
Third Circuit in 1991. 

Q. Your Committee has a dual 
• role with responsibility for 
both security and facilities. How do 
these two roles interrelate? 

A. You can't effectively con- 
• sider one without the other. 
How a courthouse is built has a great 
deal to do with the security you're 
going to have in that courthouse. 
That has become particularly appar- 
ent when we understand how having 
separate paths of circulation for the 
public, for judges and for prisoners 
in the courthouse is important in 
maintaining the security of the 
courthouse. So the structure of the 
building in which we're going to 
provide security is an important 
factor. To focus on one without the 
other is not going to solve problems. 



Q # The Judicial Conference 
• recently made a strong state- 
ment regarding the Office of Man- 
agement and Budget and its policy 
on courtroom sharing. What was 
that statement and what led up to it? 

A. The GSA budget request for 
• courthouses has been re- 
duced from its original estimates 
because of a new policy, developed 
by OMB, that would require the 
sharing of courtrooms at the ratio of 
two courtrooms for every three 
judges. The Judicial Conference has 
voted to "strongly condemn the 
unilateral efforts of the Office of 
Management and Budget to impose 
a courtroom sharing policy on the 



judicial branch, as an unwarranted 
and inappropriate intrusion into the 
constitutionally mandated indepen- 
dence of the Judiciary." 

It is difficult for us to understand 
why OMB announced the policy. 
There was no consultation at all with 
the Judiciary prior to its announce- 
ment. We understand that OMB 
claims the policy is based upon a 
1997 General Accounting Office sur- 
vey and a RAND study. There is 
nothing, however, in either of these 
studies to support the courtroom 
sharing policy. There is a discussion 
at one point in the GAO study that a 
courtroom is used on approximately 
65 percent of the days. Apparently, 
OMB conceives that courtrooms 
should be used 100 percent of the 
time and that, since 65 percent is 
about two-thirds of 100, having 2 
courtrooms for every 3 judges would 
be maximum efficient utilization of 
courtrooms. 

As a former district court judge, I 
realize how important it is for every 
active judge to have a courtroom 
available to schedule cases and pro- 
ceedings well ahead of time. When I 
was on the district court, I had trials 
and arguments scheduled 6 to 8 
months in advance. It was only by 
using this scheduling method that I 
was able to manage my caseload 
effectively. One of the advantages of 
this efficient type of case management 
is that the lawyers know when a case 
is coming to trial and frequently on 
the eve of trial the case is settled. 
When this occurs, the courtroom is 
dark on the day the trial was sup- 
pose to begin. But you realize the 
settlement would not have occurred 
if the courtroom had not been 
available for the scheduled trial. 

The Judicial Conference policy is 
one courtroom for every active dis- 
trict judge and for every senior judge 




Judge Jane Roth (3 rd Cir.) 



with a substantial caseload. Senior 
judges with reduced caseloads and 
visiting judges will share courtrooms. 
The judicial councils determine space 
needs and the Director of the Admin- 
istrative Office, by statute, must pro- 
vide adequate accommodations for the 
courts. The Administrative Office 
consults with GSA to determine the 
most effective and efficient method 
of providing the needed accommoda- 
tions. GSA is then directed by statute 
to provide these facilities. There is not 
a role for OMB to insert itself into this 
process to change the court needs as 
they have been determined by the 
circuit judicial councils and by GSA. 
The courtroom sharing resolution, 
adopted by the Conference, was 
proposed by the Security and Facili- 
ties Committee. The Committee felt 
that the OMB policy raised serious 
constitutional implications because in 
essence it is the executive branch 
attempting to regulate how the 
judicial branch is going to conduct its 
judicial business. Certainly, the 
legislative branch has the power of 
the purse and they can allocate the 
amount of money for courthouse 
construction that they think appro- 
priate. But for the executive branch 
to tell judges how courts will be run 
raises serious questions of separation 
of powers. It was on that basis that 
the Committee and the Conference 
took the strong stand that they did. 



10 



The Third Branch m April 2000 



Q, OMB has inserted this 
• policy into the White House 
Budget, and the Conference has 
made its statement. What happens 
now? 

A # It is the role of Congress to 
• authorize courthouses and to 
appropriate the money for their 
construction. Last month I testified 
before Congress on the need to 
construct the courthouses on our 
priority list, originally agreed to by 
us and GSA. I was joined by Chief 
Judge Harry T. Edwards (D.C. Cir.), 
Chief Judge John E. Conway (D. 
N.M.), Chief Judge Edward B. Davis 
(S.D. Ha.), Chief Judge Terry J. 
Hatter Jr. (CD. Calif.), and Judge 
William M. Skretny (W.D. N.Y.), 
who testified about the need for the 
courthouses to be constructed in 
their districts. Our position, which 
we presented to the authorizing 
committees, both in the House and 
the Senate, and to the House appro- 
priations committee, was that these 
courthouses are needed. They are 
needed in the size and the design 
proposed by the AO and approved 
by GSA in the prospectuses pre- 
sented on the courthouses, without 
the restrictions placed by OMB. 

We asked the subcommittees to 
authorize the courthouses as they had 
been submitted originally by GSA, 
with the addition of two projects that 
it now appears are ready to proceed 
immediately and that had not been 
on the GSA list. It is our request that 
all 19 courthouse projects at a cost of 
$800 million move forward in fiscal 
year 2001. 



Q # What is the Judiciary, 
• through GSA, asking for in 
FY 2001 for courthouse construction? 

A. GSA asked for $700 million 
• for courthouse construction. 
OMB cut it down from $700 to $488 
million. There were two types of cuts. 
First, OMB picked projects 1 through 



5 of the Judiciary's prioritized pro- 
jects, then jumped to number 8, num- 
ber 14, and left out the intervening 
projects. They also reduced the scope 
of all but one of these projects by the 
imposition of a courtroom-sharing 
policy. The whole time-consuming 
and expensive effort of redesigning 
some of these projects will create 
more delay that will put off their 
completion even longer and raise 
costs. 



Q # OMB has imposed the court- 
• room sharing policy and 
reduced our FY 2001 budget request. 
Could OMB impose other restric- 
tions? 

A # Yes. Another device used by 
• OMB is directed at the Judi- 
ciary's operating budget. Section 
1105(b) of Title 31 provides that the 
executive branch must pass on to the 
legislative branch, without change, 
the budget requests of the judicial 
and legislative branches. However, 
even when the Judiciary's operating 
budget has been passed on without 
change, OMB has made a back- 
handed attack on the budget by a sub- 
terfuge known as 'negative allow- 
ances.' By this stratagem, OMB puts 
the money in with one hand and takes 
it out with the other. OMB asserts at 
the end of the budget that to balance 
it, a certain amount — say $150 
million — must be eliminated. The 
suggestion is then made to the appro- 
priators that all or part of the negative 
allowance amount be removed from 
the Judiciary's budget request. Nega- 
tive allowances evade the statute. We 
believe that they also violate it. 

The construction projects of the 
Judiciary have not had the statutory 
protection of § 1105(b) because 
courthouse construction requests are 
made by GSA, an executive agency. 
Due to the fact that these requests 
come from an executive agency, they 
are not protected from executive 
branch interference. The Federal 



Courts Budget Protection Act, intro- 
duced by Senator Thad Cochran (R- 

MS), provides that both the operat- 
ing and the construction budgets of 
the Judiciary be presented directly to 
Congress. This would prevent OMB 
from changing the Judiciary's court- 
house construction requests. The Fed- 
eral Courts Budget Protection Act 
would not in any way evade the 
legislative oversight of the budget re- 
quests. The requests would go before 
the congressional authorizing and 
appropriating committees in exactly 
the same manner as they do now. 
Congress would maintain its same 
oversight. OMB also would have an 
opportunity to comment on our 
budget requests, but it could no 
longer arbitrarily cut them in favor 
of executive branch projects. The 
problem I mentioned of negative 
allowance is also covered in the 
Federal Courts Budget Protection 
Act. The Act specifically prohibits 
OMB from exercising negative allow- 
ances against the Judiciary's budget. 



Q # Turning to court security, 
• how would you describe the 
overall security of federal court- 
houses nationwide? 

A. We are about to undertake a 
• study of court security to 
make sure our security system is ef- 
fective and well-conceived. Inci- 
dents at Oklahoma City and in To- 
peka, Kansas, are examples of how — 
even when you aren't expecting prob- 
lems — tragedy can occur. Working 
with the U.S. Marshals Service, we 
try to make sure we are providing ad- 
equate security in courthouses. Secur- 
ity is, however, a matter of significant 
expense. The tension is constant be- 
tween what the budget can provide 
and what security requires. That's one 
of the reasons why we have under- 
taken this study — to make sure we 
are balancing what needs to be done 
with an appropriate regard for 
financial responsibility. £^ 



11 



The Third Branch m April 2000 



Judicial Conference uf the United States, March 14 2000 



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Sea fed : (LfoRJ Chief Judge Juan R. Torruella (1st dr.); Chief Judge Ralph K. Winter, Jr. (2nd dr.); Chief Judge Edward R. Becker (3rd 
dr.); Chief Judge J. Harvie Wilkinson III (4th dr.); Chief Justice William H. Rehnquist; Chief Judge Carolyn Dineen King (5th dr.); 
Chief Judge Boyce F. Martin, Jr. (6th dr.); Chief Judge Richard A. Posner (7th dr.); Chief Judge Roger L. Wollman (8th Cir.) 
Standing, Second Row : (LtoR) Judge Joseph A. DiClerico, Jr. (D. NH); Chief Judge Charles P. Sifton (E.D. N.Y.); Chief Judge Donald E. 
Ziegler (W.D. Pa.); Chief Judge Harry T. Edwards (D.C. dr.); Chief Judge Haldane Robert Mayer (Fed. dr.); Chief Judge Procter R. Hug, 
Jr. (9th dr.); Chief Judge Stephanie K. Seymour (10th dr.); Chief Judge R. Lanier Anderson (11th dr.); Chief Judge Charles H. Haden II 
(S.D. W.Va.); Judge Hayden W. Head, Jr. (S.D. Tex.) 

Standing, Third Row : (LtoR) Judge Thomas A. Wiseman, Jr. (M.D. Tenn.); Judge Robert L. Miller, Jr. (N.D. Ind.); Judge James M. 
Rosenbaum (D. Minn.); Judge Judith N. Keep (S.D. Calif.); Judge Ralph G. Thompson (W.D. Okla.); Chief Judge Charles R. Butler, Jr. 
(S.D. Ala.); Chief Judge Norma H. Johnson (D. D.C); Chief Judge Gregory W. Carman (Int'l Trade); Leonidas Ralph Mecham, Director, 
Administrative Office of the U.S. Courts. 



THE THIRD BRANCH 

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Washington, D.C. 20544 



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THIRD 

BRANCH 



Newsletter 

of the 
Federal 

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Vol. 32 

Number 5 
Max 2000 




INSIDE THIS ISSUE 

Speaker Hastert, Hyde Discuss COLA in 2001 

Law Day Has Students Looking at Judicial Independence 

At Session Midpoint, an Update on Legislation 

Gregg Advocates Funding for Domestic Drug War 

Director's Awards for 2000 Honor Four 

European Court of Justice Makes Historic Visit to Supreme 

Court 

Domecini Supports Judiciary's Border Court Needs 

Judicial Milestones 

Judicial Boxscore 

Supreme Court Website Latest in Electronic Initiatives 




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Speaker Hastert, Hyde Disease COLA in 2001 

House Speaker J. Dennis Hastert 
(R-IL) (at top of table) met with 
Judiciary representatives in May to 
discuss agenda-topping issues and 
legislation in the waning months of 

the 106 Congress. Speaking on 
behalf of the Judiciary were (left to 
right) Administrative Office 
Director Leonidas Ralph Mecham; 
Judge Wayne R. Andersen (N.D. 
111.) a member of the Judicial 
Confer- ence Committee on the 

Judicial Branch; Judge David R. Hansen (8 th Cir.), chairman of the Committee on the Judicial 

Branch; and Judge Ann C. Williams (7 Cir.), president of the Federal Judges Association. 
Representative Henry J. Hyde (R-IL) (to the Speaker's left) also participated in the discussions. 
As chairman of the House Committee on the Judiciary, Hyde has had a long-standing interest 
in the Judiciary. 

Among the topics discussed by the participants were judges pay and the Judiciary's 
appropriations. The Speaker again indicated his support for a 2001 COLA for members of 
Congress and judges. Despite last year's successful effort, both the Speaker and Chairman Hyde 
cautioned that this is an election year, which will make it even more difficult to get a COLA. 




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THIRD 

BRANCH 

Law Day Has Students Looking at Judicial independence 

High-school officials receive word a gun will be brought to their school. Using metal detectors, 
they search the students. The backpack of one student, who may have been singled out by a 
teacher, is searched and a quantity of drugs is found. In a subsequent hearing, the judge is 
asked by the defendant to rule on a motion to suppress the evidence, saying the search was 
illegal. 

Meanwhile, news coverage shows parents strongly in favor of searches to protect their children, 
while others point to a student's right to privacy. One observer threatens judicial impeachment 
if the judge doesn't bow to public opinion. How would you rule? 

That's the question nearly 2,000 high-school students were asked to answer when they took part 
in the federal Judiciary's Law Day celebration at 34 courthouses nationwide. While Fourth 
Amendment rights issues — the protection against unreasonable searches and seizures — were 
raised in this case, the students participating in the Law Day exercise were asked to focus on 
how community pressure may be exerted to influence a decision, and the role of judicial 
independence in that decision-making process. In the exercise they may have found just how 
important judicial independence is to the justice system. 

"Students were asked to judge the case, not on their personal opinion, but on the rule of law," 
explained Judge Ann Williams (7 th Cir.), who hosted the national broadcast from Washington, 
D.C. "They may feel strongly one way or the other on whether or not students should be 
searched. But no matter what their personal opinions, they must rule on the case based upon the 
law. It's a situation a judge faces every day." Williams and the many other federal judges 
involved in Law Day, hope the exercise helped students understand the constitutional 
constraints imposed on judicial decisions and the importance of judicial independence. 

According to Rebecca Fanning, community outreach coordinator for the Administrative Office, 
students deliberately were exposed to the high emotions involved in the case. The students' 
natural inclination to identify with the accused student also was recognized. These factors were 
introduced to emphasize the difficult, often controversial nature of judicial decisions that may 
run contrary to public opinion but according to the rule of law. Federal judges, court staff, and 
members of the local legal communities were available at the participating federal courthouses 
to answer students' questions and share their observations on the process after the live national 
broadcast. 

"The case," Williams said, "is sensitive, especially in light of violence in schools and the need 
to protect our children. Public opinion in this area can be very strong. We hoped to demonstrate 
that judges 

must be free to make even controversial decisions as long as they are based upon the law. 
Judicial independence means judges are free from the influence of special interest groups, 
popular opinion, or political institutions. This is the only way confidence in the court system 
can be maintained." 

The 90-minute broadcast from the Washington, D.C, studios of the Federal Judicial Television 



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Network featured moderators Williams and AO attorney Daniel A. Cunningham, with a student 
audience from the Presidential Classroom, a program that brings high-school students from 
around the country to see government at work. 

Williams gave students in the broadcast audience the legal background on motions, including 
how similar cases had been decided in the past, and the rules of law the Supreme Court 
established and applied. In the subsequent tally of judicial decisions across the country 846 
voted to grant the motion to suppress the evidence and 427 voted to deny the motion. Students 
also were asked to share some of the reasons behind their decision. "These were very well- 
informed students," said Cunningham following the broadcast. "I was impressed with how they 
grasped the issues involved and weighed the different factors." 



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THIRD 



5 R 



AN( II 



At Session Midpoint an Update on Legislation 



Both Houses of Congress continue to move legislation during the second session of the 106 
Congress. Some bills, such as that on civil asset forfeiture, have passed and been signed into 
law. Others, such as the resolution to establish a constitutional amendment on victims' rights, 
have foundered after a long and contentious legislative history. As Congress now is more than 
halfway through the second session, the future of some bills may depend more upon the time 
remaining on Congress' calendar than on their relative legislative merits. 

H.R. 1658, The Civil Asset Forfeiture Reform Act of 2000 

The preamble to H.R. 1658, the Civil Asset Forfeiture Reform Act of 2000, best describes 
Congress' intent with this bill: "to provide a more just and uniform procedure for federal civil 

forfeitures." H.R. 1658 was passed by the House mid-way through the first session of the 106 
Congress. In March of the second session, after negotiations among the House and Senate 
Judiciary Committees and the Department of Justice, the Senate passed its own version of the 
bill, which the House agreed to in April. The President signed the bill, P.L. 106-185, April 25, 
2000. 

Representative Henry Hyde (R-IL), the bill's sponsor, called H.R. 1658 "the culmination of a 7- 
year effort to reform our nation's civil asset forfeiture laws." Representative John Conyers (D- 
MI) said that while "it is important that we have asset forfeiture. . . this put it under controls 
that have not existed before." Among other provisions, the bill provides for the appointment of 
counsel for indigents if they are represented by appointed counsel in related criminal cases and 
for the payment of counsel by the Judiciary; the return of property pending final disposition of 
a civil forfeiture case if continued possession by the government would cause substantial 
hardship and a 30-day time limit forjudges to act upon motions and complaints seeking release 
of this seized property; and for property owners to sue the federal government for 
compensation for damage to their property when they prevail in civil forfeiture actions. The bill 
would also require the government to prove, by a preponderance of the evidence, that the 
property is subject to forfeiture, not, as is currently the case, to simply make an initial showing 
of probable cause, that then shifts the burden of proof to the claimant. 

"This bill," Hyde said, "is one we can all be proud of. It returns civil asset forfeiture to the 
ranks of respected law-enforcement tools that can be used without risk to the civil liberties and 
property rights of American citizens. We are all better off that this is so." 

S. J. Res. 3, Victims' Rights Amendment 

At the request of Senators Strom Thurmond (R-SC) and Charles E. Schumer (D-NY), Judge 

William W. Wilkins (4 Cir.), chair of the Judicial Conference Committee on Criminal Law, 
wrote to express the Conference view of S. J. Res. 3, the Victims' Rights Amendment to the 
Constitution. On numerous occasions, the Conference has made known its preference for a 
statutory approach as opposed to a constitutional amendment on victims' rights. Most recently, 
Judge Emmett Sullivan (D.D.C.) appeared as a representative of the Judicial Conference before 



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the House Subcommittee on the Constitution to testify on H.J. Res. 64, a constitutional 
amendment to protect the rights of crime victims. S. J. Res. 3 stalled on the Senate floor after 
debate and the bill's sponsors withdrew the legislation, effectively killing the proposal for the 
remainder of this Congress. However, the sponsors vowed to bring the legislation forward next 
year. 

Juvenile Crime/Gun Control, H.R. 1501, S. 254 

The stalled progress of the juvenile crime bill prompted House members last month to vote to 
urge House-Senate negotiators to meet soon. In August of the first session, the Senate took up 
H.R. 1501, substituted the text of its own bill, S. 254, then requested a conference on the bill 
with the House. Little progress has been seen since, largely because of controversial gun 
control provisions included in the Senate's version. 

Project Exile, H.R. 4051 

Last month, the House passed and sent to the Senate H.R. 4051, the Project Exile: The Safe 
Streets and Neighborhoods Act of 2000. According to the bill's sponsor, Representative Bill 
McCollum (R-FL), the bill would provide incentive block grants for state criminal justice 
systems totaling $100 million over 5 years. To qualify, a state must ensure a mandatory 
minimum 5-year prison sentence without parole for anyone who uses or carries a firearm 
during any violent crime or serious drug trafficking crime or for a previously convicted violent 
felon who is caught possessing a gun. The mandatory minimum sentence must be in addition to 
the punishment provided for the underlying crime. Last month, a similar bill, S. 2390, was 
introduced in the Senate. 

McCollum cited the success in Richmond, Virginia of Project Exile, a program created in 1997. 
In that program, firearms offenses normally prosecuted in state court were prosecuted in federal 
court so that federal mandatory minimum firearms offense sentences would apply. Similar 
programs now have been adopted by many large U.S. cities nationwide. However, 
Representative Robert C. Scott (D-VA) argued that H.R. 4051 "goes down the failed road of 
mandatory minimum sentencing," saying there is no convincing evidence that mandatory 
minimums and Project Exile have reduced violent crime to any greater extent than the decrease 
in Virginia generally without Project Exile. 

The Judicial Conference agreed to take no position on proposed legislation to expand intensive 
firearms prosecutions programs like Project Exile in Richmond. The Conference did 
recommend that any such legislation, if enacted, provide for a proportionate increase injudicial 
resources to the affected federal courts. While the Conference has not had the opportunity to 
consider H.R. 4051, the Conference opposes mandatory minimum sentences, as they 
undermine the U.S. Sentencing Guidelines by producing sentencing disparity. 

H.R. 1869, the Stalking Prevention and Victim Protection of 1999 

As introduced last year, H.R. 1 869 substantially expands the current interstate stalking statute 
to cover e-mail and Internet communications. Under the bill's provisions, a federal court would 
issue at sentencing a protective order designed to protect the victim from further stalking by the 
convicted person. The House passed H.R. 1869 at the end of the first session. At the beginning 
of the second session, an identical bill (S. 201 1), was introduced in the Senate, where it enjoys 
bipartisan support. 



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Asbestos Bill, H.R. 1283, S. 758 

H.R. 1283 would establish within the Department of Justice a new Office of Asbestos 
Compensation (OAC), which would have jurisdiction over proceedings to determine if a 
claimant is entitled to compensation and the amount of the compensation for asbestos-related 
injuries. Claimants would need to meet specified medical criteria, in order to receive a 
certificate of medical eligibility. Only those with certificates could pursue compensation either 
within the OAC or in any state or federal court of competent jurisdiction. Administrative law 
judges within the OAC would conduct hearings and determine whether compensation is to be 
awarded and the amount, if the claim is not otherwise settled. H.R. 1283 permits review of the 
OAC's decisions in the U.S. Court of Federal Claims, with subsequent review by a court of 
appeals. The House Judiciary Committee reported the bill favorably by a vote of 18-15. 
However, the Department of Justice opposes H.R. 1283, and in the Senate, Majority Leader 
Trent Lott has indicated there will not be sufficient time to consider its related bill, S. 758, this 
year. 

Private Property Rights, H.R. 2372, S. 1028 

In February, Administrative Office Director Leonidas Ralph Mecham wrote on behalf of the 
Judicial Conference to express the Judiciary's concerns regarding H.R. 2372, which is intended 
to expedite federal court consideration of takings cases. The bill "would alter deeply ingrained 
federalism principles by prematurely involving the federal courts in regulatory proceedings 
involving property that have historically been decided by state and local administrative bodies 
or courts. By relaxing the current requirement of ripeness in takings cases and limiting a federal 
judge's ability to abstain from hearing certain cases, the bill also may adversely affect the 
administration of justice and delay the resolution of property claims." The Department of 
Justice and the Conference of Chief Justices also have communicated their objections to H.R. 
2372. Nevertheless, the bill was passed by the House in March. No action has occurred on the 
related bill in the Senate, S. 1028. 

Cocaine Penalties/Bankruptcy Reform Act H.R. 833 

The House passed its bankruptcy reform bill, H.R. 833, in May 1999. The bill, while 
authorizing 18 new temporary bankruptcy judgeships and extending certain existing 
judgeships, also would impose certain requirements on bankruptcy clerks and the 
Administrative Office to collect data from bankruptcy filings to report to Congress, and to 
maintain access to debtors' federal tax returns. The Senate passed a companion bill, S. 625, 
containing similar requirements, but also including the Powder Cocaine Sentencing Act of 
2000, which would reduce the threshold amounts necessary to trigger the mandatory minimum 
penalties for possession of cocaine to one-tenth of their current levels. In March 2000, Director 
Mecham wrote to members of the House and Senate Judiciary Committees expressing the 
Judicial Conference opposition to the mandatory minimum sentence and mandatory restitution 
provisions of H.R. 833. "If passed," Mecham wrote, "the Act would ultimately significantly 
increase the numbers of persons eligible for mandatory minimum sentences, further 
exacerbating the destructive effect mandatory minimums have upon the federal criminal justice 
system." The House and Senate now are informally conferencing their bills. 



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THIRD 

BRANCH 

Gregg Advocates Funding for Domestic Drug War 

Senator Judd Gregg (R-NH), chair of the Senate Appropriations Subcommittee on Commerce, 
Justice, State and the Judiciary, does not often speak in public about the funding needs of the 
Judiciary. 



Senator Judd Gregg (R-NH) 



Last month, however, when Gregg rose on the Senate floor to 
express his reservations regarding the President's request for $1.6 
billion for Colombia to fight drugs, he made it clear where he 
believes funds should be allocated. 

Gregg chairs the committee that funds the Judiciary and the 
Department of Justice, which includes the Immigration and 
Naturalization Service, the Border Patrol and the Drug 
Enforcement Administration. All these agencies, he said, "have a 
significant role in the issue of drug enforcement and especially as 
it affects our southern border." Gregg's concern was that while 
the White House has requested money earmarked for Colombia, 
an inadequate level of funds is requested for the DEA, Border 
Patrol, the Judiciary and others involved in the domestic war on 
drugs. 




"The fact is we do not have the facilities that we need in order to adequately enforce our laws 
relative to drug dealers coming across the borders and drugs coming across the borders. We 
don't have the facilities to detain those people," Gregg said. 

"The Judiciary has the same problem," Gregg went on to say. "There is a massive increase in 
the amount of caseload that the Judiciary along the southern border has to handle. Five district 
courts on the southwest border now handle 26 percent of all the federal criminal activity — 26 
percent of all the federal criminal activity — and a great deal of that is drug related." 

"The border courts' basic caseload is four times that of the national average. Yet did the 
administration put money in to try to increase the capacity of those court systems to handle this 
wave of crime that is coming across the border, much of it drug-related? Absolutely not." 

Gregg said significant amounts of funds should be reallocated to fund and support DEA, INS, 
and the Judiciary. "My point is simple and obvious," Gregg said. "Before we send $1.6 billion 
to Colombia, before we send this money down there so they can have more planes, goggles, 
and radar sensors, how about funding the American needs in the area of drug enforcement? 
How about funding our own law-enforcement community and our Judiciary so we can act 
adequately, interdict, and fight drugs in the United States?" 



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THIRD 

I5KANCH 



Director's Awards for 2000 Honor Four 




Administrative Office Director Leonidas Ralph Mecham announced last month the four 
winners of the 2000 Director's Awards, the federal courts' highest awards for employees. 

Brenda K. Argoe 

Brenda K. Argoe, clerk of court for the U.S. Bankruptcy 
Court for the District of South Carolina, is the sole recipient of 
the 2000 Director's Award for Outstanding Leadership. 

The winners of the Judiciary's Director's Award for 
Excellence in Court Operations are Jesse D. Cannon Jr., 
assistant circuit executive for the U.S. Court of Appeals for 
the Fifth Circuit; Barry K. Lander, clerk of court for the U.S. 
Bankruptcy Court for the Southern District of California; and 
F. Dan Wieser, U.S. probation officer for the U.S. District 
Court for the Middle District of Florida. 

In announcing the awards, Mecham said, "Our award winners obviously are people for 
whom their work is more than a job. They are enthusiastic and dedicated, and typically 
give more than 100 percent to every project they take on. They help the federal Judiciary 
run more efficiently, be more effective, and give better service." 

Since 1989, 58 members of the Judiciary family have received Director's Awards. The 
first awards honored administrative excellence, but in 1 992 the first awards for 
outstanding leadership were given. The sole Special Director's Award was given in 1996 
to honor the heroic efforts of Clerk of Court Robert D. Dennis (W. D. Okla.) following 
the bombing of the Alfred P. Murrah Federal Building in Oklahoma City that also 
damaged the adjacent federal courthouse. 

The Director's Award for Outstanding Leadership, given this year to Brenda Argoe, 

recognizes Judiciary managerial employees who have made long-term contributions to 
increase program effectiveness or reduce administrative costs. As the judges from her 
court noted in nominating Argoe, "She has made, and continues to make, valuable 
contributions in the areas of effective management, positive work environment, 
improved productivity, efficient utilization of financial resources, and good public 
relations, all of which reflect favorably on the court system. Her leadership, devotion, 
hard work, and intelligence have earned the respect of the public, her staff, her peers, 
and those in the Administrative Office who work with her on a regular basis and who 
utilize her resources in seeking effective management of the court system." 

Under Argoe's management, the clerk's office in the U.S. Bankruptcy Court for the 
District of South Carolina not only has operated below budget during the past three 
fiscal years, it has also improved services and benefits to the court. The bankruptcy 
judges of the district nominated Argoe for a host of contributions including early 



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implementation of a pilot state-of-the-art financial accounting system; pioneering work 
in offering a case imaging system to internal court customers and external customers 
over the court's PACER webpage that eliminates the need to physically retrieve a case 
file; implementation of an automated calendaring program that schedules hearings and 
produces weekly court calendars, minute and appearance sheets; and a staff training and 
development program that has produced a highly skilled work force. 

The 2000 Director's Award for Excellence in Court Operations recognizes 
outstanding achievements in improving the operation of federal courts. Winning 
nominations must be for a specific operations improvement that resulted in cost savings, 
increased productivity, improved customer service, and judicial efficiencies. Three 
recipients were chosen this year. 





Jesse D. Cannon Jr. 



Barry K. Lander 



F. Dan Wieser Jr. 



As the Fifth Circuit's assistant circuit executive for space and facilities management, 
Jesse D. Cannon, Jr. helps appellate, district and bankruptcy courts identify space 
requirements, plan space, develop scopes of work, provide drawings, acquire space, 
monitor construction projects through completion, review requests for renovation and 
alteration of space, and monitor space funding. His services have resulted in more timely 
delivery of space at a lower cost to the government. His coordination of the many space 
projects has increased productivity while producing outstanding court facilities. Over the 
last decade he has been involved in the careful renovation of a historic courtroom in 
Beaumont, Texas; the design and construction of three new courthouses in the Southern 
District of Texas; the installation of electronic courtrooms in the Western and Middle 
Districts of Louisiana and the Northern District of Mississippi; and remodeling and 
expansion in district and bankruptcy courts throughout the Fifth Circuit. 

Barry K. Lander, clerk of court for the U.S. Bankruptcy Court for the Southern District 
of California, was nominated for the award by the district's bankruptcy judges because 
of "his wide-ranging suggestions for innovations and improvements" to the case 
management/electronic case files (CM/ECF) program, "which have not only improved 
local use of the system and saved significant expense for our court but also resulted in 
transferable technology now used by other courts." Lander assisted in adding a 
bankruptcy noticing function to CM/ECF, an improvement that has eliminated the need 
to manually docket and scan 15,000 entries and images per year for his court alone. All 
prototype courts in CM/ECF now have this function. He also identified other changes to 
CM/ECF that improved accuracy in entering creditor information and efficiency in 
collecting fees, and that identified closed cases and relationships between associated 
cases. Lander was involved in the development of programs that ease searches for case 
files and that automatically assign meetings forjudges and trustees. 



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F. Dan Wieser, Jr., U.S. probation officer in the U.S. District Court for the Middle 
District of Florida, received a Director's Award for his contributions to the automation 
of probation operations, within the Middle District of Florida and nationally. Among 
many projects, he wrote the program for and then aided in the development of a national 
probation case management system, and helped develop an automated program for 
tracking deadlines for presentence report processing. Wieser developed a program 
probation officers could use to do a "least intrusive" search of a computer owned by a 
person or persons under supervision whose computer online time or use had been 
restricted by the court. He also wrote a manual to assist probation officers in the use of 
the Internet as an investigative resource, and helped develop web programs to extract 
data from the Probation Automated Case Tracking Program. These contributions were 
made while Wieser was a line supervision officer carrying a full workload. 

Nominations for the annual awards are made by members of the court family. Finalists 
are selected by a panel, who forward their recommendations to the Director. Award 
panelists this year were Judge Douglas H. Ginsburg (D.C. Cir.), Judge Thomas F. Hogan 
(D. D.C.) and Alton Ressler, Assistant Director of the AO Office of Human Resources 
and Statistics. 



AO Seeks Judges Interested in Advisory Group Services 

The Administrative Office is seeking the names of judges interested 
in assisting the agency in accomplishing its mission by serving on an 
AO advisory group. These groups — the peer advisory groups, court 
councils, and working groups — are composed of judges, court unit 
executives, and other court personnel. Their purpose is to provide the 
AO with advice from a court perspective on specific projects or on a 
broad range of issues. Two of the peer advisory groups are 
composed solely of bankruptcy judges and magistrate judges, 
respectively, and address matters specific to the interests of those 
judges. Article III judges have opportunities for service on various 
project-specific working groups and on the District or Appellate 
Court Advisory Councils. More details concerning these advisory 
groups may be found on J-Net under Advisory Forum. 

If you are interested in serving on an advice-giving group, please 
contact Mike Dolan, Article III Judges Division, at (202) 502-1860; 
Frank Szczebak, Bankruptcy Judges Division, at (202) 502-1900; or 
Tom Hnatowski, Magistrate Judges Division, at (202) 502-1830. 



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THIRD 

BRANCH 

European Court of Justice Makes Historic Visit to Supremo 
Court 



The Supreme Court welcomed the first official visit of the European Court of Justice to the 
United States last month. The court is the judicial body of the European Union. 



Chief Justice William H. Rehnquist and the Associate 
Justices of the Court greet President of the Court of 
Justice Gil Carlos Rodriquez Iglesias and other 

members of the European Court. 

The delegation was composed of 
President of the Court of Justice Gil 
Carlos Rodriguez Iglesias, five 
judges, three advocates general, and 
the registrar. In addition to its visit to 
justices of the U.S. Supreme Court 
and other members of the federal 
Judiciary, the European Court of 
Justice participated in a number of 
working sessions that included discussions on antitrust, affirmative action, and environmental 
law; Internet privacy and copyright issues; and multijurisdictional and multidisciplinary 
practice. 

The European Court was established in 1952 and is based in Luxembourg. It is composed of 15 
judges and 8 advocates general. The Court of Justice is the supreme judicial authority of the 15- 
member European Union states on matters governed by European community law. In 1998, a 
delegation from the Supreme Court, along with federal and state judges, attorneys, and law- 
school faculty, visited the Court of Justice. 




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THIRD 

BRANCH 




Domecini Supports Judiciary's Border Court Neods 

Senator Pete V. Domenici (R-NM) has served in the Senate since 
1973. Among other committee posts and assignments, he is the 
chair of the Senate Appropriations Subcommittee on Commerce, 
Justice, State, and the Judiciary. 

Q ]The Senate approved a $1 .8 trillion budget plan for fiscal 

year 2001. What will this mean in terms of spending next year for 
domestic entities such as the Judiciary? 

p^ • The Senate budget resolution I authored this year included 

$27.4 billion in budget authority and $28 billion in outlays for 
Function 750, the Administration of Justice account. This 
account includes funding for all federal law-enforcement activities and the Judiciary. The 
Senate resolution assumed substantial increases in funding for federal district courts and courts 
of appeals. It also assumed $700 million in new courthouse construction and site and design 
work under Function 800, the General Government account. This represents a $200 million 
increase over the amount included in President Clinton's budget for courthouse construction. 
The final conference agreement on the budget includes similar overall spending totals for 
Functions 750 and 800. However, any assumptions in the budget resolution are merely 
guidelines, and members of the relevant Appropriations Subcommittees have the discretion to 
follow them or disregard them as they choose. 

() | The Judiciary's budget is approximately two-tenths of one percent of the nation's total 

budget. As the smallest of the three branches of government, how should Congress treat the 
Third Branch's annual appropriations request? 

^^ | Congress should respect the Judiciary's role as a co-equal branch of government and 

provide it with the resources it needs to perform its duties. And, I believe Congress has done a 
fair job in recent years when responding to funding requests by the Judiciary. I believe that the 
Budget and Appropriations Committees have always had an "open door" policy with the 
Judiciary and the Administrative Office of the U.S. Courts when discussing the budget needs of 
the federal courts. 

O | The Judiciary is in the unique position of being unable, for the most part, to control its 

own workload because the activities of the other branches contribute to our courts' caseloads. 
As Congress passes new laws and provides more resources to the Department of Justice, is it 
fair for the Judiciary to expect that it also will receive increased funding? 



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J\ ]That certainly is a fair expectation , and as I said as much as the conference of federal 

southwest border district judges in Albuquerque earlier this year. When Congress passes more 
federal criminal laws, and places heightened importance on federal law enforcement, this has a 
ripple effect throughout our justice system, including the Judiciary. It is unfair and shortsighted 
for Congress to pass more federal criminal laws, particularly those related to narcotics 
smuggling and illegal immigration at our borders, and provide more funding for law 
enforcement, without a corresponding increase injudicial resources. 

| The Federal Courts Budget Protection Act would allow the Judiciary to present its budget 
directly to Congress, without going through OMB. Are you in favor of this change? 

^4^ *I have not co-sponsored the Federal Courts Budget Protection or "OMB Bypass" bill. I am 

sensitive to the fact that OMB has used negative allowances and other gimmicks in recent years 
to reduce the Judiciary's budget in the President's annual submission to Congress. However, as 

1 have stated above, I believe that Congress has had an open-door policy with the Judiciary in 
discussing its budgetary needs and that Congress has responded appropriately to those needs. 
The President's budget submission is merely the executive branch's proposed blueprint for 
government spending. Such documents have become increasingly political in recent years. 
When it comes right down to it, Congress has been able to respond directly to the Judiciary's 
needs in spite of the executive branch's politicization of the Judiciary's budget and without a 
direct budget submission by the Judiciary to the Congress. 

Q | The President must send the Judiciary's budget to Congress without change. However, the 

Executive Branch has used "negative allowances" to indirectly reduce the Judiciary's budget in 
past years. As chair of the Budget Committee, do you find budget gimmicks like the negative 
allowances a help or a hindrance? 

^Y | Clearly these gimmicks are a hindrance to the budget process. However, as I have stated, I 

think Congress has a pretty good idea of the needs of the Judiciary each year and does a good 
job responding to those needs in spite of the gimmicks. 

fV You recently spoke to judges gathered in Albuquerque, New Mexico, to discuss the 

southwest border courts situation. What are your concerns about the caseload situation in New 
Mexico? 

Ja^ I The caseload situation along the entire southwest border has reached crisis proportions. 

The five federal border district courts (Southern District of California, Districts of Arizona and 
New Mexico, the Western and Southern Districts of Texas) now handle more than 25 percent 
of ALL of the criminal cases filed in the federal courts in the United States. That number most 
certainly will rise to over 30 percent in the next few years. Each of the southwest border 
districts have criminal caseloads which are double, triple, and in some cases four times the 
national average. In New Mexico, the federal court in Las Cruces handles 65 percent of all of 
the federal criminal matters in the state, yet does not have a single full-time district judge. I am 



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concerned that our justice system at the border will reach the point that it is so overwhelmed 
with cases that it will fail to function at all. 

Cj I What action did you propose in this crisis? 

J^ ' First, I support the Administrative Office's recommendation that Congress create 16 new 

federal judges for our border courts, and I expect that New Mexico would receive at least one 
new permanent federal judge under this proposal. I just think it will be difficult to see such a 
recommendation enacted until after the next Presidential election. I also support increased 
resources for the federal Judiciary and courthouse construction, and the recently-passed 
Concurrent Resolution on the Budget reflects that support. I also plan to work hard as a 
member of the Senate Commerce, Justice, State appropriations subcommittee to see that 
Congress provides for additional court personnel, including magistrates judges, U.S. Marshals, 
pretrial and probation officials and administrative support. Finally, I included $700 million for 
new courthouse construction and site/design work in the Budget Resolution. This funding 
would include $1.9 million for site acquisition and design of a new federal courthouse in Las 
Cruces. 

O * Courthouse construction has not been a White House priority in the past three budgets. 

You've indicated that you'll seek funding for a federal courthouse in Las Cruces. Why is this 
courthouse important to your state? 

J\ | The current courthouse in Las Cruces is ill-equipped to serve as a federal court facility, 

much less handle the overwhelm ing criminal caseloads which have developed at the border. 
Detention facilities are inadequate, workplace and courtroom space are limited and there are 
serious safety concerns about the entire complex. The building only has one elevator, so judges, 
defendants, victims, witnesses, and visitors all must use the same one. Also, the parking 
facilities are not secure. This is unacceptable. I am concerned that this facility is a security 
nightmare waiting to happen. A new courthouse for Las Cruces is important not only to handle 
the court's ever-expanding caseload, but also to protect those who go to work there every day. 

(V Annually, the Judiciary submits a Report to Congress on the Optimal Utilization of 

Judicial Resources in which our efforts to bring greater economy and efficiency to the courts 
are detailed. How has this report and other efforts been received by Congress? 

^ • The Report to Congress on the Optimal Utilization of Judicial Resources, as well as the 

annual report outlining the Judicial Business of the United States Courts are two excellent ways 
that the Judiciary keeps Congress informed about management decisions which affect our 
federal court system. I have long believed that the best people to decide how to run our court 
system are the members of the Judiciary themselves. Our federal judges and their staffs, along 
with the Administrative Office of the U.S. Courts, are a group of bright, dedicated people who 
truly care about the admin-istration of justice. So these recommendations should carry a lot of 
weight with Congress. Also, in recent years because of the crush of the annual budget and 
appropriations process, Congress has reduced the amount of meaningful oversight it has 



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conducted into the workings of government, including the Judiciary. These reports are a way 
for the Judiciary to exercise oversight and help keep Congress updated on its activities. 



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Page 1 of 2 






THIRD 

BRANCH 



Judicial Milestones 

Appointed: Richard A. Paez, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the 
Ninth Circuit, March 17. 

Appointed: Marsha S. Berzon, as U.S. Court of Appeals Judge, U.S. Court of Appeals for the 
Ninth Circuit, March 2 1 . 

Appointed: George D. Daniels, as U.S. District Judge, U.S. District Court for the Southern 
District of New York, April 17. 

Appointed: Colleen A. Brown, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the 
District of Vermont, April 10. 

Appointed: Robert L. Jones, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the 
Northern District of Texas, April 4. 

Appointed: Randolph J. Haines, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the 
District of Arizona, March 17. 

Appointed: Susan D. Davis, as U.S. Magistrate Judge, U.S. District Court for the District of 

New Jersey, April 7. 

Appointed: Monica J. Benton, as U.S. Magistrate Judge, U.S. District Court for the Western 
District of Washington, February 28. 

Appointed: James P. O'Hara, as U.S. Magistrate Judge, U.S. District Court for the District of 
Kansas, April 17. 

Appointed: Kimberly E. West, as U.S. Magistrate Judge, U.S. District Court for the Eastern 
District of Oklahoma, April 18. 

Elevated: Judge Frederick J. Scullin, Jr., to Chief Judge, U.S. District Court for the Northern 
District of New York, vice Judge Thomas J. McAvoy, April 7. 

Reappointed: Bankruptcy Judge James G. Mixon, as Chief Judge, U.S. Bankruptcy Court 
for the Eastern and Western Districts of Arkansas, through June 13, 2002. 

Senior Status: Judge Donald J. Lee, U.S. District Court for the Western District of 
Pennsylvania, April 6. 

Senior Status: Judge Roger G. Strand, U.S. District Court for the District of Arizona, April 
28. 

Retired: Senior Judge Sam C. Pointer, Jr., U.S. District Court for the Northern District of 



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■ 



The Third Branch 



Page 2 of 2 



Alabama, April 3. 

Retired: Bankruptcy Judge John C. Akard, U.S. Bankruptcy Court for the Northern District 
of Texas, April 3. 

Retired: Magistrate Judge Richard P. Cornish, U.S. District Court for the Eastern District of 
Oklahoma, April 16. 

Retired: Magistrate Judge Joseph Schmitt, U.S. District Court for the Southern District of 
California, March 30. 

Retired: Magistrate Judge Eugene W. Beaulieu, U.S. District Court for the District of 
Maine, January 20. 

Resigned: Magistrate Judge Susan D. Davis, U.S. District Court for the District of New 
Jersey, April 6. 

Deceased: Senior Judge Daniel Holcombe Thomas, U.S. District Court for the Southern 
District of Alabama, April 1 3 . 

Deceased: Judge Morton A. Brody, U.S. District Judge for the District of Maine, March 25. 

Deceased: Senior Judge Edward J. Schwartz, U.S. District Court for the Southern District of 
California, March 22. 



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JUDICIAL BOXSCORE 



As of May 1 , 2000 




Courts of Appeals 




Vacancies 


22 


Nominees 


16 


District Courts 




Vacancies 


58 


Nominees 


28 


Courts with 




Judicial Emergencies 


21 



For more information on vacancies in the 

Federal Judiciary visit our website at WWW.USCOUliS.gov. 



THIRD 

BRANCH 



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THIRD 

BRANCH 

Supreme Court Website Latest in Electronic Initiatives 




The Supreme Court of the United States launched its official website last month. The site, at 
www.supremecourtus.gov, was developed by the Court and the Government Printing Office 
(GPO) and is part of the GPO Access system. 

"A presence on the Internet was a natural 
next step in providing Court information — 
from an official source — to the public," 
said Supreme Court Public Information 
Officer Kathy Arberg. 

Initially, the Supreme Court web-site will 
provide on-line access to the court's 1999 
Term slip opinions, 1999 Term orders, 
argument calendar, schedules, rules, bar 
admission forms and instructions, visitors' 
guides, case-handling guides, special 
notices, press releases, and general 
information. A link also will be provided to 
the Court's bench opinions on GPO Access. 
The bench opinion is the first version of an 

opinion, published immediately after the case's announcement by the Court from the bench. 

The slip opinion is a slightly later version of the bench opinion. 

Information from the Court's auto-mated docket will be added to the website in the future. Slip 
opinions will be accessible on the Court's website usually within hours after the bench opinions 
are transmitted to Project Hermes subscribers. Bench opinions and orders will not appear on the 
court's website, but will be accessible on the day of their release through a link to GPO Access. 

The Internet is just the latest avenue by which the Court distributes information electronically. 
In 1991, the court launched Project Hermes, an electronic system available only through 
subscription, that transmits the court's orders and bench opinions to legal publishers, news 
organizations, educational institutions, and government agencies, including GPO, moments 
after the materials are released. In 1996, the Court initiated its dial-up Bulletin Board System 
(BBS) (202-554-2570) to provide electronic access to its automated docket, slip opinions, and 
orders. In 1997, the Court implemented the Clerk's Automated Response System (CARS), by 
which callers can obtain the status of cases on the automated docket by dialing (202) 479-3034. 
The new website will replace the BBS, which will be phased out once the automated docket is 
added to the website. However, the website will not replace Hermes or CARS, and the Court 
will continue to publish and distribute its opinions in paper pamphlets and in the official United 
States Reports. 



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38 



(e 



THE 



IHIRD 



LAWUBRARY 



FEB n 5 2001 
University of Illinois 

Southwest 



Seven judges from the U.S. 
southwest, shown in the photo at 
right, went to the Hill last month 
to tell Congress about the continu- 
ing crisis in the border courts. 
Chief Judge Carolyn Dineen King 
(5 th Cir.) led Chief Judge George 
P. Kazen (S.D. Tex.), Judge Edward 
C. Prado (W.D. Tex.), Judge W. 
Royal Furgeson (W.D. Tex.), Chief 
Judge John E. Conway (D. N.M.), 
Chief Judge Stephen M. McNamee 
(D. Ariz.), and Chief Judge Marilyn 
Huff (S.D. California), who repre- 
sented the five districts that current- 
ly handle 26 percent of all criminal 
case filings in the U.S. The southwest 
border courts report record numbers 
of federal prosecutions — drug 
prosecutions nearly doubled be- 
tween 1994 and 1998 and immigra- 
tion prosecutions increased five- 
fold. The average caseload per dis- 
trict judge in the southwest border 
courts is more than quadruple the 
national average. Since 1994, person- 
nel for the U.S. Border Patrol in- 
creased by 99 percent, INS by 93 
percent, DEA by 155 percent and 
FBI by 37 percent in the border 
courts. During that same period, 
however, judicial resources in the 
five districts increased a mere 4 



BRANCH 



Newslettei 

ofthe 

Federal 

Courts 



Vol. 32 

Number 6 
June 2000 





s Tell Congress ot Crisis 




percent, with proba- 
tion and pretrial 
services resources 
increasing only 19 
percent. 

The delegation of 
federal judges first 
met with the members 
of the Congressional 
Southwest Border 
Caucus, then spent the 
day in private talks 
with congressional 

members including Senators John Kyi 
(R-AZ), Kay Bailey Hutchison (R-TX), 
and Representative Henry Bonilla 
(R-TX). Judges also met with staff 
from the offices of Senators John 
McCain (R-AZ), Diane Feinstein (D- 




INSIDE 



Congress Confirms 16 Nominees pg. 2 

Judges' Need for Security Cited by Chief Justice pg. 4 

Federal Courthouses Win NEA Recognition pg. 6 



Members of the Congres- 
sional Southwest Border 
Caucus who met with the 
border court judges included 
Representative Solomon 
Ortiz (D-TX) standing 
above, and fellow member of 
the Congressional Border 
Caucus, Representative 
Silvestre Reyes (D-TX), and 
in photo left, Representatives 
Joe Baca (D-CA), Charles 
Gonzalez (D-TX), and 
Ruben Hinojosa (D-TX). 



CA), Barbara Boxer (D-CA), and 
Representative Randy Cunningham 
(R-CA). 

Members of the bipartisan 
caucus are from congressional 
districts next to or near the U.S. 
southwest border, and meet to 
share concerns and solutions to 
mutual problems. Caucus mem- 
bers who met with the southwest 

See Caucus on page 2 



Cameras in Courtroom Provision Clouds Future of H.R. 1752 



The Federal Courts Improvement 
Act, H.R. 1752, passed the House last 
month with many of the provisions 
that will help the Judiciary improve 
its effectiveness and efficiency, but 
also with an amendment that would 
allow cameras in federal courtrooms. 
The bill now goes to the Senate for 
consideration. 

The bill contains, among others, 
provisions that would give magis- 
trate judges contempt authority; 
increase certain bankruptcy filing 
fees; create certifying officers in the 
judicial branch; give the Judiciary 
authority to set, collect, and retain 
fees for the use of electronic filing, 
videoconferencing and electronic 
evidence presentation devices; allow 
participation of senior judges as 
members of the circuit judicial 
councils; modify jury selection; and 
increase the maximum compensation 
amounts for Criminal Justice Act 
attorneys, as well as for investiga- 
tors, experts and other service 
providers. The House-passed bill 
also would establish an additional 
place of holding court in the Eastern 
District of Texas. 

Before going to the House floor 
for the vote, however, several 
sections of the original bill were 
stripped out by the Subcommittee on 
Courts and Intellectual Property 
including provisions that would 
imply the parties' consent to a 
bankruptcy judge's findings; address 



the removal of certain cases under 
the Employee Retirement Income 
Security Act; eliminate in-state 
plaintiff diversity jurisdiction; lower 
to 60 the age at which Article III 
judges may take senior status; and 
change the authority of bankruptcy 
administrators. 

Subsequently, the full House 
Judiciary Committee dropped a 
section of the bill that would have 
reversed the decision of the Supreme 
Court in the Lexecon Inc. v. Milberg 
Weiss. That section now is contained 
in a separate bill. An amendment 
was added that would allow indi- 
vidual presiding judges, with the 
consent of all parties, to permit 
cameras in courtrooms. The Judicial 
Conference would be allowed to 
establish guidelines for judges in 
making the determination. The draft 
Senate version of the Federal Courts 
Improvements Act, which has not 
yet been introduced, does not 
contain the cameras in courtrooms 
provision. At the end of a three-year 
pilot project on cameras in the 
courtroom in 1994, the Judicial 
Conference voted not to permit the 
taking of photographs and radio and 
television coverage of proceedings in 
U.S. district courts. Each court of 
appeals may decide for itself 
whether or not to permit cameras. 
Cameras in criminal proceedings are 
prohibited by the federal rules of 
criminal procedure. £«^ 



Caucus continued from page 1 


border, King laid out a five-point 


border court judges included 


plan asking for adequate funding 


Representative Solomon Ortiz 


for the entire Judiciary for fiscal 


(D-TX), co-chair of the caucus, 


year 2001; new judgeships; 


and fellow members Silvestre 


additional resources for the 


Reyes (D-TX), Ruben Hinojosa 


U.S. Marshals Service; more 


(D-TX), Charles Gonzalez (D-TX), 


federal detention centers; and 


and Joe Baca (D-CA). When 


improved compensation for 


caucus members asked what relief 


attorneys representing indigent 


was needed along the southwest 


defendants. &^ 



Congress Confirms 
16 Judges 

The Senate confirmed 16 federal 
judgeship nominees days before 
beginning its Memorial Day recess. 
This brings the total of Article III 
judgeship confirmations for this 
session to 23, seven in the appeal 
courts and 16 in the district courts. 

On the day following the latest 
confirmations, the Senate Judiciary 
Committee met to consider still 
more nominations, holding hear- 
ings on four nominees. As of June 
1, there were 35 pending nomina- 
tions, with 66 vacancies. 

Congress has yet to consider, 
however, the Federal Judgeship 
Act, S. 1145, introduced nearly a 
year ago by Senator Patrick Leahy 
(D-VT). No federal judgeship bill 
has been passed since 1990, al- 
though authorization for nine 
Article III judgeships was included 
in the consolidated spending bill 
for fiscal year 2000. Subsequently, a 
revised judgeship bill was sent to 
Congress to reflect that action, and 
also to withdraw a request for one 
temporary judgeship. In total, 11 
appellate and 48 district judgeships 
are requested. 

Every two years, the Judicial 
Conference submits its recommen- 
dations to Congress for additional 
federal judgeships, following its 
biennial judgeship survey of needs. 
Judicial Conference recommenda- 
tions are based on a court's assess- 
ment of its need for additional 
judgeships, the caseload per 
judgeship, and other local factors 
having an impact on a court's 
judgeship needs. Since the last 
judgeship bill was passed, appeals 
filings in the federal courts have 
increased about 27 percent and the 
number of civil and criminal cases 
filed in the district courts increased 
more than 20 percent. £^ 






The Third Branch 



June 2000 



Judicial Panel On Multidistrict Litigation Reorganized 



In its first reorganization since 
1992, the Judicial Panel on 
Multidistrict Litigation has added 
four new appointees, while four 
current members will step down 
effective June 1. A new chair will 
head the panel effective December 1. 
In a letter to Panel members, Chief 
Justice William H. Rehnquist noted 
the importance of the Panel to the 
effective operation of the federal 
Judiciary and described the new 
system under which appointments to 
the Panel will be for a term of seven 
years, and new appointments will be 
staggered. Rehnquist also told Panel 
members that, "The mission of the 
Judicial Panel on Multidistrict 
Litigation has been carried out with 
distinction under your leadership for 
the past decade." He said the advan- 
tage of the reorganization would be 
that continuity is assured, "while 
constantly replenishing the member- 
ship with one new appointment 
annually, thus broadening participa- 
tion." 

Among the new appointments, 
Judge Wm. Terrell Hodges (M.D. 
Fla.) will serve a seven-year term; 
Judge Morey Sear (E.D. La.) will 
serve a six-year term; Chief Judge 
Julia Smith Gibbons (W.D. Term.) 
will serve a five-year term; and 
Judge Bruce M. Selya (1 st Cir.) will 
serve a four-year term. Of the 
current Panel members, Judge John 
Keenan (S.D. N.Y.) will serve a three- 
year term, and Judge Louis Bechtle 
(E.D. Pa.) will serve a two-year term. 
The terms of the remaining Panel 
members, Judges Clarence A. 
Brimmer (D. Wyo.), William B. 
Enright (S.D. Calif.), John F. Grady 
(N.D. 111.) and Barefoot Sanders 
(N.D. Tex.), who have served at least 
7 Vi years, ended on June 1, 2000. 

The chair of the Panel, Judge John 
Nangle (E.D. Mo.), will continue to 
serve until December 1, at which 



time Hodges will 
become chair. 
Rehnquist, in 
extending 
Nangle's term, 
noted the need for 
the chair's contin- 
ued leadership as 
a statutory 
response is sought 
to the Lexecon Inc. 
v. Milberg Weiss 
decision during 
this Congress and 
to permit Nangle 
to orient Hodges 
as the new chair. 
Nangle has served as chair of the 
Panel since 1990. 

Looking back on the years of his 
chairmanship, Nangle noted the 
Panel began by developing policies 
to handle large numbers of related 
cases. "For example, with the large 
number of asbestos cases," observed 
Nangle, "we took a different route 
from previous Panels and centralized 
the cases before Judge Charles 
Weiner in the Eastern District of 
Pennsylvania. It wasn't a perfect 
solution, but it was the only one 
available in the judicial system — and 
the only one that worked. It allowed 
Judge Weiner to move serious cases 
through the system and, at the same 
time, to keep companies solvent." 
Nangle and his fellow Panel mem- 
bers developed additional factors to 
consider in centralizing cases, 
including the national character of 
some cases, and the availability of 
courts with good judges and less 
crowded dockets. "In the past, cases 
would overload the courts in New 
York or California," said Nangle. 
"We changed that to make better use 
of our judicial resources around the 
country. We also identified judges 
who were experts in case-related 
areas." Nangle also credits staff for 



Li f »* 

■• * <•• *\ 1 



At the last hearing before reorganization, 
the members of the judicial Panel On 
Multidistrict Litigation were, seated left to 
right, Judge William B. Enright (S.D. 
Calif), Panel Chair Judge John Nangle 
(E.D. Mo.), Judge Clarence A. Brimmer 
(D. Wyo.); and standing, left to right: Judge 
Louis Bechtle (E. D. Pa.), Judge John F. 
Grady (N.D. III.), Judge Barefoot Sanders 
(N.D. Tex.), and Judge John Keenan (S.D. 
N.Y.) 



the Panel's ability to handle an 
increasing number of cases over the 
years. The staff hasn't grown over 
the last decade, and some members 
have tenures of well over 20 years. 
"You don't find many staff that loyal 
and capable," Nangle said. 

The Judicial Panel on Multidistrict 
Litigation was created by legislation 
in 1968 following an effort to coordi- 
nate almost 2,000 related cases pend- 
ing in 36 districts — and containing 
over 25,000 claims — alleging a nation- 
wide antitrust conspiracy among 
electrical equipment manufacturers. 
A national consensus evolved that 
the Panel was needed to streamline 
adjudication of related complex cases 
filed in multiple districts. According 
to statute, seven judges serve on the 
Panel, which presently meets every 
other month. #*. 



The Thud Branch * June 2000 



Judges' Legitimate Need tor Security Cited by Chief Justice 



The following are the remarks of Chief 
Justice William H. Rehnquist to the 
American Law Institute Annual 
Meeting, which met last month in 
Washington, D.C. 

The Judicial Conference of the 
United States is, I think I can say 
without fear of contradiction, not a 
well known organization. But one of 
the decisions reached by the Confer- 
ence at its meeting last March has 
attracted considerable public inter- 
est — a decision relating to the 
publication of federal judges' 
financial disclosure reports on the 
Internet. This afternoon I would like 
to tell you some of the background 
of these deliberations. 

The Judicial Conference of the 
United States was created by statute 
back in 1922 and today is composed 
of the 13 chief judges of the federal 
courts of appeals, 13 elected district 
court representatives from each of 
the circuits, and the Chief Justice. 
The Conference is assisted in its 
work by 19 committees. It meets 
here in Washington semi-annually, 
in September and March. 

The Conference oversees the 
operation of the Administrative 
Office of the federal courts, an 
organization ably headed by its 
Director, Leonidas Ralph Mecham — 
who has been in his position longer 
than I have been in mine. The 
Administrative Office furnishes 
support systems for the federal 
courts throughout the country. 

The Judicial Conference passes 
upon many matters relating to the 
administrative side of the federal 
Judiciary. Some of them are quite 
arcane, and of virtually no interest to 
the general public; I remember at one 
meeting we debated whether the 
second secretary for the chief judge 
of a district court should have a 
personnel classification of GS-11 or 
GS-12. But the Judicial Conference 



also debates matters of great impor- 
tance to the judges and speaks for 
the Judiciary with respect to pending 
legislation in Congress. 

The Ethics in Government Act 
requires that federal judges, among 
other federal employees, must file 
financial reports annually. The Act 
mandates that federal judges file 
their reports with the Judicial 
Conference's Financial Disclosure 
Committee. It also sets forth the 
general content requirements of the 




reports and provides for public 
access to the reports. There are, it 
seems to me, legitimate purposes 
served by the Act. Among them, 
insofar as judges are concerned, is to 
expose the judges' financial holdings 
to public scrutiny which assists 
judges in avoiding conflicts of 
interest. The requirement that 
publishing the full extent or even a 
range of the financial holdings may 
not be necessary because a judge 
should recuse himself whether he 
holds one share or a thousand shares 
of stock in a corporation that is a 
party in a case before his court. But 
few would argue that there is no 
need to publicize a list of judges' 
holdings for conflicts purpose. 

Yet for all of the public benefits of 
the Ethics in Government Act, the 



Act also presents judges with 
troubling security issues as well and 
it may be in need of some legislative 
adjustments which I will discuss. The 
security issue presented by require- 
ments in the Ethics in Government 
Act came to a head a few months ago 
when, pursuant to the Act's provi- 
sions for public access, a news 
organization sought copies of every 
Article III and federal magistrate 
judge's financial disclosure report for 
the express purpose of placing those 
reports on the organization's Inter- 
net website. The Financial Disclosure 
Committee of the Judicial Confer- 
ence initially denied the company's 
request for all of the reports and 
withheld them from disclosure. 
Contrary to some press reports, the 
Financial Disclosure Committee's 
actions were not without some 
foundation. 

First, in reviewing the company's 
request for the reports, the Financial 
Disclosure Committee concluded 
that the company's intentions to 
publish the reports on the Internet 
would contravene the requirements 
in the Act that prohibit disclosure to 
any person who has not made a 
written application. The written 
application requirement provides a 
mechanism to spot requests from 
individuals who have threatened 
judges. Additionally, the Committee 
thought that the all-encompassing 
request for Internet publication 
would thwart the Committee's 
authority to approve redactions of 
information in the reports when it 
determined (in consultation with the 
U.S. Marshals Service) that certain 
personal or sensitive information in 
the report could endanger the judge 
who filed the report. 

Simply put, by placing all judges' 
financial disclosure reports on the 
Internet, there would no longer be a 
means to filter information on those 
reports that could endanger the indi- 



4 



77ii' Third Branch 



lime 2000 



vidua! judge. And am one who 
wanted the financial information 

about the judge — in particular, those 
Individuals who may pose a threat to 
the judge — could obtain it on the In- 
ternet without the judge's (or the 
Committee's) knowledge and oppor- 
tunity to redact sensitive information. 

The Financial Disclosure Commit- 
tee's concern for the safety of judges 
was a well-founded one. Unfortu- 
nately, there are too many examples 
of federal judges — particularly trial 
judges — having been the targets of 
violence and threats in our country. 
Three federal judges — Robert Vance 
of Alabama, Richard Daronco of 
New York and John Wood of 
Texas — have been killed in recent 
years. Trial judges in general are 
exposed to the criminal element in 
our society in ways that most federal 
employees who must file financial 
disclosure reports, such as Senators, 
Congressmen (and appellate judges 
for that matter) are not. Sentencing 
judges sit face to face with the 
criminal defendant. Some of the 
disclosure requirements in the Ethics 
in Government Act may also expose 
where a judge's spouse works, the 
spouse's income, where a family 
member is attending school if the 
school has made a loan to the 
student, or even where a judge may 
reside if, for example, the judge is on 
a condominium board. Thus the risks 
to federal trial judges are real and 
deserving of careful consideration. 
The Financial Disclosure Com- 
mittee's view was overwhelmingly 
supported by the Federal Judges 
Association, consisting of several 
hundred members. 

I should note at this point that all 
judges' financial disclosure reports 
have always been available to the 
public, but only by request to the 
Administrative Office. Typical 
requesters under this regime are 
reporters covering the courts, 
attorneys participating before cases 
before the courts, and perhaps an 
occasional litigant. 



But, as many of you probably 
realize, publication on the Internet 
makes these statements "publicly 
available" not just to those who seek 
them out by way of request to the 
Administrative Office, but to anyone 
who wishes to make a "hit" on the 
Internet site. This surely illustrates 
one of the changes wrought by the 
so-called "technological revolution" 
and illustrates the difference between 
requiring some effort to acquire 
public information, and requiring 
virtually no effort to acquire it. It was 
this far broader disclosure — albeit of 
the same material — that raised the 
concerns of the judges and of the 
Financial Disclosure Committee. 

Without in any way desiring to 
minimize or downgrade those 
concerns, when the matter came up 
for discussion at the March meeting 
of the Judicial Conference, a large 
majority of the members, myself 
included, felt that the Financial 
Disclosure Committee's willingness 
to withhold financial disclosure 
reports in their entirety — well 
intentioned as it might be — could not 
be supported in view of the statutory 
language. Congress specifically 
provided in the Ethics in Govern- 
ment Act an exemption from the 
prohibition on use of the reports for 
commercial purposes to "news and 
communications media for dissemi- 
nation to the general public." That is 
to say that the news media can use 
the reports for "commercial pur- 
poses" to disseminate the reports to 
the public. And there are no excep- 
tions to this for the Internet. 

The statute also provides that the 
disclosure statements can be redacted 
if the Judicial Conference, in consul- 
tation with the U.S. Marshals Ser- 
vice, finds that "revealing personal 
and sensitive information could 
endanger" the judge. The reports 
may be redacted "only to the extent 
necessary . . . and for as long as the 
danger . . . exists." Clearly, these 
provisions contemplate some pro- 
duction of some portion of the 



reports al some point in time. I hey 
provide only for delay in production, 
conditions on the production, and 
redaction in the production of the 
reports, and do not provide for 
withholding the production entirely. 

So the Executive Committee of the 
Judicial Conference, in cooperation 
with the Financial Disclosure Com- 
mittee, undertook to prepare a set of 
regulations which would, in their 
view, fully conform to the current 
statute. These regulations are being 
designed to facilitate redacting the 
sensitive information in the reports 
to avoid an en masse production, 
that in the words of the statute, 
"could endanger" the judges. 

The Judicial Conference may also 
request Congress to consider amend- 
ments to the Ethics in Government 
Act filing requirements so as to 
reduce security risks to federal 
judges. That Act already provides 
that individuals engaged in intelli- 
gence activities — such as the CIA, for 
example — need not make their 
reports publicly available. I don't 
think the Judicial Conference has any 
desire to obtain a complete exemp- 
tion for judges, but simply wishes to 
assure its membership that their 
legitimate concerns are adequately 
addressed in the Act. 

For the most part, the Judicial 
Conference of the United States 
operates in relative anonymity. 
Occasionally, however, an issue 
arises that captures the public's 
attention. With regard to the issue of 
posting all judges' financial disclo- 
sure statements on the Internet, I 
believe the Judicial Conference has 
acted responsibly and demonstrated 
a good faith effort to comply with a 
law that frankly poses some risks to 
judges. The Conference now hopes 
that Congress will also act responsi- 
bly and balance the legitimate needs 
for public disclosure of judges' 
financial holdings with the judges' 
needs for security. 

Thank you for inviting me to be 
with you today, ^s^ 



The Third Branch m June 2000 



Federal Courthouses Win NEA Recognition 



Three federal courthouse facilities 
have won 2000 Federal Design 
Achievement Awards from the 
National Endowment for the Arts. 
The awards represent the highest 
level of achievement in the federal 
sector in all of the design disciplines. 
This year, they recognized 35 of 338 
submissions from 71 federal agencies 
for excellence in architecture, historic 
preservation, engineering, graphic 



recognize high quality of design 
based on international standards. 



Architecture 

U.S. Courthouse 
Boston, Massachusetts 

"This new U.S. courthouse is a 
poignant demonstration of the ability 
of architecture to reflect powerful 
ideas and values that teach and 




U.S. Courthouse, Boston, Massachusetts 

design, landscape architecture, 
product design, and urban design 
and planning. 

The winning federal court 
facilities were the U.S. Court- 
house in Boston, Massachu- 
setts, for architecture; the 
U.S. Court of Appeals in 
San Francisco, California, for 
historic preservation; and the 
U.S. Courthouse Plaza in 
Minneapolis, Minnesota, 
for landscape architecture. 
Robert A. Peck, General 
Services Administration Public 
Buildings Service Commis- 
sioner, accepted the awards 
on behalf of GSA and the 
federal Judiciary. This year's 
award winners now are eligi- 
ble for the Presidential Awards 
for Design Excellence, which 



engage the public. From its promi- 
nent waterfront site overlooking 
downtown Boston with its sweeping 
373-foot long and 88-foot high Great 
Hall of glass to the small brick dome 



entrance to each of the courtrooms 
with their simple New England 
decor, the courthouse visibly ex- 
presses the solemnity, dignity, and 
openness of the American judicial 
system." 

Credits: General Services Ad- 
ministration, New England Region; Pel 
Cobb Freed & Partners Architects LLP; 
Jung/Brannen Associates; Gruzen 
Samton; Cosentini Associates and 
LeMessurier Consultants 

Historic Preservation 

U.S. Court of Appeals 
San Francisco, California 

"While this opulent Beaux- Arts 
style building was one of the few 
downtown buildings to survive 
San Francisco's 1906 earthquake, 
it suffered extensive damage in 
the 1989 Loma Prieta earthquake 
and was closed. The GSA pre- 
served and restored historic 
features while upgrading the 
structure and major systems to a 
modern level of quality and 
performance, including state-of- 
the art communications, FTVAC, 
and electrical systems; enhanced 
work environments; and accessibility 
required by the Americans with 
Disabilities Act. A 45,000 square-foot 
addition housing a new law library, 




U.S. Court of Appeals, San Francisco, California 



The Third Branch ■ June 2000 



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Three federal courthouse facilities 
have won 2000 Federal Design 
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The awards represent the highest 
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sector in all of the design disciplines. 
This year, they recognized 35 of 338 
submissions from 71 federal agencies 
for excellence in architecture, historic 
preservation, engineering, graphic 



recognize high quality of design 
based on international standards. 



Architecture 

U.S. Courthouse 
Boston, Massachusetts 

"This new U.S. courthouse is a 
poignant demonstration of the ability 
of architecture to reflect powerful 
ideas and values that teach and 



entrance to each of the courtrooms 
with their simple New England 
decor, the courthouse visibly ex- 
presses the solemnity, dignity, and 
openness of the American judicial 
system." 

Credits: General Services Ad- 
ministration, New England Region; Pei 
Cobb Freed & Partners Architects LLP; 
Jung/Brannen Associates; Gruzen 
Samton; Cosentini Associates and 
LeMessurier Consultants 




Historic Preservation 

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on behalf of GSA and the 
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award winners now are eligi- 
ble for the Presidential Awards 
for Design Excellence, which 




U.S. Court of Appeals, San Francisco, California 



The Third Branch ■ JunelOOO 



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offices, and support spaces was 
inserted in the central courtyard 
atrium." 

Credits: General Services 

Administration, Pacific Rim 
Region; Skidmore, Owings & 

Merrill LLP 



Landscape Architecture 

U.S. Courthouse Plaza 
Minneapolis, Minnesota 

"Earth mounds, logs, and 
jack pine, symbols of Minne- 
sota's cultural and natural 
history, are the design ele- 
ments for the 50,000-square- 



WW 

,1 ; 

Hllllljljl |i|l!| 5 i^S^i* ; 




U.S. Courthouse Plaza, Minneapolis, Minnesota 



fool plaza oi the new U.S. Court- 
house in downtown Minne- 
apolis. 1 d( ated over an under- 
ground garage, the pla/a had to 
be designed using lightweight 
materials in containers sitting 
on the plaza. The pla/a design 
serves as a transition from the 
new, modern federal court- 
house to the Romanesque-style 
Old City Hall across the street 
and provides a memorable and 
inviting civic space for people to 
use." 

Credits: General Services Ad- 
ministration, Great Lakes Region; 
Martha Schwartz, Inc. $>^. 



Internet and Electronic Case Filing Raise Privacy Concerns 



The following article is based on 
remarks by Chief Judge D. Brock Hornby 
(D. Me.), chair of the Judicial Conference 
Committee on Court Administration 
and Case Management, to the Confer- 
ence for Chief District Judges. 

There's no doubt the Internet 
makes some tasks easier. Its easier 
to comparison shop, browse for 
information, and, incidentally, 
find out everything you'd ever 
want to know about nearly anyone, 
from what they paid for their new 
house to how their divorces are 
proceeding. In the long run, pri- 
vacy and the Internet may prove 
to be mutually exclusive terms. But 
in the meantime, what are the 
privacy issues for the federal Judi- 
ciary, as more and more courts 
institute case management /elec- 
tronic case filing (CM/ECF) and 
bring the ease of Internet access to 
court records? 

"The privacy question is not one 
that will confront us some time in 
the distant future — it is here now 
and must be addressed," said the 



chair of the Judicial Conference 
Committee on Court Administration 
and Case Management (CACM), 
Chief Judge D. Brock Hornby (D. 
Me.). Hornby also would argue 
that "privacy" is too narrow a term, 
since other interests may be in 
conflict with unlimited electronic 
access. A few of the more obvious 
are law enforcement; physical 
security of cooperating defendants 
or victims; trade secrets of compa- 
nies in commercial litigation; and 
keeping jurors free of access to the 
contents of pleadings during trial 
and deliberation. 

These and other privacy issues 
may not be immediately apparent 
when considering CM/ECF. How- 
ever, the goal of CM/ECF is to 
provide remote access through 
the Internet to all court dockets 
and pleadings. In the CM/ECF 
courts, pleadings generally are 
available on the Internet as soon 
as they are filed. Remote access to 
court files also is available in the 70 
or so courts that are imaging plead- 
ings. There is currently no fee for 



access and anyone can view the 
information in the electronic file. On 
the positive side CM/ECF saves 
lawyers' time, saves litigants' money, 
and saves the court from having to 
respond to numerous requests for 
information from court files, both at 
the court and by phone — and not 
just from parties and their lawyers, 
but also from the news media, and 
from business interests who collect 
court data. 

"We have a long tradition of 
public access to case files in the 
federal courts with constitutional 
overtones," Hornby said. 

Public access is a statutory re- 
quirement in bankruptcy courts. But, 
as the Supreme Court noted in the 
case of United States Department of 
Justice v. Reporters Committee for 
Freedom of the Press, 489 U.S. 749 
(1989), paper files in court record 
rooms previously have enjoyed a 
"practical obscurity." 

"This 'practical obscurity' ends," 
said Hornby, "when the court 
records become easily accessible and 
See Privacy on page 9 



The Thud Branch 



June2000 



JUDICIAL MILESTONES 



Appointed: Kermit Edward Bye, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Eighth 
Circuit, April 22. 

Appointed: Gary R. Jones, as U.S. 
Magistrate Judge, U.S. District Court 
for the Middle District of Florida, 
May 1. 

Appointed: Joseph Schmitt, as U.S. 
Magistrate Judge, U.S. District Court 
for the Southern District of California, 
March 31. 

Elevated: Bankruptcy Judge Russell 
A. Eisenberg, to Chief Judge, U.S. 
Bankruptcy Court for the Eastern 
District of Wisconsin, succeeding 
James E. Shapiro, June 1. 

Senior Status: Judge Robert E. Jones, 

U.S. District Court for the District of 
Oregon, May 1. 



Senior Status: Judge Lawrence K. 
Karlton, U.S. District Court for the 
Eastern District of California, May 28. 

Senior Status: Judge Filemon B. 
Vela, U.S. District Court for the 
Southern District of Texas, May 1. 

Retired: Bankruptcy Judge John K. 
Pearson, U.S. Bankruptcy Court for 
the District of Kansas, May 21. 

Resigned: Bankruptcy Judge Lisa 
H. Fenning, U.S. Bankruptcy Court 
for the Central District of California, 
April 30 

Resigned: Magistrate Judge Gary R. 
Jones, U.S. District Court for the 
Northern District of Florida, April 30. 

Deceased: Senior Judge David W. 
Williams, U.S. District Court for the 
Central District of California, May 6. 



THE 

THIRD 

BRANCH 




The Fifth Circuit helped honor the achievements of one of its own with the 
presentation by Administrative Office Associate Director Clarence A. Lee, Jr., of 
the 2000 Director's Award for Excellence in Court Operations to Jesse D. 
Cannon, Jr., Assistant Circuit Executive for Space and Facilities. Pictured from 
left to right are Circuit Executive Gregory A. Nussel, Chief Judge Carolyn Dineen 
King (5th dr.), Jesse D. Cannon, Jr., and Lee. 



Published monthly by the 
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The Third Branch m June 2000 



Privacy continued from page 7 
searchable electronically from 
remote locations — anywhere in the 
world and at any time of the day or 
night. This end of 'practical obscu- 
rity' for court records raises a 
number of policy issues that have 
been referred by the Judicial Confer- 
ence to the Committee on Court 
Administration and Case Manage- 
ment." 

One policy issue is created by the 
very nature of the Internet. Recently, 
a data reseller who subscribes to 
Public Access to Court Electronic 
Records (PACER) learned that a case 
it had downloaded was later sealed 
by the court. The paper file was no 
longer available to the public at the 
courthouse, but the electronic file 
was still on the Internet. "This 
particular data reseller agreed to 
remove the case documents from its 
website when it received notification 
of the later sealing of the case," said 
Hornby. "But there may well be 
others who will not be so willing to 
cooperate — plus, the information 
may already be circulating on the 
web." 

The full implementation of the 
PACER Internet fee may present a 
partial solution to the privacy issue, 
because Internet users seeking access 
to court files will then have to 
register with the PACER center and 
pay a fee for usage. This may dis- 
courage the casual Internet surfer, 
but the issue of limiting access to 
data remains because commercial 
interests such as data resellers and 
the media may register to use 
PACER to download information 
and then make case file documents 
available to anyone on their web 
sites. 

CACM's Privacy and Public 
Access Subcommittee, with its 
liaisons from the Criminal Law, 
Civil and Criminal Rules, Bank- 
ruptcy and Automation Commit- 
tees, is reviewing the policies of the 
electronic case file prototype courts, 
as well as of a number of the courts 



that employ imaging technology. It 
has heard presentations from privacy 
experts, academics, government 
agencies, and attorneys. The subcom- 
mittee already has identified privacy 
and access concerns that exist across 
the board, from criminal and civil 
cases to bankruptcy and administra- 
tive cases. Medical records, financial 
and personal information, plea 
agreements that might reveal who is 
cooperating in a case, trade secrets 
and proprietary information — all 
may be accessible. 

For example, in the U.S. District 
Court for the Eastern District of 
New York, a district that currently 
uses electronic filing, the Social 
Security Administration requested 
and was granted a standing pro- 
tective order prohibiting the elec- 
tronic filing of administrative 
hearing transcripts and litigants' 
briefs due to concerns about iden- 
tity theft and claimants' privacy 
interests. The Social Security Admin- 
istration also supports legislation 
prohibiting the ready availability 
of Social Security numbers via 
electronic access. 

The subcommittee also has 
identified several policy issues. 
Among them, whether there should 
be different policies for electronic 
access than for paper access; should 
specified categories (e.g., criminal) 
be excluded from electronic access; 
should there be a waiting period 
before electronically filed infor- 
mation generally is accessible; and 
what to do about jurors surfing the 
web in the evenings during trial 
and deliberations and reviewing the 
pleadings in the case they are 
deciding? 

According to Hornby, the 
subcommittee plans to address 
these and other questions, possibly 
in a public forum. "This is a com- 
plex issue," he said. "There are 
strong arguments on all sides, the 
technology is ever changing, and 
public sentiment is not yet well- 
defined." &. 



INTERVIEW 




Judge William W. Wilkins Jr. (4"' Cir.) 

Criminal Law Committee 
Chair Sees Active Role 

Judge William W. Wilkins Jr. (4th 
Cir.) was appointed to the District 
Court for the District of South 
Carolina in 1981 and elevated to 
the Fourth Circuit Court of Appeals 
in 1986. He served as chair of the 
U.S. Sentencing Commission from 
1985-94. 

Q # What are the primary 
• responsibilities of the 
Committee on Criminal Law and 
how does it function? 

A # The committee has over- 
• sight responsibility for 
the probation and pretrial ser- 
vices system. The committee 
also monitors criminal law legisla- 
tion, producing analyses and 
making recommendations to the 
Judicial Conference. In addition, 
the committee reviews sentencing- 
related issues and makes recom- 
mendations to the U.S. Senten- 

See Interview on page 10 



The Third Branch 



June2000 



cing Commission on proposed 
amendments to the sentencing 
guidelines. 

I have continued the past prac- 
tice of appointing subcommittees 
to work in these primary areas 
of responsibility. Presently, our 
subcommittee chairs are Judge 
Gerald Rosen (E.D. Mich.), who 
chairs the Subcommittee on Pro- 
gram and Administration; Judge 
Emmet Sullivan (D.D.C.), who 
chairs the Subcommittee on Legi- 
slation; and Judge Phil Gilbert (S.D. 
111.), who chairs the Subcommittee 
on Sentencing Issues. Also, at every 
meeting we receive the views of the 
chair of the Chief Probation Officers 
Advisory Group, federal public 
defenders, and representatives from 
the Department of Justice, the 
Federal Bureau of Prisons, and the 
U.S. Sentencing Commission. At our 
meetings, we discuss in open session 
the merits of proposals of general 
interest. 



Q # The U.S. Sentencing Com- 
• mission finally has a full 
contingent of Commissioners. In 
your opinion, what should be the 
Commission's first priority? 



A: 



I think the Commission is 



• off to a good start. Judge 
Diana Murphy, the new Commis- 
sion chair, and the other recently 
appointed commissioners have 
stated that their first priority is to 
address legislation enacted by 
Congress that directs certain changes 
in the guidelines or that otherwise 
warrants guideline amendments. 
With a hiatus of more than a year 
in which there were no voting 
commissioners, there was quite a 
lengthy list of legislative enactments 
that needed attention by the Com- 
mission. The second priority area 
that the new commissioners identi- 



INTERVIEW, continued 



fied was that of resolving differing 
interpretations of guideline language 
among the courts of appeals. I agree 
with the new Commission's designa- 
tion of these two areas for priority 
attention. 

In addition, I would like to see 
the Commission update the analysis 
and report completed in August 
1991 on the mandatory/minimum 
sentencing approach. This proved 
to be an excellent resource to use 
in convincing members of Congress 
that with the new guidelines sys- 
tem in place, mandatory/mini- 
mum sentences mandated by legi- 
slation were unnecessary and many 
times counterproductive to a fair, 
rational and evenhanded sentencing 
system. 



Q 



# Do you anticipate the 

• Criminal Law Committee 
working with the U.S. Sentencing 
Commission and, if so, how? 

A. I think our committee will be 
• working very closely with 
the Sentencing Commission. I have 
continued a practice first begun by 
Chief Judge Edward Becker (3 rd Cir.) 
when he chaired this committee and 
I chaired the Sentencing Commis- 
sion, of inviting the members of the 
Commission to participate in the 
committee's semi-annual meetings. 
And, our guidelines subcommittee 
no doubt will be meeting and 
corresponding with the Commission 
on more frequent intervals. We want 
to be very active in working with the 
Commission as it considers various 
changes in the guidelines, with the 
goal of assisting in improving the 
guidelines system. 

Our committee also co-sponsors 
(along with the Commission, the 
Federal Bureau of Prisons, the 
Administrative Office, and the 
Federal Judicial Center) periodic 



National Sentencing Policy Institutes. 
The institutes, generally held every 
two years, are attended by judges 
representing every circuit and are 
designed to facilitate dialogue 
among the commissioners and 
judges on various sentencing mat- 
ters. The committee also will serve as 
co-sponsor with the Commission for 
an Economic Crime Symposium 
planned for this fall. 



Q # The committee has been 
• asked to consider a proposal 
to authorize probation and pretrial 
officer assistants to carry firearms. 
What is the position of your commit- 
tee? 

A # Currently, approximately 83 
• districts have an approved 
firearms program, and approxi- 
mately 2,700 probation and pretrial 
services officers are authorized to 
carry firearms in the performance of 
their official duties. While the 
Judicial Conference authorized the 
Administrative Office to amend 
certain aspects of the firearms 
regulations in consultation with the 
committee, neither the Administra- 
tive Office, the committee, nor the 
Conference have the authority to 
extend to officer assistants the right 
to carry firearms to the same extent 
as probation and pretrial services 
officers without an amendment to 
the statute. 

I am informed that as a result of 
decentralized classification authority 
approved by the Judicial Conference 
in 1993, many chief probation and 
pretrial services officers developed 
new officer assistant position de- 
scriptions. Of the approximately 
172 officer assistant positions 
throughout the country, some chiefs 
report that they have either pro- 
moted a clerical staff member to a 
more responsible position, or hired 
individuals who have little or no 
work experience or do not have 
college degrees (a requirement for an 



10 



The Third Branch ■ June 2000 



officer position), or hired student 
interns to work as officer assistants. 
Several chiefs reported appointing 
officer assistants who met the criteria 
for officer positions. Other chiefs 
have appointed officer assistants to 
avoid the need for an FBI back- 
ground investigation, something that 
is now required. 

With respect to duties, some 
officer assistants perform all officer 
duties and supervise selected 
caseloads made up of administrative 
or low-risk offenders. Others 
are essentially "junior officers" 
or "trainees." Some assistants 
collect urine specimens and /or 
serve as lab technicians, 
conduct record checks, and 
prepare collateral investiga- 
tions. Others perform mostly 
administrative or clerical 
functions. This issue and the 
proper use of assistants in general 
is the subject of current review by 
the Administrative Office. Of 
course in the meantime, chiefs 
who want officer assistants to carry 
firearms could be encouraged to 
develop or promote under competi- 
tive procedures those qualified 
officer assistants to officer positions 
to facilitate their eligibility to carry 
firearms. Our committee will with- 
hold judgment on this issue until all 
of the facts are in. 



this statutory approach best serves 
the interests of crime victims, while 
diminishing federal court involve- 
ment in the operations of state 
criminal justice systems. Respond- 
ing to their requests, I recently wrote 
to Senator Strom Thurmond (R-SC) 
and Senator Charles Schumer (D- 
NY) expressing the Conference's 
position. This past February, Judge 
Emmet Sullivan (D.D.C.) testified at 
a hearing before the House Judiciary 
Committee's Subcommittee on the 



"We want to be very active in working 
with the Commission as it considers 
various changes in the guidelines, with 
the goal of assisting in improving the 
guidelines system." 



Constitution for nearly three hours, 
successfully communicating the 
concerns of the Conference. In the 
Senate, supporters of a victims' 
rights constitutional amendment 
withdrew their legislation when it 
appeared no action would be taken 
in this session. However, new 
legislation will likely be introduced 
in the next Congress. So, the debate 
may be over for this session, but the 
question is far from settled. 



border courts, coupled with fund- 
ing shortages in fiscal years 1999 and 
2000, the judges, the clerks' of I ices, 
and probation and pretrial services 
staff in those districts have had a 
very difficult time keeping pat e 
with the dramatically increasing 
workload. Our committee's former 
chair, Chief Judge George Kazen 
(S.D. Tex.), has firsthand experience 
with this problem. With the assis- 
tance of Chief Judge Carolyn Dineen 
King from the Fifth Circuit, the 
judges in this area of the 
country have been very 
successful in bringing this 
issue to the forefront and are 
making a special effort to 
support the Judiciary's 
budget requests in Congress. 
Our committee will be 
^^ working to obtain from the 

Judiciary's appropriation an 
adequate allocation of funds for 
probation and pretrial services 
officers who are directly affected by 
this workload increase. 



V^. br 



a member of the judicial 
branch has a matter that an 
individual wishes to bring to the 
attention of your committee, how is 
the best way to do it? 



A: 



Q: 



Congress has considered two 
ways in which to guarantee 
victims' rights — a constitutional 
amendment and legislation. What is 
the current status of the argument? 



A # This has been a continuing 
• debate in Congress for 
nearly four years — which best 
guarantees victims' rights, a constitu- 
tional amendment or legislation? 
The Judicial Conference prefers a 
statutory approach, which is certain 
and immediate, unlike a constitu- 
tional amendment that could take 
years to ratify. The Conference feels 



Q # As you know, the southwest 
• border courts are in crisis. 
Five district courts along the border 
now handle 26 percent of all federal 
criminal filings in the United States. 
Will your committee play a role in 
addressing this situation? 



A: 



Presentence and post- 
sentence reports are very 
important to the district courts and 
to the Bureau of Prisons. And, 
certain information about the 
sentences imposed is required by 
statute to be transmitted to the U.S. 
Sentencing Commission. As a result 
of increased prosecutions in our 



There are several ways. 

First, anyone can contact me 
directly. Second, the individual may 
want to contact one of our subcom- 
mittee chairs, depending on what the 
issue is. Finally, the individual may 
want to discuss the matter with one 
of the committee members in their 
locale. Other members of our com- 
mittee are Judges Donetta Ambrose 
(W.D. Perm.), Thomas Brett (N.D. 
Okla.), William Catoe (D. S.C.), Sim 
Lake (S.D. Tex.), James Loken (8 th 
Circuit), John Martin (S.D. N.Y.), 
David Mazzone (D. Mass.), William 
Moore (S.D. Ga.), and Wm. 
Fremming Nielsen (E.D. Wash.). We 
all solicit suggestions, ideas, and 
critical comments. £s^ 



11 



The Third Branch m June 2000 



New Ambassador to 
South Africa Sworn in 
By Former Classmate 

Among the more pleasant duties 
of a federal judge is the occasional 
administering an oath of office. 
Recently, Chief Judge John E. 
Conway (D. N.M.) had the agreeable 
task of swearing in former law 
school classmate Delano Lewis as the 
new Ambassador to South Africa. 
Lewis and Conway graduated 
together from Washburn University 
School of Law, Topeka, Kansas, in 
1963. 

After graduation, Lewis went on 
to serve in the government, first as 
an attorney with the U.S. Depart- 
ment of Justice and later the Equal 
Employment Opportunity Commis- 
sion. He served in the U.S. Peace 
Corps, ultimately as Director of the 



K^^ ft 

l 



Peace Corps' East and Southern 
Africa Division, and he also worked 
in the legislative branch as legislative 
assistant to Senator Edward Brooke 
of Massachusetts and Delegate 
Water E. Fauntroy of the District of 
Columbia. He was President and 
CEO of C&P Telephone for 21 years, 
and from 1994 to 1998, he was 



Photo left to right, Ambassador Delano 
Lewis, Gayle Carolyn Jones Lewis, Chief 
Judge John Conway (D. N.M.) 



president and CEO of National 
Public Radio. He received the 
Distinguished Leadership Award 
and Media Spotlight Award from 
Amnesty International in 1997. £* 



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3ERAL DEPOSITORY 

for Judges Give New Meaning to 'Volunteer' 




District Judge Joe Fisher, a judicial 
nominee of President Dwight D. 
Eisenhower to the U.S. District Court 
for the Eastern District of Texas, died 
last month. He'd served 41 years on 
the federal bench and up until two 
weeks before he 
died, he still 
carried nearly 
half the caseload 
of an active 
judge. He was 90 
years old. 

Fisher was one 
of a cadre of 
judges across the 
country who, 
when they could 
opt for fishing 
trips and winter- 
ing in Florida or 
just plain doing 
nothing, continue 
to handle sub- 
stantial court 

caseloads. It is fortunate for the 
Judiciary and taxpayers that they do. 

"Senior judges do approximately 
15-17 percent of the work of the 
federal Judiciary," said Administra- 
tive Office Director Leonidas Ralph 
Mecham. "In many circuits and 
districts, senior judges are indispens- 




able to the proper conduct of judicial 
business." In fact the federal Judi- 
ciary depends on its senior judges to 
such a degree that if tomorrow all the 
senior judges decided to catch up on 
their lost leisure, the courts would 

need an additional 
100 active judges 
to compensate for 
the loss of the 
senior judges. If 
Congress and the 
President chose 
not to create the 
new judgeships, 
the federal courts 
would grind to a 
halt. 

Judge Max 
Rosenn on the 
Third Circuit 
Court of Appeals 
has been a senior 
judge for nearly 
20 years. And he 
says he has more work now as a 
senior judge than when he came on 
the court in 1970. "The courts run 
much more efficiently," said Rosenn. 
"There's better planning and acceler- 
ated production. With technology 
such as computers, we get out a 

See Senior on page 4 



Newslettei 
of the 
Federal 

Conns 



Vol. 32 
Number 7 
July 2000 




Budget Protection Bill Out of Committee pg. 2 

New Judgeships Wanted for Border Courts pg. 7 

Majority Leader Hears from Judiciary pg. 12 



House Passes 
Appropriations Bill 
for Judiciary 

The Judiciary's fiscal year 
2001 appropriation passed the 
House before the July 4 recess, as 
part of H.R. 4690, the Commerce, 
Justice, and State, the Judiciary, 
and Related Agencies appropria- 
tions bill. The House gave the 
Judiciary a 6.6 percent increase 
over FY 2000 enacted appropria- 
tions, for a total appropriation of 
$4.2 billion. While the House level 
treats the Third Branch well in 
comparison to the budget alloca- 
tion available and in comparison 
to most other agencies in the bill, 
it does not fund requested 
workload enhancements for 
additional staff to support 
workload increases nationally, 
and especially for the southwest 
border courts. 

"We are truly appreciative of 
the funding provided by the 
House," said Administrative 
Office Director Leonidas Ralph 
Mecham, "especially considering 
the tight budget allocations. 
However, the House funding 
does not allow us to address our 
significant workload increases, in 
particular along the southwest 
border, or to fully fund other 

See Appropriations on page 3 



Budget Protection Bill Oot ot Committee, On to Full Senate 



Thanks to the leadership of 
Senator Thad Cochran (R-MS), and 
support from Senator Joseph I. 
Lieberman (D-CT), the Senate 
Committee on Governmental Affairs 
last month favorably reported S. 
1564, the Federal Courts Budget 
Protection Act. Chief Justice William 
Rehnquist wrote to Cochran to 
convey the appreciation of the 
Judicial Conference for his efforts 
and those of the bill's co-sponsors 
and to express his personal support 
for S. 1564. 

The bill would allow the federal 
Judiciary to submit its annual 
budget directly to Congress, along 
with courthouse construction 
funding requests, without interfer- 
ence from the Office of Management 
and Budget (OMB). Currently the 
Judiciary's budget is submitted 
through the President to Congress, 
who must send it to Congress 
without change. In contrast, requests 
for courthouse funding are submit- 
ted by the General Services Admin- 
istration through OMB to the White 
House and then on to Congress. 

Under S. 1564, the Judiciary's 



In his letter to Senator Thad Cochran, 
Chief Justice William Rehnquist wrote: 

"It is the longstanding policy of 
Congress in title 31, United States 
Code, Section 1105(b) that the 
President, in submitting the annual 
proposed unified budget for the 
federal government, include the 
request of the judicial branch 
"without change." The attempted 
erosion of that fundamental 
principle in recent years by the 
Office of Management and Budget 
(OMB) would be remedied by the 
enactment of S. 1564. 

Likewise, I believe it is mani- 
festly appropriate for this same 
principle to be extended to the 




Senator Thad Cochran (R-MS) 

budget, including courthouse 
construction requests, would be 
submitted directly to Congress, and 
the President must include it in the 
unified federal budget without 
making any changes in the budget, 
or from "imposing or otherwise 
recommending implementation of a 
negative allowance, rescission, or 
any other form of reduction or 
change to such estimates." 



Judiciary's courthouse construction 
program, the only remaining 
portion of Judiciary funding that is 
still subject to presidential control 
through OMB. Congress should 
receive the annual request of the 
Judiciary for funding, including 
requests for the construction and 
repair of courthouses, without 
interference from the executive 
branch. The extent to which these 
requests are granted would con- 
tinue to depend entirely on the 
discretion of Congress which 
would be unaffected by the enact- 
ment of S. 1564. The current role of 
the General Services Administra- 
tion also would be fully pre- 
served." ^s. 



S. 1564 would not alter the 
relationship the Judiciary enjoys 
with the General Services Adminis- 
tration, which would continue to 
develop courthouse budget requests, 
and preliminary planning, design, 
and cost estimates of future judicial 
branch construction, acquisition, 
and repair and alteration projects. 
Also the bill would not alter the role 
of congressional committees in 
reviewing courthouse construction 
requests. 

Senators Orrin G. Hatch (R-UT), 
Patrick J. Leahy (D-VT), William V. 
Roth Jr. (R-DE.), Ted Stevens (R- 
AK) and Susan M. Collins (R-ME) 
are co-sponsors with Cochran of the 
bill. 

Cochran, in an interview with The 
Third Branch last fall, called OMB 
budget request interference "an in- 
direct way for the Administration to 
actually block access by the Congress 
to information from the Judiciary 
about its priorities for courthouse 
construction, where it thought the 
needs were the most important. And 
this is information that I thought the 
Congress had a right to have. It didn't 
have to approve every request that 
either the Judiciary or the Adminis- 
tration makes for funds for court- 
house construction, but it needed to 
know where the courts thought the 
priorities were. So, I thought it was 
an interference, a gratuitous interfer- 
ence by the executive branch in the 
effort by the Judiciary to communi- 
cate with the Congress, and it ought 
not be tolerated." 

Four times in the last decade, 
OMB has attempted to decrease the 
Judiciary's operating budget request 
indirectly through the use of nega- 
tive allowances, and in the 1998, 
1999, and 2000 budgets, OMB 
"zeroed out" the Judiciary's requests 
for courthouse construction funding. 
In the FY 2001 budget, OMB failed tc 
follow the Judiciary-GSA priorities, 
reduced the courthouse construction 
request, and imposed an arbitrary 
courtroom sharing policy. £*^ 



The Third Branch 



July 2000 



Appropriations continued from page I 
important initiatives, such as de- 
fender services and court security 
needs.'' 

The Senate has yet to consider a 
FY 2001 appropriations bill for the 
Judiciary. In anticipation of Senate 
action, and because the Senate 
Subcommittee on Commerce, Justice, 
State, and the Judiciary has even less 
money to work with than the House, 
Bankruptcy Judge David Houston 
(N.D. Miss.) and Mecham met with 
Senate Majority Leader Trent Lott to 
discuss the Judiciary's funding for 
the coming fiscal year. (See page 12.) 
Senate meetings are scheduled with 
other congressional leaders. 

Under the House-passed bill, 



Salaries and Fxpenses lor the courts, 
the largest single appropriation 
account, would receive a 6.6 percent 
increase over FY 2000. This level is 
intended to allow the Judiciary to 
continue operating at current levels 
of operations. But as the House 
Appropriations Committee reported, 
"although the Committee is aware of 
the growth in workload facing 
federal courts nationally and espe- 
cially along the southwest border," 
the funds made available "may fall 
short of the amounts needed to 
address the growing workload." No 
funds would be available for addi- 
tional workload along the southwest 
border, or elsewhere. 

Revised estimates also leave the 



Defenders Services an mint $26 
million below the amount needed 
to fund currently anticipated work- 
load or to increase panel attorney 
rates to $75 per hour. While not 
allowing for the full rate increase to 
$75 per hour, the House committee 
report was supportive of a $5 
increase, to $75 in court/$55 out of 
court, the second consecutive year 
of such an increase. 

The Court Security account also is 
underfunded, at $17.1 million below 
the request. With the House-pro- 
vided funding, no money would be 
available for additional court secu- 
rity officers or for security equip- 
ment in new and renovated court 
facilities. &v^ 



As the House consid- 
ered H.R. 4690, the 
Commerce, Justice, 
and State, the Judi- 
ciary and Related 
Agencies appropria- 
tions bill for fiscal year 
2001, Representative 
Clifford B. Stearns (R- 
FL) rose to offer the 
following statement: 




Rep. Clifford B. Stearns (R-FL) 



"...I would like to voice my 
concern over the state of federal 
judicial compensation. I believe that 
judges' salaries are falling below 
the minimum levels that are 
needed, not only in the interests of 
fairness, but also to ensure the 
continued quality of the federal 
Judiciary. 

Over the past eight years, federal 
judges have experienced a 13 
percent decline in the real value of 
their salaries. At the same time, 
their workload has remained at 
high levels. Salaries of federal 
judges have not just lagged behind 
the inflation indices. 

As a result, judges' salaries no 
longer bear a reasonable relation- 
ship to that of the pool of lawyers 



from whom candidates 
for judgeships should 
be drawn. It has been 
widely reported that 
the first-year associates 
in law firms in metro- 
politan areas through- 
out the country are 
now earning $125,000 
a year. It is therefore 
not surprising that 
even second- and 
third-year associates at most large 
law firms would have to take a pay 
cut, a pay cut to accept an appoint- 
ment to the federal bench. 

Public sector salaries may even 
be more relevant. The general 
counsel of the University of 
California receives a salary in 
excess of $250,000 annually, which 
is substantially greater than the 
pay of the Chief Justice of the 
United States. 

The district attorneys of Los 
Angeles, for example, are paid 
$185,000. All of these salaries far 
exceed the salary of the United 
States Supreme Court Justices and 
Associate Justices, which are 
currently less than $182,000 and 
$174,000, respectively. 



Additionally, a U.S. district 
judge salary is currently only 
$141,300. Increasingly, judges are 
choosing not to make the financial 
sacrifice to remain on the federal 
bench. As a result, our federal 
Judiciary is losing some of its most 
capable and dedicated men and 
women. Since January 1993, 40 
Article III judges, judges whose 
positions are delegated in Article III 
of the U.S. Constitution and serve 
lifetime appointments subject to 
Senate confirmation, have resigned 
or retired from the federal bench. 
Many of these judges have retired 
to private practice. 

The departure of experienced, 
seasoned judges undermines the 
notion of lifetime service and 
weakens our judicial system. If the 
issue of adequate judicial salaries is 
not soon addressed, I believe there 
is a real risk that the quality of the 
federal Judiciary, a matter of great 
and justified pride, will be compro- 
mised. 

The President of the United 
States' salary goes up to $400,000 
next year. Is it not about time the 
Supreme Court Justices' salaries go 
up, too?" ^»v^ 



The Third Branch m July 2000 



Senior continued from page 1 
whole lot more cases." At 90 
years of age, Rosenn takes 
pleasure in working. "I get a 
great deal of satisfaction in 
doing something useful," he 
said. 

In 1999, 273 senior district 
judges terminated slightly 
over 17 percent of all civil 
and criminal defendant cases 
and conducted 19 percent of 
all trials. At the appellate 
level, 86 senior judges 
handled 15 percent of all 
participations in oral hear- 
ings and submissions on 
briefs. The contributions of 
senior judges have increased 
nearly every year. 

Judge Robert Sweet in the 
Southern District of New 
York carries a typical senior 
judge caseload. He cut his 
caseload by about a quarter 
when he took senior status. 
"Perhaps it's a bit lighter 
than an active judge," said 
Sweet, "but after 22 years of 
experience, I'm able to get a 
good grip on things relatively 
quickly and move the docket effec- 
tively." Many senior judges, while 
they may have reduced caseloads, 
contribute substantially in other 
ways, some with their involvement 
in non-case related court matters and 




ready for trial," said 
Pollack, who likes to clear 
up civil cases, particularly 
securities and trust cases 
that have been pending 
for a lengthy period. "The 
lawyers tell me they need 
more time, but I tell them 
I really don't have a lot of 
time at 93 Vi years old." 
His philosophy is that the 
harder you work, the 
longer you live. "This 
business of golf or Florida 
vacations is for the birds," 
says Pollack. 

The rules didn't always 
allow judges to work after 
retirement. It wasn't until 
1919 that legislation was 
enacted authorizing 
judges to retire at age 70 
after 10 years of service, 
and continue to retain the 
judicial office and to 
perform duties in retired 
status. In 1948, Congress 
provided that judges 




others by taking visiting 
judge assignments. In 
1999, as visiting judges, 82 
senior judges helped 
terminate 1,190 civil cases 
and cases involving 459 
criminal defendants. In 
1999, at the circuit level, 73 
senior appeals court 
judges and 129 senior 
district court judges 
helped dispose of 3,269 
cases. 

Judge Milton Pollack, 
also a senior judge in the 
Southern District of New 
York, has served on the 
court 34 years and agrees 
with Sweet — experience 
counts. "I'm known for 
taking over long-delayed 
reassigned cases and tell- 
ing the attorneys to come 
in next Monday and be 




4 



The Third Branch 



]uly 2000 



retiring From active service would 
continue to receive the full judicial 
salary and in 1954, the retirement 
age became 65, with 15 years of 
service. Finally, in 1984, Congress 
established a sliding scale of age 
and service, commencing at age 65 
with 15 years of service. 

Statistics show that very few 
federal judges — only about 1.6 
percent— take full retirement before 
reaching 15 years of service in active 
status. Even fewer opt for full 
retirement instead of senior status 
when they are eligible. And a few 
judges, such as the late Judge Giles 
Rich of the Court of Appeals for the 
Federal Circuit, do not take senior 
status even when they're eligible. 
Rich served over 40 years as an 
active judge becoming, at 95, the 
oldest active judge in history. 
Generally, however, slightly more 
than half of all federal judges take 
senior status within one month after 
becoming eligible. Seventy-five 
percent take senior status within a 
year. Slightly more than 8 percent 
delay the 




I'm about as active as you can be. 
And as far as handling a lawsuit, it 
doesn't make a difference if I'm a so- 
called senior or a so-called active 
judge." Kinneary takes a 100 percent 
draw on criminal cases and an 80 
percent draw on civil cases. He takes 
the criminal cases because that's 
what he likes to do. Times change, 



transition, 














working more 


United States Courts of Appeals and District Courts 


than 20 years 


Work of Senior Judges 






before taking 


During the 12 Month Period Ended June 30, 1995-1999 




senior status. 














At nearly 95, 


Type of Activity 


1995 


1996 


1997 


1998 


1999 


Judge Joseph P. 


Courts of Appeals 












Kinneary of the 


All Participations in Oral Hearings 












U.S. District 


and Submissions on Briefs 


85,472 


82,132 


79,802 


75,656 


80,313 


Senior Judges Only (1) 


1 1 ,804 


1 1 ,420 


1 1 ,699 


12,032 


12,144 


Court for the 


Percent of All 


13.8 


13.9 


14.7 


15.9 


15.1 


Southern District 


District Courts (2) 












of Ohio, is the 


All Civil Cases and Criminal 












oldest working 


Defendants Terminated 


259,419 


284,021 


289,431 


302,840 


316,882 


Senior Judges Only 


38,626 


41,323 


48,543 


51,646 


54,498 


senior judge in 


Percent of All 


14.9 


14.5 


16.8 


17.1 


17.2 


the country. He 


All Trials Conducted 


19,464 


17,983 


17,266 


16,738 


15,905 


feels, however, 


Senior Judges Only 


3,686 


3,389 


3,524 


3,462 


3,058 




Percent of All 


18.9 


18.8 


20.4 


20.7 


19.2 


the senior judge 














versus active 


All Hours in Trial 


258,456 


250,618 


243,450 


228,729 


218,420 


Senior Judges Only 


46,328 


43,231 


47,167 


46,673 


40,447 


judge designa- 


Percent of All 


17.9 


17.2 


19.4 


20.4 


18.5 


tion is unfortu- 


All Hours in Other Proceedings 


155,911 


173,479 


170,138 


165,287 


168,797 


nate. "Senior 


Senior Judges Only 


25,839 


31,812 


35,103 


34,248 


33,394 


to what," 


Percent of All 


16.6 


18.3 


20.6 


20.7 


19.8 


Kinneary asks, 


(1) In the Courts of Appeals for 1995-1999, "Senior Judges Only" represents resident senior 


circuit judges onf 


I- 




perhaps face- 


(2) In the District Courts, the "Senior Judges Only" totals do not include the work of senior circuit judges in the 






tiously. "I think 


district courts. 













however, and he reflects th.it in the 
early days oi his judgeship, the FBI 
frequently would bring interstate 
transportation cases before his court. 
Now, the majority of discs he sees 
involve drugs, or, on the civil side, 
controversies between big business 
interests. "But the nature of cases 
doesn't make a difference," Kinneary 
observes, "as long as you have good 
people on staff." 

At 80, Judge Anthony Alaimo (S. 
D. Ga.) feels there's no difference 
between a senior judge and an active 
judge, except that in some courts, 
senior judges don't retain their 
voting rights on administrative 
matters. He remains very active, 
last year handling a global settle- 
ment for about 900 plaintiffs in a 
class action suit. "I think I try more 
cases than some active judges," he 
said. He admits sentencing is his 
least favorite duty, finding the U.S. 
Sentencing Guidelines too inflexible. 
Still, through choice, he carries a full 
caseload. "I'm like the old prize 
fighter," Alaimo relates, "every time 
the bell rings I 
come out of my 
corner." 

If a judge, at 
retirement age, 
chooses to take 
senior status, he or 
she receives the 
salary of the office 
including any 
subsequent cost- 
of-living increases. 
A senior judge 
must meet certain 
workload certifica- 
tion requirements 
to receive any 
salary increases 
other than cost-of- 
living adjustments 
and work may 
include judicial 
work outside of 
the courtroom. 
Since federal judges 
See Senior on page 6 



The Third Branch m July 2000 



Senior continued from page 5 
have received only two 
cost-of-living adjustments 
since 1993, and no other 
salary increases, senior 
judges obviously are not 
coming to work every day 
for the promise of a pay 
raise. They could just as 
easily stay home and 
receive their retirement pay. 
In effect, senior judges 
continue to do substantial 
work for no additional 
compensation. 

Judge Edwin F. Hunter 
(W.D. La.), who turned 89 
last February, claims he'd 
be bored if he didn't come 
to work. Judge Howard 
Turrentine (S.D. Calif.) 
jokes that he tried to stay 
home, but when he began 
suggesting housekeeping 
improvements, his wife 
convinced him to go back 
to work. In reality, the 
Southern District of Califor- 
nia depends on its senior judges. The 
district is one of five southwest 
border courts that now handle 26 
percent of all federal court criminal 
filings. "The Southern District of 
California has experienced a close to 
60 percent increase in its caseload 
since 1995," said Chief Judge 
Marilyn Huff (S.D. Calif.). "Until 
Congress approves a judgeship bill, 
we are relying on our five senior 
judges to get us through." The 
Southern District of California is 
similar in that respect to many 
districts across the country where 
senior judges take up the workload 
created by lengthening judicial 
vacancies. They may have acquired 
the title of senior judge, but the need 
for their services remains the same as 
when they were active. 

Turrentine, on one typical Monday 
morning, had six sentencings and 
three supervised release hearings. In 
a court that he says is "overbur- 
dened" with immigration and drug 




cases, he does everything an active 
judge would do. 

Senior Judge Jack Weinstein (E.D. 
NY) took senior status to allow his 
court to bring on an additional active 
judge. "With our heavy workload," 



said Weinstein, "we 
needed another judge." 
The 79-year old 
Weinstein continues to 
carry a full caseload of 
civil and criminal cases. 
Several years ago, he 
briefly stopped taking 
drug cases until there 
was what he calls "a 
more sensible enforce- 
ment policy on the 
guidelines" on the part 
of the U.S. Attorney's 
office. Weinstein also 
participates in the day- 
to-day administration of 
the court and he sits on 
the occasional appeal in 
the Second Circuit. 

What it may come 
down to, in the words of 
Judge Sweet, is that 
senior judges use 
whatever skills they 
have, where they are 
most needed. Taking 
senior status also gives 
judges some flexibility, which may 
lead, at least in Sweet's case, to the 
opportunity to take a "busman's 
holiday." Sweet now has the time 
to respond to invitations to visit 
China and speak to judges and 
students there about the U.S. 
judicial system. In September he'll 
visit Albania to lecture on the 
federal Judiciary. Says Sweet, 
"Given the fact that federal judges 
at retirement have the option to do 
nothing, senior judges are a boon 
to the system. And being a senior 
judge is the most desirable job in 
the United States." 

Adds Mecham, "How many em- 
ployees would choose to come to 
work only to wrestle with difficult 
complex legal issues when they 
could instead get paid the same 
amount by staying at home? Senior 
judges are among the most unique 
public servants in the world. They 
give a new meaning to the word 
volunteer." ^v. 



The Third Branch 



July 2000 



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Congress Wants New Judgeships for Southwest Border Courts 



Five southwest border courts may 
get much needed judgeship positions 
to handle an overwhelming caseload 
it" five senators and members of the 
House Southwest Border Caucus 
have their way. 

Identical bills have been intro- 
duced in the Senate and the House 
that would create federal judgeships 
for southwest border courts. Senators 
Kay Bailey Hutchison (R-TX), Pete 
Domenici (R-MN), and Dianne 
Feinstein (D-CA) introduced S. 2730, 
the Southwest Border Judgeship Act 
of 2000 in mid-June. Senators Barbara 
Boxer (D-CA) and Jeff Bingaman (D- 
NM) are co-sponsors. Representative 
Charles Gonzalez (D-TX) and several 
fellow members of the House South- 
west Border Caucus have co-spon- 
sored H.R. 4704. Both bills would 
create eight permanent and five 
temporary Article III judgeships: two 
permanent in the Southern District of 
Texas, two permanent in the Western 
District of Texas, one temporary and 
three permanent in the Southern 
District of California, one temporary 
and one permanent in the District of 
New Mexico, and three temporary in 
the District of Arizona. These 
requested judgeships are identical to 
the additional judgeships recom- 
mended by the Judicial Conference. 
Arizona received three permanent 
judgeships last year in P.L. 106-113, 
the omnibus appropriations bill for 
fiscal year 2000. An omnibus judge- 
ship bill, S. 1145, is pending in the 
Senate, which would create 69 
appeals and district court judgeships. 

Sponsors of the House and Senate 
bills point to the crisis that exists in 
the five southwest border courts, 
which handle 26 percent of all 
criminal cases in the U.S. "These 
courts are on the front line of the 
drug war," said Hutchison. "No- 
where in the United States is the 
need greater for more judges than 
along our southern border. We 




Members of the Congressional Southwest Border Caucus held a press conference last month to 
urge support for newly introduced bills in the House and Senate that would create additional 
judgeships for the border courts. Standing left to right are Representatives Silvestre Reyes (D- 
TX), Solomon Ortiz (D-TX), Charles Gonzalez (D-TX), Henry Bonilla (R-TX), and Ciro D. 
Rodriquez (D-TX). 



cannot tolerate a lack of judicial 
resources in our fight against the 
drug trade." 

"The federal courts along the 
U.S. /Mexico border are simply 
overwhelmed with pending drug 
cases," Feinstein said. "This legisla- 
tion would give the courts additional 
resources to handle the extraordi- 
nary workload. The end result will 
be more trials, more convictions, and 
a safer border." 

Additional funds to fight border crime 

In addition, $12 million for federal 
drug case prosecutions along the 
U.S. /Mexico border is included in 
the emergency supplemental spend- 



ing package recently passed by Con- 
gress. The funding will be divided 
evenly, with New Mexico, Arizona, 
California, and Texas each receiving 
$3 million. The funds, which are part 
of a U.S. Attorney grant program for 
local prosecutors, will reimburse 
county and city governments for 
court costs, county and district 
attorney costs, criminal proceedings 
expenditures, and indigent defense. 

In its consideration of the Judi- 
ciary's fiscal year 2001 appropria- 
tions request, the House has not 
added any money, thus far, to 
address the workload of the south- 
west border courts. The Senate has 
not yet acted. £^ 



The Third Brunch m July 2000 



JUDICIAL MILESTONES 



Appointed: Thomas L. Ambro, as U.S. 
Court of Appeals Judge, U.S. Court of 
Appeals for the Third Circuit, June 19. 

Appointed: Timothy Belcher Dyk, as 

U.S. Court of Appeals Judge, U.S. 
Court of Appeals for the Federal 
Circuit, June 9. 

Appointed: Julio M. Fuentes, as U.S. 
Court of Appeals Judge, U.S. Court of 
Appeals for the Third Circuit, May 15. 

Appointed: John Antoon, II, as U.S. 
District Judge, U.S. District Court 
for the Middle District of Florida, 
June 2. 

Appointed: Marianne O. Battani, as 

U.S. District Judge, U.S. District Court 
for the Eastern District of Michigan, 
June 9. 

Appointment: James J. Brady, as U.S. 

District Judge, U.S. District Court 
for the Middle District of Louisiana, 
May 29. 

Appointed: Roger L. Hunt, as U.S. 
District Judge, U.S. District Court for 
the District of Nevada, May 26. 

Appointment: James D. Whittemore, 

as U.S. District Judge, U.S. District 
Court for the Middle District of 
Florida, May 27. 

Appointed: Paul Game, Jr., as U.S. 
Magistrate Judge, U.S. District Court 
for the Central District of California, 
June 1. 

Appointed: Susan Richard Nelson, as 

U.S. Magistrate Judge, U.S. District 
Court for the District of Minnesota, 
June 1. 

Appointed: David E. Peebles, as U.S. 
Magistrate Judge, U.S. District Court 
for the Northern District of New York, 

May 22 

Appointed: H. Kenneth Schroeder, Jr., 

as U.S. Magistrate Judge, U.S. District 
Court for the Western District of New 
York, June 1 . 

Appointed: Thomas J. Shields, as 

U.S. Magistrate Judge, U.S. District 



Court for the Southern District of 
Iowa, June 9. 

Appointed: William D. Wall, as U.S. 
Magistrate Judge, U.S. District Court 
for the Eastern District of New York, 
June 1. 

Appointed: Robert E. Nugent, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the District of Kansas, June 14. 

Elevated: Judge Lewis T. Babcock, to 

Chief Judge, U.S. District Court for 
the District of Colorado, succeeding 
U.S. District Judge Richard P. Matsch, 
June 8. 

Elevated: Bankruptcy Judge Russell 
A. Eisenberg, to Chief Bankruptcy 
Judge, U.S. Bankruptcy Court for the 
Eastern District of Wisconsin, succeed- 
ing Bankruptcy Judge James E. 
Shapiro, June 1. 

Elevated: Bankruptcy Judge Gerald D. 
Fines, to Chief Bankruptcy Judge, U.S. 
Bankruptcy Court for the Central Dis- 
trict of Illinois, succeeding Bankruptcy 
Judge William Altenberger, June 1. 

Senior Status: U.S. Court of Appeals 
Judge Morton I. Greenberg, U.S. 
Court of Appeals for the Third Circuit, 
June 30. 

Senior Status: U.S. District Judge 
Charles C. Lovell, U.S. District Court 
for the District of Montana, June 14. 

Retired: Chief Judge Edward B. Davis, 

U.S. District Court for the Southern 
District of Florida, June 30. 

Resigned: Magistrate Judge Roger L. 
Hunt, U.S. District Court for the 
District of Nevada, May 25. 

Resigned: Magistrate Judge Thomas J. 
Shields, U.S. District Court for the 
Southern District of Iowa, June 8. 

Deceased: Magistrate Judge John Lynn 
Caden, U.S. District Court for the 
Eastern District of New York, June 11. 

Deceased: Judge Martin Pence, U.S. 
District Court for the District of 
Hawaii, May 29. 



THE 

THIRD 

BRANCH 



Published monthly by the 
Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 

(202) 502-2600 

Visit our Internet site at 

http: / / www.uscourts.gov 

DIRECTOR 
Leonidas Ralph Mecham 

EXECUTIVE EDITOR 
Charles D. Connor 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL 60XSC0RE 



As of July 1, 2000 




Courts of Appeals 




Vacancies 


21 


Nominees 


15 


District Courts 




Vacancies 


39 


Nominees 


21 



Courts with 
"Judicial Emergencies' 



21 



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



The Third Bmnch m July 2000 



Judicial Fellows Selected for 2000-2001 Program 



Four Judicial Fellows have been 
selected to participate in the 2000- 
2001 Judicial Fellows Program. They 
are L. Karl Branting, who will be as- 
signed to the Administrative Office; 
Jill Evans, who will be assigned to 
the Federal Judicial Center; Jennifer 
Segal, who will be assigned to the 
U.S. Sentencing Commission; and 
Barry Ryan, who will be assigned to 
the U.S. Supreme Court. 

The Judicial Fellows Program was 
founded by Chief Justice Warren 
Burger in 1973, as a way in which to 
provide outstanding individuals from 
diverse professions and academic 
backgrounds with first-hand experi- 
ence of the administration of the fed- 
eral Judiciary. Fellowships are one- 
year appointments, beginning in 
August or September. Fellows are 
selected by the 12-member Judicial 
Fellows Commission, which looks for 
individuals who will receive long- 
term career benefits from the experi- 
ence, and who are interested in im- 
proving the workings and public 
understanding of the federal judicial 
process. 

L. Karl Branting is an associate 
professor in the Department of Com- 
puter Science at the University of 
Wyoming, where he has been a fac- 
ulty member 
since 1990. In 
addition to 
Ph.D. and M.S. 
degrees in 
computer 
science from 
the University 
of Texas at 
Austin, he 
earned a J.D. 
degree from Georgetown University 
Law Center and a B.A. in philosophy 
from the University of Colorado. 
Branting was in private law practice 
from 1980 to 1982 and served as staff 
attorney for the Colorado Court of 
Appeals in Denver from 1983 to 




L. Karl Branting 




Jill Evans 



L985. Among numerous fellowships 
and academic awards, he most 
recently received a German-American 
Fulbright Commission senior scholar 
grant for 1998-1999. Branting has 
taught and written extensively on 
law and information technology, 
recently publishing the book, Reason- 
ing with Rules and Precedents: A 
Computational Model of Legal Analysis. 

Jill Evans has been, since 1994, an 
associate professor at the Cumber- 
land School of Law, in Birmingham, 
Alabama, specializing in torts and 
environmental 
law. She was 
previously in 
private law 
practice, and 
from 1983- 
1984 was law 
clerk to Judge 
James E. Doyle 
(W.D. Wis.). 
She earned a 
degree in social ecology from the Uni- 
versity of California, Irvine; a J.D. de- 
gree from Northwestern University 
School of Law; and a Master's degree 
in management from the J.L. Kellogg 
Graduate School of Management. 
Evans is a member of the ABA 
Section of Natural Resources, Energy, 
and Environmental Law and speaks 
frequently on environment and the 
law. She is the author of several law 
review articles including "Challeng- 
ing the Racism in Environmental 
Racism: Redefining the Concept of 
Intent," and "The Lawyer as An 
Enlightened Citizen: Towards A 
New Regulatory Model in Environ- 
mental Law." 

Barry T. Ryan is vice president for 
university relations and professor of 
history at Point Loma Nazarene Uni- 
versity, San Diego, California. He 
currently directs the Center for Teach- 
ing and Learning, and is chair of the 
faculty council and the Department 
of History and Political Science. Ryan 




Barry 1 . Ryan 



received a Ph.l ). in history from the 
Universitj of c alifornia, Santa Barb 
ara, and a U ). from Boall I l<ill S< hool 
of Law, Uni- 
versity of 
California, 
Berkeley. I lis 
areas of aca- 
demic concen- 
tration include 
history, law, 
and theology, 
and he has de- 
veloped profi- 
ciency in German, French, Italian, 
Spanish, and classical and medieval 
Latin. Ryan has published articles in 
Thomas Jefferson Law Review, 
Agustinius, International Tax and 
Business Lawyer, and Studia Patristica. 
He edited A Collection of Readings in 
the History of European Society: 1300- 
1648. He also has been a visiting 
scholar at the University of London. 

Jennifer A. Segal is an assistant 
professor in the Department of Poli- 
tical Science, University of Kentucky. 
She earned her undergraduate degree 
in political science at the University of 
California, San 
Diego, and an 
M.A. and Ph.D 
in political sci- 
ence from 
Ohio State 
University. 
She has con- 
ducted exten- 
sive research 
in the fields of 
judicial politics and public law, focus- 
ing on federal courts and the mass 
media, representation, public opinion, 
and decision-making. Results of her 
studies are included in a recently 
published text, Television Nexus and 
the Supreme Court: All the News That's 
Pit to Air? She has published articles 
on the federal courts and judges in 
Political Research Quarterly, Judicature, 
and American Review of Politics. Cur- 
rently, she is investigating the impact 
of gender and judicial decision-mak- 
ing on the federal district courts. ^v^ 




Jennifer A. Segal 



Tlie Third Branch 



July 2000 



INTERVIEW 



From Academics to the Bench, It's Another Side of the Law 



From Professor of Law at Yale Univer- 
sity, in 1982 Chief Judge Ralph K. 
Winter Jr. was appointed to the U.S. 
Court of Appeals for the Second Circuit. 
He has served on the Judicial Conference 
Advisory Committee on Civil Rules, as 
chair of the Advisory Committee on 
Rules of Evidence, and is currently chair 
of the Executive Committee. 

Q # As a member of the Execu- 
• tive Committee since 1998, 
and its chair since October 1999, 
you've had the opportunity to view 
the workings of what may be the 
most unique and influential of all 
Conference committees. How does 
the committee work and what do 
you feel are its strengths? 

A # The Executive Committee 
• plays a valuable function in 
selecting issues for the consent 
agenda to be discussed at the 
biannual Conference meetings. It 
also plays a very valuable role in 
dealing with emergency matters, 
emergencies in the sense that a 
decision has to be made before 
another Conference meeting, or at a 
time when it would be impractical to 
have a conference call with the 
Conference members. Some of these 
issues may deal with legislation that 
is moving rapidly in Congress and 
the Judiciary may need to react to 
legislative changes that might affect 
the federal courts. 

Certainly we thoroughly discuss 
any issue on which everyone is not 
agreed. The committee referring the 
issue to the Executive Committee, 
typically, will have done its home- 
work, and if it is not a controversial 
issue there won't be much discus- 
sion. But if even a single member of 
the Executive Committee thinks it 
ought to be discussed, or if the 



Executive Committee is going to 
have to make a decision beyond 
whether it should be on the consent 
or the discussion calendar, or if the 
Executive Committee has to act on 
its own because there is an emer- 
gency, then it will be very thor- 
oughly discussed. 



Q # What is the Executive 
• Committee's relationship 
with the other Conference commit- 
tees? 

A # We review reports and 
• recommendations from the 
Conference committees. There are 
lots of reports of committees that are 
made for informational purposes 
only and reviewed by us in that 
light. When we get a recommenda- 
tion from a committee, and it has to 
go to the Conference, the Executive 
Committee decides whether it 
should be on the consent or discus- 
sion calendar. That's 90-95 percent of 
our connection with committees. 

Occasionally, we will become 
more involved in the committees' 
work and if some members of the 
Executive Committee have questions 
about particular projects, we may 
ask to meet with the members of a 
committee and the pertinent AO 
staff. 

We had an unusual situation in a 
financial disclosure issue that arose 
recently, when the Committee on 
Financial Disclosure took a position 
that would lead to the Conference 
being sued, and quite rightly sought 
our opinion. The Executive Commit- 
tee disagreed unanimously with the 
Financial Disclosure Committee, and 
the issues were then put to the 
Judicial Conference. 

The financial disclosure issue was 




Chief Judge Ralph K. Winter Jr. (2nd Cir.) 

somewhat unusual because it was 
also a multi-committee issue involv- 
ing not only the Committee on 
Financial Disclosure, but also the 
Committee on Codes of Conduct and 
the Committee on Security and 
Facilities. 

In drafting the new regulations on 
financial disclosure, the Executive 
Committee played an active role on 
substance, but also in coordinating 
the three committees. And it was 
necessary, in view of the litigation, 
for something to get done rather 
expeditiously. From my point of 
view, things turned out quite well, 
even though there were serious 
disagreements among the commit- 
tees involved. The regulations are in 
place, I think they have tended to 
satisfy a lot of people, and I believe 
we have turned over 800 forms to the 
original requester. 



Q # For a number of years you 
• taught law. In fact, you were 
the William K. Townsend Professor 
of Law at Yale University. What 
prompted your move from teaching 
law in the classroom to interpreting 
the law on the bench? 



10 



The Third Branch m July 2000 



A # Originally I was tho quintes- 
• sential academic. I was not 
interested in practice and although at 
one point, a year or two out of law 
school, I seriously considered an 
otter to practice law, I decided I 
wanted to be an academic. The 
university life seemed appealing to 
me and, in fact, I didn't take the bar 
exam until I was 13 years out of law 
school. It took something of a 
personal effort to put at risk my 
reputation by taking the bar exam, 
but I did it, including taking a bar 
review course, which actually turned 
out to be very valuable in giving me 
an overview of law after 13 years. 

One thing I did in my academic 
career that had a real payoff was to 
teach around the curriculum. I taught 
what was an unusually varied ar- 
rangement of courses, constitutional 
law, torts, evidence, labor law, cor- 
porations, securities law, antitrust. 
That, it turned out, was fortuitous. 

Also, before I went from the 
classroom to the bench, I had argued 
cases. I had had some experience, 
principally as a consultant in some 
cases, but also as lead counsel in 
Buckley v. Valeo, a decision that we 
hear more and more of because it 
declared various portions of the 
Federal Election Campaign Reform 
Act of 1974 unconstitutional. 

At the time I went on the bench, 
the dean of the Yale Law School de- 
scribed it as a lateral move. But going 
on the bench offered me a wonderful 
opportunity to carry out many of the 
ideas I'd had as a professor and 
allowed me to see another side of the 
law that can be seen, really, only by 
doing it. It is something of a mystery 
what judges do and only those who 
have participated in the judicial sys- 
tem can understand it. It was a won- 
derful opportunity and I've never 
regretted for a moment taking it. 



Q # You were Justice Thurgood 
• Marshall's first law clerk 
when he sat on the Second Circuit. 



A. That's right. I clerked on the 
• District Court in Delaware 
tor .i very fine judge, Caleb Wright, 
whom I have still have contact with 
from time to time. Then I went to 
Yale and Thurgood Marshall was 
appointed to the Second Circuit and 
needed a law clerk. I had an office 
down the hall from Lou Pollack, who 
was a great friend of TM's. I went to 
New York and had an interview with 
him. I was married on a Friday and 
began work on a Monday. All of 
which is kind of wonderful, if you 
think about it. I mean, this was the 
Second Circuit and now, I'm back as 
chief judge of the Second Circuit. 
And recently I had the great pleasure 
of having a business meeting with 
John Marshall, whom I had known at 
a very young age and who is now 
Director of the United States Mar- 
shals Service, and who is Thurgood 
Marshall's son. 

Thurgood Marshall and I became 
close and almost life-long friends. 
People think of him as an historic 
figure, which he was, but he was also 
a lawyer's lawyer, well known to be 
a very good lawyer in New York City. 
He was somebody who in terms of 
attitude and perspective and every- 
thing, I found to be a great experi- 
ence. I was working for him seven 
years after Brown, right after he had 
left the Legal Defense Fund and just 
before the Civil Rights movement 
picked up the full head of steam that 
it got in the next couple of years. To 
listen to his stories, and hear him talk 
about these things, of course, was an 
absolutely fascinating experience. 



Q # You have served on Judicial 
• Conference rules committees 
continuously for a decade, from 1987 
to 1997. On which committees did 
you serve? During those years what 
do you feel were the key accomplish- 
ments of the committees? 



A 



# I was on the Advisory 

• Committee on Civil Rules for 



six years and on the Advisory 

( ommittee on the Rules ol I \ idence 

lour yens as < hair. 

I'm most proud of having chaired 
a rules committee for four years, 

during which time almost no 
amendments were made to the 
rules. I have a very strong personal 
view of the rule-making process. I 
think it is a very good process, but I 
am concerned about the number of 
amendments to the rules, that 
perhaps the rules are being amended 
too often. I recognize that amend- 
ments of federal rules can have the 
beneficial effect of eliminating local 
rules of court, which have been 
burgeoning over the years. And I 
am also aware that some experi- 
enced lawyers and judges believe 
that the current pace of the amend- 
ment process is necessary to improve 
the system and address recent 
changes in caselaw or statutes, and 
also keep up with emerging tech- 
nology. Nevertheless, I hope that 
my concerns can spark a general 
debate within the Judiciary on the 
appropriate overall rate of rules 
changes. 



Q # You plan to take senior 
• status this fall. Do you have 
any special plans or projects that 
you're looking forward to? You'll of 
course, continue to serve as a senior 
judge. 

A # Well, I won't be chief circuit 
• judge anymore. That will be 
a change. Somebody once told me 
that the two best moments of your 
life are the day you buy a boat and 
the day you sell it. In a similar vein, I 
have to say I'm glad I served as chief 
circuit judge and I'm even gladder 
its over. 

I might write a book on corpora- 
tion law. That's a possibility. I'm 
going to be sitting on a reduced 
schedule, and I expect for the next 
three years I'll teach a course at Yale 
each semester. £v. 



11 



The Third Branch 



lulu 2()t)ii 



Majority Leader Heaps 
Judiciary's Concerns 

Administrative Office Director 
Leonidas Ralph Mecham and 
Bankruptcy Judge David W. Hous- 
ton III (N.D. Miss) met with Senate 
Majority Leader Trent Lott (R-MS) 
last month to discuss the Judiciary's 
funding prospects for fiscal year 
2001. Just that week, the House 
Appropriations Committee had 
recommended the Judiciary receive a 
6.6 percent increase in FY 2001. (See 
budget story on page 1.) 

Houston and Mecham stressed 
that the Judiciary's workload has 
continued to increase, particularly 
in the southwest border courts, and 
that additional funding would be 
necessary to meet needs. They also 
urged a 3 percent cost-of-living 
adjustment for Congress and judges 
and Senator Lott is supportive. 
Houston and Mecham both thanked 




him for his successful efforts in 
gaining a COLA last year and for 
adding appropriations at the end 
of the session to more adequately 
fund the judicial branch. Also 
discussed at the meeting were 
funding for court construction; 
passage in the Senate of S. 1564, the 
Federal Courts Budget Protection 
Act; and judicial nominations. Lott, 
in turn, cautioned that tight funding, 



Bankruptcy Judge David W. Houston HI 
(N.D. Miss.), Senate Majority Leader Trent 
Lott (R-MS) and Administrative Office 
Director Leonidas Ralph Mecham sat down 
recently to discuss Judiciary-wide issues, 
among them a COLA for judges. 



the limited time remaining in the 
session, and the politics of an elec- 
tion year might affect any or all of 
these issues. £»^ 



THE THIRD BRANCH 

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BRANCH 



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Judiciary Budget on Hold Until September* w 




Congress recessed July 28 before 
the Senate could take up its version of 
H.R. 4690, the Departments of Com- 
merce, Justice, and State, the Judi- 
ciary, and 
Related Agen- 
cies Appropria- 
tions Act of 
2001. The 
House passed 
the appropria- 
tions bill in 
early July, 
giving the 
Judiciary a 6.6 
percent increase 
over the fiscal 
year 2000 
enacted appro- 
priations. Although as The Third 
Branch went to press the Senate 
Appropriations Committee report was 
not available, it is understood that the 
Senate, when it takes up the bill again 
in mid-September, will be considering 
an appropriations bill with a 7.4 
percent increase for the Judiciary. 

"The Judiciary will receive a higher 
level of funding in the Senate bill than 
in the House bill," said Administra- 
tive Office Director Leonidas Ralph 
Mecham. "That is encouraging news, 
considering the Senate's current tight 



When Congress returns in September, it will begin 
piecing together the funding puzzle of 12 appropria- 
tions bills, among them a bill funding the Judiciary. 



budget allocation. But we re hopeful 
we'll do better when the bill is confer- 
enced between the House and the 
Senate, as we did last year. After all, 
the Judiciary 
still needs be- 
tween a 9 and 
10 percent in- 
crease in over- 
all appropria- 
tions to fully 
fund our FY 
2001 program 
requests." 

The appro- 
priations bill 
reported by the 
Senate Appro- 
priations Com- 
mittee is believed to include funds at 
a current services level for the Salaries 
and Expenses account. Court Security 
is funded at a slightly higher level 
than in the House, but still falls short 
of sufficient funding for existing Court 
Security Officer needs. For Defender 
Services, the Senate bill does not pro- 
vide any funds for a panel attorney 
rate increase, and, in fact, funds may 
not be sufficient to cover the entire 
fiscal year for that account. And 
while the Senate appropriations bill 

See Budget on page 3 



INSIDE 



Judicial Conference Asks for New Judgeships pg. 2 

Legislation Waits for Congress' Return pg. 6 

Guidelines for Judiciary Employees in Election Year ... pg. 7 




Vol. 32 
Number 8 

Angus! 2000 



COLA a Possibility 
in FY 2001 

Counting chickens before they 
hatch is notoriously risky, but it is 
understandable if this far into the 
appropriations season, the Judi- 
ciary gives into the urge regard- 
ing a cost-of-living adjustment for 
judges. That is because the full 
Senate Appropriations Committee 
reported out its version of the FY 
2001 Commerce, Justice, State and 
the Judiciary Appropriations bill 
with statutory language waiving 
section 140 of P.L. 97-92. The 
House Treasury, Postal appro- 
priations bill provides members 
of Congress — and by extension 
federal judges — with a cost-of- 
living adjustment in January 2001. 
Indications are the COLA would 
give judges a 2.7 to 3 percent pay 
adjustment. This would be the 
third COLA for judges in the last 
four years. 

"While these modest increases 
are necessary to stem the erosion 
in judges' pay caused by infla- 
tion," said Administrative Office 
Director Leonidas Ralph Mecham, 
"they do little to narrow the ever- 
widening gap between judicial 
and private sector compensation." 

Congressional leaders support 
a COLA and an attempt to knock 
out a COLA in the House has been 

See COLA on page 3 



Judicial Conference Asks Congress lor New Judgeships 



Overburdened 
Southwest Border 
Courts Would Benefit 

The Judicial Conference has sent 
a revised request for new judge- 
ships to Congress with recommen- 
dations reflecting the impact of a 
growing caseload throughout the 
Judiciary, particularly the crisis 
faced by the southwest border 
courts, and the failure of a major 
judgeship bill to pass Congress in 
nearly a decade. The request fol- 
lows an expedited consideration 
of new judgeship requests by the 
Judicial Conference and its Judicial 
Resources Committee timed, hope- 
fully, to move a judgeship bill in 
the remaining weeks of the 106 th 
Congress. 

The Conference asks that Con- 
gress create 10 additional circuit 
judgeships, six permanent and four 
temporary; create 53 additional dis- 
trict judgeships, 30 permanent and 
23 temporary; convert seven tempo- 
rary district judgeships to perma- 
nent, and extend one temporary 
district judgeship for an additional 
five years. Temporary judgeships 
are created for a minimum time 
period, but where the first judicial 
vacancy occurring after that time 
period (seven years as requested by 
the Conference) is not filled. 

"The last new judgeships cre- 
ated, nine in all, were contained in 
the fiscal year 2001 omnibus ap- 
propriations bill," said Administra- 
tive Office Director Leonidas 
Ralph Mecham. "Prior to that no 
new judgeships had been created 
since 1990, even though the Judi- 
ciary has experienced an unprec- 
edented workload increase in that 
time." 

In 1990, when the last judgeship 
bill, P.L. 101-650, was passed, 



Judicial Conference 


Judgeship 


Recommendations 




July 2000 




Currently 
Court Authorized 


Judicial Conference 
Recommendation 


Courts of Appeals 






First 6 




IT 


Second 13 




2P 


Sixth 16 




2P 


Ninth 28 




2P,3T 


District Courts 






AL-N 7 




IP, IT 


AL-M 3 




IP 


AL-S 3 




IT 


AZ 11 




1P/4T 


CA-N 14 




IP 


CA-E 6 




2P, T/P 


CA-C 27 




2T 


CA-S 8 




5P,3T 


CO 7 




IP, IT 


FL-M 15 




IP, IT 


FL-S 16 




2P 


HI 3 




T/P 


IL-C 3 




T/P 


IL-S 3 




T/P 


IN-S 5 




IT 


KY-E 4 




IT 


NE 3 




T/P 


NV 6 




IT 


NM 5 




2P, IT 


NY-N 4 




IT, T/P 


NY-E 15 




3P 


NY-W 4 




IT 


NC-W 3 




2P 


OH-N 11 




Extend T* 


OR 6 




IT 


SC 9 




IP 


TX-E 7 




IT 


TX-S 18 




2P 


TX-W 10 




3P, IT 


VA-E 9 




2P,T/P 


WA-W 7 




IT 


T: Temporary judgeship. Temporary judgeships are created for a minimum time 
period, but where the first judicial vacancy occurring after that time period is 
not filled. 


P: Permanent judgeship. 






T/P: Temporary judgeship made permanent. 




* The first vacancy occurring 15 years or more after the confirmation date of the 
judge named to fill the temporary judgeship shall not be filled. 



The Third Branch m August 2000 



appeals filed in the federal courts 
totaled 40,898, civil cases stood at 

217,879, and criminal cases totaled 
48,904. By 1999, appeals cases filed 
had increased 34 percent to 54,693; 
civil cases increased 19 percent to 
260,271, and criminal cases had 
risen 23 percent to 59,923. 

But it is in the southwest border 
courts, where the need for addi- 
tional judgeships has become most 
pressing. Five southwest district 
courts, the District of Arizona, the 
Southern District of California, the 
District of New Mexico, and the 



Districts of Southern and Western 
Texas, all would receive additional 

judgeships under the new recom- 
mendations. Together they handle 26 
percent of all criminal case filings in 
the United States. The only one of 
these districts to receive any relief 
has been the District of Arizona, 
which received three permanent 
judgeships in the fiscal year 2001 
appropriations bill. None of these 
new judge positions have been filled. 
The Southern District of California is 
so pressed for help, the Conference 
increased its judgeship recommenda- 



iion from three permanent and one 
temporary judgeships to five perma 
nent and three temporary judge- 
ships. 

The Conference last evaluated 
judgeship needs in 1999, based upon 
the biennial judgeship survey. The 
Conference considers many factors 
in making judgeship recommenda- 
tions, including the court's own 
request, caseload guidelines that 
include weighted filings per judge- 
ship for district courts, and a court's 
efforts and strategies to handle their 
judicial workload. 



Budget continued from page 1 

provides funds at or slightly above 
current services levels for the Su- 
preme Court, the Court of Interna- 
tional Trade, the Federal Circuit, and 
the Federal Judicial Center, the 
Administrative Office takes a 10 
percent cut from the FY 2000 level. 
Funding at the Senate level would 
leave the AO over $8 million short of 
current services and would result in 
substantial reductions in AO staff. 
Chief Justice William H. Rehnquist 
and Judicial Conference Executive 
Committee chair, Chief Judge Ralph 
K. Winter, have written to members 
of the Senate Appropriations Com- 
mittee saying the AO's work is vital 
to the Judiciary, that a projected 25 
percent reduction in AO staff would 
adversely affect the judicial branch, 
and urging that the funds be restored 
to the AO. 

Courthouse Funding 

The Senate Committee on Envi- 
ronment and Public Works autho- 
rized 17 courthouses, all at full 
funding level for fiscal year 2001. 
The 17 courthouses are the same as 
the Judiciary /General Services 
Administration's priority courthouse 
project list. The House Committee on 
Transportation and Infrastructure 
authorized 16 of the 17 courthouses 
on the list, postponing one project for 
further consideration. Although 



authorizations are completed with 
the exception of the courthouse in 
Miami, Florida, construction funds 
still must be appropriated. 

The Senate Appropriations Com- 
mittee included funding for four 
courts in the bill making appropria- 
tions for the Treasury Department, 
the U.S. Postal Service, the Executive 
Office of the President, and certain 
Independent Agencies, but the money 
would not be available until fiscal 
year 2002 — which essentially means 
there is no money for courthouses in 
fiscal year 2001 in the Senate bill. The 
full Senate has yet to consider the 
bill. The courthouses funded by the 
Senate Appropriations Committee 
are Los Angeles, CA; Seattle, WA; 
Richmond, VA; and Gulfport, MS. 

The Treasury, Postal appropria- 
tions bill passed by the House did 
not contain courthouse funding. 

Just before the August recess, 
there was a last-minute attempt to 



attach a quickly negotiated confer- 
ence report on the Treasury, Postal 
appropriations bill to the House- 
Senate conference report on the 
legislative branch appropriations 
bill. Congress may attempt to bring 
this conference agreement up again 
in September. This agreement 
provides FY 2001 funding for the 
same four courthouses funded by the 
Senate Appropriations Committee 
and funds an additional four with 
advance 2002 money. The additional 
four courthouses are Washington, 
DC; Buffalo, NY; Springfield, MA; 
and Miami, FL. Administrative 
Office staff, members of Congress 
with proposed courthouses in their 
districts, and federal judges continue 
to work with members and staff of 
the key appropriations committees in 
support of the Judiciary's courthouse 
construction program. Hopefully, 
money will be found to fund court- 
houses in 2001. £^ 



COLA continued from page 1 

defeated. But that does not mean a 
COLA for members of Congress 
and federal judges is a certainty. 
The appropriations bill must still 
pass the Senate and survive a con- 
ference by House and Senate, as has 
occurred in two of the past three 
years. However, anything can, and 



has, happened in that process. 

Currently, judges may receive a 
pay adjustment only when the rates 
of General Schedule employees are 
adjusted and Congress waives 
section 140 of P.L. 97-92, which 
requires specific congressional 
approval of a COLA for judges, in 
addition to the normal appropria- 
tion process. ^»^ 



The Third Branch u August 2000 



Hearing on Drugs Crossing Border Draws Federal Testimony 



A House hearing on illegal drugs 
flooding the U.S. from Mexico drew 
testimony from a federal judge in 
the Western District of Texas on 
the troubles the federal courts face 
along the nation's southwest bor- 
der. "Based on the explosive growth 
of the Pecos criminal docket, fueled 
by drug cases," Judge 
W. Royal Furgeson 
told the House Com- 
mittee on Government 
Reform, Subcom- 
mittee on Criminal 
Justice, Drug Policy, 
and Human Resources, 
"I have the impression 
that there is such an 
overwhelming demand 
for illegal drugs in the 
United States that it is 
going to be difficult to 
stem the tide of illegal 
drug smuggling for the 
foreseeable future. My 
view is that the Pecos 
docket, like all border 
dockets, will continue 
to expand by double 
digit percentages each 
year throughout this 
decade." 

Subcommittee chair Represen- 
tative John L. Mica (R-FL) opened 
the hearing with a statement on 
the growing threat to the national 
security posed by international drug 
trafficking, particularly along the 
Mexico-U.S. border. "More than 60 
percent of the cocaine on America's 
streets transits through our border 
with Mexico," said Mica. "DEA 
reports that Mexican black tar and 
other heroin seizures skyrocketed by 
more than 20 percent in just one 
year." Mica also referred to the flow 
of illegal immigrants across the 
southwest border who are used to 
smuggle drugs. 

"Just last month," Mica said, 
"seven U.S. court judges, who 



represent the five districts that 
currently handle 26 percent of all 
criminal case filings in the U.S. 
southwest border courts, came to the 
Hill to tell Congress about the 
mounting crisis in their courts. These 
jurists reported that drug prosecu- 
tions nearly doubled between 1994 




Judge W. Royal Furgeson (W. D. Tex.) told the House Subcommittee on 
Criminal Justice, Drug Policy and Human Resources that criminal cases in 
the Pecos Division had increased 800 percent since 1995 — most of which are 
drug cases. 



and 1998 while immigration prosecu- 
tions increased five fold." 

Furgeson, who presides over the 
Pecos and Midland-Odessa Divisions 
of the Western District of Texas, 
travels the circuit sitting in both 
Midland and Pecos. He recounted 
that the criminal docket of the Pecos 
Division, just 45 criminal cases in 
1995, had increased 800 percent by 
1999. He expects over 600 criminal 
cases to be filed by the end of 2000, 
resulting in a 55 percent increase 
over 1999. 

"These kinds of increases are 
not limited to the Pecos Division or 
even to federal courts along the 
Texas border," Furgeson told the 
subcommittee. "Indeed, they extend 



to the five federal judicial districts 
bordering Mexico (California- 
Southern, Arizona, New Mexico, 
Texas-Western and Texas-South- 
ern)." According to Furgeson, the 
increase in criminal filings, most of 
which are drug cases, began with the 
implementation of the Southwest 
Border Initiative that 
increased personnel for 
the Border Patrol, 
Immigration and 
Naturalization Service, 
the DEA, and the FBI. 

"It is a major frustra- 
tion of the Judiciary that 
we have been unable to 
explain adequately to 
the Congress and to the 
American people that 
criminal activity on the 
border cannot be 
addressed simply by 
increasing law enforce- 
ment efforts on the 
border," Furgeson said. 
"Eventually, those 
arrested for crimes must 
come through the rest of 
the criminal justice 
system into the courts. If 
the courts do not have 
the resources to deal with the 
increases, the delivery of justice is 
jeopardized and eventually will be 
impaired." The Judiciary has at- 
tempted its own remedies including 
shifting personnel to overworked 
probation and pretrial services 
offices in the border courts and 
redirecting other judicial resources. 
Furgeson also made the following 
recommendations to Congress to 
address this crisis: 
■ Increase federal judgeships. It is 
not possible for border judges to 
handle 10 times the average 
workload of their counterparts and 
still maintain the quality of justice 
that we expect from our courts. New 
judgeships are a must for the border. 



4 



The Third Branch ■ August 2000 



■ Increase the Judiciary's budget. 
The number of court support staff 
funded in fiscal year 2000 actually 
was three percent lower than that 
funded in FY 98 even though overall 
criminal filings increased 19 percent. 
The increase is required primarily to 
meet the needs of the federal courts 
on the border. Enacting the full 
request is exceedingly important, 
especially since we are now in a 
catch-up mode. 

■ Add new courthouses. The 
Laredo, Texas courthouse is already 
unduly delayed and the courthouses 
in both El Paso and Las Cruces are 
hopelessly outdated, to the point of 
creating security concerns. 

■ Adequately compensate court- 
appointed counsel. Extend the $75 
per hour rate for both in-court and 
out-of-court services to counsel in 
the border courts because of the 
extraordinarily heavy burdens 
placed on these attorneys. 

■ Add more deputy marshals for 
the U.S. Marshals Service. The 
U.S.M.S. has remained at essentially 
the same strength, and their numbers 
fall far short of what is necessary to 
ensure the safety of courthouse 
personnel and the public. 

■ Build more federal pre-conviction 
detention facilities. In the Western 
District of Texas alone, over 3,000 
defendants in custody are housed in 
35 separate contract facilities spread 
over hundreds of miles. 

■ Support local border prosecutors. 
Until the crush of federal border 
cases became so massive, federal and 
local prosecutors worked together 
well to divert less serious federal 
offenses into the state system. Such 
cooperation is no longer possible, at 
least without federal funding be- 
cause the number of cases to be 
diverted is so large. 

Also testifying at the hearing were 
representatives from DEA, the U.S. 
Customs Service, the U.S. Border 
Patrol, and local police. £^ 



Judicial Conference Opposes Bill to Strip 
Courts ot Control ot Employees' Firearms 




Judge Emmet G. Sullivan (D. D. 
C), chair of the Judicial Conference 
Committee on Criminal Law, test- 
ified last month before the House 
Judiciary Subcommittee on Crime, 
which is considering H.R. 4423. 
Sullivan told Congress that the 
federal Judiciary "unequivocally 
opposes" H.R. 4423, which would 
strip the courts of the authority to 
supervise and direct their own 
probation or pretrial services 
officers regarding the use of their 
firearms. Officers in 84 judicial 
districts may carry firearms, while 
officers in the remaining 10 
districts may not. "HR. 4423 would 
prohibit the employer and supervi- 
sor of these employees to direct, in 
any manner," said Sullivan, "the 
use of firearms in connection with 
their official duties. This will result 
in officers possessing carte blanche 
authority to carry a firearm 
whenever, wherever, and in 
whatever manner they see fit. To 
my knowledge, no other federal 
employee in America possesses 



Judge Emmet G. Sullivan, with AO 
Legislative Counsel Daniel Cunningham, 
greet Subcommittee chair Representative 
Bill McCollum (R-FL) before the hearing on 
H.R. 4423. Ranking minority member 
Representative Robert C. Scott (D-VA) is 
seated. 

such unbridled firearms authority." 
Presently, probation and pretrial 
officers are authorized by federal 
law, with the approval of their 
courts, to carry weapons under 
rules and regulations prescribed by 
the Director of the Administrative 
Office. The Judiciary's firearms 
program for federal probation and 
pretrial services officers stresses 
rigorous training and certification 
requirements, objective justification 
for the need to carry firearms, and 
public safety. 

Also testifying at the hearing 
were Judith M. De Santis, Executive 
Vice President of the Federal Law 
Enforcement Officers Association 
and Bob Ryan, Chief Probation 
Officer of the District of Massachu- 
setts. ^ 



The Third Brunch m August 2000 



Pending Legislation Waits for Congress to Return 



Congress went home — or to the national political 
conventions — in August, leaving behind a to-do list 
of legislation, including 12 appropriations bills, to deal 
with when members return around September 5. A tenta- 
tive adjournment date of October 6 for the 106 th Con- 



gress gives Congress just a month to complete its 
business. In addition to the appropriations bills fund- 
ing the federal courts and courthouse construction, 
the Judiciary will be following the progress of these 
bills. 



Bill Legislative Status Key Provisions 


Bankruptcy Reform 
Bill 


House passed H.R. 833, and Senate passed 
S. 625. The bill is being conferenced by 
Senate and House. The President has 
threatened to veto the bill. 


The conference report would create 23 new 
temporary bankruptcy judgeships and 
require clerks to maintain tax returns and 
collect financial data on debtors. 






Federal Judiciary 
Budget Protection Act 


In the Senate, S. 1564 reported out of the 
Committee on Governmental Affairs. 


Allows Judiciary to submit budget directly to 
Congress, including courthouse construction 
requests. 






Judgeship 
Legislation 


S. 1145 introduced in May 1999 by Senator Contains Judicial Conference recommenda- 
Patrick Leahy. No action on bill. The Judicial tions for Article III judgeships 
Conference sent an updated request for 
Article III judgeships in August. An amend- 
ed bill may be introduced in September by 
co-sponsors Senator Orrin Hatch and Leahy. 




S. 2370 and H.R. 4704 introduced in June. Bills 
have support from Senate Republicans in 
border courts and House Southwest Border 
Caucus. 


Bills would give the southwest border courts 
8 permanent and 5 temporary judgeships. 






Judicial 
Improvements Bill 


H.R. 1752 passed by House. In the Senate, House version would allow cameras in 
S. 2915 introduced in July. courtrooms during civil or criminal trials. 






Juvenile Crime 


H.R. 1501 passed the House, and S. 254 The Judicial Conference objects to federaliz- 
passed the Senate. A conference on the bills ing criminal actions against juveniles, 
was held, but no action has occurred. Traditionally, state and local courts deal with 

juveniles. 






Methamphetamine 
Anti-Proliferation Act 


House Judiciary Committee reported H.R. Would increase penalties for methamphet- 
2987 favorably. Similar legislation passed the amine possession and distribution. 
Senate as part of the Bankruptcy Reform Bill. 






Multidistrict 
Litigation 


H.R. 2112 passed House and Senate. The bill Contains language overturning Lexecon Inc. v. 
has not been conferenced. Milberg Weiss. 






Class Action 
Legislation 


H.R. 1875 passed by House. The Senate bill, Grants federal courts original jurisdiction 
S. 353, was reported favorably by the based on minimal diversity over a civil action 
Judiciary Committee in June. brought as a class, with limited exceptions. 






Stalking Prevention and 
Victim Protection Bill 
of 1999 


House passed H.R. 1869. Companion bill, S. Federal courts would issue protective 
2011, introduced in Senate where the orders to protect victims. Expands current 
Judiciary Committee is considering it. statute to cover e-mail and Internet. 




! 


Victims Rights 
Constitutional 
Amendment 


In the Senate S. J. Res. 3, and in the House H.J. Judicial Conference prefers a statutory 
Res. 64, have stalled. Vice President Gore approach, 
recently endorsed a constitutional amendment. 



The Third Branch m August 2000 



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Judicial Improvements Bill Introduced in the Senate 



Urging his colleagues to join him 
in support of proposed improve- 
ments to the federal court system, 
Senator Charles E. Grassley (R-IA) 
introduced S. 2915, the Federal 
Courts Improvement Act of 2000, 
just days before the August recess. 
The House passed its own version of 
the bill, H.R. 1752, in May. 

Both bills include provisions that 
would give magistrate judges 
contempt authority; increase certain 
bankruptcy filing fees; allow partici- 
pation of senior judges as members 
of the circuit judicial councils; raise 
the maximum case compensation 



amounts for Criminal Justice Act 
(CJA) attorneys; and give the Judi- 
ciary authority to set, collect, and 
retain fees to facilitate the electronic 
presentation of cases. Unlike the 
House bill, S. 2915 does not contain 
provisions on judges' firearms 
training or authority for the presid- 
ing judge to allow media coverage of 
court proceedings. 

The Senate bill also would pro- 
vide CJA panel attorneys with 
reimbursement for reasonable 
costs associated with defending 
against a malpractice claim by a 
CJA client. "The Judicial Confer- 



ence has expressed to me their 
concern over a growing trend of 
Criminal Justice Act panel attorneys 
being subject to unfounded suits by 
the defendants they previously 
represented and the financial dam- 
age these attorneys have to deal with 
when they must pay to defend 
themselves in these action," said 
Grassley. "These unfair costs have 
the potential of having a chilling 
effect on the willingness of attorneys 
to participate as panel attorneys and 
will only make it more difficult to 
obtain adequate representation for 
defendants." £v^ 



For Judiciary, Political Activities are Subject to Restrictions 



It's an election year. Time to vote 
for your favorite candidate. But 
perhaps you'd also like to show 
your support by attending a few 
party rallies, or placing a campaign 
poster or two in your front yard? 
Not if you're a judicial branch 
employee. Almost all judicial em- 
ployees are covered by Canon 5A of 
the Code of Conduct for Judicial 
Employees, which restricts them 
from these and other partisan 
political activities. 

To begin with, all judicial em- 
ployees may exercise their rights 
as citizens, even in partisan elec- 
tions. That includes registering as 
a member of a political party, 
registering and voting in a pri- 
mary or general election, and 
privately voicing opinions about 
partisan political candidates and 
parties. 

Judicial employees also may 
engage in nonpartisan political 
activities, so long as they do not 
reflect adversely on the employ- 
ee's court or office, interfere with 



official duties, take place on duty or 
in the employee's workplace, or 
involve the employee's use of any 
federal resources. Subject to these 
restrictions, judicial employees may 
run for local nonpartisan office, 
endorse or contribute to nonpartisan 
candidates, campaign for nonparti- 
san candidates and causes, and 
undertake similar nonpartisan 
activities. 

However, employees should not 

■ lead or hold office in a partisan 
political organization; 

■ publicly endorse a candidate by 
attending a partisan political conven- 
tion or rally or by authorizing use of 
the employee's name; 

■ make speeches supporting or 
opposing a partisan organization or 
candidate; 

■ initiate or circulate a nominating 
petition for a partisan election; 

■ publicly display campaign 
posters, pictures, badges, buttons, 



or stickers for a partisan political 
candidate or organization; 

■ solicit funds for or contribute to 

a partisan organization or candidate; 

■ act as a recorder, watcher, chal- 
lenger, or similar officer at the 
polls in a partisan political elec- 
tion; or 

■ run for partisan political office. 

Special restrictions apply to 
judicial employees who serve on 
judges' personal staff or as court unit 
heads. These employees should not 
engage in partisan or nonpartisan 
political activities. 

For further guidance, judicial 
employees may consult the Code 
of Conduct for Judicial Employees, 
Canon 5; Advisory Opinion No. 
92; and the Compendium of Se- 
lected Opinions, § 7 (1999). Ques- 
tions also may be referred to the 
Judicial Conference Committee on 
Codes of Conduct or the General 
Counsel's Office, Administrative 
Office. $^ 



The Third Branch m August 2000 



JUDICIAL MILESTONES 



Appointed: Richard C. Tallman, as 

U.S. Court of Appeal Judge, U.S. 
Court of Appeals for the Ninth 
Circuit, June 30. 

Appointed: Kent J. Dawson, as U.S. 
District Judge, U.S. District Court for 
the District of Nevada, July 7. 

Appointed: Phyllis J. Hamilton, as 

U.S. District Judge, U.S. District 
Court for the Northern District of 
California, July 7. 

Appointed: Mary A. McLaughlin, as 

U.S. District Judge, U.S. District 
Court for the Eastern District of 
Pennsylvania, June 23. 

Appointed: Berle M. Schiller, as 
U.S. District Judge, U.S. District 
Court for the Eastern District of 
Pennsylvania, June 6. 

Appointed: George Z. Singal, as 

U.S. District Judge, U.S. District Court 
for the District of Maine, July 17. 

Appointed: R. Barclay Surrick, as 

U.S. District Judge, U.S. District 
Court for the Eastern District of 
Pennsylvania, July 14, 

Appointed: Petrese B. Tucker, as 

U.S. District Judge, U.S. District 
Court for the Eastern District of 
Pennsylvania, July 14. 

Appointed: Cecelia G. Morris, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Southern 
District of New York, July 1. 

Appointed: Geraldine Soat Brown, 

as U.S. Magistrate Judge, U.S. 
District Court for the Northern 
District of Illinois, June 19. 

Appointed: J. Thomas Ray, as U.S. 
Magistrate Judge, U.S. District Court 
for the Eastern District of Arkansas, 
June 28. 

Elevated: Judge Lawrence M. 
Baskir, to Chief Judge, U.S. Court of 
Federal Claims, succeeding Judge 
Loren A. Smith, July 11. 



Elevated: Judge William J. Zloch, to 

Chief Judge, U.S. District Court for 
the Southern District of Florida, 
succeeding Judge Edward B. Davis, 
July 2. 

Elevated: Judge Sue L. Robinson, 

to Chief Judge, U.S. District for the 
District of Delaware, succeeding 
Judge Joseph J. Farnan, Jr., July 1. 

Elevated: Bankruptcy Judge Gerald 
H. Schif f, to Chief Bankruptcy Judge, 
U.S. Bankruptcy Court for the West- 
ern District of Louisiana, succeeding 
Bankruptcy Judge Henley A. Hunter, 
June 1. 

Retired: Judge William G. Cam- 
bridge, U.S. District Court for the 
District of Nebraska, July 11. 

Retired: Bankruptcy Judge 
Lawrence Ollason, U.S. Bankruptcy 
Court for the District of Arizona, 
June 30. 

Retired: Bankruptcy Judge James 
F. Queenan, Jr., U.S. Bankruptcy 
Court for the District of Massachu- 
setts, July 21. 

Retired: Bankruptcy Judge David 
F. Snow, U.S. Bankruptcy Court 
for the Northern District of Ohio, 
July 24. 

Retired: Magistrate Judge Carlyle E. 
Richards, U.S. District Court for the 
District of South Dakota, July 21. 

Resigned: Magistrate Judge Lisa 
Cataldo, U.S. District Court for the 
District of Hawaii, July 1. 

Resigned: Magistrate Judge Phyllis 
Jean Hamilton, U.S. District Court 
for the Northern District of Califor- 
nia, July 6. 

Deceased: Senior Judge Paul G. 
Hatfield, U.S. District Court for the 
District of Montana, July 3. 

Deceased: Senior Judge Joe J. 
Fisher, U.S. District Court for the 
Eastern District of Texas, June 19. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

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

DIRECTOR 
Leonidas Ralph Mecham 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 



As of August 1, 2000 



Courts of Appeals 




Vacancies 


20 


Nominees 


15 


District Courts 




Vacancies 


42 


Nominees 


37 


Courts with 




"Judicial Emergencies" 


21 



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



The Third Branch m August 2000 



New Administrative 
Assistant at 
Supreme Court 

Chief Justice William H. 
Rehnquist has announced the 
selection of Sally M. Rider, 
Assistant U.S. Attorney and 
Deputy Chief of the Civil 
Division, Office of the U.S. 
Attorney for the District of 
Columbia, as his new admin- 
istrative assistant. She succeeds 
James C. Duff, who served in 
the position for four years. Duff 
has accepted a partnership with 
Senator Howard Baker in the 
Washington, D.C., office of 
Baker, Donelson, Bearman and 
Caldwell. 

Rider, 43, is the first woman 
to be appointed to the adminis- 
trative assistant position, which 
was created by statute in 1972. Her 
two-year appointment began August 
14. Her new duties include serving as 
the Court's chief of staff, aiding the 
Chief Justice in his internal manage- 
ment of the Court; providing re- 
search in support of the Chief 
Justice's public addresses and 
statements, and monitoring develop- 




ments in the field of judicial adminis- 
tration and court reform. She also 
assists the Chief Justice with his 
other statutory responsibilities as 
head of the Third Branch of govern- 
ment, including his role as chair- 
man of the Judicial Conference, as 
chairman of the Board of the Fed- 
eral Judicial Center, and as chancel- 



SallyM. Rider (left) will serve as the 
administrative assistant to( hie) 
Justice Will mm II. Rehnquist. James 
C. Duff (right), her predecessor, is 
returning to private prat in e after 
serving with the Chief justice for four 
\/ears. 

lor of the Smithsonian Institu- 
tion. 

Rider began her legal career 
as staff counsel for the U.S. 
House of Representatives Com- 
mittee on Interior and Insular 
Affairs from 1986 to 1987. From 
1987 to 1990, she was a trial 
attorney with the Torts Branch, 
Civil Division of the Department 
of Justice. She was an Assistant 
U.S. Attorney in the Office of 
the U.S. Attorney for the 
District of Columbia from 1990 
to 1995. Rider joined the legal 
staff in the Office of the Legal 
Adviser at the Department of 
State in 1995. In 1998, she was 
invited to return as Deputy 
Chief of the Civil Division of the 
Office of the U.S. Attorney for the 
District of Columbia. She received a 
bachelors degree in psychology from 
the University of Arizona, graduat- 
ing Phi Beta Kappa in 1980. Rider 
received her law degree with high 
distinction in 1986 from the Univer- 
sity of Arizona College of Law. ^s^ 




Sellers to Lead AO Public Affairs 

Administrative Office Director Leonidas Ralph Mecham has 
appointed David A. Sellers Assistant Director for Public Affairs. 
Sellers, who has served as the Deputy Assistant Director for Public 
Affairs since 1997, succeeds Charles Connor. 

Sellers brings his background as a legal affairs journalist and 
extensive experience in the federal Judiciary to the position. He 
worked for the Commonwealth of Pennsylvania, the District of 
Columbia Bar, and The Washington Times newspaper before joining 
the Administrative Office as its first Public Information Officer in 
1987. He served as Acting Assistant Director when the Office of 
Public Affairs was created in 1997. £«^ 



The Third Branch ■ August 2000 



INTERVIEW 



FJC Broadens Programs to Meet Judiciary's Needs 



Judge Fern Smith was named Director 
of the Federal Judicial Center in 1999. 
Appointed to the U.S. District Court for 
the Northern District of California in 
1988, Smith previously served as a 
judge for the Superior Court of the State 
of California, County of San Francisco, 
from 1986 to 1988, and was in private 
practice from 1975 to 1986. 

Q. Congress has encouraged 
• the Judiciary to use satellite 
broadcasts and videoconferencing to 
cut down on travel. How are judges 
adapting to that? 

A # I think it's going to be a slow 
• process. Congress is push- 
ing it, in our case for education, and 
the Center is really trying to be 
responsive, and not just to save 
money. For a lot of training needs, 
distance education has real advan- 
tages apart from saving money. 
But judges, and I'm talking about 
trial judges here, have to learn their 
jobs differently than almost any- 
body else. As a new trial judge you 
get our initial orientation seminars, 
but, basically, you go out into your 
courtroom, or you sit in chambers 
by yourself and you do your job. It's 
not like Congress, for example, 
where you can be in committees or 
on the floor and watch how col- 
leagues react. You really do your 
job by yourself. So there's some- 
thing very important about being 
able to sit down, face to face, with 
other judges and get their opinions 
and exchange ideas. 

Now that's not to say everything 
needs to be in person. And judges 
understand that time and money 
pressures mean that they can't be 
traveling constantly for every 
educational need. Still, it's been 
more difficult for judges than for 



staff to use the FJTN [Federal Judi- 
cial Television Network, ed.], and 
that's why we've been putting most 
of our broadcast emphasis on 
programs for staff. When you're in 
chambers or the courtroom and you 
have a very busy calendar, it's hard 
to schedule ahead and to stop in the 
middle of the day for a broadcast. 
Of course, judges can and do watch 
tapes of the broadcasts, but for a lot 
of reasons, in the long run, I think 
web-based education will overtake 
the FJTN as a distance education 
tool. If we could present a combina- 
tion of some face-to-face programs, 
some broadcasts, and some web- 
based education, we would have a 
really good assortment that would fit 
all of these needs, and I hope re- 
spond to Congressional concerns as 
well. 



Q # What areas of training are 
• most in demand among 
court staff and judges? What does 
the FJC have planned for future 
education and training programs? 

A # Let me start with the judges, 
• because that's what I know 
best. New judges want orientation. 
A lot of them come straight from 
private practice and have no judi- 
cial training. Others come from a 
state court where they may have 
been in a specialized area. Some 
new judges have never done civil 
work, and others have never done 
criminal work. At that stage they 
need a general introduction to 
their new roles. Then there are 
experienced judges who get a big 
but relatively infrequent case — a 
judge who gets a huge environmen- 
tal toxic tort, or a securities class 
action, or an intellectual property 




Judge Fern Smith 



case, or a federal death penalty case 
for the first time. Those judges need 
help in that specific substantive area 
and right away. That's where the 
web-based education is really going 
to come in handy. 

We want to develop a library of 
asynchronous training in various 
subjects so that a judge who has a 
case like this can go to the com- 
puter, and there will be forms, and 
examples, and suggestions, and 
maybe a video lecture, all indexed. 
So there's that challenge — what's 
known as knowledge manage- 
ment. 

Most judges are interested in 
legislative and case law develop- 
ments. Some judges have manage- 
ment responsibilities, for example, 
chief judges, so they're interested in 
what it takes to lead a court of 
independent judges. Other judges 
are interested in a broader perspec- 
tive — things like the role of the 
judge in a democracy or develop- 
ments in other disciplines and how 
they will affect the judicial process. 
We can't be all things to all people, 
so we have to assess what things 
are most important and respond to 



10 



The Third Branch m August 2000 



as nianv needs as we can in one way 
or another. 

Let me also say that the guidance 
we get from our Board and from our 
educational advisory committees is 
really important here. 



Q 



What about court 
staff? 



A # Well, there we have a huge 
• educational program, and 
the needs are really diverse, every- 
thing from supervising cyber crime 
offenders to negotiation as a part of 
organizational management to the 
skills deputy clerks need in working 
with multi-party cases. Last year, 
we had over 800 programs for court 
staff, almost 35,000 participants. 
Some of that's by in-person work- 
shops but most of it's through the 
FJTN and locally sponsored seminars 
that use our packaged curricular 
programs. And again, our advisory 
committees of probation and pretrial 
services officers, clerks of courts — 
and of federal defenders, although 
they're not court staff — these people 
work very hard for us and I want to 
acknowledge that. 



Q # The FJC is very visible on the 
• Judiciary's internal intranet. 
How does that presence fit with the 
FJC's mission, and will this presence 
expand in the future? 

A # We recently revamped, top 
• to bottom, our internal 
judicial branch website on the DCN 
to make it a more active learning tool 
with on-line courses, three court staff 
education groups, many of our 
publications, schedules of courses, 
and the like. We want to use it much 
more — for example, expand the on- 
line computer conferences for staff 
and for judges too. This is the kind of 
asynchronous learning that a lot of 
the universities are starting to do 
because it allows people to be a part 



of a small group, to ask questions, to 
review answers, but not all at the 
same time. 

We're in the process of revamp- 
ing our Internet site also, to increase 
our education for the public about 
the judicial branch generally, both 
from a historical standpoint but also 
for people who are coming into 
contact with the federal courts. Our 
Federal Judicial History page on our 
website went on-line in the middle of 
February and we've have had over a 
million hits as of last week. 

Of course, it takes money to de- 
velop these resources and hire staff 
who are skilled in these areas, and 
it's hard to compete with the private 
sector. 



Q, Your district, the Northern 
• District of California, in- 
cludes Silicon Valley, which gener- 
ates a lot of litigation involving 
scientific issues, and litigation 
involving scientific evidence may 
become more prevalent in federal 
courts. Has the FJC looked into this 
area? 

A # You bet. As I visit the 
• various circuits and talk to 
judges, I sense a growing impact of 
these technical cases around the 
country. And as our society becomes 
more and more dependent upon 
computers and technology, the 
number of cases involving these 
issues is going to grow tremen- 
dously. For the past several years, 
the FJC has been developing an 
increasing number of educational 
programs and research projects in 
that area, and it is something in 
which I have a strong interest, in 
great part because of where my roots 
are. 

Our scientific evidence reference 
manual came out in 1994, and the 
second edition is almost ready. In a 
couple of weeks, we'll tape a six- 
segment FJTN program on Dauber t 
and Markman hearings. As you 



know, / )auberi is the Supreme ( burt 
case explaining the judge's role in 
determining whether or not parti* u 

lar expert testimony should be 
admitted, and Markman basically 
gives trial judges the responsibility 
of construing patents. This six- 
segment program is going to com- 
bine lectures on DNA, genetics, 
toxicology, and epidemiology, and 
we'll use them to show how a 
Daubert hearing or a Markman 
hearing might be structured. 



Q # Most personnel in the courts 
• know about FJC educational 
programs, but you also do consider- 
able research. 

A # Yes, about 40 active projects 
• at the moment, mostly for 
Conference committees. Right now 
we're studying everything from 
electronic discovery to mass torts to 
whether the risk prediction indicator 
we developed for predicting of- 
fender recidivism also has pretrial 
uses. 

Our research often serves as a 
real building block for our educa- 
tional programs. I think sometimes 
our research people don't get 
enough credit for that part of it 
because they act behind the scenes. 
But what they contribute to the 
educational program is really quite 
significant. A guide we'll soon 
publish for judges on how to use 
ADR — and whether to use it — is a 
good example. 

We've done a lot of research for 
the Bankruptcy Committee and a 
spin-off is a manual and video we're 
developing to explain the bank- 
ruptcy process to first-time, mainly 
pro se, filers. The idea is to relieve 
the people at the counter from 
having to provide the same basic 
information over and over. 

We're also updating an older 
manual that we did on visiting 
judges and how to use them. 

See Interview on page 12 



11 



The Third Branch m August 2000 



Interview continued from page 11 

Q # How does the Center work 
• with the other two agencies 
in the judicial branch, the U.S. 
Sentencing Commission and the 
Administrative Office? 

A # It's a collegial and coopera- 
• tive relationship and, at 
times, collaborative. Our mandates 
are very different but we have the 
same goal — making the Judiciary a 
better system and helping the branch 
as a whole. We have a number of 
joint programs we're developing with 



the Sentencing Commission, includ- 
ing the next sentencing policy insti- 
tute — the Commission and the Crimi- 
nal Law Committee. I just did an 
interview with Judge Diana Murphy, 
the Commission's new chair, and 
that will be aired on the FJTN. 

We work very closely with the 
AO. One of the instructional tools on 
our new website, for example, is the 
reimbursable work authorization 
project that we developed with the 
Space and Facilities Division. The 
recent southwest border conference 
was a tremendous success, not only 



because the AO and the FJC worked 
together and on a fairly quick 
response time, but because it also 
had another quality, which I refer to 
as vertical education. It took judges, 
probation and pretrial services 
officers, and court executives, and 
put them together to address certain 
common problems. I would like to 
see us do a little more of that. 

It's been a pleasure working with 
the Commission and the AO. Ralph 
Mecham has been very helpful, and I 
appreciate all the courtesies that both 
groups have extended. ^^ 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

PAID 

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PERMIT NO. G-18 



FIRST CLASS 



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University of Illinois 



FEDERAL DEPOSITORY 



U.S. Government Printing Office 2000-462-061-20002 



■4VZ 



THE 



THIRD 

BRANCH 

Cybercrime: New Way to Commit Old Crimes 



Recently, the Internet Fraud 
Complaint Center, a joint creation of 
the FBI, the DOJ, and the National 
White Collar Crime Center, reported 
it had received 1,000 complaints of 
fraud each week since opening in 
May. It is estimated that by the time 
the center becomes fully automated 
later this year, it will be receiving 
more than 1,000 complaints a day . 
And that's only the Internet fraud 
cases. If the statistics are any indica- 
tion of the overall volume, cyber- 
crime is growing and, in the opinion 
of some federal law-enforcement 
officers, soon may rival the number of 
immigration and drug cases now 
flooding the southwest border courts. 
Unlike those crimes, the caseload will 
be spread across the entire country. 

"Now we're seeing the usual run 
of counterfeiters, credit card fraud, 
and websites selling things they don't 
own," said Dan Wieser, probation 
officer in the Middle District of 
Florida. "Five years from now most 
crimes will somehow be computer- 
related. Crooks go where the money 
is — and it's in computers." 

By definition, cybercrime involves 
a computer, even though it often isn't 
tracked as computer crime. For ex- 
ample, an offender may cross state 




In the very near future, experts believe 
most crimes will involve computers. 



lines to meet a minor he first contacted 
on-line, or a sex offender may down- 
load child pornography, but the 
crimes they commit are numbered 
statistically in categories such as 
sexual offenses or child pornography. 
Just like the elusive definition of 
obscenity, however, you know 
cybercrime when you see it. 

See Cybercrime on page 6 



INSIDE 



Teachers' Institute Kicks Off pg. 3 

Electronic Public Access Celebrates Decade pg. 3 

New Committee Chairs Named pg. 9 



Newslettei 
of the 
I ederal 
( 'ourts 



LAW LIBRARY 

JAN 9 2001 

University of Illinois 



Vol. 32 
Number 9 
September 2000 




Judicial Conference 
Opposes Bill to Bring 
Cameras intn Courts 

A representative of the Judicial 
Conference told the Senate Judi- 
ciary Subcommittee on Adminis- 
trative Oversight and the Courts 
that a bill to allow cameras in 
courtrooms could "seriously 
jeopardize" the rights of citizens 
to receive a fair trial. 

Chief Judge Edward R. Becker 
(3 rd Cir.) appeared before the sub- 
committee this month to express 
the Judiciary's strong opposition 
to cameras in the courtroom. The 
bill, S. 721, would allow media 
coverage of court proceedings. 

"The Judicial Conference in its 
role as the policy-making body for 
the federal Judiciary has consis- 
tently expressed the view that 
camera coverage can do irrepa- 
rable harm to a citizen's right to a 
fair and impartial trial. We believe 
that the intimidating effect of cam- 
eras on litigants, witnesses, and 
jurors has a profoundly negative 
impact on the trial process," 
Becker said. "Moreover, in civil 
cases cameras can intimidate civil 
defendants who, regardless of the 
merits of their case, might prefer 
to settle rather than risk damaging 
accusations in a televised trial." 

Senate Judiciary Committee 
chair, Senator Orrin G. Hatch (R- 
See Cameras on page 2 



DEPOSITORY 



Cameras continued from page 1 
UT), submitted a statement to the 
subcommittee in which he agreed 
that permitting cameras and elec- 
tronic media in the courtroom could 
interfere with the federal courts' pri- 
mary mission of dispensing justice. 
He also expressed concern about the 
"widespread distribution" of sensi- 
tive personal information about non- 
parties if S. 721 was enacted. "Impor- 
tantly," said Hatch, "I believe that 
the federal judiciary has special 
expertise in this area and is entitled 
to a measure of deference." 

Testifying before the subcommit- 
tee in support of the bill were Judge 
Nancy Gertner (D. Mass.); Associate 
Justice Hiller Zobel of Massachusetts; 
Professor Lynn Dennis Wardle of 
Brigham Young University; Dave 
Busiek, news director of KCCI 
Television in Des Moines, Iowa; and 
Ronald Goldfarb, an attorney and 
author. 

A Federal Judicial Center study of 
a three-year Judicial Conference pilot 
program allowing electronic media 
coverage of civil proceedings in six 
district and two appellate courts, 
found that 64 percent of the partici- 
pating judges reported that, at least 
to some extent, cameras make wit- 
nesses more nervous than they other- 
wise would be. In addition, 46 per- 
cent of the judges believed that, at 
least to some extent, cameras make 
witnesses less willing to appear in 
court. 

Becker also pointed out that as an 
educational tool for the public, the 
Judiciary's own community outreach 
efforts have been more effective than 
proposed camera coverage in pre- 
senting basic educational information 
about the legal system. The Federal 
Judicial Center report concluded that 
of 90 news stories analyzed, there 
was an average of 56 seconds of 
courtroom footage per story, and 
most of the footage was voiced over 
by a reporter's narration. "Television 
news coverage appears simply to use 
the courtroom for a backdrop or a 





visual image for the news story 
which, like most stories on televi- 
sion," said Becker, "are delivered in 
short sound bites and not in-depth." 

Subcommittee chair, Senator 
Charles Grassley (R-IA), the sponsor 
of S. 721 with Senator Charles 
Schumer (D-NY), said the bill would 
"make it easier for every American 
taxpayer to see what goes on in the 
federal courts that they fund." He 
held that allowing cameras in the 
federal courtrooms is consistent with 
the Founding Fathers' intent that 
trials be held in front of as many 
people as choose to attend. Grassley 
also discounted arguments against 
cameras in federal courtrooms, 
saying witnesses' voices and faces 
could be disguised to ensure their 
safety, and the legislation would give 
presiding judges sole discretion to 
allow cameras. "All we're doing with 
this legislation," said Grassley, "is 
allowing a presiding judge to make 
decisions on how to run his or her 
courtroom and helping the American 
people fulfill their right to participate 
more fully in the judicial process." 



Chief Judge Edward R. Becker (3 rd Cir.) 
(photo left) told the Senate Judiciary 
Subcommittee on Administrative 
Oversight and the Courts that after 
thoroughly studying the issue, the 
Judicial Conference takes the position 
that permitting cameras in federal trial 
courts is not in the best interests of justice. 
Also testifying before the subcommittee 
were (photo above, foreground) Associate 
Justice Hiller Zobel of Massachusetts, and 
Judge Nancy Gertner (D. Mass.). 



The Judiciary has repeatedly 
examined the issue for over six 
decades. Criminal rules adopted in 
1946 included a prohibition on 
electronic media coverage of crimi- 
nal proceedings. In 1972, the Judicial 
Conference adopted a prohibition 
against "broadcasting, televising, 
recording, or taking photographs in 
the courtroom and areas immedi- 
ately adjacent thereto. . ." that 
applied to criminal and civil cases. 
In 1988, the Conference revisited the 
issue and recommended the Judi- 
ciary begin the three-year pilot 
program allowing electronic media 
coverage. A 1994 examination of the 
data collected in the subsequent 
Federal Judicial Center study con- 
vinced the Judicial Conference that 
the potentially intimidating effect of 
cameras on some witnesses and jurors 
was cause for considerable concern. 
In 1996 the Conference again consid- 
ered the issue and voted to strongly 
urge each circuit judicial council to 
adopt an order not to permit the 
taking of photographs or radio and 
television coverage of proceedings in 



The Third Branch m September 2000 



■■■ 



district courts. The Conference left it 
up to the appellate courts whether or 
not they would adopt similar rules, 
and all but two courts of appeals 
subsequently adopted prohibitions. 

"This is not a debate about 
whether judges would be discom- 
fited with camera coverage," Becker 
told the subcommittee. "Nor is it a 
debate about whether the federal 
courts are afraid of public scrutiny. 
They are not. ... It is also not about 
increasing the educational opportu- 
nities for the public to learn about 
the federal courts or the litigation 
process. . . . Rather this is a decision 
about how individual Americans, 
whether they are plaintiffs, defen- 
dants, witnesses, or jurors, are 
treated by the federal judicial 
process. It is the fundamental duty of 
the federal Judiciary to ensure that 
every citizen receives his or her 
constitutionally guaranteed right to a 
fair trial. The Judicial Conference 
believes that the use of cameras in 
the courtroom could seriously 
jeopardize that right. It is that 
concern that causes the Judicial 
Conference of the United States to 
oppose enactment of S. 721." £«v^ 



To read Judge Edward Becker's 
full testimony, visit our website 
at www.uscourts.gov 



Teacher's Institute Kicks Off 




The Judiciary's educational 
outreach initiative is reaching out 
to teachers, and through them, 
to students nationwide. Dubbed 
the "Federal Courts Teachers' 
Institute," the program uses the 
same approach taken in the Judici- 
ary's Law Day celebration, in which 
student groups viewed a videotape 
of a case to understand and discuss 
issues of judicial independence. In 
the Institute, groups of teachers 
from the community meet at their 
area federal courthouse. Like the 
student groups, their video view- 
ing is followed by discussions with 
judges, federal defenders, and 
prosecutors. Teachers also take 
copies of the videotape, lesson 
plans, and other instructional 



Among the courts participating in the 
Teachers Institute were the federal courts 
in Boise and Pocatello, Idaho, who video- 
conferenced their proceedings. Chief Judge 
B. Lynn Winmill presided. 



materials back to their own class- 
rooms. Educational materials are 
available on the Judiciary's website, 
www.uscourts.gov, under "Courts 
to Classes," to help teachers incor- 
porate information about the 
purpose, structure, and function of 
the federal courts into their class- 
room activities. 

Throughout the year, more than 
50 courthouses across the country 
are expected to hold Teachers 
Institutes; 8 courthouses kicked off 
the program on August 4. £<s^ 



Electronic Public Access at 10 



Originally, electronic public access 
meant a simple phone line connection 
that let John or Joan Q. Public dial in 
for case information from an electro- 
nic bulletin board. It was barebones, 
but it saved a trip to the local federal 
court. Ten years later, the phone line 
is still operating, but now it is being 
used to surf to the courthouse door 
on the Internet, as attorneys and the 
public visit court websites to file 
cases, view dockets, or check court 
dates. Electronic public access has 
changed a lot in a decade, and the 



future promises even more. 

Pre-1988, the electronic access 
experience in the federal courts was 
practically non-existent. "The only 
access to court records," said Chief 
Bankruptcy Judge J. Rich Leonard 
(E.D. N.C.), a member of the Judicial 
Conference Committee on Court 
Administration and Case Manage- 
ment, "was to queue up at the counter 
and mark the papers you wanted 
copied. Geographic proximity to the 
courthouse was important, which 
meant that small town practitioners 



away from the courts in the cities 
were limited in their federal practice." 

All that was about to change, 
because federal courts across the 
country were beginning to use 
computers to manage basic case 
information. Computers made public 
access to certain court documents 
possible for the first time. 

In September 1988, the Judicial 
Conference adopted a recommenda- 
tion from the former Committee on 
Judicial Improvements to authorize 
"an experimental program of elec- 
tronic access for the public to court 
information in one or more district, 

See EPA on page 4 



The Third Branch m September 2000 



EPA continued from page 3 
bankruptcy, or appellate courts in 
which the experiment can be con- 
ducted at nominal cost." Approxi- 
mately half a dozen courts partici- 
pated. 

The official birthday of the 
electronic public access (EPA) 
program, however, came with 
P.L. 101-515, the Judiciary Appro- 
priations Act of 1991, signed in 
November 1990. The Act gave the 
Judiciary the authority to establish 
access fees and therefore permitted 
nationwide expansion of the pro- 
gram since Congress had appropri- 
ated no funds for its operation. 
Electronic public access started in 
only a handful of courts, but good 
ideas catch on. In its report for the 
fiscal year 1993 Appropriations Act, 
the House appropriations committee 
noted, "... the Judiciary's invest- 
ments in automation have resulted in 
enhanced service to the public and to 
other government agencies in 
making court records relating to 
litigation available by electronic 
media. . . .The Committee requests 
that the Judiciary equip all courts, as 
rapidly as is feasible, with the 
capability for making such records 
available electronically and for 
collecting fees for doing so. The 
Committee understands that ap- 
proximately a third of current access 
to court records is by non-Judiciary, 
governmental agencies and believes 
that fees for access in these instances 
are desirable." 

In 1997, Congress permitted the 
Judiciary to use fees for enhance- 
ments to electronic public access 
services. "This made EPA the only 
self-funded program of its kind in 
the Judiciary," said Mary Stickney, 
chief of the EPA program office at 
the Administrative Office. "No 
appropriated funds are used. The 
fees made the subsequent evolution 
of electronic public access possible." 
Currently, the EPA program man- 
ages the development, implementa- 
tion, and enhancement of electronic 



public access systems in the Judi- 
ciary, with centralized billing, 
registration, and technical support 
services. 

Electronic public access began 
with dial-in modems and electronic 
bulletin board systems but pro- 
gressed rapidly to automated voice 
response systems, then to the Public 
Access to Court Electronic Records 
system or PACER. PACER provided 
access to court cases throughout the 
country to anyone with a computer 
and a modem. 

"Nationwide, all but nine courts 
participate in PACER," said 
Stickney, "and even those nine offer 
some form of electronic access to 
court documents. Each year, PACER 
and other federal court services 
receive over seven million calls." 

In 1997, the Judiciary added the 
U.S. Party/Case Index, a national 
index for U.S. district, bankruptcy, 
and appellate courts, with the 
capability to perform national or 
regional searches. At first a dial-up 
service, it was soon available on the 
Internet. 

"The biggest expansion of elec- 
tronic public access has been to the 
web," adds Stickney, "with PACER 
moving to a web environment in 
1998. We had approximately 9,000 
PACER accounts in 1994. In 1999, 
there were 30,000. But this year, with 
the movement to the web, we have 
over 67,000 registered users." 

The very latest innovation is the 
Public Access Network, used in 
conjunction with Web PACER. It is a 
way for courts to host web sites 
without using outside providers, 
which makes for a more secure 
network. 

"Electronic public access is the 
most dramatic improvement we've 
made in the way we offer services 
to the public," Leonard said. "It 
wasn't even conceivable 10 years 
ago. Yet today it has leveled the 
playing field for law firms and 
made federal practice more acces- 
sible. Immediate proximity to the 



courthouse and the ability to obtain 
copies of large files is not so critical. 
A law firm 150 miles away from the 
courthouse has the same access as a 
firm in the same city." 

What do users want from elec- 
tronic public access? Participants in 
focus groups wanted to be able to 
perform nationwide searches and 
access cases over the Internet. The 
EPA program consequently deliv- 
ered with the U.S. Party /Case Index 
and Web PACER. Users said they'd 
like to view images of case docu- 
ments, and thus icons have now been 
added to the PACER page indicating 
which courts allow users on the 
Internet to see images. "If the courts 
have imaging or electronic case filing 
capability," said Stickney, "users will 
be able to see actual documents in 
the case file." 

Focus groups also have raised 
questions about privacy, and the 
availability of data is also a concern. 
The Committee on Court Adminis- 
tration and Case Management has 
formed a Privacy and Public Access 
Subcommittee to review the policies 
of Case Management /Electronic 
Case Filing prototype courts as well 
as those courts using imaging 
technology and to identify other 
policy issues. 

The bottom line is that, 10 years 
from its inception, electronic public 
access is better, faster and cheaper. 
PACER's 7<t per page cost on the 
Internet is less expensive than the 
50<2 fee for copying in court. Recent 
innovations such as U.S. Party/Case 
Index provide more information, and 
now there is access to actual images 
of case documents. Courts can even 
add local reports in the web environ- 
ment. What's next? Focus groups 
have said they'd like to receive 
automatic noticing when companies 
file for bankruptcy and view video 
presentations on the use of web 
products. These and other innova- 
tions may be just around the corner 
for electronic public access in the 
federal courts. £•*. 



4 



The Third Branch 



September 2000 



Federal Courts Sign On With E Signatures 



It was hailed as a revolution in 
Internet commerce when the Elec- 
tronic Signatures in Global and 
National Commerce Act became 
Public Law 106-229 this summer. 
The act said an electronic signa- 
ture on a contract or other record 
"may not be denied legal effect, 
validity, or enforceability" solely 
because is it in electronic form. In 
short, an e-signature is as good as 
the old-fashioned pen and ink 
variety. 

P.L. 106-299 defines an electronic 
signature as "an electronic sound, 
symbol, or process attached to or 
logically associated with a contract 
or other record and executed or 
adopted by a person with the intent 
to sign the record." The act is in- 
tended, in part, to protect consumers 
and promote e-commerce. Its impact 
on the federal courts may be felt 
largely in cases involving contracts 
that have been signed electronically. 
Court orders, notices, and other 
official court documents, including 
briefs and pleadings, are specifically 
exempt from the provisions of P.L. 
106-299, but documents submitted 



in support of pleadings are not. 
Courts remain free to adopt local 
rules on e-signatures and, while 
these may vary, they all give fur- 
ther legal certainty that the use of 
an e-signature on a document is 
valid. 

For all nine courts currently using 
the case management /electronic 
case files (CM/ECF) system and 
the 12 courts in various stages of 
CM/ECF start-up, a filer's act of 
entering a log-in name and pass- 
word is deemed a "signature" of 
the electronic document that is being 
filed. "Over 70,000 cases and ap- 
proximately 1 million documents 
have been accepted in these CM/ 
ECF courts," said Gary Bockweg, 
Administrative Office project 
manager for CM/ECF. "The log-in 
and password signatures for those 
documents filed electronically 
have been adequate and we've had 
no instances of filers disowning 
their documents." 

Courts meet the federal rules 
requirements of an "original" 
signature on documents filed with 
the court in different ways. On 




Administrative Office Director Leonidas Ralph Mecham (photo left) and Director of 
the U.S. Marshals Service John Marshall met this month to discuss issues of mutual 
concern. The U.S. Marshals Service, which provides security for federal judges and 
courthouses across the country, has experienced significant manpower shortages. The 
meeting touched on these shortages as well as other Marshal Service budget and 
security issues and their impact on the federal courts. 



papers filed electronically, this 
requirement may be met with the 
log-in and password, and the 
signature indicated by s/ or/s. 
For documents, such as an affidavit 
that must be signed by an indi- 
vidual, the paper may be scanned 
in so that an electronic image is 
available and can be viewed. Or the 
actual signed document may be 
kept on file by the attorney or 
petitioner, and an abbreviated paper 
document that confirms the docu- 
ment was signed may be filed. Or 
the actual signed document may be 
held by the attorney as an officer of 
the court. 

With the same options, judges may 
sign court orders. Their use of their 
log-in name and password to enter 
the system is their e-signature on the 
order. A judge may prefer to sign a 
paper document and scan the image 
into the computer system. The down- 
side of this, of course, is that scanning 
takes time and also takes up more 
space on a computer system. 

The process now in place for 
accepting and validating e-signa- 
tures seems to be adequate for 
today's needs, but that doesn't mean 
it always will be. Currently, private 
industry is looking at standards for 
e-commerce and e-signatures, and 
what they produce may, in turn, 
influence the federal courts. Cer- 
tainly, as e-commerce becomes more 
prevalent, as people become more 
familiar with it, and as e-signature 
technology matures, federal courts 
probably will incorporate changing 
technology into the present process. 
Some options may be encryption, or 
documents that change their elec- 
tronic identification each time they 
are modified. Several committees of 
the Judicial Conference are looking 
into the issues involved in e-signa- 
tures, including providing guidance 
to the courts on local rules. Right 
now, however, e-signatures in 
federal courts are no more, or less, 
acceptable than the pen and ink 
variety. £«^ 



The Third Branch 



September 2000 



Cybercrime continued from page 1 

"Cybercrime offenders are commit- 
ting old crimes in new ways, " said 
Lanny Newville, senior pretrial ser- 
vices officer in the Western District of 
Texas. "It's easy to do things that were 
difficult previously. Computer scan- 
ners and high-quality color printers 
make crimes like forgery and counter- 
feiting easy. The how-tos are available 
on the Internet, if you know where to 
look." And, criminals may now commit 
those crimes in the privacy of their 
own homes, on their own computers. 
The FBI and other law enforcement 
agencies are bringing increased focus 
on cybercrime. The Internet Fraud 
Complaint Center was established to 
address the growing problem of fraud 
cases occurring over the Internet. The 
IFCC provides a vehicle for victims 
around the country to report incidents 
of fraud on-line. The FBI is dedicating 
substantial funds to pursue these and 
other cybercrimes. "Whether we want 
it or not," said Tim Cadigan in the 
Administrative Office Federal Correc- 
tion and Supervision Division, "the 
caseload is coming." 

That raises the question, how will 
probation and pretrial services officers 
in federal courts cope with cyber- 
criminals? 

New Class ot Offender Uses Computers 

"I'm definitely not a cyber sleuth," 
said Larry Hawley, probation officer 
in the Central District of California. 
"The offenders we deal with are so far 
advanced in computers, and we aren't. 
What helps us is being computer 
literate and using computer experts as 
resources." Hawley also draws on the 
rapport he develops with his clients 
and 30 years as a probation officer. 

Monica Hampton, a probation 
officer in the District of South Caro- 
lina, has a masters degree in computer 
resources and information manage- 
ment. The education gave her a 
greater interest in cybercrime. She 
believes it is imperative to keep up-to- 
date with technology to meet the 
changing needs of supervision. 



"Cyber criminals have nothing but 
time on their hands," Hampton said. 
"They are constantly upgrading their 
tools and skills, so we need to know 
what they're doing and using in 
order to properly supervise them. 
The majority of computer crimes we 
see today are the same conventional 
crimes we've seen in the past. The 
common criminal has just realized 
that by using the computer, in the 
commission of their offense, it can 
facilitate the process." Hampton 
located software that allows her to 
monitor on-line activity anony- 
mously. It is proving useful in the 
supervision of an offender who had 
his own on-line business. The 
software allowed her to visit his 
website and monitor activity be- 
tween him and his customers 
without being traced. "I wanted to 
ensure that he was remaining honest 
in his dealings, and this seemed to be 
the perfect tool," she said. 

Paul Collette, a probation officer 
in the Southern District of New York, 
investigates offenders who've used 
computers to, for example, commit 
credit card fraud or send child 
pornography. "It's a new class of 
offender," he said, "someone who 
uses the Internet to commit sophisti- 
cated crime. One offender was an art 
dealer. He'd meet his victims on a 
website, contact them through e- 
mail, and 
convince them 
to send him 
art on consign- 
ment. Then 
he'd just take 
the art. When 
he's on 
probation, 
we'll need to 
monitor him 
closely." 

To monitor offenders who are 
allowed by the court to keep their 
computers, Collette and other officers 
use software that tracks everything 
the offender is doing on-line by 
recording screen shots. Officers in 








the Southern District of New York 
visit the offenders every few days, 
view and export the screen shots to a 
disk, and take the data back to the 
office to review. How does an officer 
monitor an offender 24 hours a day? 
It is a never-ending battle. 

"There once was one computer in 
the house or at work," Collette says. 
"Now there's access to computers at 
copy stores, or the library, or at 
friends' houses where offenders can 



Will probation 
officers serve as 
cyber sleuths? 
Probably not in tlie 
near future, but 
many officers have 
received formal 
training on 
computers and 
Internet 

investigations to 
monitor offenders. 



surf anonymously. The Internet can 
be accessed via devices that were 
virtually unheard of two years ago, 
like cell phones, game consoles, and 
Palm Pilots. It's not hopeless, but 
we have to do the good old-fash- 



The Third Branch m September 2000 





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ioned gum shoe work. We have to 
monitor visually, keep tabs on 
devices and e-mail accounts, and ask 
for passwords." In his off- time, 
Colette also visits hacker sites and 
reads everything to do with new 
software. 

Collette recommends that officers 
obtain training at the National White 
Collar Crime Center in West Vir- 
ginia, which has a one-week course 
on Internet investigation and com- 
puters. For the districts and their 
pretrial services and probation 
officers, it also may become a matter 
of locating additional and sometimes 
specialized training and resources. 

Wake-up Call on Cybercrime 

"Law enforcement has been slow 
to wake up to the growth in cyber- 
crime," said Wieser. "The Florida 
Department of Law Enforcement has 
a 6-8 week back-log on the examina- 
tion of all computer equipment 
turned in at the state level. Federal 
law enforcement also is experiencing 
an increasing computer forensic 
workload. And computer examiners 
are hard to find. You can't take office 



Offenders can surf anonymously, access 

computer* at any copy shop or library, ami 
generally make supervision difficult by 
constantly upgrading their skills ami tools. 



automation people out into the field, 
so we will have to train officers." 

Ana Whipple, a pretrial services 
officer in the Southern District of 
Florida, also thinks that the growing 
number of cybercrime cases devel- 
oped by the FBI has caught the 
Judiciary off guard. "There are going 
to be hundreds of cases coming 
through," Whipple said. "Our system 
is still operating like it did 10 years 
ago and simply is not prepared for 
what we are going to face. The major 
challenge is to make the judicial 
officers understand the magnitude 
and scope of this problem. Then the 
court needs to give us direction and 
guidance on how far they want us to 
go in supervising these offenders." 
Whipple says probation and pretrial 
services officers must assure the 
court that offenders are not continu- 
ing to engage in illegal activities. 
They had better be prepared to talk 
intelligently to them, know what a 
hard drive looks like, and search for 
hidden files and images, as well as 
be familiar with pdas and all types of 
connectivity devices. "As pretrial 
services and probation officers," says 
Whipple, "we're all scrambling in 
different directions. The FBI and other 
agencies can give us forensic train- 
ing, but most of us are not looking to 
be computer forensic experts. We are 
seeking tools to monitor these defen- 
dants/offenders while they are under 
our supervision whether on bond or 
after they are convicted. Training — 
the right type of training — and the 
resources would go a long way to 
addressing this problem." 

In September, the Federal Judicial 
Center broadcast over the Federal 
Judicial Television Network, Special 
Needs Offenders: Introduction to 
Cyber Crime. The broadcast was 
followed by an on-line discussion. 
The FJC has published a bulletin on 



cybercrime thai includes .1 listing of 
technical and training resources in 
computer forensics available to 

districts. The Administrative ( >iiu e 
also offers courses in word process- 
ing and Internet/ Intranet use for 
court staff who are new to comput- 
ers. 

Officers Face 'Technological' Mountain 

"We don't have to be computer 
geeks and know how the offenders 
commit their crimes, "said Newville, 
" but we have to understand enough 
to intelligently tell the court what the 
situation is so that conditions can be 
set." Newville admits it is an uphill 
battle, with what he calls a "techno- 
logical mountain" to get over. He 
compares the monitoring of cyber- 
crime offenders to substance abuse 
monitoring. "We have to know what 
questions to ask, then follow up," 
Newville said. "We need to know 
how they use the computer at home, 
and work to make recommendations 
to the court that make sense without 
crossing the 'least restrictive' man- 
date of the Bail Reform Act. I have 
two sex offender cases where they 
are barred from any computer 
access. But when computers are 
everywhere, there's no way we can 
ensure 100 percent compliance." 

Marc Stein, a probation officer in 
the Central District of California who 
has experience supervising a notori- 
ous cybercrime offender, says, "Yes, 
there's a certain amount of technical 
knowledge needed. However, you 
don't have to be a computer expert. 
You have to know people and how 
to help them avoid criminal behavior 
in the future." Combining traditional 
probation officer skills with new 
technology, Stein deals with the 
person first, then uses his technical 
knowledge to monitor computer use. 
"As my supervisor said to me 
regarding my first cybercrime 
offender, 'Approach him like he's 
just another criminal and it's com- 
puters, not drugs, that get him into 
trouble.'" ^^ 



The Third Branch 



September 2000 






JUDICIAL MILESTONES 



Appointed: Jay A. Garcia-Gregory, 

as U.S. District Judge, U.S. District 
Court for the District of Puerto Rico, 
August 1. 

Appointed: Paul C. Huck, as U.S. 
District Judge, U.S. District Court for 
the Southern District of Florida, 
August 5. 

Appointed: David M. Lawson, as 

U.S. District Judge, U.S. District 
Court for the Eastern District of 
Michigan, August 4. 

Appointed: Beverly B. Martin, as 

U.S. District Judge, U.S. District 
Court for the Northern District of 
Georgia, August 4. 

Appointed: James S. Moody, Jr., as 

U.S. District Judge, U.S. District 
Court for the Middle District of 
Florida, July 29. 

Appointed: Gregory A. Presnell, as 

U.S. District Judge, U.S. District 
Court for the Middle District of 
Florida, August 2. 

Appointed: John E. Steele, as U.S. 
District Judge, U.S. District Court 
for the Middle District of Florida, 
July 28. 

Appointed: Thomas L. Perkins, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Central District 
of Illinois, July 20. 

Appointed: Joel B. Rosenthal, as 

U.S. Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the District of 
Massachusetts, August 10. 

Appointed: E. Clifton Knowles, as 

U.S. Magistrate Judge, U.S. District 
Court for the Middle District of 
Tennessee, July 7. 



Appointed: Judith Gail Dein, as 

U.S. Magistrate Judge, U.S. District 
Court for the District of Massachu- 
setts, July 31. 

Elevated: Court of Appeals Judge 
Joel M. Flaum, to Chief Judge, 
U.S. Court of Appeals for the 
Seventh Circuit, succeeding Judge 
Richard A. Posner, August 1. 

Elevated: Judge Johnnie B. 
Rawlinson, to U.S. Court of 
Appeals Judge, U.S. Court of 
Appeals for the Ninth Circuit, 
succeeding Judge Melvin Brunetti, 
July 26. 

Elevated: Bankruptcy Judge 
Thomas E. Baynes, to Chief 
Bankruptcy Judge, U.S. Bank- 
ruptcy Court for the Middle 
District of Florida, succeeding 
Judge George L. Proctor, 
August 2. 

Senior Status: Judge Robert B. 
Maloney, U.S. District Court for 
the Northern District of Texas, 
August 31. 

Senior Status: Judge Loren A. 
Smith, U.S. Court of Federal 
Claims, July 10. 

Retired: Bankruptcy Judge William 
F. Tuohey, U.S. Bankruptcy Court 
for the District of New Jersey, 
August 9. 

Resigned: Magistrate Judge John 
E. Steele, U.S. District Court for 
the Middle District of Florida, 
July 27. 

Deceased: Senior Judge Raymond 
J. Broderick, U.S. District Court for 
the Eastern District of Pennsylvania, 
August 6. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

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

DIRECTOR 
Leonidas Ralph Mecham 

EDITOR-IN-CHIEF 

David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 



As of September 1, 2000 



Courts of Appeals 




Vacancies 


21 


Nominees 


15 


District Courts 




Vacancies 


42 


Nominees 


22 


Courts with 




"Judicial Emergencies" 


23 



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



The Third Branch 



September 2000 



Chief Justice Names Six New Committee Chairs, Extends Three Terms 




judge Lourdes G. Baird 

Six committees of the Judicial Con- 
ference have new chairs this fall. The 
appointments to replace chairs whose 
terms had expired were made by 
Chief Justice William H. Rehnquist, 
who at the same time extended the 
terms of three incumbent chairs. All 
committee chair terms began Octo- 
ber 1, with one exception. 

Judge Lourdes G. Baird (CD. 
Calif.) succeeds Judge Edward B. 
Davis (S.D. Fla.) as chair of the Com- 
mittee on the Administrative Office. 
Baird's term of office began July 1, 
2000. Judge Edwin L. Nelson (N.D. 
Ala.) succeeds Judge Edward W. 
Nottingham (D. Colo.) as chair of the 
Committee on Automation and Tech- 
nology. Judge John W. Lungstrum 
(D. Kan.) succeeds Chief Judge D. 



Judge Edwin L. Nelson 

Brock Hornby (D. Me.) as chair of the 
Committee on Court Administration 
and Case Management. Judge James 
C. Cacheris (E.D. Va.) succeeds Judge 
Stanley S. Harris (D. D.C) as chair of 
the Committee on Intercircuit Assign- 
ments. Bankruptcy Judge A. Thomas 
Small (E.D. N.C.) succeeds Judge 
Adrian G. Duplantier (E.D. La.) as 
chair of the Advisory Committee on 
Bankruptcy Rules. Judge David F. 
Levi (E.D. Calif.) succeeds Judge Paul 
Niemeyer (4 th Cir.) as chair of the 
Advisory Committee on Civil Rules. 

Three incumbent chairs will 
continue for an extended term of one 
year. They are Judge Will L. Garwood 
(5 th Cir.), chair of the Advisory Com- 
mittee on Appellate Rules; Judge 
William J. Bauer (7* Cir.), chair of 



Judge John W. Lungstrum 

the Committee to Review Circuit 
Council Conduct and Disability 
Orders; and Judge W. Eugene Davis 
(5 th Cir.), chair of the Advisory 
Committee on Criminal Rules. 

By delegation from the Judicial 
Conference, the Chief Justice makes 
all appointments to Conference 
committees and determines tenure. 
He is assisted by the Judicial Confer- 
ence Secretary, AO Director 
Leonidas Ralph Mecham. Committee 
chairs, with the exception of the 
Executive, Judicial Branch, and Bud- 
get Committees, generally serve for a 
term of three years. Five to six years 
of cumulative committee service, 
including past committee assign- 
ments, is considered the maximum a 
member may serve. &v^ 



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Judge James C. Cacheris 



Judge A. Thomas Small 



Judge David F. Levi 



The Third Branch m September 2000 



INTERVIEW 



10 



Committee Takes on Issues From Judgeships to the Workforce 



Judge Dennis G. Jacobs was appointed to 
the U.S. Court of Appeals for the Second 
Circuit in 1992. He is chair of the Judicial 
Conference Committee on Judicial Re- 
sources. 

Q # What are the major chal- 
• lenges faced by the Judiciary 
in maintaining its workforce? 

A # In a few words: competition in 
• a tight labor market, loyalty 
to the institution, and flexibility of 
skills and resources to respond to 
change. 

Over the years, we have done a 
good job of attracting and retaining a 
talented workforce committed to 
supporting the administration of 
justice. Competition for excellent 
people is always a factor, and today 
that competition is keen, especially as 
we seek out the people who can help 
us make the best use of the technologi- 
cal infrastructure that the Judiciary is 
putting in place. The Committee on 
Judicial Resources, in conjunction with 
other committees of the Judicial 
Conference, is committed to recom- 
mending compensation, benefits, and 
training programs that will attract and 
make the highest use of the people we 
need. The Judiciary continues to 
update its networks, systems, and 
applications to meet changing busi- 
ness requirements and ensure the 
security and integrity of sensitive 
information. Success in each of 
these endeavors depends on main- 
taining a trained, stable, and flexible 
workforce. 

The Judiciary's commitment to 
technology is changing the skills 
needed by its workforce. In the last 
few years, we have had to hire trained 
systems personnel in a brutally tight 
labor market, and we have under- 
taken extensive training and support 



for judges and support staff so that 
they can use these systems effec- 
tively. One challenge is to hire 
people who have or can acquire 
the technological skills we now 
demand; at the same time, we need 
a stable workforce of people with 
integrity, strong institutional loyalty, 
and long-term commitment. Hiring 
and retaining such people is a tall 
order; we cannot expect to accom- 
plish this without competing with 
the private sector in compensation 
and benefits, and we are going to 
have to accept and defend certain 
budget consequences of that commit- 
ment. 

Immediately pressing is the crisis 
in the southwest border courts, 
where the mushrooming growth of 
criminal filings is exerting intense 
pressure on judges and clerks' 
offices. Automation support, train- 
ing, personnel management and 
procurement are particularly diffi- 
cult for these fast-growing courts, 
some in remote locations. The 
border courts are taking measures 
to cope with dramatic caseload 
increases. Visiting judges from other 
districts are helping. One successful 
experiment, using video confer- 
encing and other technological aids, 
has been the conduct of bench trials 
by a judge sitting in chambers 
outside a district. Maybe there will 
be some long-term benefits from the 
techniques adopted to deal with this 
crisis, but it appears that until more 
help arrives the chief technique and 
resource for judges and clerks' 
offices will continue to be over- 
work. The Committee on Judicial 
Resources, through its Subcommittee 
on Judicial Statistics, has developed 
recommendations for additional 
judgeships in these critical places. 
The Judicial Conference has adopted 




Judge Dennis Jacobs 



those recommendations and sent 
them to Congress for consider- 
ation. 

Q # How does the Committee 
• go about developing 
recommendations for additional 
judgeships? 



A: 



The Committee's Subcom- 



• mittee on Judicial Statistics 
has primary responsibility for 
conducting surveys of judgeship 
needs every other year for the 
Committee. The subcommittee asks 
that each court review its workload 
to determine if additional judge- 
ships are needed, and if so, to 
complete a judgeship survey 
application to justify its request. 
The application includes questions 
about the volume and characteris- 
tics of the court's caseload, the 
court's use of senior and visiting 
judges, use by district courts of 
magistrate judges and alternative 
dispute resolution, and any other 
factors that may have had an 
impact on a court's judgeship 
needs. 

In developing a recommenda- 
tion for additional judgeships, the 
subcommittee thoroughly studies 4 



The Third Branch 



September 2000 



each application as well as the 
recommendation from the judicial 
council of the circuit, reviews current 
caseload information from the 
Administrative Office, and weighs 
the caseload under standards estab- 
lished by the Judicial Conference. 
After consideration of information 
from all available sources, the 
subcommittee develops final recom- 
mendations for consideration by the 
full Committee on Judicial Resources. 
The Committee reviews the report 
from the subcommittee and develops 
final recommendations for consider- 
ation by the Judicial Conference. At 
the end of this process, the Confer- 
ence recently approved recommen- 
dations to create 63 additional 
judgeships, 10 for courts of appeals, 
and 53 for district courts. Those 
recommendations were transmitted 
to Congress in draft legislation July 
31, 2000. 



Q # The Committee sent the 
• most recent judgeship 
recommendations to the Judicial 
Conference on an expedited basis. 
Why? 

A # The Judicial Conference 
• recommendations that were 
pending before Congress earlier 
this year were based on the 1999 
Biennial Survey of Judgeship Needs, 
which incorporated workload 
information through the year ended 
June 30, 1998. There have been 
major changes in the workload of 
several courts since that time. Under 
the normal schedule, we would 
have completed the 2001 Biennial 
Survey of Judgeship Needs at our 
December 2000 Committee meeting, 
and the judgeship recommendations 
would have been considered by the 
Judicial Conference in March 2001. 
However, there are some encourag- 
ing signs that the Senate may con- 
sider omnibus judgeship legisla- 
tion — for the first time in nearly 10 
years — before the end of the 106 th 



Congress. The Committee felt that 
Congress in its deliberations should 
be apprised of the Judiciary's 
requirements based on current 
workload rather than on the infor- 
mation that is nearly two years old. 
The Committee, therefore, expedited 
the 2001 Judgeship Survey and 
submitted final judgeship recom- 
mendations to the Judicial Confer- 
ence at the end of July. 



Q # Has the Committee ever 
• recommended a reduction in 
the number of existing judgeships or 
judges? 

A # The Committee has not 
• recommended a reduction in 
the number of authorized judgeships 
in any court. We have, however, 
recommended in several courts that 
existing or future judgeship vacan- 
cies not be filled. In March 1996, the 
Judicial Conference approved a 
recommendation from the Commit- 
tee to include in the survey process a 
review of courts in which it may be 
appropriate to recommend elimina- 
tion of judgeships or continuation of 
vacancies. In approving the process 
for conducting these reviews, the 
Conference adopted the policy that 
elimination of existing judgeships 
not be recommended except in 
circumstances where the situation in 
a court is unlikely in the foreseeable 
future to support the need for the 
current number of judgeships. 
Although the Committee has found 
situations where it has recom- 
mended not filling vacancies, it has 
not found circumstances that would 
support elimination of judgeship 
positions. 



There has been a lot of talk 
in the legislative and execu- 
tive branches about managing 
human capital and the need for 
greater flexibility in the area of 
compensation and benefits. Has the 



Judiciary given any attention to these 

issues? 

A # Like many other large 
• employers, the Judiciary will 
need to replace a large segment of its 
workforce over the next few years as 
many of its baby boomer employees 
retire. Now is the time to focus on 
the problem that the current core 
federal employees' benefits package 
is no longer fully competitive with 
what is available in a thriving 
private sector. 

Employees increasingly need and 
demand greater flexibility in their 
benefits, and employers who want to 
stay competitive are giving employ- 
ees a longer menu of benefits. The 
Judiciary has launched a long-term 
effort to that end. This year, several 
new programs were introduced, an 
employee-pay-all long-term care 
insurance program and a flexible- 
benefit program that allows employ- 
ees to pay employer-sponsored 
health care plan premiums and 
certain medical and dependent care 
expenses with pre-tax dollars. 

These programs do not entail an 
employer contribution. Even so, 
enrollment is unusually brisk when 
compared to industry averages, 
which indicates to me keen interest 
among Judiciary employees and new 
hires in wider benefits options. The 
Judiciary will continue to aggres- 
sively pursue efforts to provide 
meaningful competitive benefits. 



Q # During the past two years, 
• the Committee on Judicial 
Resources has led an enormous work 
measurement effort to develop new 
staffing formulas to cover all court 
unit employees in the Judiciary. Can 
you tell us about the processes and 
results of this tremendous effort? 

A # The Committee has been 
• overseeing this mammoth 
project over a long period. The end 

See Interview on page 12 



11 



The Third Branch 



September 2000 



Interview continued from page 11 
product, not counting the volumes of 
raw data and reams of charts and 
memos, is 11 new staffing formulas. 
Applying those formulas to measured 
workloads would yield a total Judi- 
ciary workforce requirement of 
approximately 22,000 employees. 

The initiative was a joint project 
between the courts and the Adminis- 
trative Office. It brought together 
over 30 Administrative Office staff, 
149 court-unit subject-matter experts, 
and almost 100 court unit executives. 
The Committee carefully reviewed 
and approved the methodology and 
resulting formulas. Court personnel 
were nominated to participate in 
work groups for studies conducted in 
each of the court units: appellate and 
circuit offices, district, bankruptcy, 
and probation and pretrial services. 



These groups developed and revised 
work center descriptions and partici- 
pated in data collection. Data 
collection was performed at 24 
district clerks' offices, 26 bankruptcy 
clerks' offices, and 25 probation and 
pretrial services offices including 
divisional offices. All 12 circuits were 
measured including all appellate 
court and circuit offices. Data 
collection was completed in Novem- 
ber 1999. The databases were then 
subjected to analytical and statistical 
testing. Through regression analysis, 
staffing factors were selected to 
develop the formulas. 

The Committee on Judicial 
Resources and court advisory groups 
were briefed throughout the process. 
After getting the support of all court 
advisory groups, and after final 
revisions, the reports were presented 



to the Committee on Judicial 
Resources and other appropriate 
Judicial Conference committees at 
their summer 2000 meetings. All 
staffing formulas were endorsed by 
the committees, and approved by 
the Judicial Conference at its 
September 2000 session. 

Now that the staffing formulas 
are approved by the Judicial Confer- 
ence, we will need to keep them 
current so that they are statistically 
sound, maintain their credibility 
with court unit heads and judges, 
and are defensible in Congress. To 
do that the Committee on Judicial 
Resources has directed the Admin- 
istrative Office to update these 
formulas on a continual annual 
cycle in order that the Judiciary can 
be assured of accurate, up-to-date 
staffing formulas. &v^ 



THE THIRD BRANCH 

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Washington, D.C. 20544 



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THE 



THIRD 

BRANCH 

Continuing Resolutions Go On, As Congress 
Enters Lame Duck Session 



First, the 106 th Congress 
was slated to adjourn by 
October 6, then the date 
was moved to mid-Octo- 
ber. But by November 1 — 
and 13 continuing resolu- 
tions later — it was clear to 
congressional leaders 
they'd finish their business 
in a "lame duck" session 
following the presidential 
elections. 

Much of that unfinished 
business affects the Judi- 
ciary. The Commerce, 
Justice, State, the Judiciary 
and related agencies 
appropriations bill with 
the Judiciary's budget was 
delayed in Congress, then 
the President threatened a 
veto. It has not been sent to 
the President and may not be until 
all appropriations bills and other 
issues are resolved. A COLA for 
members of Congress and federal 
judges was likely until the Treasury- 
Postal Service appropriations bill, 
which also contained courthouse 
funding, was vetoed by the Presi- 
dent. That bill has been returned to 
Congress. The fates of numerous 




The clock was still running on the "lame duck" 106"' 
Congress when it returned to complete unfinished 
business in November. 



pieces of key legislation are still 
undecided. 

The Third Branch was caught up in 
the uncertain timetable of this 
Congress. The result is a combined 
October /November issue, with the 
promise of an expanded December 
issue. Next issue, hopefully, will 
contain all the news from this 
session of Congress. ^«^ 



INSIDE 



Lack of Judgeships Prompts Judicial Emergency 

The Hunt for Law Clerks Goes On-Line 

Chief Judge Haden Named Executive Committee Chair. 



FEDERAL DEPOSITORY 



mtffl& 




Vol. 32 
Number 10 
October/November 2000 



Judicial Conlerence 
Opposes Sweeping 
Restrictions oo 
Educational Programs 

The Judicial Conference has 
voted to oppose legislation that 
would prohibit federal judges 
from accepting "anything of 
value in connection with a 
seminar" because the legislation 
is overly broad, would have 
unintended consequences, and 
has not been adequately studied. 
The Conference voted on this 
resolution and on other recom- 
mendations from its committees 
at the semi-annual meeting in 
September in Washington. 

S. 2990, the Judicial Education 
Reform Act of 2000, was intro- 
duced in the Senate last July in 
reaction to a report by a private 
legal organization criticizing 
judges' attendance at privately 
funded educational seminars. 
The Judiciary has not had an 
opportunity to study carefully 
and comment on the pending 
legislation, nor has it been the 
subject of hearings. 

The legislation "is overly 
broad; would have unintended 
consequences, such as prohibit- 
ing federal judges from reim- 
bursed attendance at bar associa- 
tion meetings and law school 

See Conference on page 2 



Conference continued from page 1 

seminars; raises potential constitu- 
tional issues, such as imposing an 
undue burden on speech; and would 
mandate an inappropriate censorship 
role for the Federal Judicial Center," 
the Conference said in a resolution it 
adopted. "The Center is charged by 
law with providing continuing 
education for judges and court 
personnel. For 32 years the Center 
has ably performed this task," the 
Executive Committee said in its 
report to the Conference. 

In proposing the Conference 
resolution, the Executive Committee 
acknowledged the importance of 
public trust and confidence in the 
Judiciary "as the bedrock upon which 
our independent Judiciary depends." 
However, it also cautioned that the 
"First Amendment to the United 
States Constitution, itself, strongly 
counsels against undue and overly 
broad efforts to limit or restrict 
anyone's access to ideas." 



S. 2990 directs the Center's Board 
to authorize government funding 
for judges to attend only "seminars 
that are conducted in a manner so 
as to maintain the public's confi- 
dence in an unbiased and fair- 
minded Judiciary." The FJC has not 
sought this expansive authority into 
a new area of controversy and has 
been provided with no road map for 
exercising it. In October, the Board 
adopted a statement opposing S. 
2990 in its present form. The Board 
believes the bill "would transform 
the Center and its Board from 
designers and presenters of federal 
judicial education to investigators of 
judicial education programs," and 
"jeopardize the Center's ability to 
co-sponsor occasional educational 
programs that it presents in coop- 
eration with law schools and other 
organizations. . ." The Board also 
stated that the Center needs ad- 
equate financial support to ensure 
that it can provide judges the full 



range of necessary orientation and 
continuing education programs, 
because judges should not have to 
rely solely on private organiza- 
tions for their education. 

While there clearly are impor- 
tant distinctions between the 
Judiciary and the other two 
branches of government, the 
proposed legislation would appear 
to subject judges to the most 
restrictive rules of any government 
officials. Existing legal and ethical 
provisions already restrict judges 
from accepting benefits from 
parties in litigation before them 
and provide for disqualification in 
any instance where a judge's 
impartiality might reasonably be 
questioned. 

According to the Conference, 
"All of these thoughts suggest that 
a more prudent course for the 
courts, and those who are inter- 
ested in judicial education, would 
be to have congressional hearings 



Representative Henry J. Hyde Lauded as Friend nf the Judiciary 



At a Supreme Court 
reception last month, the 
Judicial Conference recog- 
nized the long and distin- 
guished service of Repre- 
sentative Henry J. Hyde (R- 
IL), out-going chairman of 
the House Committee on 
the Judiciary since 1994. A 
resolution passed by the 
Conference and presented 
to Hyde read, in part, 

"After twenty-six years 
of distinguished service in 
the House of Representa- 
tives, Henry Hyde has 
become a respected leader 
of national prominence. 
He is widely admired for 

his honesty and sound judgment, unfailingly dis- 
played with humor and civility. 

[H]is record of accomplishments there bear witness 
to an unwavering respect for the Constitution of the 













HI 








Chief Justice William H. Rehnquist presents a framed copy of the 
Judicial Conference resolution to Representative Henry J. Hyde 
(R-IL). 



United States and an 
abiding belief in the rule of 
law. Henry Hyde is sensi- 
tive to the position of the 
Judicial Conference on 
legislation affecting the 
judiciary, and on such 
matters, has been a source 
of wise counsel to judges. 
He recognizes the indepen- 
dence of the Judicial 
Branch, has vigorously 
supported improvements 
in the administration of 
justice, and has worked to 
provide appropriate and 
equitable compensation 
and benefits to judges and 
their staffs. 
The legacy of the Honorable Henry Hyde, as a 
Member of Congress, as a leader of the Committee on 
the Judiciary, and as a valued friend to the federal 
judiciary will endure for many years to come." £»^ 



The Third Branch m October/November 2000 




The Judicial Conference honored the distinguished service of Representative 
Henry J. Hyde (R-IL) with a reception at the Supreme Court attended by 
many members of the Supreme Court, the Judicial Conference and its 
committees, and members of Congress. Among them were (above) Supreme 
Court Justice Antonin Scalia and Chief Judge J. Harvie Wilkinson III (4th 
dr.); (photo above right) Administrative Office Director Leonidas Ralph 
Mecham, Judge John Heybum (W. D. Ky.) and Chief Judge Charles Haden II 
(S. D. W. Va.); and (photo right) U.S. Sentencing Commission chair Judge 
Diana Murphy, Chief Judge Procter Hug Jr. (9th Cir.) and Chief Judge D. 
Brock Hornby (D. Me.). 



on this question, followed by study 
and review of those proposals that 
may come forward. This is not a 
time for hasty legislation that may 
well be more dangerous than the 
concerns it is designed to allay." 

In other action: 

• Since its previous session in 
March, the Judicial Conference 
approved a recommendation for 
the creation of new Article III 
judgeships and transmitted the 
recommendation to Congress. 
The current request is for six 
permanent and four temporary 
circuit judgeships; 30 perma- 
nent and 23 temporary judge- 
ships; the conversion of seven 
temporary district judgeships to 
permanent; and the extension of 
one temporary judgeship. 
Senate Judiciary Committee 
chair, Senator Orrin G. Hatch 
(R-UT), and ranking minority 
member, Senator Patrick Leahy 
(D-VT), reported to the Confer- 
ence they would co-sponsor a 
bill incorporating its judgeship 
recommendations, and S.3071, 



the Federal Judgeship Act of 
2000 subsequently was intro- 
duced in the Senate. The last 
omnibus judgeship bill was 
enacted in December 1990. Last 
year nine judgeships were 
authorized in an appropriation 
bill in an attempt to address the 
heavy workload of the south- 
west border courts and 10 new 
judgeships have been included 
in the yet-to-be passed fiscal 
year 2001 Commerce, Justice, 
State, the Judiciary and related 
agencies appropriations bill. 
Voted to encourage federal 
courts to post their local rules 
on their own web sites and if 
they do not have a local web 
site, to develop one even if only 
to post their local rules. The 
intent is to link the local sites to 
the Judiciary's web site, 
www.uscourts.gov, so that there 
will be a single source for all 
local rules that is easily acces- 
sible by the bench, bar, and 
public. Approximately 52 
district courts, 59 bankruptcy 
courts, and eight courts of 



appeals maintain Internet sites 
that contain their local rules. 

• Approved the proposed staffing 
formulas for the appellate court 
and circuit clerks' offices, and 
the district clerks', the district 
court pro se law clerks', the 
probation and pretrial services', 
and the bankruptcy clerks' 
offices, necessary to perform 
their judicial support functions, 
for implementation in fiscal 
year 2001. 

• Approved a recommendation to 
seek funds in fiscal year 2002 for 
a panel attorney hourly rate of 
$113. The rates in most judicial 
districts for Criminal Justice Act 
attorneys are $70 in-court/$50 
out-of-court as of January 1, 2000. 

A $75 rate for in-court and out-of- 
court work is paid district-wide or in 
specified court locations in 14 judicial 
districts. CJA attorneys in most 
judicial districts have received only 
two $5 increases since the provision 
authorizing the $60 in-court/ $40 out- 
of-court rates was enacted in 1984, 
over 15 years ago.^ 



The Third Branch m October/November 2000 



Judge Ralph K. Winter Honored 




As Judge Ralph K. Winter Jr. 
prepared to take senior status 
October 1, 2000, and step down both 
as chief judge of the U.S. Court of 
Appeals for the Second Circuit and 
as chair of the Executive Committee, 
the Judicial Conference passed a 
resolution celebrating his "outstand- 
ing, insightful and politically astute 
leadership." Noting that his tenure 
as chair of the Executive Committee 
came at a time when many complex 
issues were addressed by the Com- 
mittee, including the release to the 
media of Article III judges' financial 
disclosure reports, the resolution 
read, in part, 

"Judge Winter's confident 
leadership, firm resolve, and spirit of 
openness fostered understanding 
and mutual respect for differing 
opinions, enabling a satisfactory 
conclusion to this difficult issue and 
numerous others before the Execu- 
tive Committee in the past year. All 
the while, Judge Winter displayed 
his characteristic warmth and keen 



On behalf of the Judicial Conference, Chief 
Justice William H. Rehnquist presented 
Judge Ralph K. Winter Jr. with a resolution 
celebrating his years of leadership. 



sense of humor." 

"In coordination with the Com- 
mittees on Financial Disclosure, 
Codes of Conduct, and Security and 
Facilities, Judge Winter ably led the 
Executive Committee in seeking a 
course for the Conference that 
would accommodate public access 
to information regarding the 
financial interests of judicial offic- 
ers, in full compliance with the 
Ethics in Government Act of 1978, 
and at the same time ensure the 
safety and security of judges and 
their families." 

Winter joined the Judicial Con- 
ference in July 1997, and the Execu- 
tive Committee in April 1998. He 
had served as chair of the Advisory 
Committee on the Federal Rules of 
Evidence and as a member of the 
Civil Rules Committee. £•». 



4 



Lack of Judgeships 
Prompts Judicial 
Emergency 

In a general order signed by 
every active judge in the Southern 
District of California, a judicial 
emergency in the district has been 
declared by Chief Judge Marilyn 
L. Huff (S. D. Cal.) over the acute 
need for judgeships. "Due to the 
heavy criminal felony caseload 
and lack of new judgeships, the 
district continues to rank as one of 
the busiest courts in the nation," 
Huff wrote in the order. But with 
the death of two senior judges, the 
remaining eight active judges and 
five senior judges — one of whom 
was recently injured in a car 
accident and another who will 
soon turn 87 — Huff said the 
district can no longer handle its 
criminal caseload. 

"We have the highest weighted 
caseload per judge in the country, " 
said Huff, "magnified by the high 
number of criminal cases. These 
are particularly demanding 
because of speedy trial concerns." 
The weighted caseload filings in 
the Southern District of California 
numbered 1,029 in 1999. Gener- 
ally, the Judicial Conference will 
consider a request for additional 
judgeships from a court when the 
weighted caseload exceeds 430 
per authorized judgeship. The 
Conference has recommended 
that the Southern District of 
California receive eight new 
judgeships, five permanent and 
three temporary. 

"This was the highest number 
of new judgeships recommended 
for any court in the nation," Huff 
said in declaring the judicial 
emergency. "Despite the 
Judiciary's recommendation, no 
new judgeships have been created 
for our district in pending judge- 
ship legislation. Consequently, the 4 



The Third Branch 



October/November 2000 



needs of the litigants in our district 
for now judgeships have not been 
met. Without new judgeships, the 

district will operate under judicial 
emergency procedures as required 
by the needs of justice." 

The fiscal year 2001 Commerce, 
Justice, State and the Judiciary 
appropriations bill still pending in 
Congress contains 10 new judge- 
ships but ignores the Southern 
District of California's judgeship 
needs. Despite urgent requests by 
Huff, Administrative Office Direc- 
tor Leonidas Ralph Mecham, and 
others, no new judgeships have been 
authorized by Congress for the 
district since 1990. 

In the past, according to Huff, 
senior judges were able to handle 
the overflow criminal cases. In 1998, 
senior judges handled about 50 
percent of the criminal jury trials. In 
the first eight months of 2000, and 
before an automobile accident in 
August, one senior judge handled 
600 sentencings. It is not expected 
that he will be able to return to his 
former level of activity. Two active 
judges also have had medical and 
family disabilities that have reduced 
their availability for criminal trials. 
If the court is unable to provide 
sufficient trial judges in the future, 
criminal cases may be dismissed. 

"If any court in the United States 
can make a case for new judge- 
ships," said Huff, "it is ours." &^ 



New Federal 
Judgeships Still 
a Possibility in Lame 
Duck Session 

There was no lack of judgeship 
bills in the 106 th Congress. Senators 
Patrick Leahy (D-VT) and Orrin 
Hatch (R-UT) co-sponsored S. 3071, 



Article III Judgeship Recommendations 





Currently 


Judicial Conference 


CJSJ" 


Court 


Authorized 


Recommendation 


Proposed 


rts of Appeals 








First 


6 


IT 




Second 


13 


2P 




Sixth 


L6 


2P 




Ninth 


28 


2P, 3T 




District Courts 








AL-N 


7 


IP, IT 




AL-M 


3 


IP 




AL-S 


3 


IT 




AZ 


11 


1P/4T 


1 


CA-N 


14 


IP 




CA-E 


6 


2P,T/P 




CA-C 


27 


2T 




CA-S 


8 


5P, 3T 




CO 


7 


IP, IT 




FL-M 


15 


1P,1T 




FL-S 


16 


2P 


1 


HI 


3 


T/P 




IL-C 


3 


T/P 




IL-S 


3 


T/P 




IN-S 


5 


IT 




KY-E 


4 


IT 


1 


NE 


3 


T/P 




NV 


6 


IT 


1 


NM 


5 


2P, IT 


1 


NY-N 


4 


IT, T/P 




NY-E 


15 


3P 




NY-W 


4 


IT 




NC-W 


3 


2P 




OH-N 


11 


Extend T* 




OR 


6 


IT 




SC 


9 


IP 


1 


TX-E 


7 


IT 




TX-S 


18 


2P 


1 


TX-W 


10 


3P,1T 


1 


VA-E 


9 


2P,T/P 


1 


WA-W 


7 


IT 




WIS-E. 


2 





1 



T: Temporary judgeship. Temporary judgeships are positions created for a 
minimum time period, but where the first judicial vacancy occurring after that 
time period is not filled. 
P: Permanent judgeship. 
T/P: Temporary judgeship made permanent. 

* The first vacancy occuring 15 years or more after the confirmation date of 

the judge named to fill the temporary judgeship shall not be filled. 
** Commerce, Justice, State, the Judiciary and Related Agencies 
appropriations bill for fiscal year 2001. 



the Federal Judgeship Act of 2000, 
which included the latest Judicial 
Conference judgeship recommenda- 
tions. Also introduced this session 
were S. 2730 and H.R. 4704, both 
titled the Southwest Border Judge- 
ship Act of 2000, and both of which 
would create judgeships for the 



border courts. But by the end of the 
106 th Congress, none of these bills 
had made it to a floor vote. Instead, 
a provision creating 10 new judge- 
ships was attached to the Com- 
merce, Justice and State, the Judi- 
ciary, and Related Agencies Appro- 
priation bill, which passed both 4 



5 



The Third Branch ■ October/November 2000 



Houses. Four of five border courts 
would each receive one judgeship 
under the current appropriations 
bill. However, as The Third Branch 
went to press, the President had 
indicated he would veto the appro- 
priations bill for other reasons. 
When Congress returns in lame 
duck session in mid-November, the 
Judiciary may ask Congress to once 
again take up any or all of the 
judgeship bills, in addition to the 
judgeships now included in the 
appropriations bill, leaving the 
status of new judgeships uncertain. 
Even as he introduced S. 3071 in 
September, Hatch acknowledged the 
difficulties ahead. "Given that there 
are only a few weeks remaining in 
this Congress, it is going to be 



difficult to achieve consensus on a 
comprehensive judgeship bill. 
Nevertheless, it is important that 
the views of the Judicial Conference 
on the issue of judgeships be 
brought to the attention of the 
Congress and given the appropriate 
level of consideration." S. 3071 
would create 10 circuit judgeships 
and 53 district judgeships, a re- 
sponse to the Judicial Conference 
revised and expedited request for 
new judgeships sent to Congress in 
August. The recommendations 
reflected the impact of a growing 
caseload throughout the Judiciary, 
particularly in the southwest border 
courts, and the failure of a major 
judgeship bill to pass Congress in 
nearly a decade. 



"Implicit in our legislation," said 
Leahy, "is acknowledgment that the 
federal Judiciary does not just have 
64 current vacancies with nine on 
the horizon, but that even if all 
those vacancies were filled, the 
federal Judiciary would remain 70 
judges short of those it needed to 
manage its workload, try the cases 
and provide the individual attention 
to matters that have set a high 
standard for the administration of 
justice in our federal system. In 
other words, considering vacancies 
and taking into account the judge- 
ships authorized by our bill, the 
federal Judiciary is today in need of 
more than 130 more judges." £«^ 



AO Wins ABA Law Day Award 

The Administrative Office Law 
Day program, Judicial Indepen- 
dence Is for You, has won a 2000 
Outstanding Law Day Activity 
Award, given by the American Bar 
Association Standing Committee on 
Public Education. The annual award 
will be presented at the ABA's 
midyear meeting in 2001. 

On Law Day 2000, satellite 
technology linked more than 1,300 
high-school seniors at 34 federal 
courthouses around the country. 
The students were asked to consider, 
then decide amid simulated public 
pressure, a case in a mock trial 
featuring a search and seizure case 
arising from a fictitious school 
incident. The 90-minute broadcast 
from the Washington, D.C., studios 
of the Federal Judicial Television 
Network featured moderators Judge 
Ann Williams (7 th Cir.) and AO 
attorney Daniel A. Cunningham, 
with a student audience. Students' 
decisions and the rationales for their 
decisions were shared via satellite, 




The AO's award-winning Law Day program featured a 90-minute broadcast 
that reached student audiences across the country. Moderators were Judge 
Ann Williams (7"' Cir.) and the AO's Daniel Cunningham. 



tax, and Internet during the broad- 
cast. Federal judges, court staff, and 
members of the local legal commu- 
nities were available at the partici- 
pating federal courthouses to 
answer students' questions and 
share their observations on the 



process after the live national 
broadcast. 

Law Day was established in 1958 
to celebrate and strengthen the 
American heritage of liberty, justice, 
and equality under the law. £«^ 



The Third Branch 



October/November 2000 



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The Hunt for a Federal Law Clerkship Goes Online 



Finding a law clerk position with 
a federal judge has often depended 
on luck and good timing: good 
timing because vacancies filled 
swiftly and luck because identifying 
every judge with an opening was 
nearly impossible. But the search 
just got easier. The Federal Law 
Clerk Information System (FLCIS), a 
new database accessible through the 
Internet and launched last month, 
allows prospective applicants to 
locate opportunities on-line through 
the federal Judiciary's website at 
www.uscourts.gov. 

"Federal judicial law clerk 
positions are highly coveted," said 
Administrative Office Director 
Leonidas Ralph Mecham. "This new 
web site should meet the needs of 
both judges and law students since 
it creates a level playing field by 
giving all interested parties equal 
access to the same information. It 
also opens up the selection process 
to a potentially broader range of 
candidates from different law 
schools and parts of the country." 
Within days of FLCIS going live, 
over 300 positions had been entered 
by federal judges at both the district 
court and court of appeals levels. To 
review the law clerk vacancy 
announcements, potential appli- 
cants go to www.uscourts.gov, and 
click on Federal Law Clerk Informa- 
tion System. No password is needed, 
and no fee is charged for public, 
read-only access to the database. 
Applicants can search for vacancies 
by location, by specific court, or by 
the individual judge. 

Law schools have been notified of 
the new FLCIS site, and in recent 
weeks, all federal judges in the 
country received detailed instruc- 
tions on entering their law clerk 
vacancy information. Some of the 
information available may include 
the court's address, a contact 
person, how applications should be 



submitted, and when interviews 
will take place. Special require- 
ments also may be noted. Judge Fred 
I. Parker (2 n,i Cir.) encourages 
applications from "individuals with 
life experiences beyond academia." 
Chief Judge D. Brock Hornby (D- 
Me.) and Judge Edward W. 
Nottingham (D. Colo.) are looking 
for law clerks with "accuracy and 
attention to detail." Several judges, 
such as Judge Milton I. Shadur (N.D. 
111.) and Judge Diana E. Murphy (8 th 



FLCIS was created .it the sugges- 
tion of the l mh utivc ( ommittee <>l 
the fudicial Conference and was 
developed by the A(). FLCIS allows 
staff in judges' chambers to post 
information about upcoming or 
existing law clerk vacancies and 
information on judges' hiring 
practices that can be accessed by 
prospective applicants. FLCIS also 
tells judges which applicants 
already have accepted other posi- 
tions or otherwise taken themselves 
out of consideration for an unfilled 
clerkship. 



Federal Law Clerk Information System 



Home | Using This Site | About the U.S. Courts | Law Clerk Employment Information | Search 



Welcome to the 
Federal Law Clerk 
Information System. 



This site allows 
prospective applicants 
to search a 
national database 
of federal law clerk 



Using This Site 



About the Ui. Courts 



Law Clerk Employment Information 



SEARCH 



The website of the Federal Law Clerk Information System contains information on 
federal clerkship opportunities across the country. 



Cir.) prefer law clerks with a sense 
of humor, or at least, notes Judge 
Michael M. Mihm (C. D. 111.) "a 
willingness to laugh at my jokes." 
Judge Warren J. Ferguson (9 th Cir.) 
would like a law clerk with a 
"commitment to social justice," and 
Judge J. Owen Forrester (N.D. Ga.) is 
in search of law clerks "with 
independence of thought, broad 
non-legal work experience, and 
good interpersonal skills." Judge 
Myron H. Thompson (M.D. Ala.) 
simply hopes for someone with "the 
ability to write and reason." 



Judge Ralph Winter, former 
chairman of the Executive Commit- 
tee, said, "This web site should bring 
some civility to what has been a 
frantic law clerk hiring season. I 
believe it will be a tremendously 
useful tool for both judges and law 
clerk applicants. I did not have time 
last fall to do interviewing and 
therefore postponed hiring for the 
2001-2002 term until now. Once I 
posted the vacancies on the website, 
I was contacted by a large number 
of applicants, many of whom were 
superb candidates." £-v^ 



The Third Brunch m October/November 2000 



JUDICIAL MILESTONES 



Appointed: John W. Darrah, as U.S. 
District Judge, U.S. District Court for 
the Northern District of Illinois, Septem- 
ber 1. 

Appointed: Nicholas G. Garaufis, as 

U.S. District Judge, U.S. District Court 
for the Eastern District of New York, 
August 28. 

Appointed: Joan Humphrey Lefkow, as 

U.S. District Judge, U.S. District Court for 
the Northern District of Illinois, Septem- 
ber 1. 

Appointed: Gerard E. Lynch, as U.S. 
District Judge, U.S. District Court for 
the Southern District of New York, 
August 31. 

Appointed: Laura Taylor Swain, as 

U.S. District Judge, U.S. District Court 
for the Southern District of New York, 
August 31. 

Appointed: Robert E. Gerber, as U.S. 

Bankruptcy Judge, U.S. Bankruptcy 
Court for the Southern District of New 
York, September 5. 

Appointed: Eileen W. Hollowell, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy Court 
for the District of Arizona, September 19. 

Appointed: Norbert J. Garney, as U.S. 
Magistrate Judge, U.S. District Court 
for the Western District of Texas, 
September 11. 

Appointed: Jay R. Irwin, as U.S. 
Magistrate Judge, U.S. District Court for 
the District of Arizona, August 16. 



Appointed: George C. Kosko, as U.S. 
Magistrate Judge, U.S. District Court for the 
District of South Carolina, September 6. 

Appointed: Alia Moses Ludlum, as U.S. 
Magistrate Judge, U.S. District Court for 
the Western District of Texas, August 9. 

Appointed: John E. Simko, as U.S. 
Magistrate Judge, U.S. District Court 
for the District of South Dakota, Septem- 
ber 1. 

Elevated: Judge James A. Parker, to 

Chief Judge, U.S. District Court for the 
District of New Mexico, succeeding Judge 
John E. Conway, September 2. 

Deceased: Senior Judge Marion T. 
Bennett, U.S. Court of Appeals for the 
Federal Circuit, September 6. 

Deceased: Senior Judge William P. 
Copple, U.S. District Court for the 
District of Arizona, September 14. 

Deceased: Senior Judge David N. 

Edelstein, U.S. District Court for the 
Southern District of New York, 
August 19. 

Deceased: Senior Judge Joseph C. 
Howard, U.S. District Court for the 
District of Maryland, September 16. 

Deceased: Senior Judge Seybourn H. 
Lynne, U.S. District Court for the North- 
ern District of Alabama, September 10. 

Deceased: Judge Francis D. Murnaghan, 

Jr., U.S. Court of Appeals for the Fourth 
Circuit, August 31. 



Director's Awards Nominations Sought 

Do you know a court employee who deserves national recognition? Some- 
one who has made your court's operations run smoother, or who always does 
difficult jobs right? Then nominate him or her for the 2001 Director's Awards. 

The Director's Award for Excellence in Court Operations will recognize 
employees whose efforts have improved the function of the courts. The 
Director's Award for Outstanding Leadership recognizes managerial employ- 
ees who have made long-term contributions to the administration of the 
federal Judiciary. 

Nomination forms will be sent to all payroll certifying officers for distribu- 
tion to employees, and will be in pdf format on the J-Net in the Human 
Resources Program Desk. Nominations must be received by the AO's Human 
Resources Division by January 8, 2001 

For more information, contact J.J. FitzGerald, AO Human Resources 
Division. Telephone: (202) 502-3217. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

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

DIRECTOR 
Leonidas Ralph Mecham 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 




As of November 1, 2000 




Courts of Appeals 




Vacancies 


24 


Nominees 


17 


District Courts 




Vacancies 


42 


Nominees 


24 


Courts with 




"Judicial Emergencies" 


22 


For more information on vacancies in 


the federal Judiciary visit our website 


at www.uscourts.gov. 





The Third Brandt 



October/November 2000 



Haden Named Chair of Judicial Conference Executive Committee 



Chief Justice William H. 
Rehnquist has named Chief Judge 
Charles H. Haden II (S.D. W.Va.) as 
chairman of the Executive Commit- 
tee of the Judicial Conference. 
Haden succeeds Judge Ralph K. 
Winter (2 nd Cir.), who served as 
chair of the Committee for the past 
year before taking senior status on 
September 30. Haden currently 
serves on the 27-member Judicial 
Conference and its Executive 
Committee. 

"Judge Winter did a fine job as 
chairman of the Executive Commit- 
tee and the Judicial Conference 
thanks him for his valuable service," 
said Chief Justice Rehnquist. "I am 
confident that Judge Haden also will 
be an able and successful chairman." 




Chief Judge Charles H. Haden II (S.D. W.Va.) 



Two New Members Appointed to Execotive Committee 




Chief Judge Carolyn Dineen King (5"' Cir.) Chief Judge Charles R. Butler, Jr. (S.D. Ala.) 



Two vacancies on the Executive 
Committee created when Judges 
Ralph K. Winter Jr. (2 nd Cir.) and 
Ralph Thompson (W.D. Okla.) left 
the Conference, have been filled by 
the appointment of Chief Judge 
Carolyn Dineen King (5 th Cir.) and 
Chief Judge Charles R. Butler, Jr. 
(S.D. Ala.). The appointments were 
made by Chief Justice William H. 
Rehnquist, who makes all appoint- 



ments to Judicial Conference com- 
mittees and determines tenure. Also 
serving on the Executive Committee 
are Chief Judge Edward R. Becker 
(3 rd Cir.), Chief Judge Boyce Martin 
(6 th Cir.), Judge James M. Rosenbaum 
(D. Minn.) and Chief Judge Juan R. 
Torruella (1 st Cir.). Administrative 
Office Director Leonidas Ralph 
Mecham serves as an ex-officio 
member of the Committee. £<^ 



I laden was appointed to the- US 
District Court for the Southern and 
Northern Districts of West Virginia 
in 1975 by President Gerald Ford. I le 
became chief judge of the Southern 
District in 1982 and continues to 
serve as chief, making him the 
longest-serving chief district judge 
in recent history. 

Haden has served in all three 
branches of the West Virginia state 
government. He was a member of 
the House of Delegates of the state 
legislature, the State Tax Commis- 
sioner, and a justice on the West 
Virginia Supreme Court of Appeals. 
He also practiced law for eight years. 
Haden was born in 1937 in 
Morgantown, W.Va., and has lived 
in the state his entire life. £v^ 



Become A Part of Judges' 
Secretaries Advisory Group 

The Administrative Office is 
seeking the names of judges' 
secretaries, judicial assistants, and 
those providing secretarial and 
administrative support to judges 
who are interested in being 
considered for service on the 
Judges' Secretaries Advisory 
Group. The group, composed of 
12 secretaries and judicial assis- 
tants with representation from 
each circuit and court level, 
advises the Director of the Ad- 
ministrative Office on matters 
related to judges' secretaries, 
judicial assistants, and others who 
provide secretarial and adminis- 
trative support to judges. Interest- 
in-service questionnaires are 
available under "Advisory 
Forum" on the J-Net home page 
(http://156.119.80.10/advisory/ 
index.html) or by e-mailing 
Maritzah_Cayemitte@ao.uscourts.gov. 
Questions may be directed to 
Townsend Robinson, Chair of the 
Judges' Secretaries Advisory 
Group, at 202-502-1170. $^ 



The Third Branch m October/November 2000 



INTERVIEW 



10 



Judges Key to Work of ABA 



Martha W. Barnett, President of the 
American Bar Association, is a partner 
in the law firm of Holland & Knight 
LLP. She is the second female president 
of the ABA and was the first woman to 
chair the ABA's policy-making House of 
Delegates. She has held leadership 
positions in a variety of ABA entities 
from 1990 to the present. 

Q # The ABA is an association 
• that must appeal to a diverse 
and changing profession. What are 
some of the programs and initiatives 
that specifically might interest 
federal judges? 

A. The ABA feels very strongly 
• that the participation of state 
and federal judges in the life and work 
of the association is critical to the 
work of the ABA. Their voice is one 
that needs to be heard. We try to make 
sure that judges know that and also 
that our programs are of interest 
because their participation is critical. 
We have a Judicial Division that is a 
natural "home" for our judicial 
members. Among other things, the 
division produces educational materi- 
als, training, and programs for judges. 
In addition, we have several presiden- 
tially appointed committees, which 
add focus to specific issues facing 
judges. These entities, some of whose 
members are judges, help the Associa- 
tion formulate policy on issues affect- 
ing the Judiciary. For example, we 
have a Standing Committee on 
Judicial Independence, which devel- 
oped a model program for use by bars 
to respond to unjust criticism of 
judges. Our Standing Committee on 
Federal Judicial Improvements 
recently developed policy supporting 
legislation that would allow the 
federal Judiciary to submit its budget 
directly to Congress. 



One of our highest legislative 
priorities is to help insure judicial 
independence — fighting for the 
prompt filling of judicial vacancies, 
opposing "court-stripping" mea- 
sures, and working for increased 
federal judicial compensation. 

Q # As the new President of the 
• American Bar Association, 
what initiatives will you pursue? 

A. In addition to continuing 
• our perennial efforts in 
Congress to ensure judicial indepen- 
dence and to support the Legal 
Services Corporation, I will be 
focusing my attention on a number 
of initiatives. The ABA has long 
been committed to the equal partici- 
pation in the profession by women 
and minorities. During the past 
year, Bill Paul, the immediate past 
president, made the signature piece 
of his administration increasing 
diversity in the profession. I have 
institutionalized that effort by 
creating a presidential task force on 
diversity that Bill Paul has agreed to 
chair. It is housed in the Office of 
the President to make sure that 
people understand how important 
the effort is. 

We're going to continue the legal 
opportunities scholarship but we're 
going to look at other ways to 
address issues that relate to minor- 
ity participation in the profession, 
both at the entry level as well as 
success and retention once some- 
one is a lawyer. Ensuring diversity 
in the courts through minority 
clerkships and the like is an impor- 
tant piece of this. 

Another initiative is a national 
call to action that I've issued to 
implement a moratorium on 




Martha W. Barnett, ABA President 

executions. We had a program 
where we invited a broad spec- 
trum of people on all sides of the 
death penalty debate to come 
together and talk about the need 
for and how to implement a 
moratorium. 

I'm going to hold a women's 
leadership summit in April next 
year to look at a number of 
different issues related to women 
in the profession. Women now 
constitute 52 percent of the 
entering classes at law schools 
nationally. The number of prac- 
ticing lawyers who are women is 
rapidly approaching 35 or 40 
percent of the profession. Women 
have achieved leadership roles, at 
the bar association level, in their 
law firms, in law schools , in 
corporate America, and all the 
different places lawyers practice. 
With that comes a responsibility 
to use that position in a construc- 
tive way for women and for 
society. This summit will bring 
together women leaders to talk 
about questions such as the 
obligations for women in the next 
decade. 

The final initiative is the 
Futures Initiative. I've created a 



The Third Branch 



October/November 2000 



commission on the future ot the 
Legal profession to look at most 
particularly the impact of global- 
ization and technology on the 
practice of law; to answer what it 
means to be a lawyer and to prac- 
tice law; to validate the core 
principles that we all acknowledge, 
such as independence and loyalty 
and confidentiality and integrity 
and competence. We need to ask 
where the profession is going and 
how we are going to preserve the 
role of lawyers as officers of the 
court, with responsibilities not just 
to their clients but to the adminis- 
tration of justice. This is going to be 
an exciting commission and will 
probably last more than the one 
year of my term as president. 



Q # The pay of federal judges, as 
• you know, is lagging well 
behind that of others in the legal 
professions, to the point where 
many attorneys just out of law 
schools could earn more than a 
federal judge. Where does the ABA 
stand on this issue? 

A # The facts are that judicial 
• salaries have not kept pace 
with inflation, or with salary 
increases in the profession, or with 
the economy. There are two reasons 
for this: first, Congress has not 
provided judges with regular cost- 
of-living adjustments (COLAs), and 
second, there is no mechanism for 
the periodic review of salaries of 
judges and other high-level govern- 
mental officials. As a result, judicial 
salaries simply do not reflect the 
value of our judges to the country or 
to the system of justice that we all 
hold so dear. The ABA has long 
advocated for better judicial salaries 
both in Congress and with the 
Executive Branch, when relevant. 
We've called for systematic reviews 
and changes, and have worked with 
Congress to get judicial salaries 
raised. 



Simply put, judicial salaries today 
arc neither fair nor adequate. 
Compensation adjustment is the 
right thing to do professionally, and 
it's the smart thing to do in order to 
get the quality of people we all want 
and need on our courts. The ABA 
will continue to vigorously advocate 
for better judicial salaries. 



Q. Judicial vacancies in the 
• district and appeals courts 
are of great concern. They stood at 
63 toward the end of the 106 th 
Congress, and by the time Congress 
convenes in January that number 
will certainly be higher. How do 
vacancies affect lawyers and 
litigants? 

A. It certainly diminishes the 
• effectiveness of the constitu- 
tional promise of access to federal 
courts. When you have vacancies in 
a court, the judges who are sitting 
often wind up with overwhelming 
caseloads, which they simply cannot 
handle. Vacancies impact, in a very 
fundamental way, access to justice 
and access to the courts. In some 
jurisdictions, civil dockets have been 
suspended in order to allow judges 
to hear pending criminal cases 
within the time limits set by the 
Speedy Trial Act. 

The ABA works on this issue all 
the time. We monitor vacancies on 
the federal bench and work with 
Congress on a daily basis to make 
sure attention is given to filling 
these vacancies. It is our view that 
the judicial selection and confirma- 
tion process is one of the most 
important functions of the President 
of the United States, the Senate 
Judiciary Committee, and the U.S. 
Senate. By failing to fill vacancies in 
a timely fashion, they are failing in 
their obligations to the citizens of 
the country. What we've tried to 
impress on them is that it is time to 
exhibit leadership, put aside parti- 
san politics, and look at what is in 



the best interests of the country in 

this area. We constantly urge the 
President and the Senate to work 
together to fill these vacancies 

expeditiously. We certainly work 
through our Standing Committee on 
the Federal Judiciary to provide 
prompt evaluations when names 
are submitted. 



Q # It seems that protecting 
• judicial independence often 
falls to the bar. Does the ABA have a 
role in educating the public and 
others about the importance of 
judicial independence? 

A. The ABA has an important 
• role in educating the public 
and others about the importance of 
judicial independence. When I grew 
up, we all took civics and govern- 
ment classes and learned about the 
separation of powers, the three 
branches of government, and the 
concept of an independent judicial 
branch of government. I think many 
people don't get that same ground- 
ing in their early days and really 
have lost sight of how critical to a 
democracy it is to have an indepen- 
dent judiciary. So the ABA views 
our role at least in part as an 
educational one. We have a division 
of public education that has been 
very active in Law Day activities, 
and in putting on programs that 
focus on this issue. We formed a 
Standing Committee on Judicial 
Independence that is now looking at 
things like the impact of campaign 
finance on judicial independence. Of 
course that doesn't affect federal 
judges, but it attacks the integrity of 
the whole judicial branch. £-^ 



11 



The Third Branch ■ October [November 2000 



•■•'. 






Judicial Conference of the United States, September 19, 2000 




Seated : (LtoR) Chief Judge Juan R. Torruella (V dr.); Chief Judge Ralph K. Winter, Jr. (2 nd Cir.); Chief Judge Edward R. Becker (3 rd 
dr.); Chief Judge J. Harvie Wilkinson III (4 th Cir.); Chief Justice William H. Rehnquist; Chief Judge Carolyn Dineen King (5"' Cir.); Chief 
Judge Boyce F. Martin, Jr. (6 ,h Cir.); Chief Judge Joel M. Flaum (7 lh Cir.); Chief Judge Roger L. Wollman (8 th Cir.). 

Standing. Second Row : (LtoR) Judge Joseph A. DiClerico, Jr. (D. NH); Judge Charles P. Sifton (E.D. NY); Chief Judge Donald E. Ziegler 
(W.D. Pa.); Chief Judge Harry T. Edwards (DC Cir.); Chief Judge Haldane Robert Mayer (Fed. Cir.); Chief Judge Procter R. Hug, Jr. (9 lh 
Cir.); Chief Judge Sephanie K. Seymour (10 th Cir.); Chief Judge R. Lanier Anderson (ll lh Cir.); Chief Judge Charles H. Haden II (S.D. 
W.Va.); Judge Hoyden W. Head, Jr. (S.D. Tex.). 

Standing, Third Rozv : (LtoR) Judge Robert L. Miller, Jr. (N.D. Ind.); Judge Thomas A. Wiseman, Jr. (M.D. Tenn.); Judge Judith N. Keep 
(S.D. Cal); Judge Ralph G. Thompson, (W.D. Okla.); Judge James M. Rosenbaum (D. Minn.); Chief Judge Charles R. Butler, Jr. (S.D. 
Ala.); Judge Thomas F. Hogan (D. DC; Chief Judge Gregory W. Carman, International Trade; Leonidas Ralph Mecham, Director, AOUSC. 



THE THIRD BRANCH 

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The Tliird Branch m October/November 2000 



I) 



THE 



THIRD 

BRANCH 



106 th Congress Ends 

A COLA for Judges, New 
Judgeships and Judiciary 
Funding in Final Bills 

With the presidential election 
resolved, Congress finally wrapped 
up its own business and headed home. 
The 106 th Congress ended December 
15 with the passage of the final 
appropriations bills, which the 
President is expected to sign. The 
Commerce, Justice, State, the 
Judiciary and Related Agencies 
appropriations bill, H.R. 4942, 
contains the Judiciary's budget, 
clears the way for a cost-of- 
living adjustment for 
judges, and creates 10 
new Article III judge- 
ships. The Treasury, 
Postal Service and 
General Government 
appropriations bill, 
included as part of the 
Omnibus Consolidated 
Appropriations Act, H.R. 
4577, includes funding for courthouse 
construction. 

In other legislation of interest to the 
Judiciary, last month Congress passed 
the Federal Courts Improvement Bill, 
which has been signed into law. It also 
passed the Bankruptcy Reform bill, 



tjHiiiULt 



which was subsequently vetoed by 
the President. Finally, in the last 
hours of the 106 th Congress, a bill to 
modify the affect of the Lexecon 
decision was passed by the House 
and sent to the Senate. However, the 
Senate adjourned without taking 
action on the bill. 

"After several months of uncer- 
tainty, the final passage of the 
Judiciary's budget and the prospect 
of a well-deserved cost-of-living 
increase for our federal judges in the 
New Year is welcome news," said 
Administrative Office Director 
Leonidas Ralph Mecham. "Many 
h federal judges, in particular 
Judge John G. Heyburn and 
his Judicial Conference 

Budget Commit- 
tee, with Chief 
Justice William 
Rehnquist 
stepping in 
during the 
critical end 
game, as well as 
Administrative 
Office staff, 
fought what at times may have 
seemed an uphill battle to deliver our 
budgetary message to Congress. In 
fact, before the House and Senate 
conference on our budget, we faced 
significant shortages in our appro- 
See Budget on page 2 





Vol. 32 

Number II 
December 2000 



Judiciary Seeks Comment on Internet Privacy pg. 4 

FAS 4 T Changing Courts pg. 6 

Judge Nangle Steps Down From Panel pg. 10 



Federal Courts 
Improvement Act ot 2000 
Becomes Law 

The Federal Courts Improve- 
ment Act of 2000 was signed into 
law as Public Law 106-518 by 
President Clinton on November 
13. In addition to provisions 
enhancing the Judiciary's effec- 
tiveness and efficiency, the Act is 
notable for a provision it does not 
contain. The act was passed by 
Congress without a provision that 
would have allowed cameras in 
courtrooms with the consent of all 
parties. The House version of the 
Federal Courts Improvement Act, 
H.R. 1752, included the provision. 
The Senate version, S. 2915, did 
not. 

At a hearing on S. 721, a sepa- 
rate bill to allow cameras in 
courtrooms, Chief Judge Edward 
R. Becker (3 rd Cir.) expressed the 
Judiciary's strong opposition to 
cameras in the courtroom, and the 
chairman of the Senate Judiciary 
Committee, Senator Orrin Hatch 
(R-UT). 

In the House, Representative 
Howard Coble^nhlCL chair of 
the House Judiciary Subcbrnmit- 
tee on Courts and Intellectual 
Property, co-sponsored HTR.'1752, 
with ranldri^Mfe^lnru^t^.iii em " 
berHow-ard L. Berman (D-CA), 

See-AetotLpiige.3 



Budget continued from page 1 

priation. The fight for a COLA for 
judges also was on-going, and the 
outcome was frequently in doubt. 
However, I'm happy to report 
success on both fronts. In addition, 
the Judiciary begins 2001 with 
sufficient funding in our Salaries and 
Expenses appropriations account to 
fully implement the new staffing 
formulas approved by the Judicial 
Conference in September, effectively 
lifting a two-year freeze on new 
staffing." 

The Judiciary's Budget 

Three months into the 2001 fiscal 
year, the Judiciary still was being 
funded through continuing resolu- 
tions — 21 in all. The CRs give bud- 
getary authority at FY 2000 levels to 
federal departments and programs 
until regular appropriations bills 
are enacted. Despite talk among a 
few conservatives of yet another 
continuing resolution lasting until 
September 2001, in the end Congress 
passed, and sent to the President, 
the remaining appropriations bills. 
H.R. 4942 funds the Judiciary at the 
House-Senate conference report 
levels of $4.3 billion, less a .22 
percent (.0022) government-wide 
rescission. The final levels amount 
to an 8 percent increase over FY 2000 
appropriations. For the Salaries and 
Expenses account, appropriations 
provided are sufficient to fully fund 
the court allotments approved in the 
interim financial plan by the Execu- 
tive Committee in September. 
Nationally, court allotments grew by 
14 percent over FY 2000 allotments 
and provide for 1,559 new court 
support staff. Fees of Jurors is fully 
funded for 2001, and the appropri- 
ated funds for Defender Services is 
sufficient to fund federal defender 
organization needs and a $5 rate 
increase to $75 in-court and $55 
out-of-court per hour for panel 
attorneys, effective later in the new 
year. Court Security, however, is 
underfunded by about $16 million, 



and the appropriations allow 
for only current services for 
the Administrative Office and 
the Federal Judicial Center. As 
this newsletter went to press, 
President Clinton had not yet 
signed H.R. 4942, but he 
promised that he would. 



New Judgeships 



District 



Authorized 
in H.R. 4942 



Judicial Pay 

The Commerce, Justice, 
State, the Judiciary and 
Related Agencies appropria- 
tions bill contained the 
required waiver of section 140 
of P.L. 97-92, clearing the way 
for judges to receive a 2.7 percent 
Employment Cost Index (ECI) 
adjustment along with members of 
Congress and Executive Schedule 
employees on January 1, 2001. 
Annual cost-of-living adjustments 
are automatic for Members of 
Congress and Executive Schedule 
government employees unless 
legislation denying the increase is 
passed. 

This will be the first election year 
ECI since 1992. Judges will have 
received ECI increases in 3 of the 
past 4 years, following a period of 4 
years in which there were no in- 
creases. 



Arizona 

Southern District of Florida 

Eastern District of Kentucky 

New Mexico 

Nevada 

South Carolina 

Southern District of Texas 

Western District of Texas 

Eastern District of Virginia 

Eastern District of Wisconsin 



Revised Pay Rates as o! January 1, 2001 


Chief Justice 


$186,300 


Associate Justices 


$178,300 


Circuit Judges 


$153,900 


District Judges 


$145,100 


Judges, U.S. Court of 




International Trade 


$145,100 


Judges, U.S. Court of 




Federal Claims 


$145,100 


Bankruptcy Judges 


$133,492 


Magistrate Judges 




(Full-Time) 


$133,492 



Judgeships 

The Commerce, Justice, State 
appropriations bill also included a 



provision creating 10 new district 
court judgeships. In July, the Judicial 
Conference transmitted to Congress a 
revised request for six permanent 
judgeships and four temporary 
judgeships for the courts of appeals 
and 30 permanent district judgeships 
and 23 temporary district judgeships. 
The Conference also recommended 
that seven temporary district judge- 
ships be made permanent and that 
one be extended. On September 19, 
2000, Senators Orrin Hatch (R-UT) 
and Patrick Leahy (D-VT) introduced 
the Judicial Conference proposal as 
S. 3071, but that bill failed to move in 
the 106 th Congress. Congress last 
created new judgeships in 1999, inclu- 
ding 9 in the omnibus appropriations 
bill. These were the first since the 
Judgeship Act of 1990 was passed. 

Courthouses 

The Treasury, Postal Services 
appropriations bill, included in the 
final omnibus appropriations bill, 
contains $559 million in funding for 
eight new courthouse construction 
projects, four in fiscal year 2001 and 
four more in 2002. The 2001 court- 
houses are in Los Angeles, Califor- 
nia; Seattle, Washington; Richmond, 
Virginia; and Gulfport, Mississippi. 
Funding for four more courthouse 
projects in Washington, D.C.; Buffalo, 
New York; Springfield, Massachu- 
setts; and Miami, Horida, is also 

See Budget on page 9 



The Third Branch 



December 2000 



Act continued from page I 

and held hearings before his sub- 
committee at which Judge Harvey 
Schlesinger (M.D. Fla.), chair of the 
Judicial Conference Committee on 
the Administration of the Magistrate 
Judges System, testified. Magistrate 
Judges Joel B. Rosen (D. NJ) and 
Robert B. Collings (D. Mass.), of the 
Federal Magistrate Judges Associa- 
tion, also testified in support of the 
Judiciary's position. 

The House passed H.R. 1752 in 
May, 2000. In July 2000, Senator 
Charles E. Grassley (R-IA) intro- 
duced S. 2915, which was passed by 
the Senate on October 19. That bill 
was passed by the House with 
modifications on October 25, 2000 
and returned to the Senate, where it 
passed October 27, 2000. It was then 
sent on to the White House, and the 
President signed the bill into law as 
P.L. 106-518. 

P.L. 106-518 broadens the author- 
ity of magistrate judges by 

■ Expanding their civil and criminal 
contempt authority. Magistrate 
judges now may punish by fine or 
imprisonment any misbehavior 
occurring in their presence, and they 
also have been given additional civil 
and criminal contempt authority in 
civil consent and misdemeanor cases. 
The provision limits the penalties 
imposed, but provides the authority 
for magistrate judges to maintain 
order in their courtrooms and to 
enforce their orders. 

■ Eliminating the requirement that a 
defendant consent to the authority of 
a magistrate judge in Class B misde- 
meanor cases that do not involve a 
motor vehicle offense. Previously, 
the consent of the defendant was not 
required in Class B misdemeanor 
cases charging a motor vehicle 
offense, Class C misdemeanor cases, 
and infractions. The consent of the 
defendant was required in all other 
Class B misdemeanor cases. Under 
the new law, consent is not required 
in any petty offense cases. 




Senator Charles E. Grassley (R-IA) 

■ Permitting magistrate judges to 
preside over Class A misdemeanor 
cases that involve juvenile defendants 
and to provide magistrate judges 
with the authority to sentence 
juvenile defendants to terms of im- 
prisonment in misdemeanor cases. 
With this amendment, magistrate 
judges now have the same authority 
over juvenile defendants as they have 
over adult defendants, i.e., they may 
preside in petty offense cases without 
the defendant's consent, and they 
may preside in Class A misdemeanor 
cases with the defendant's consent. 

The enacted legislation also will 
allow the establishment of magistrate 
judge positions in the district courts 
of Guam and the Northern Mariana 
Islands and allow senior judges to 
participate in circuit judicial coun- 
cils. In addition, the act gives the 
Director of the Administrative Office 
authority to appoint certifying offi- 
cials in court units, which will aid the 
implementation of a Judiciary-wide 
financial accounting system. 

Among other changes in bank- 
ruptcy court proceedings, P.L. 106- 
518 will 

■ Increase certain bankruptcy fees, 
increasing the fee for filing bank- 
ruptcy petitions under chapter 9 
from $300 to $800 and make the fees 
for converting a chapter 7 or chapter 



Representative Howard Coble (R-NC) 

13 bankruptcy case to chapter 11 
equal to the filing fee for chapter 11. 

■ Make permanent the statutory 
authority for bankruptcy administra- 
tors in Alabama and North Carolina. 

In court operations, the Federal 
Courts Improvement Act of 2000 
permits the chief judge to authorize 
the clerk of the court, under the supe- 
rvision of the court, and if provided 
for in the court's jury selection plan, 
to determine whether persons are 
qualified, unqualified, exempt, or 
excused from jury service. Before this 
change, the Jury Act required the 
chief judge, or a designated judge, to 
make this determination. 

P.L. 106-518 amended the Crimi- 
nal Justice Act (CJA), effective No- 
vember 13, 2000, to increase the case 
compensation maximum amounts for 
panel attorneys. If any representa- 
tional services were provided on or 
after November 13, 2000, the new case 
maximums apply to the entire repre- 
sentation, including services per- 
formed before that date. If all repre- 
sentational services were completed 
before November 13, 2000, the former 
case maximums apply. Panel attor- 
neys now also may be reimbursed for 
expenses reasonably incurred in 
defending against actions alleging 
malpractice in furnishing representa- 
tional services under the CJA. £». 



The Third Brunch 



December 2000 



Judiciary Asks For Comment on Issue of Internet Privacy 



Case files, long presumed to be 
open for public inspection and 
copying unless sealed by court order, 
often contain private or sensitive 
information. As federal courts make 
the transition from paper to elec- 
tronic case files, the Judicial Confer- 
ence is studying the privacy and 
security implications of what will be 
vastly wider public access. 

As part of that study, public 
comment is being sought. 

Creation of electronic files, already 
begun in some federal courts, is part 
of a new system called Case Manage- 
ment/Electric Case Files (or CM/ 
ECF). The system gives each court 
the option to allow lawyers and 
parties to file their documents over 
the Internet. 

The courts plan to provide public 
access to those electronic files, prima- 
rily through a web-based Public 
Access to Court Electronic Records 
(PACER). That means court files, not 
just docket sheets, soon may be 
viewed, printed or downloaded, for 7 
cents an Internet page, by anyone at 
any time through the Internet. 

The new technology has sparked 
the Judiciary's review of its public- 
access policies. 

Bankruptcy debtors must divulge 
intimate details of their financial 
affairs. In other courts, case files may 
contain medical records, personnel 
files, tax returns or proprietary 
information. Should electronic case 
files be protected from unlimited 
public disclosure, or should they be 
treated the same as paper files? What 
should be the Judiciary's response to 
the growing ability to obtain court 
documents without being physically 
present at a courthouse? 

What is the appropriate scope of 
judicial branch action, if any, on 
these issues? 

"The Judiciary has recognized that 
it would be appropriate to con- 
sciously formulate a policy in order 



to formally consider whether or not 
this ease of access should alter the 
traditional presumption of open- 
ness," said Judge John W. Lungstrum 
(D. Kan.). He chairs the Conference 
Subcommittee on Privacy and 
Electronic Access to Case Files. 

"Public comment is being sought 
precisely because this study involves 
formulation of a policy that directly 
implicates the interests of the pub- 
lic," Lungstrum said. "Potential 
litigants and attorneys, the media, 
and those who have a commercial 
interest in the content of court 
records, for example, all have a stake 
in the process." 

"Although the subcommittee thus 
far has received considerable input 
from privacy experts, academics, and 
government agencies, the benefits of 
providing the public at large a forum 
to comment are considerable," he 
added. "The Judiciary faces a 
sensitive and very important policy 
decision, and it believes that the 
decision should be based on as wide 
ranging and open a process as 
possible." 

Various policy options may be 
recommended for Conference 
consideration. 

For civil case files, the subcommit- 
tee led by Lungstrum has included 
these for public comment: 

■ Maintain the presumption that all 
filed documents that are not ordered 
sealed are available both at the 
courthouse and electronically. 

Lawyers and pro-se litigants 
would have to protect their interests 
on a case-by-case basis through 
motions to seal specific documents, 
or through motions to exclude 
certain documents from electronic 
availability. Judges would have the 
discretion to protect privacy and 
security interests. 

■ Define what documents should be 
included in the "public file" acces- 



sible either at the courthouse or 
electronically. 

Paper and electronic access would 
be treated equally, with an assump- 
tion that specific sensitive informa- 
tion would be excluded from public 
access. The challenge would be in 
defining what information should be 
included in the public file and what 
information should be omitted. 

■ Establish "levels of access" to 
certain electronic case file informa- 
tion. 

Software would be used to restrict 
electronic access to certain docu- 
ments, triggered either by the identity 
of the individual seeking access or 
the nature of the documents to which 
access is sought, or both. Judges, 
court staff, parties, and counsel 
would have unlimited remote access 
to all electronic case files. 

■ Seek an amendment to one or 
more of the Federal Rules of Civil 
Procedure to account for privacy and 
security interests. 

For criminal case files, these 
options may be recommended: 

■ Do not provide any electronic 
public access. 

This approach would exclude 
criminal case files from the ECF 
component of the new CM/ECF 
system based on highly sensitive 
information in these files. Some may 
feel that any legitimate need for 
electronic access to criminal case 
information is outweighed by safety 
and security concerns. For example, 
co-defendants would have easy 
access to information about a 
defendant's cooperation, potentially 
leading to intimidation and harass- 
ment. Access to preliminary criminal 
information, such as warrants or 
indictments, could severely hamper 
law enforcement and prosecution 
efforts. 



4 



The Third Branch 



December 2000 



■ Provide limited electronic public 
access to criminal case tiles. 

This approach would restrict 

access to such documents as plea 
agreements, unexecuted warrants, 
certain pre-indictment information 
and presentence reports. 

These options may be considered 
for bankruptcy case files: 

■ Seek an amendment to Section 107 
of the Bankruptcy Code. 

Federal law currently requires 
access to all material filed with 
bankruptcy courts and gives judges 
limited sealing authority. One option 
is amending the law to specify that 
only "parties in interest" may obtain 
access to certain information and to 
let judges provide protection from 
disclosures based on privacy and 
security concerns. 

■ Require less information on 
petitions or schedules and state- 
ments. 

■ Restrict use of Social Security, 
credit card and other account 
numbers. 

■ Segregate certain sensitive infor- 
mation from the public file by 
collecting it on separate forms that 
will be protected from unlimited 
public access and made available 
only to the courts, to the U.S. trustees 
and to parties in interest. 

These options may be recom- 
mended for appellate cases: 

■ Apply the same access rules to 
appellate courts that apply to trial 
courts. 

■ Treat documents that were sealed 
or restricted at the trial level with 
the same protections at the appellate 
level, subject to a party's appeal of 
such treatment in the appellate 
court. 

Under the subcommittee's aegis, 
a web site has been created to detail 
the various possible options and to 



receive feedback from the public. 

Comments can be submitted up to 
5 p.m., January 26, 2001. All must 
include the name, mailing address 
and phone number of the commen- 
tator. 

Electronic comments, highly 
encouraged, may be submitted to 
www.privacy.uscourts.gov or e- 
mailed to Privacy_Policy_Com- 
ments@ao.uscourts.gov^ 

Regular mail should be addressed 
to the Administrative Office of the 
U.S. Courts, Court Administration 
Policy Staff, Attn: Privacy Com- 
ments, Suite 4-560, Thurgood 



Marshall Federal judiciary Building, 
Washington, D.C, 20544. 

Commentators .ilso have been 
asked to indicate whether they are 
interested in participating in a public 
hearing, if one is held. Would-be com- 
mentators were told, however, that it 
may not be possible to honor all re- 
quests to speak at any such hearing. 

After public comment is received, 
four Judicial Conference commit- 
tees will review it and continue 
their considerations of appropriate 
policy. The Conference could ad- 
dress the matter at its September 
2001 meeting. &s. 




Judiciary Issues High on FBA List 

Leaders of the Federal Bar Association visited the Administrative 
Office this month to discuss issues of mutual interest to the association 
and the Judiciary. The FBA has been a strong supporter of improved 
judicial pay, community outreach, courthouse construction funding, and 
other related areas. Left to right are Jack D. Lockridge, Executive Director 
of the FBA; Robert A. McNew, FBA President; Bruce L. Moyer, Director of 
Government Relations for the FBA; Steve Tevlowitz of the Administrative 
Office who staffs the Judicial Conference Committee on the Judicial 
Branch; and AO Director Leonidas Ralph Mecham. 



77/e Third Branch 



December 2000 



Financial Accounting Package for Tomorrow Changes Courts Today 



Over the next four years, fed- 
eral courts across the country will 
scrap a variety of financial sys- 
tems. In their place, the courts will 
put a single financial accounting 
system that can provide consis- 
tent, reliable, 
auditable, and 
timely financial 
data. All 94 
district courts — 
over 400 court 
units — are slated 
to have the new 
system up and 
running before 
June 2004. By 
February, 24 
districts and one 
court of appeals 
will use the 
system that 
appropriately 
has been dubbed 
FAS 4 T, the 
Financial Ac- 
counting System 
for Tomorrow. 

The District of 
South Carolina 
went live with 
FAS 4 T in October 
1999. The 
transition to the 
new system went 
well, according 

to Bankruptcy Court Clerk Brenda 
Argoe, who has found much to like 
about FAS 4 T. "On our old system, if 
you wanted to place an order, or 
audit a budget line item, you had to 
find a stand-alone terminal and 
check the records. Now, I don't have 
to wait for the paper copy to reach 
me or even leave my desk. I can 
approve vouchers and purchase 
orders right at my terminal and 
electronically send them on to the 
district clerk's office. We have a 
tracking mechanism for receivables, 
and we can respond to inquires on 



the budget. For us, FAS 4 T has been 
good." 

The ultimate goal of FAS 4 T is 
better financial management. All the 
courts on FAS 4 T will interface with 
the Administrative Office's central 




FAS 4 T is improving accountability, reducing 
duplicate data entry, eliminating redundant 
systems, and moving the courts towards a 
paperless system. 



accounting system, which will allow 
prompt and accurate budget analy- 
sis and accountability. It is a finan- 
cial accounting package that eases 
reporting and record-keeping and 
integrates well with other court 
systems. Eventually, rather than 
just consolidating and reconciling 
data, financial managers will have 
the tools to analyze performance, 



predict program trends, and obtain 
timely operating data — all of which 
will improve decision-making and 
result in the optimal use of resources. 
District of Maine Magistrate Judge 
and Clerk of Court Bill Brownell 
recalls his initial 
concerns that the 
automated FAS 4 T 
might overwhelm 
court staff. "We 
were a manual cour 
that did all our 
financial work on 
paper ledgers. But 
FAS 4 T is saving us 
time with our 
procurement work, 
as well as our 
budget work. Once 
we enter the data for 
a purchase order 
there's very little 
paperwork to do. 
FAS 4 T can show 
what checks have 
been processed and 
outstanding pur- 
chase orders. From 
the perspective of 
a small, manual 
court, we're very 
happy," Brownell 
said. 

The bankruptcy 
court in the Western 
District of New York, where Mary 
Ann Fanning is financial administra- 
tor, was one of the earliest courts to 
implement FAS 4 T. "The best aspect 
of the financial system is the unifor- 
mity," said Fanning. "Before, all the 
courts had different ways of doing 
things. On FAS 4 T, everyone will 
be doing the same thing across the 
country." In addition to uniformity, 
Fanning has found that FAS 4 T offers 
other advantages to her court. 
"Because it's all electronic now, there 
are more eyes checking the procure- 
ments or accounts payable — and its 



The Third Branch 



December 2000 



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not taking Longer. Eventually, this 
system should replace all inn- 
paper." she said. 

One monthly report already has 
been eliminated in paper form in the 
bankruptcy court for North Dakota, 
which went live with the system in 
May 2000. Dianne Schmitz, Chief 
Deputy Bankruptcy Clerk for the 
court, sees FAS 4 T supporting a 
standardized process throughout the 
courts and creating consistency in 
financial practices. She hopes this 
will lead to standardized financial 
reports. "FAS 4 T meets established 
financial regulations and require- 
ments, and it enables a court to 
move toward electronic funds 
transfer, for a truly paperless court. 
But its real beauty," said Schmitz, "is 
that FAS 4 T lets the court maintain 
and enforce internal controls and 
accountability." 

FAS 4 T is a government financial 
system that passes the General 
Services Administration's rigorous 
testing for certified compliance with 
the Joint Financial Management 
Improvement Program's core 
financial standards, and it makes the 
Judiciary compliant with the require- 
ments of the U.S. Treasury and 
General Accounting Office. It 
strengthens internal controls and 
provides information to manage 
locally and report at a national level. 
It also provides an audit trail that 
conforms to generally accepted 
government accounting principles 
and practices. 

From a central accounting per- 
spective, FAS 4 T will eliminate 
numerous inefficient processes, 
redundant systems, duplicate data 
entry and accompanying recon- 
ciliations. Over half the courts 
submit paper reports and transac- 
tions monthly to the AO that must 
be entered manually into the central 
accounting system. FAS 4 T will 
eliminate these inefficiencies. "Be- 
fore FAS 4 T, data needed to be re- 
keyed into the system by the AO 
after the district courts already had 



entered the information," said 
Chief Probation Officer ( Line 
Cooper, in the District of Maine. "If 
there was a mistake, you manually 
had to go back through the bills and 
vouchers to find it. There are fewer 
human errors with FAS 4 T because 
the AO doesn't have to re-enter the 
data from the district court. We also 
won't need to run copies of support- 
ing documentation to be sent to the 
district court." 

Bill Blevins, Bankruptcy Clerk for 
the Eastern and Western Districts 
of Arkansas, agrees that FAS 4 T has 
cut down on the sometimes endless 
paper shuffling. "We've been able 
to cut out a lot of the repetitive 
paperwork," said Blevins. "You 
sign a voucher or a purchase order 
once, and it's processed. Then I can 
get right on FAS 4 T to check its 
progress." 

Unlike other financial systems 
used by the courts, FAS 4 T interfaces 
with the Judiciary's jury manage- 
ment system, central accounting 
system, and soon will interface with 
the integrated library system. 
Eventually, it also will be compatible 
with the Case Management/Elec- 
tronic Case Filing system now being 
adopted by federal courts. However, 
making the change to FAS 4 T, much 
less taking advantage of all its 
components, can be a daunting 
prospect without help. That has been 
taken care of, too. 

"The AO listened to suggestions 
from the courts for improving FAS 4 T 
and also for streamlining the tran- 
sition process," said James 
McCormack, District Clerk for the 
Eastern District of Arkansas, whose 
court went live with FAS 4 T in May 
2000. "For us, it was a pretty seam- 
less transition," McCormack said. 
"Of course, we did our home- 
work, verified what we could, and 
talked to people in courts who were 
actually using FAS 4 T. And, our 
mentor court, Arizona, just did a 
great job." 

All courts adopting FAS 4 T now 



have mentors to help them courts 

th, it already are using the system 
Financial administrators from 
mentoring courts spend time .it 
transitioning courts. "The mentor- 
ing aspect of FAS|T is critical," said 
Argoe, whose court has mentored 
two other courts. "The mentors 
understand how court business 
runs, and they can tell a new court 
how they deal with issues and 
problems." Brownell agrees. His 
court is now mentoring the Dis- 
trict Court for the District of Colum- 
bia. "The mentoring process is 
invaluable," said Brownell. "When 
our mentoring court's staff arrived 
at our court, they showed us how 
to use FAS 4 T in real life, along with 
the short cuts they'd found and 
how to get the most out of the 
system." 

Clearly, courts that have adopted 
FAS4T appreciate the system's 
advantages, and it may be a compli- 
ment to the flexibility of the system 
that they are now suggesting fur- 
ther enhancements to the package. 
FAS 4 T users have recommended 
that future versions expand report 
writing capabilities, and add civil 
and criminal accounting modules, 
modules that track cash functions, 
and connectivity to web-based 
systems. According to Phil 
McKinney, chief of the AO's Ac- 
counting and Financial Systems 
Division, who has overseen the 
development and implementation 
of FAS 4 T, enhancements are down 
the line. A FAS 4 T user group has 
been formed to advise on functional 
and operations issues, and a soft- 
ware review board also has been 
established. These groups will 
provide a forum for information 
exchange among the courts and 
help prioritize recommended 
improvements to the software. Bill 
Blevins summarized the anticipa- 
tion neatly. "We have our founda- 
tion," said Blevins. "Now we can 
focus on what else we want to 
accomplish." £»^ 



The Third Branch 



December 2000 



JUDICIAL MILESTONES 



Appointed: Dennis M. Cavanaugh, as 
U.S. District Judge, U.S. District Court for 
the District of New Jersey, September 20. 

Appointed: Susan R. Bolton, as U.S. 
District Judge, U.S. District Court for the 
District of Arizona, October 20. 

Appointed: Michael J. Reagan, as U.S. 
District Judge, U.S. District Court for the 
Southern District of Illinois, October 23. 

Appointed: James A. Teilborg, as U.S. 
District Judge, U.S. District Court for the 
District of Arizona, October 17. 

Appointed: James K. Coachys, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy Court 
for the Southern District of Indiana, 
October 1. 

Appointed: Allan L. Gropper, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy Court 
for the Southern District of New York, 
October 4. 

Appointed: Adriana Arce-Flores, as U.S. 
Magistrate Judge, U.S. District Court for 
the Southern District of Texas, October 10. 

Appointed: Ellen S. Carmody, as U.S. 
Magistrate Judge, U.S. District Court for 
the Western District of Michigan, October 
10. 

Appointed: Stephen G. Larson, as U.S. 
Magistrate Judge, U.S. District Court for 
Central District of California, October 2. 

Appointed: F. Bradford Stillman, as U.S. 
Magistrate Judge, U.S. District Court for 
the Eastern District of Virginia, October 1. 

Appointed: Bernardo P. Velasco, as U.S. 
Magistrate Judge, U.S. District Court for 
the District of Arizona, September 29. 

Appointed: Anthony R. Mautone, as U.S. 
Magistrate Judge, U.S. District Court for 
the District of New Jersey, October 12. 

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

Elevated: Judge Joseph F. Anderson, Jr., 

to Chief Judge, U.S. District Court for the 
District of South Carolina, succeeding 
Judge C. Weston Houck, October 1. 

Elevated: Judge Glen H. Davidson, to 

Chief Judge, U.S. District Court for the 



Northern District of Mississippi, succeed- 
ing Judge Neal Biggers, October 2. 

Elevated: Judge G. Patrick Murphy, to 

Chief Judge, U.S. District Court for the 
Southern District of Illinois, succeeding 
Judge J. Phil Gilbert, October 3. 

Elevated: Judge Fred Van Sickle, to Chief 
Judge, U.S. District Court for the Eastern 
District of Washington, succeeding Judge 
Wm. Fremming Nielson, September 1. 

Elevated: Bankruptcy Judge Gregory F. 
Kishel, to Chief Bankruptcy Judge, U.S. 
Bankruptcy Court for the District of 
Minnesota, succeeding Judge Dennis D. 
O'Brien, October 1. 

Senior Status: Chief Judge Neal Biggers, 

U.S. District Court for the Northern 
District of Mississippi, October 1 

Senior Status: U.S. Court of Appeals 
Judge James R. Browning, U.S. Court 
of Appeals for the Ninth Circuit, Septem- 
ber 1. 

Senior Status: Judge John E. Conway, 

U.S. District Court for District of New 
Mexico, September 1. 

Senior Status: Judge Patrick J. Duggan, 

U.S. District Court for the Eastern District 
of Michigan, September 29. 

Senior Status: Court of Appeals Judge 
Ralph K. Winter, Jr., U.S. Court of 
Appeals for the Second Circuit, Septem- 
ber 30. 

Senior Status: Judge Alfred M. Wolin, 

U.S. District Court for the District of New 
Jersey, September 18. 

Deceased: Senior Court of Appeals 
Judge Wilbur F. Pell, Jr., U.S. Court of 
Appeals for the Seventh Circuit, Septem- 
ber 25. 

Deceased: Senior Judge Halbert O. 
Woodward, U.S. District Court for the 
Northern District of Texas, October 3. 

Deceased: Bankruptcy Judge Joseph W. 
Hedrick, Jr., U.S. Bankruptcy Court for 
the Eastern District of California, 
September 23. 

Deceased: Magistrate Judge Robert B. 
O'Connor, U.S. District Court for the 
Western District of Texas, September 26. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

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

DIRECTOR 
Leonidas Ralph Mecham 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 



As of December 1, 2000 



Courts of Appeals 




Vacancies 


25 


Nominees 


17 


District Courts 




Vacancies 


42 


Nominees 


24 



Courts with 

"Judicial Emergencies" 22 



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



The Third Branch m December 2000 



Judiciary Loses Last 
of Truman Appointees 

The last of the federal judges 
appointed by President Harry S. 
Truman died this year. During his 
administration, 1945-1952, Harry S. 
Truman appointed 142 federal 
judges. Judge David N. Edelstein, in 
the District Court for the Southern 
District of New York, and Judge 
Seybourn H. Lynne, in the District 
Court for the Northern District of 
Alabama, were the last two active 
judges appointed in the Truman 
years. Edelstein, who was nominated 
in 1951 and confirmed by the Senate 
in 1952, died in August at the age of 
90. Lynne died in September at the 
age of 93. He was appointed in 1946. 

Their "class" included four 
Supreme Court justices, Chief Justice 
Frederick Vinson, Justice Harold H. 
Burton, Justice Tom C. Clark, and 
Justice Sherman Minton; Judge 
William Henry Hastie (3 rd Cir.), the 
first African American appointed to 
the federal bench; and Judges Richard 
Taylor Rives (5 th & 11 th ) and James 
Skelly Wright (E. D. La.), who were 




Judge David N. Edelstein 



Judge Seybourn H. Lynne 



instrumental in the advancement of 
civil rights in the South. Lynne also 
was one of the Southern judges who 
broke ground in the civil rights 
movement. He wrote the opinion in 
1963 that prevented then-Governor 
George Wallace from barring African 
Americans from the University of 
Alabama, and which brought the 
country Wallace's symbolic stand in 
the schoolhouse door. Well loved 
and respected in Decatur, at Lynne's 
death a former clerk told the Bir- 
mingham News that Lynne not only 
knew the names of his 40 past law 
clerks, their spouses, and their 
children, he also knew their birth 



dates. The federal courthouse in 
Decatur, Alabama, is named for him. 

Edelstein also was no stranger to 
controversy. He presided over the 
government's antitrust case against 
IBM — a case that took some 43 years. 
He was involved in the equally con- 
tentious government case against the 
International Brotherhood of Team- 
sters and the subsequent supervision 
of the union. An Associated Press 
story at the time of his death re- 
counts that when several wholesale 
bakers were convicted of price- 
fixing, he ordered them to provide 
the needy with $1,200 worth of free 
food each week for two years, ^v^ 



Budget continued from page 2 
appropriated in the bill but cannot be 
obligated until fiscal year 2002. The 
bill also includes funding in the com- 
ing year for repairs and alterations 
on nearly a dozen courthouse 
projects. 

Bankruptcy Retorm Bill 

One piece of legislation of interest 
to the Judiciary to be passed by 
Congress in its lame duck session 
also was packed with provisions 
some of which were opposed by the 
Judicial Conference. In early Decem- 
ber, the Senate passed the Bank- 
ruptcy Reform Act of 1999, H.R. 
2415, and sent the bill to the White 
House. The House had passed the 
bill in October and sent it on to the 



Senate for its consideration. On the 
plus side, the bill included 23 new 
bankruptcy judgeships and extended 
the terms of five existing temporary 
judgeships. The Judicial Conference 
had recommended the creation of 24 
new bankruptcy judgeships, conver- 
sion of two temporary judgeships to 
permanent judgeships, and extension 
of the terms of three other existing 
temporary judgeships. 

The bill contains several provisions 
the Conference opposes. Among 
these are provisions that would allow 
direct appeals to circuit courts from 
the decisions of bankruptcy judges; 
impose a duty upon bankruptcy 
clerks to maintain tax returns filed 
by debtors; impose a duty upon bank- 
ruptcy clerks and the Administrative 



Office to collect statistical data from 
bankruptcy filings and report such 
data to Congress; and revise filing 
fees in chapter 7 and chapter 13 cases 
and reduce by approximately $25 
million over five years that portion 
of the revenue generated by such 
fees that is allocated to the Judiciary 
under current law. These provisions 
were included in the final bill despite 
appeals by Administrative Office 
Director Leonidas Ralph Mecham, a 
letter voicing strong opposition from 
the chief judges of 11 of the circuit 
courts of appeals, and efforts by AO 
staff to communicate Conference 
concerns to Hill staff. 

The President pocket-vetoed the 
bill, thus defeating the legislation for 
the 106 th Congress. £v^ 



The Third Branch 



December 2000 



INTERVIEW 



Panel's Long-lime Chair Steps Down 



Judge John F. Nangle was appointed to 
the U.S. District Court for the Eastern 
District of Missouri in 1973. He stepped 
down as chair of the Judicial Panel On 
Multidistrict Litigation in December. 

Q # You've served as the chair- 
• man of the Judicial Panel on 
Multidistrict Litigation since 1990. 
What are the panel's statutory 
responsibilities? 

A # The Panel's current responsi- 
• bilities arise under 28 USC 
§ 1407. The need for having one dis- 
trict judge preside over, in one docket, 
a number of cases that had been filed 
in numerous district courts around 
the country became apparent in 1968. 
At that time, a large number of 
electrical equipment cases had been 
filed in many districts around the 
country. Circuit Judge Murrah and 
other leading jurists persuaded 
Congress that the centralization of 
such cases before one judge was truly 
necessary, especially in complex civil 
litigation. As a result, § 1407 was 
enacted granting the Panel, in civil 
cases, authority to centralize, before 
one transferee judge, cases from 
various districts around the country 
which involved one or more common 
questions of fact. 



Q 



How does the Panel carry 
out those responsibilities? 



A # Normally, matters are 
• brought before the Panel by 
motion of one or more of the parties 
in such litigation. The Panel rules set 
out the procedure for briefing, hold- 
ing hearings, and deciding on the 
question of whether or not centraliza- 
tion of such cases is appropriate. In 
handling these dockets, the Panel 



holds hearings every two months. 
The docket, at such hearings, may 
cover from 15 to 25 contested 
matters. Usually, each such docket 
contains a large number of cases 
within it. As of September 2000, over 
161,000 actions were subjected to 
§ 1407 determinations. These dockets 
may include antitrust matters, secur- 
ity fraud cases, product liability cases, 
major airplane crashes, and patent 
litigation, just to name a few of the 
subjects. 



Q # What are some of the other 
• notable complex cases that 
have come before your Panel? 

A # The asbestos cases are the 
• best-known cases that we 
have centralized. This was done by 
the Panel in 1991 after prior Panels 
on five occasions had refused to cen- 
tralize such cases. As Panel chairman, 
I had been contacted by a number of 
federal judges around the country who 
were deeply concerned about the 
large volume of asbestos cases being 
filed in their districts. Accordingly, 
the Panel, acting with its sua sponte 
power, set a special all-day hearing 
for all the parties involved. We, there- 
after, determined to centralize all of 
the asbestos cases before Judge Weiner 
in the Eastern District of Pennsylva- 
nia. Since accepting this assignment, 
Judge Weiner has performed exceed- 
ingly well in the handling of this mas- 
sive caseload — he has been able to 
keep to a minimum the corporations 
involved from going into bankruptcy, 
while at the same time assuring the 
plaintiffs with the most serious cases 
a fair and speedy resolution of their 
case. Some plaintiffs' lawyers have 
not been overjoyed with this proce- 
dure because their individual cases 



, 


V ™ 








># 



Judge John F. Nangle 



may not have proceeded as quickly 
as the more serious cases. On the 
other hand, Judge Weiner has 
miraculously disposed of approxi- 
mately 63,500 separate cases, which 
translates into over 5,000,000 sepa- 
rate claims. 

Other significant complex docket 
would include the silicon gel breast 
implant cases, the Michael Milken/ 
Drexel Burnham cases, the Keating 
Savings and Loan cases, and major 
airplane crashes such as Flight 800 
off Long Island, the airplane crash u 
which Secretary of Commerce Ron 
Brown died in Croatia, the Valujet 
crash in the Florida Everglades, and 
the recent Swissair crash near Nova 
Scotia. 

More recently, we have considerei 
and transferred the Bridgestone/ 
Firestone /Ford cases, the Phen-Fen 
cases, the Humana HMO cases, the 
Microsoft civil cases, and Holocaust 
cases in their many forms. 



Q # Could you describe some of 
• the advantages of centraliz- 
ing a group of cases before one judg 

A # In a situation where a 
• number of complex civil 
cases have been filed in various 
districts around the country, which 



10 



The Third Branch 



December 2000 



cases contain common questions of 
fact (and law), it is obvious that such 
cases can be best handled by one 
judge. This judge can control discov- 
ery, rule on motions to dismiss and 
motions for summary judgment, and 
organize the case much more eco- 
nomically than 10 or 15 judges could 
do. He will have one document 
depository, avoid duplicative 
depositions and other discovery 
measures, and, importantly, avoid 
the distinct possibility of having 
conflicting decisions in separate 
circuits if the cases are not centralized. 



Q # How has the Panel's choice 
• of transferee district evolved 
since 1990? 

A # The Ford /Firestone cases 
• may be a good example of 
how the Panel's choice of district has 
developed during my term. Let's say 
cases were filed in several districts, 
including California-Northern, 
Illinois-Northern, and New York- 
Southern. Previously, the Panel likely 
would have assigned the cases to one 
of the three named districts because 
perhaps one of them had more 
documents, or the company being 
sued may be located there, or be- 
cause most of the witnesses or law- 
yers might be in one district. After 
1990, we began to consider other fac- 
tors in selecting a transferee district. 

In the Ford /Firestone matters, we 
followed what might be called a neu- 
tral approach. In this hotly contested 
matter, we wanted to avoid the per- 
ception that any of the parties might 
be favored and decided not to send it 
to any of the districts that the parties 
desired. Instead, we wanted to make 
sure that we secured an outstanding 
judge in a good geographical location, 
and we thus selected Chief Judge 
Sara Evans Barker in Indiana. We 
followed the same procedure basi- 
cally in the silicon breast implant 
cases, which were sent to Judge Sam 
Pointer, who, like Chief Judge 



Barker, did not have any pending 
cases on that particular docket. 

Twelve or 15 years ago, the Panel 
likely would have sent these cases to 
one of the requested districts because 
the documents were in that district 
or because most witnesses were lo- 
cated in that district. A large factor in 
being able to change this policy arises 
out of the great technological ad- 
vances made with computers, copy- 
ing and storing documents, etc. As a 
result, many cases can be assigned to 
virtually any district. 

In the past, I would estimate that a 
large portion of our dockets contained 
parties and attorneys who wanted to 
go to California, New York, Illinois- 
Northern, or the Eastern District of 
Pennsylvania. Instead of overloading 
those districts, we have been suc- 
cessful in using the services of out- 
standing judges across the country 
who are not in these major metropoli- 
tan districts. This has truly enabled 
us to develop a splendid pool of po- 
tential transferee judges who would 
otherwise have been overlooked. 



Q # How has Congress re- 
• sponded to the Supreme 
Court's Lexecon decision? 

A # I personally believe the 
• Lexecon decision to be correct, 
even though our practice had been 
otherwise for 30 years. During those 
30 years, we allowed the transferee 
judge, if they felt it was in the best 
interest of the parties and witnesses 
and in the interest of justice, to retain 
the cases for trial. Obviously, that 
gives the judge the necessary power 
to control the cases and ultimately 
settle them or secure some other kind 
of resolution. The Lexecon decision 
held that the transferee judge could 
not retain the cases for trials. The 
Panel and its staff have been helping 
transferee judges in many ways to 
avoid the full impact of the Lexecon 
decision but it certainly has crippled 
the Panel's ability to function as it 



was initially intended to function. 

I will not go into all of the details 
but Judge Barefoot Sanders, Mike 
Blommer of the AO, and I have spent 
an unbelievable amount of time in 
working with Congress in an attempt 
to secure an amendment to § 1407 
which will return the "self-transfer" 
power to the transferee judge. Both 
the Senate and House have approved 
our statutory recommendation in 
response to the Lexecon decision, but 
it bogged down just as it reached 
final passage form. I still have high 
hopes that our proposed amendment 
(H.R. 2112) will be passed before this 
Congress adjourns. 



Q # You stepped down as chair 
• of the Panel on December 1 . 
What are your plans for the future? 

A, I plan to keep working as a 
• judge. Work on the Panel has 
certainly been one of the most 
enjoyable undertakings I have ever 
been involved in. However, 10 years 
is more than enough, and I am truly 
honored to be replaced by a judge of 
the caliber of Terry Hodges. 

I expect to continue sitting with 
the 11th Circuit at least once a year 
and the 8th Circuit at least once a 
year. I still have a significant group 
of complex cases in my old district, 
the Eastern District of Missouri, and 
I handle a docket in my present home, 
the Southern District of Georgia. If 
things lighten up by next summer, I 
would think seriously of helping out 
some of the districts in the border 
states that are truly hard pressed. One 
of the things that I have learned as 
Panel chairman in dealing with all 94 
districts over these past 10 years is 
that any requests for new district 
judges be scrutinized carefully. 

I love the work. I have enjoyed 
judging. I've enjoyed the repartee 
with lawyers and other judges and 
trial work. And as long as I enjoy it 
and my mind and body permit me to 
keep going, I'll do it. £^ 



11 



The Third Branch 



December 2000 



Law-Related Education Has Hearing at Boston Courthouse 



The Boston courthouse hosted the annual 
conference of the Massachusetts Association 
for Law-Related Education this fall. Teachers 
and a class of high-school students from 
nearby Milford, Massachusetts, participated in 
two panels, one on search and seizure issues 
and another on the rights of criminals and 
victims. U.S. District Judge Patti B. Saris, the 





court's education liaison, was the modera- 
tor on both panels. Participants also heard 
about the resources available to educators 
on the federal Judiciary. In the photo 
(above) panelists from left to right, Assis- 
tant U.S. Attorney Timothy Q. Feeley, 
Judge Saris, Magistrate Judge Marianne B. 
Bowler, and Federal Public Defender 
Miriam Conrad discuss search and seizure. 
In the photo (left) Chief Judge William G. 
Young leads students and teachers 
through a discussion on criminals' and 
victims' rights. £*^ 



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 



FIRST CLASS MAIL 
POSTAGE & FEES 

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FIRST CLASS 



U.S. Government Printing Office 2000-462-061-20005 



THE 



THIRD 

BRANCH 



Newsletter 
of the 
Federal 
C 'ourts 




Vol. 33 

Number I 

January 2001 SpBClal feSM 



2000 YEAR-END REPORT ON THE FEDERAL JUDICIARY 



Overview 



The 2000 Year-End Report on the 
Federal Judiciary is my 15th report 
as Chief Justice. Despite the seesaw 
aftermath of the Presidential elec- 
tion, we are once again witnessing 
an orderly transition of power from 
one Presidential administration to 
another. This Presidential election, 
however, tested our Constitutional 
system in ways it has never been 
tested before. The Florida State 
courts, the lower federal courts and 




Chief justice William H. Relmquist 



the Supreme Court of the United 
States became involved in a way that 
one hopes will seldom, if ever, be 
necessary in the future. 

I am pleased to report that a 
federal courts improvement bill was 
enacted for the first time in four 
years. The Act includes nearly 30 
provisions covering a wide range of 
issues of importance to federal court 
operations. Thanks are due to 
Congress for creating ten new 
district judgeships and for confirm- 
ing 39 judges during the last year, 
including three in Arizona, one of 
the Southwestern states 
where judges are so 
urgently needed. I hope 
that the 107th Congress 
will take action on the 
Judicial Conference's 
request to establish ten 
additional court of appeals 
judgeships, 44 additional 
district court judgeships 
and 24 new bankruptcy 
judgeships. 

Although Congress 
responded to many of the 
Judiciary's legislative 
priorities during this year, 
I will focus in this report 
on what I consider to be 
the most pressing issue 
facing the Judiciary: the 
need to increase judicial 



salaries. I will also discuss proposed 
legislation that would effectively bar 
judges from attending privately 
sponsored seminars. 



Judicial Compensation 



One key to the independence of 
the federal Judiciary is that Article III 
of the Constitution of the United 
States guarantees federal judges 
tenure during good behavior and 
prohibits reducing their compensa- 
tion while in office. Yet the federal 
courts of course depend on Congress 
for funding, including any increase 
in judicial compensation. 

At the Constitutional Convention, 
the framers saw the necessity of 
allowing periodic increases in 
judicial salaries. Although the 
original draft of the compensation 
clause of Article III contained a 
prohibition on either decreasing or 
increasing the salary of a sitting 
judge, the delegates to the Conven- 
tion recognized that freezing judges' 
salaries would be unworkable and 
would nullify the protections of life 
tenure. The delegates agreed that 

incre 
migh 



ma 



« 



W 



require .... ' i hey noted 
three jindeppig^ngf^t^O^at ccjuld 
See Report on mge 2 



FF 



B5BAI nppnQIWW 



justify raising judicial salaries: 
inflation, an increased workload 
or societal expectations. As 
Alexander Hamilton explained: 

It will readily be understood, 
that the fluctuations in the value of 
money and in the state of society, 
rendered a fixed rate of compensa- 
tion [for judges] in the Constitution 
inadmissible. Wliat might be 
extravagant to-day, might in half a 
century become penurious and 
inadequate. 2 

The delegates also recognized 
that the Judiciary would require 
persons "of the first talents" and 
that to attract them the pay 
would have to be substantial. 3 
Today, all of these factors point 
to the need for a salary increase 
for the Judiciary. 

I recognize that the salaries of 
federal judges are higher than 
average salaries in many occupa- 
tions, and that some may be skeptical 
of the need to raise the salaries of 
judges who already earn more than 
$140,000 per year. But in order to 
continue to provide the nation a 
capable and effective judicial system 
we must be able to attract and retain 
experienced men and women of 
quality and diversity to perform a 
demanding position in the public 
service. The fact is that those lawyers 
who are qualified to serve as federal 
judges have opportunities to earn far 
more in private law practice or 
business than as judges. 

In order to continue to attract 
highly qualified and diverse federal 
judges — judges whom we ask and 
expect to remain for life — we must 
provide them adequate compensa- 
tion. To paraphrase a statement made 
by George Mason at the Constitu- 
tional Convention, I fear that other- 
wise the question will be not who is 
most fit to be chosen, but who is 
most willing to serve. We cannot 
afford a Judiciary made up primarily 
of the wealthy. 

We should abandon the approach 



"We should abandon 
the approac h * 
salaries tha* 
the inevitawrplfl^ 
until salaried ha 
erodecf 



! pu& oil 



are 







to judicial salaries that puts off the 
inevitable increases until salaries 
have so eroded in value that substan- 
tial increases are necessary. The 
Commission on Executive, Legisla- 
tive and Judicial Salaries (known as 
the "Quadrennial Commission") was 
devised in 1967 to solve this problem 
through an independent commission 
of private sector members that would 
recommend to the President appro- 
priate salary changes for the Judi- 
ciary as well as the Congress and 
senior Executive Branch officers. 2 
U.S.C. §§ 351 et seq. The President 
was to take these recommendations 
into account in making his salary 
recommendations to Congress. Un- 
less Congress acted to disapprove 
them within 30 days, the salary rates 
recommended by the President 
would be implemented. 

The Quadrennial Commission, 
whose members were appointed 
every four years by the President, the 
Speaker of the House, the President 



of the Senate and the Chief 
Justice, first met in 1968. 
Although the President's 
recommendation to Congress 
was less than the Commission's 
recommendation, it was 
implemented in 1969. The 1973 
Quadrennial Commission's 
recommendation and the 
President's recommendation 
based upon it were not imple- 
mented. The 1977 Quadrennial 
Commission for the first time 
recommended different rates of 
pay for Level II Executive 
Branch officers ($60,000), 
Members of Congress ($57,500) 
and court of appeals judges 
($65,000). The President 
recommended $57,500 for all 
three categories, which was 
implemented in 1977. 
The 1981 Quadrennial Commis- 
sion's recommendation and that of 
the President were not implemented. 
The 1985 Quadrennial Commission 
made no salary recommendations, 
but the 1987 Quadrennial Commis- 
sion recommended that the rates of 
pay for Level II Executive Branch 
officers, Members of Congress and 
court of appeals judges be raised to 
$135,000; the President recom- 
mended $89,500 for Level II Execu- 
tive Branch employees and Members 
of Congress, and $95,000 for court of 
appeals judges. 4 The recommenda- 
tions were implemented in 1987. The 
1989 Quadrennial Commission's 
recommendation and the President's 
recommendation based upon it were 
not implemented, but they laid the 
groundwork for the enactment later 
that year of the Ethics Reform Act. 
In addition to the Quadrennial 
Commissions, in 1975 Congress 
enacted the Executive Salary Cost-of- 
Living Adjustment Act, which gave 



' 2 THE RECORDS OF THE FEDERAL 
CONVENTION OF 1787, p. 44 (Max Farrand ed., 
1911) (hereinafter Farrand). 

2 The Federalist No. 79 (Lodge ed. 1908), pp. 491- 
492. 

3 2 Farrand. at 429. 



4 The Quadrennial Commission's mandate was to 
recommend salary changes for the Judiciary as well 
as Congress and senior Executive Branch 
employees. For simplicity, I have referred only to its 
recommendations for Level II Executive Branch 
employees, Members of Congress and court of 
appeals judges. 



The Third Branch 



January 2001 



judges, Members of Congress and 
high-level Executive Branch officials 
the same automatic cost-of-living 

adjustments accorded to other 
federal employees, unless specifi- 
cally rejected by Congress. In prac- 
tice, however, Congress frequently 
rejected or reduced the cost-of-living 
adjustments due under the Act. In 
1981, Congress enacted section 140 of 
Public Law No. 97-92, which requires 
specific congressional action to give 
judges cost-of-living adjustments. 

As the President noted in trans- 
mitting his 1989 salary recommenda- 
tions to Congress, "[e]very one of the 
Commissions that has met over the 
past 20 years concluded that a pay 
increase for key Federal officials was 
necessary." Cong. Rec, vol. 135, pt. 
1, p. 251, Jan. 19, 1989. The President 
also noted that the 1989 Quadrennial 
Commission had "documented both 
the substantial erosion in the real 
level of Federal executive pay . . . 
since 1969 and the recruitment and 
retention problems that have re- 
sulted, especially for the Federal 
judiciary." Id. Because neither the 
Quadrennial Commissions' recom- 
mendations nor cost-of-living 
adjustments were regularly imple- 
mented, periodic crises in federal 
pay continued to arise. 

The Ethics Reform Act of 1989, 
Public Law No. 101-194, was the 
latest effort to resolve this problem. 
It provided a cost-of-living adjust- 
ment that year, followed by a pay 
raise the following year, for a total 
increase in judicial pay of nearly 35 
percent. The Act also provided for 
yearly upward adjustments (auto- 
matic unless rejected by Congress for 
Members of Congress and Executive 
Branch officers, but still requiring 
legislation for judges) based upon 
the Employment Cost Index (ECI). 
Since 1993, however, there have been 
only three adjustments in the salaries 
of federal judges — 2.3 percent 
adjustment in 1998, a 3.4 percent 
adjustment in 2000 and a 2.7 percent 
adjustment effective today. The 1989 



Act also replaced the Quadrennial 
Commission with a different form of 
commission; that commission has 
never even met. 

Although the Judiciary is appre- 
ciative of any upward adjustment, 
these small and infrequent increases 
have once again allowed federal 
judicial salaries to erode. This unfor- 
tunate situation should not continue. 
As in the late 1980s, we are facing a 
critical moment in judicial compen- 
sation. The need for increased 
compensation for federal judges has 
been raised in 13 of the last 19 Year- 
End Reports, yet during that time 
judicial salaries have not even kept 
pace with inflation. And they have 
been far outpaced by salaries of 
lawyers in the private sector. 

Twenty years ago, those lawyers 
who were appointed to the federal 
bench from private practice earned 
an average of about $131,000 just 
prior to their appointments. As of 
January 1, 2001, our federal district 
court judges make $145,100 and our 
court of appeals judges are paid 
$153,900 per year. Yet many partners 
in top firms in large cities now make 
in excess of $500,000 per year. It is no 
wonder that during the 1990s, 54 
federal district court and court of 
appeals judges left the bench. While 
we cannot say that these judges left 
because of salary concerns alone, this 
number compares with 41 judges 
during the 1980s and just three 
during the 1960s. 

If the federal Judiciary had re- 
ceived the ECI adjustments called for 
by the Ethics Reform Act of 1989, 
district court judges would now be 
paid about $159,300 and court of 
appeals judges $168,900. Instead, the 
compensation of federal judges 
continues to lag far behind both 
inflation and the spiraling compensa- 
tion of attorneys in private practice. 
Many judicial law clerks, who work 
for federal judges for one or two 
years immediately after graduating 
from law school, leave their 
clerkships to work for top firms in 



big cities <md immediately make as 
much as the judges for whom they 
clerked. While most of these law 
clerks have been out of law school 
for only a year or two, our federal 
judges are necessarily already exper- 
ienced attorneys when they are ap- 
pointed. Becoming a federal judge is 
an honor and a privilege, and re- 
quires a devotion to public service. 
But even the most devoted public 
servant should be fairly compensated. 

Toward the end of the 106th 
Congress, there was a move to repeal 
the ban on honoraria for judges 
imposed by the Ethics Reform Act of 
1989, in an effort to ameliorate the 
effect of lagging salaries and Con- 
gress's failure to implement cost-of- 
living adjustments envisioned by the 
Act. This move was met with an out- 
cry against what some feared would 
create the appearance of impropriety, 
even though any honoraria would be 
governed by the strict standards of 
the Code of Conduct for United 
States Judges, just as they had been 
before 1989. Yet many of those who 
condemned any effort to repeal the 
honoraria ban recognized the 
genuine need to increase salaries for 
the federal Judiciary. 

The 107th Congress has a real 
opportunity to solve the problem of 
inadequate judicial compensation, 
particularly in light of the current 
budgetary surplus. First, Congress 
should act to pass legislation to re- 
store foregone ECI adjustments by 
increasing judicial salaries by 9.6 
percent and the President should 
sign this legislation. Second, because 
judges are appointed for life and 
expected to remain on the bench, 
increases in judicial compensation 
should not be tied to increases for 
non-career public servants. Third, 
future Ethics Reform Act increases 
for the Judiciary should be automatic. 
Finally, some form of the Quadren- 
nial Salary Commission should be re- 
vived in order to advise Congress and 
the President periodically as to appro- 
priate compensation for senior gov- 



Tlw Third Brandt m January 2001 



ernment officials. I am hopeful that 
during the next year, we can work 
together to bring about a lasting 
solution to ensuring consistent, ade- 
quate compensation for the Judiciary. 



Privately Sponsored Seminars 



Last July, after a private organiza- 
tion issued a report critical of judges' 
attending private educational semi- 
nars at the expense of the seminar 
sponsors, legislation was introduced 
that would prohibit federal judges 
from accepting "anything of value in 
connection with a seminar." The 
Judicial Education Reform Act of 
2000, known as the Kerry-Feingold 
Bill (S. 2990 (106th Cong.)) would 
give the Board of the Federal Judicial 
Center the power to authorize gov- 
ernment funding for judges to attend 
only those "seminars that are con- 
ducted in a manner so as to maintain 
the public's confidence in an unbi- 
ased and fair-minded judiciary." 



4 



"Seminars organize 
[aw schocan^b^tj^ / 
associations'and oth< 
private organizations 
are a t ^Tuable sour 
of education,,/' 



The assignment to the FJC Board — 
or to any government board — of 
authority that is tantamount to de- 
ciding what seminars or educational 
meetings federal judges may at- 
tend — and to decide it under the 
extraordinarily vague standard set 
out above — has most of the elements 
commonly associated with govern- 
ment censorship. Such a proposal 



seems quite out of place in this 
country, with its tradition of freedom 
of speech and of the press. As Justice 
Holmes famously noted (in his 
dissent in Abrams v. United States, 250 
U.S. 616, 630 (1919)), "the ultimate 
good desired is better reached by 
free trade in ideas" than by censor- 
ship. 

Existing legal and ethics provisions 
properly restrict judges from accept- 
ing benefits from parties to litigation 
before them and provide for dis- 
qualification in any instance where a 
judge's impartiality might reason- 
ably be questioned. The current 
financial disclosure requirements 
also ensure that information regard- 
ing attendance at private seminars at 
the expense of the seminar sponsors 
is available to the public. 

At its meeting in September, the 
Judicial Conference of the United 
States opposed the Kerry-Feingold 
Bill, noting that it is overly broad, 
raises potential constitutional issues 
and would mandate an inappropri- 
ate censorship role 
for the Federal 
Judicial Center. 
Subsequently, the FJC 
Board also opposed 
the bill. In addition to 
the reasons cited by 
the Judicial Confer- 
ence, the FJC Board 
explained that the 
legislation would 
jeopardize the 
Federal Judicial 
Center's ability to 
cosponsor seminars 
with law schools and 
other organizations, 
as it occasionally does now. The 
legislation is also opposed by the 
Federal Judges Association and the 
deans of a number of law schools. 

The Federal Judicial Center's 
mandate is to provide continuing 
education for federal judges and 
court personnel — and for over 30 
years the Center has ably performed 
this task. Later in this report, I 




describe the range of programs for 
judges presented by the Center last 
year. Nevertheless, the Center cannot 
provide every federal judge educa- 
tion each year on the wide array of 
subjects that judges may confront, 
including topics primarily of local 
concern. Seminars organized by law 
schools, bar associations and other 
private organizations are a valuable 
source of education in addition to 
that provided by the Federal Judicial 
Center. The effect of S. 2990 would 
be dramatically to restrict the 
information made available to 
federal judges through seminars by 
requiring that the content of that 
information and the identities of its 
presenters be weighed against a 
prediction of public confidence in 
fair-mindedness. This is contrary to 
the public interest in encouraging an 
informed and educated Judiciary, 
and contrary to the American belief 
in a free trade in ideas. 



The Year in Review 



Information Assistance to Foreign Judiciaries 

As I have noted in previous Year- 
End Reports, many representatives 
of foreign judicial systems continue 
to turn to our Judiciary for education 
and technical assistance. This year 
over 900 representatives from more 
than 60 foreign judicial systems for- 
mally visited the Supreme Court of 
the United States seeking information 
about our system of justice. The 
Federal Judicial Center, the Adminis- 
trative Office of the United States 
Courts, and the International Judicial 
Relations Committee of the Judicial 
Conference have been instrumental 
in providing international visitors 
with information, education and tech- 
nical assistance to improve the ad- 
ministration and independence of 
foreign courts and enhance the rule 
of law. At the same time, we have 
gained valuable insights into our own 
judicial system by exchanging infor- 
mation with these foreign visitors. 



The Third Branch m January 2001 



The Federal Courts' Caseload 

In Fiscal Year 2000, tilings in the 
12 regional courts of appeals were 
essentially static, growing by four 
cases from the previous year to 
54,697. 5 In the district courts, civil 
filings showed a similar pattern, 
declining by less than 1 percent to 
259,517 cases, 6 while criminal filings 
rose for the sixth straight year. 7 The 
increase in criminal filings was 
echoed by a 7 percent gain in the 
number of defendants requiring 
pretrial services. 8 The number of 
persons on probation, which is less 
directly affected by criminal filings, 
went up by 3 percent. 9 Filings in U.S. 
bankruptcy courts continued a 
decline that began last year, falling 7 
percent from 1,354,376 to 1,262,102. 10 

The number of judicial confirma- 
tions increased 40 percent from 25 in 
1999 to 35 in Fiscal Year 2000, while 
the count of vacancies grew from 62 
as of September 30, 1999, to 66 one 
year later. In addition to the 35 
confirmations mentioned above, the 
Senate confirmed four judicial 
nominees on October 3. 



The Supreme Court ot the United States- 
Caseload Statistics 

The total number of case filings in 
the Supreme Court increased from 
7,109 in the 1998 Term to 7,377 in the 
1999 Term — an increase of 3.8 per- 
cent. Filings in the Court's in forma 
pauperis docket increased from 5,047 
to 5,282 — a 4.7 percent rise. The 
Court's paid docket increased by 31 
cases, from 2,061 to 2,092— a 1.5 per- 
cent increase. During the 1999 Term, 
83 cases were argued and 79 were 
disposed of in 74 signed opinions, 
compared to 90 cases argued and 84 
disposed of in 75 signed opinions in 
the 1998 Term. No cases from the 
1999 Term were scheduled for re- 
argument in the 2000 Term. 



The Administrative Office 
of the United States Courts 



The Administrative Office of the 
United States Courts serves as the 
central support agency for the 
administration of the federal court 



system. Among the Administrative 

Office's most important responsibili- 
ties are preparing, under the guid- 
ance and direction of the judicial 
Conference and its Committee on the 
Budget, the Judiciary's annual budget 
request, and subsequently submit- 
ting that request to Congress. Be- 
cause the Judiciary's appropriations 
bill is included with those of the 
Departments of Commerce, Justice, 
State and certain other federal 
agencies, the Judiciary's budget was 
once again delayed this year because 
of policy differences between the 
Congress and the President. Al- 
though these issues had nothing to 
do with the federal courts, the 
uncertain budget situation had the 
potential to jeopardize the effective 
and efficient operation of the Judicial 
Branch. Ultimately, however, under 
the leadership of the Judicial 
Conference's Budget Committee, 
chaired by Judge John G. Heyburn, 
II, and Administrative Office Direc- 
tor Leonidas Ralph Mecham, the 
Judiciary fared well in the Fiscal 
Year 2001 appropriations bill. The 8 



5 Original proceedings increased 18 percent, and 
criminal appeals rose 4 percent, which offset 
declines in filings of bankruptcy, civil, and 
administrative agency appeals, down 9 percent, 2 
percent, and 1 percent, respectively. 

6 The decline in civil filings in the U.S. district courts 
was only 754 cases or three-tenths of 1 percent. 
Though the total number was essentially 
unchanged, specific areas of civil litigation 
experienced significant increases and decreases. 
Federal question litigation declined 3 percent, falling 
by more than 5,000 cases. This was chiefly 
attributable to a 40 percent overall decline in 
personal injury cases, mostly related to asbestos 
and breast implant filings. Diversity of citizenship 
filings also fell, declining by 2 percent to 48,626, 
largely due to decreases in personal injury/product 
liability filings. Offsetting these declines were 
increases in U.S. plaintiff or defendant actions 
which grew 9 percent, rising from 65,443 to 71, 109 
cases. U.S. plaintiff cases increased 10 percent, 
primarily because filings involving contract actions 
grew by 9 percent. Recovery of overpayments 
related to defaulted students loans, increasing from 
21,816 to 24,329, was the primary reason for the 
overall contract action increase. The number of 
filings with the U.S. as defendant also rose, for the 
most part attributable to a 14 percent increase in 
social security filings and a 9 percent rise in 
prisoner petitions. The Social Security 
Administration devoted resources to clearing a 
backlog and, as a result, social security 
supplemental security income cases increased 19 
percent, or by more than 1,000 cases, and disability 



insurance cases increased 1 1 percent, rising by 
more than 700 cases. Prisoner petitions related to 
motions to vacate sentence rose 10 percent while 
habeas corpus prisoner petitions grew by 8 percent. 

7 Filings of criminal cases rose 5 percent to 62, 745, 
and the number of defendants increased 4 percent 
to 83,963. Fiscal Year 2000 cases and defendant 
numbers are the highest since 1933, when the 
Prohibition Amendment was repealed. This 
caseload growth raised the criminal cases per 
authorized judgeship from 93 to 96, in spite of nine 
additional Article III judgeships created in 
November 1999. Immigration and firearms cases 
were chiefly responsible for the increase, with 
immigration filings growing by 1,509 cases, a 14 
percent rise over last year, and firearms filings 
growing by 1,020 cases, a 23 percent jump over 
last year. The courts received 12, 150 immigration 
cases, 63 percent of which were in five 
Southwestern border districts— Southern District of 
California, District of Arizona, Southern and 
Western Districts of Texas, and District of New 
Mexico. For the fourth straight year, weapons and 
firearms filings rose, with the district courts 
receiving 6,223 defendants in 5,387 firearms cases. 
These filings amounted to 9 percent of all criminal 
case filings, two percentage points more than they 
did last year. 

8 In Fiscal Year 2000, the number of defendants 
entering into the pretrial sen/ices system increased 
to 85,617, while the number of defendants 
interviewed went up 6 percent and the number of 
pretrial reports prepared increased 7 percent. 



During the past five years, pretrial reports prepared 
and cases requiring pretrial sen/ices each rose 35 
percent, persons interviewed grew 26 percent, and 
defendants released on supervision increased 22 
percent. Cases requiring pretrial sen/ices have 
risen each year since 1994, and this year's total is 
53 percent higher than that for 1994. 

9 There is an average lag of several years before 
defendants found guilty and sentenced to prison 
appear in the probation numbers. Supervised release 
following a period of incarceration continues to ac- 
count for a growing percentage of the probation 
population, now standing at 64 percent. Of the 

63, 793 persons serving terms of supervised 
release, 54 percent had been charged with drug- 
related offenses. 

10 Following four years of continuous growth, during 
which filings first exceeded the one-million mark, 
declines in filings of both personal and business 
bankruptcy petitions have been reported for the 
past two years. Drops in Chapter 7 and Chapter 13 
petitions were primarily responsible for the overall 
decline. Filings under Chapter 1 1, which represent 
about 1 percent of all bankruptcy filings, were the 
only ones showing an increase, up 9 percent; those 
filings, however, generally require more judge 
involvement than do the filings under other chapters 
of the bankruptcy code. Chapter 7 filings, which 
constituted 70 percent of all bankruptcy filings, 
dropped 9 percent. Filings under Chapter 13, which 
accounted for 30 percent of all bankruptcies, fell 1 
percent. Filings under Chapter 12 plunged 32 per- 
cent since provisions of the code expired on July 1. 



The Third Branch m January 2001 



percent funding increase will enable 
the Judiciary, for the first time in two 
years, to hire new staff. This will 
come as especially welcome news to 
the Southwestern border courts, 
which have experienced a 125 
percent increase in criminal caseload 
over the past three years. 

Because much of the Judiciary's 
budget is expended for the salaries of 
its personnel, the Judiciary devotes 
considerable attention to developing 
scientifically derived staffing formu- 
las based on the functions and work 
requirements of the different court 
offices. In order to ensure staffing 
formulas reflect current work, they 
are updated periodically. After an 
intensive study of all major staffing 
formulas, new formulas were devel- 
oped and implemented this year. The 
new staffing formulas reflect efficien- 
cies realized in all program areas 
since the last formulas were devel- 
oped, as well as new work. 

An independent comprehensive 
study of the Judiciary's space and 
facilities program was completed 
this year. The consultant's report de- 
scribed numerous program achieve- 
ments, including actions to achieve 
savings in the space and facilities 
program, a useful U.S. Courts Design 
Guide, and an effective long-range 
facilities planning process. Due to 
the efforts of the Judicial 
Conference's Committee on Security 
and Facilities, chaired by Judge Jane 
R. Roth, the Administrative Office 
and the General Services Adminis- 
tration, Congress approved funding 
for eight critically needed courthouse 
construction projects totaling $559 
million over the next two years. 

A top priority of the Administra- 
tive Office is developing and imple- 
menting new technologies and sys- 
tems that enhance the management 
and processing of information and 
the performance of court business 
functions. Implementation of a new 
system for processing Criminal 
Justice Act panel attorney payment 
vouchers was completed this year, 



and agency staff continued to deploy 
new systems for jury administration 
and financial accounting. 

This past year, development work 
continued on case management/ 
electronic case file systems that will 
replace the current core case man- 
agement systems for the appellate, 
district and bankruptcy courts. These 
new systems have the potential to 
change dramatically court operations 
because they will also include elec- 
tronic case filing capabilities which 
will reduce the volume of paper case 
files. Today's technological capabili- 
ties that allow relatively easy access 
to information require careful con- 
sideration of issues related to secu- 
rity and privacy. Because court 
documents often contain private or 
sensitive information, the Adminis- 
trative Office, under the guidance of 
the Judicial Conference Committee 
on Court Administration and Case 
Management, is studying the privacy 
and security implications of elec- 
tronic case files. Also, the Committee 
on Rules of Practice and Procedure is 
considering changes to the federal 
rules to accommodate the 
practicalities of digital processes. 

In 2000, the Administrative Office 
launched the federal law clerk 
information system, a new data base 
accessible through the Judiciary's 
Internet Web site that allows pro- 
spective law clerk candidates to 
obtain information about upcoming 
or existing employment opportuni- 
ties as law clerks to federal judges. 
Within days of the system going live, 
information on more than 300 law 
clerk positions was posted on the 
Web site. 

Community outreach programs 
are an important means of increasing 
the public's understanding of the 
federal Judiciary. This year, more 
than 1,300 high school seniors at 34 
court locations across the country 
participated in a Law Day program 
sponsored by the Administrative 
Office called Judicial Independence 
and You. The program won an 



Outstanding Law Day Activity 
Award from the American Bar 
Association's Standing Committee 
on Public Education. 



The Federal Judicial Center 



One element of an effective and 
independent judicial system is a 
capacity to provide its judges the 
continuing education they need to do 
their jobs. Within the federal judicial 
system, that is the major role of the 
Federal Judicial Center. Along with 
the Judicial Conference, the FJC's 
Board, which I chair, last year 
cautioned against proposals, such as 
the Kerry-Feingold Bill I discussed 
previously, that would unduly 
restrict judges' ability to attend 
privately funded educational pro- 
grams. That caution, however, 
should not diminish the essential 
role of the FJC and the financial 
support that it needs. Law schools 
and public policy organizations 
cannot, and should not be expected 
to, offer judges education in the full 
range of their responsibilities. 

Federal judges today face cases 
involving complicated statutes and 
factual assertions, many of which 
straddle the intersections of law, 
technology, and the physical, biologi- 
cal and social sciences. FJC education 
programs and reference guides help 
judges sort out relevant facts and 
applicable law from the panoply of 
information with which the adver- 
sary system bombards them. The FJC 
thus contributes to the independent 
decisionmaking that is the judge's 
fundamental duty. 

Last year the FJC presented nine 
orientation seminars for new judges 
on basic topics such as civil and 
criminal procedure, case manage- 
ment, sentencing, evidence and 
ethics. Twelve three-day continuing 
education programs each covered 
multiple areas such as law and the 
Internet, employment law, sentenc- 
ing, habeas corpus, prisoner litiga- 



The Third Branch ■ January 2001 



tion and capital case litigation, as 
u ell as the new evidence and proce- 
dure rules, electronic discovery, 
statistics, genetics, relations with the 
media and ethics. Eleven other 
programs, from two to four days 
long, each dealt exclusively with a 
specific subject, such as intellectual 
property, employment law, environ- 
mental law, case management, 
bankruptcy law or mediation. 

These programs were designed 
and coordinated by the FJC's staff of 
judicial education specialists, with 
guidance from the FJC's Board and 
advisory groups of judges. The FJC 
also presents a few joint programs 
with law schools. Last year it worked 
with the University of Alabama, Boalt 
Hall at the University of California 
and the Georgetown Law Center. For 
every program, the FJC has two main 
goals: to ensure that the curriculum 
includes the competing aspects of the 
topic, and that it is up-to-date on 
both substantive law and procedure. 

The FJC has been particularly 
responsive to the Supreme Court's 
trilogy of decisions, starting with 
Daubert v. Merrell Dow Pharmaceuti- 
cs, Inc., 509 U.S. 579 (1993), which 
requires judges to inquire more 
vigorously into the reliability of all 
?xpert testimony, while honoring the 
ury's fact-finding role. In 2000, the 
FJC released the second edition of its 
lationally recognized Reference 
Manual on Scientific Evidence. The 
Manual does not instruct judges 
ibout what evidence to admit or 
exclude. Instead, it helps judges 
dentify and narrow issues in areas 
'anging from multiple regression 
inalysis, to epidemiology, to engi- 
teering practices and methods. 
3ecause the Manual is easily avail- 
ible on the FJC's Web site and from 
:ommercial publishers, it also helps 
awyers deal with complex evidence, 
n addition, this year a series of 
>rograms on the federal Judiciary's 
satellite television network will help 
udges analyze scientific evidence 
inder the Daubert standards and also 



under Markman v. Westview Instru- 
ments, Inc., 517 U.S. 370 (1996), which 
expands judges' responsibilities in 
patent cases. 

FJC programs also reach other 
topics, such as recent broadcasts on 
the ramifications of the Supreme 
Court's decision last term in Apprendi 
v. Neiv jersey, 530 U.S. 446 (2000), a 
forthcoming online collection of 
materials to assist judges assigned 
federal death penalty prosecutions, 
and a handbook for judges on the 
strengths and weaknesses of various 
types of alternative dispute resolu- 
tion mechanisms and how to imple- 
ment court-based "ADR" effectively. 



The United States 
Sentencing Commission 



At an investiture ceremony held 
at the Supreme Court of the United 
States on January 5, 2000, 1 adminis- 
tered the oath of office to the seven 
new members of the United States 
Sentencing Commission. The new 
Commission consists of Judge Diana 
E. Murphy (chair), Judge Ruben 
Castillo (vice chair); Judge William 
K. Sessions, III (vice chair), Mr. John 
R. Steer (vice chair), Judge Sterling 
Johnson, Jr., Judge Joe Kendall, and 
Professor Michael E. O'Neill. These 
seven voting commissioners are 
joined by ex-officio members Mr. 
Michael J. Gaines and Mr. Laird C. 
Kirkpatrick. The Commission 
announced on March 9 the appoint- 
ment of Timothy B. McGrath as its 
new staff director. Mr. McGrath had 
served as the Commission's interim 
staff director for the 18 months prior 
to his appointment. 

The Commission on May 1, 2000, 
sent to Congress a number of amend- 
ments to the federal sentencing guide- 
lines that will significantly increase 
penalties for some serious crimes. 
Many of the newly enacted guideline 
provisions are in response to con- 
gressional concerns and address 



such serious crimes as the improper 
use of new technology in copyright 
and trademark violations, sexual 
offenses against children, metham- 
phetamine trafficking, identity theft, 
cell phone cloning, telemarketing 
fraud and firearms offenses. 

Co-sponsored by the U.S. Sentenc- 
ing Commission and the Federal Bar 
Association, the Ninth Annual 
National Seminar on the Federal 
Sentencing Guidelines was held May 
3-5 in Clearwater Beach, Florida. 
Presentations were made on a variety 
of topics including the fraud and 
theft guidelines, restitution, drug 
issues, firearms offenses, immigra- 
tion offenses, criminal history, 
relevant conduct and grouping of 
multiple counts. The seminar was 
attended by 368 people, primarily 
U.S. probation officers and defense 
attorneys. 

The Commission announced on 
August 8 its priorities for the amend- 
ment cycle ending May 1, 2001. The 
priorities include work on an econo- 
mic crimes package; money launder- 
ing; counterfeiting; further responses 
to the Protection of Children from 
Sexual Predators Act of 1998; fire- 
arms; nuclear, chemical and biologi- 
cal weapons; unauthorized compen- 
sation and related offenses; offenses 
implicating the privacy interests of 
taxpayers; the initiation of a review 
of the guidelines relating to criminal 
history; and the initiation of an 
analysis of the operation of the 
"safety valve" guidelines. 

On October 12 and 13, the Com- 
mission presented its Third Sympo- 
sium on Crime and Punishment in 
the United States. The symposium, 
"Federal Sentencing Policy for Econo- 
mic Crimes & New Technology 
Offenses," focused on current econo- 
mic crime sentencing and the ways 
in which new technologies have 
impacted the landscape of criminal 
activity. The Commission co-spon- 
sored this symposium with the 
Committee on Criminal Law of the 
Judicial Conference, the ABA White 



The Third Branch 



January 2001 



Collar Crime Committee and the 
National White Collar Crime Center. 
I commend Judge Murphy and the 
staff of the United States Sentencing 
Commission, as well as Director 
Mecham and the staff of the Admin- 
istrative Office of the United States 
Courts and Judge Fern Smith and 
the staff of the Federal Judicial 
Center, for their sustained contribu- 
tion to an independent and effective 
Judiciary. 



Conclusion 



For several years, I have noted 
that we would have to continue to 
work to increase compensation for 
federal judges to maintain the 
quality and morale of the federal 
Judiciary. I look forward to working 
with the 107th Congress and the 
President to resolve this continuing 
problem. 

Despite all of the challenges we 
face, the Judiciary can look back upon 



2000 as a year of many accomplish- 
ments. We have learned to be more 
efficient and are in the forefront of 
innovative initiatives such as elec- 
tronic filing and distance learning. 
Supported by hard-working staff, 
federal judges continue to administer 
justice day in and day out, notwith- 
standing an increasing workload and 
a salary whose real value has eroded 
substantially over the past decade. 
We can be proud that our courts 
continue to serve as a standard of 
excellence around the world. 

Finally, I offer my best wishes to 
President-elect Bush and Vice 
President-elect Cheney and to the 
members of the 107th Congress, just 
as I extend my best wishes to Presi- 
dent Clinton and Vice President 
Gore and to those legislators who 
have concluded their elective service. 
And I extend to all my wish for a 
happy New Year. 



J/J^OH^ $&*&""{/ 



THE 

THIRD 

BRANCH 

Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C 20544 

(202) 502-2600 

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

DIRECTOR 
Leonidas Ralph Mecham 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 

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



THE THIRD BRANCH 

Administrative Office of the U.S. Courts 
Office of Public Affairs 
One Columbus Circle, N.E. 
Washington, D.C. 20544 



OFFICIAL BUSINESS 

PENALTY FOR PPJVATE USE $300 



FIRST CLASS MAIL 
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PAID 

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U.S. Government Printing Office 2000-462-061-20006 



THE 



THIRD 

BRANCH 



Report Outlines Erosion in Judicial Salaries 



>v 



Bars Urge Congress, 
President to Increase 
Judicial Salaries 

Erosion of federal judges' pay 
threatens the quality and indepen- 
dence of the judicial branch, states a 
new report issued 
jointly by the 
American Bar 
Association and 
Federal Bar Asso- 
ciation and for- 
mally received by 
Chief Justice 
William H. 
Rehnquist. 

The report, 
among other 
recommendations, 
urges Congress and 
President George 
W. Bush to quickly 
increase judicial 
salaries by 9.6 
percent to make up 
for judges not 

receiving cost-of-living adjustments in 
five of the past eight years. 

"Judicial salaries have not kept 
pace with inflation and, as a result, 
have suffered a 13.4 percent decline in 



purchasing power during the same 
period," the report says. "This 
erosion in judicial pay has deprived 
judges (many of whom accepted 
significantly reduced compensation 
to become a judge) of the prospect of 
salary stability during their tenure on 
the bench." 




At the Supreme Court this month, Chief Justice William H. 
Rehnquist (photo right) received the report "Federal Judicial Pay 
Erosion" from Federal Bar Association President Robert McNew 
(photo center) and American Bar Association President Martha 
Barnett (photo left). 



The report was released publicly 
during a February 13 news confer- 
ence at the Supreme Court building, 
immediately after ABA President 

See Pay on page 2 



Judiciary's Courthouse List Goes to Congress pg. 5 

Courts Report on Optimal Utilization of Resources pg. 6 

An Interview With the New Chair of U.S.S.C pg. 10 



Newsletter 
of the 
Federal 

Courts 



Vol. 33 
Number 2 
February 2001 




Judicial Conference Again 
Asks for New Judgeships 
to Meet Coort Needs 

The 107 th Congress had barely 
settled down to business when the 
Judicial Conference asked Con- 
gress to introduce legislation 
creating new Article III judge- 
ships. The request was transmit- 
ted formally in a letter this month 
to leaders in the House and 
Senate. 

"A judgeship bill is one of 
the Judiciary's top priorities for 
this Congress," said Admini- 
strative Office Director Leonidas 
Ralph Mecham. "Past requests 
have failed to provide the judge- 
ships we so urgently need 
throughout the courts to meet 
growing caseloads. Although 
Congress has given us a few 
judgeships in some of the south- 
west border courts, this partial 
remedy is like applying a Band- 
Aid to a hemorrhage. The needs 
of the federal courts must be 
addressed across the board, from 
Alabama to Washington if 'justice 
for all' is to be meaningful." 

The recommended legislation 
would add six permanent judge- 
ships and four temporary judge- 

shi P s to tl j^w^i!r?^ElNois" 

add 23 ad iitionati/^J-rngp^^y 
judgeship 3 and 21 temporary 

Sefy^eMiip^ b$$^e 4 



FEDERAL DEPOSITORY 



Pay continued from page 1 
Martha Barnett and FBA President 
Robert McNew presented it to the 
Chief Justice. 

Reiterating the view he expressed 
in his 2000 Year-End Report on the 
Federal Judiciary, Chief Justice 
Rehnquist called the need to in- 
crease judicial salaries "the most 
pressing issue facing the federal 
Judiciary." 

"I've read the report, and I think it 
does a very fine job of explaining just 
what's happened over the past few 
years to the Judiciary in terms of 
pay, and why it really is essential 
that we do something to turn this 
around," the Chief Justice said. 

Stating that the nation must 
continue to have "a capable and 
effective judicial system," Chief 
Justice Rehnquist added: "If we 
continue to allow the pay of fed- 
eral judges to lag so far behind 
both inflation and the spiraling 
compensation of attorneys in pri- 
vate practice, we risk ending up 
with a Judiciary that falls short of 
this goal." 



"The federal 
bench has 
always drawn 
from the best 
and the brightest. 
Why should we 
limit the pool of 
lawyers willing to 
serve?" \ 

—Martha Barnett, ABA President' 



ABA President Barnett said, "The 
federal bench has always drawn from 
the best and the brightest," and 
warned against judicial compensation 
becoming a decisive factor for many 
in choosing to go, or stay, on the 



bench. "Why 
should we, be- 
cause of finan- 
cial disincen- 
tives, limit the 
pool of lawyers 
willing to serve 
on the federal 
bench?" she said. 
FBA President 
McNew said, 
"The quality of 
the justice sys- 
tem is directly 
dependent on 
the quality of the 
judges." 

The two bar associations said they 
collaborated to issue the report 
"because of their conviction that the 
current salaries of federal judges 
have reached such levels of inad- 
equacy that they threaten to impair 
the quality and independence of the 
Third Branch." 

Stating that the new administra- 
tion and the 107 th Congress "have a 
unique opportunity to work together 
to break the downward cycle of pay 
erosion that under- 
mines the fairness 
and adequacy of 
judicial compensa- 
tion," the report calls 
for legislation to 
restore the Employ- 
ment Cost Index 
adjustments for 
fiscal years 
1995-1997 and 1999 
by increasing 
judicial salaries and 
those with which 
they are linked by 
9.6 percent. "This 
will help remedy the 
salary erosion that 
judges, members of 
Congress and high-level Executive 
Branch officials have suffered since 
1993," the report says. 

A major step toward fairness in 
compensation, the report says, 
would be congressional enactment of 




legislation that effectively delinks the 
salaries of members of Congress 
from those of judges and top-level 
executive branch officials. It notes 
that such a remedy "admittedly may 
be politically difficult." 

The report urges Congress and the 
president to take these affirmative 
steps: 

■ Devote increased attention to the 
critical need to provide meaningful 
financial rewards for public service, 
particularly for high-level executive 
branch officials, Congress and the 
Judiciary. 

■ Make a public commitment to 
work together to permit the current 
annual pay adjustment process for 
judges, members of Congress, and 
high-level Executive Branch officials 
to work annually and automatically, 
as envisioned by the Ethics Reform 
Act of 1989. 

■ Repeal Section 140 of P.L. 97-92, 
which requires explicit congressional 
approval of any pay adjustment for 
the federal Judiciary, to allow the 
pay-setting mechanism for the 
federal Judiciary established by the 
Ethics Reform Act of 1989 to operate 
as intended. 

■ Enact legislation to re-establish a 
salary review commission, similar to 
past Quadrennial Commissions, to j 



The Third Branch ■ February 2001 



recommend pay rates for members 
of Congress, judges, and appointed 
officials in top executive positions on 
a regular and periodic basis. Any 
such commission should be ad- 
equately funded and its members 
appointed promptly to ensure that it 
is operational within a few months 
of its creation. 

"The specter of declining salary in 
real terms discourages potential 
candidates from seeking appoint- 
ment to the bench," the report says. 
"Qualified attorneys who lack the 
independent means to meet current 
and future financial obligations are 
especially likely to be deterred by the 
prospect of a salary that does not 
even keep pace with inflation. 
Regrettably, the socio-economic 
pluralism of the federal bench is 
jeopardized by declining judicial 
compensation." 

The report also states that inad- 
equate judicial pay deters candidates 
from seeking appointment to the 
bench, discourages judges from 
remaining on the bench, and threat- 
ens the constitutional guarantee of 
undiminished salary. 

"The constitutional guarantees of 
life tenure and an undiminished 



Circuit and District Judges' Real Salary Losses 




L 



1969 1974 1979 19 



1989 1994 2000 



According to 
the report, "The 
specter of 
declining salary 
in real terms 
discourages 
potential 
candidates from 
seeking 

appointment to 
the bench. " 



salary were designed to protect the 
independence of the federal Judi- 
ciary. In today's environment, 
neither guarantee is secure," the 
report says. "While erosion of pay 
may not legally constitute a diminu- 
tion in salary, it undermines the 
purpose of the guarantee." 

The report notes that while 
judicial salaries have not kept up 
with inflation, private sector salaries 
of top attorneys have risen dramati- 
cally. "Even though rendering public 



service and serving in a lifetime 
appointment are intangible benefits 
that compensate for the reduced 
salary levels associated with the 
bench, the disparity between judicial 
salaries and those of their peers has 
reached unacceptable levels," it 
states. 

The ABA/FBA report in its 
entirety is posted at the Judiciary's 
website, www.uscourts.gov. Users 
can click on "What's New" to find 
"Federal Judicial Pay Erosion." &^ 



House Bill Introduced on Judges' Pay 



Representative Judy Biggert 
(R-IL) has introduced the Federal 
Judicial Fairness Act of 2001 that, 
if passed, would allow judges' 
salaries to regain ground lost over 
nearly a decade and improve the 
retention and recruitment of 
federal judges by increasing their 
compensation. 

"Excellent jurists do not agree 
to serve in the federal Judiciary 
because of the pay, but because 
they want to serve their country," 
said Biggert. "At the same time, 
we want our judges to afford to 
serve their country and make 
certain that the Judiciary is not 



open only to those who can afford 
it." Biggert noted that 54 judges 
have left the federal bench in the 
1990s, compared with only three in 
the 1960s. "Absent a change in the 
way we compensate these judges," 
she said, "the superior quality of 
our judicial system may deteriorate 
over time." 

The bill would give federal 
judges a one-time 9.6 percent 
adjustment in compensation to 
partially restore the Employment 
Cost Index adjustments denied to 
judges since January 1993. It would 
repeal Section 140 of P.L. 97-92, 
which provides that judges receive 



salary increases only as the result 
of specific legislative action or 
when Congress affirmatively 
authorizes an annual salary in- 
crease for judges. The House bill 
also would allow judicial salaries to 
be adjusted automatically on an 
annual basis, using the methodol- 
ogy provided under the Ethics 
Reform Act of 1989. This would 
effectively delink judges' salaries 
from those of members of Congress 
and the Executive Schedule. A 
judge's Employment Cost Index 
adjustment would not exceed a 
comparable adjustment in the rates 
of the General Schedule. &^ 



The Third Branch m February 2001 



4 



Judgeships continued from page 1 

judgeships to the district courts, 
convert seven existing temporary 
judgeships to permanent positions, 
and extend one existing temporary 
judgeship. It also would confer 
Article III status on the judgeships 
authorized for the Northern 
Mariana Islands and the Virgin 
Islands. 

Congress has failed to pass a 
major judgeship bill since 1990. 
Instead, judgeship needs have 
been addressed piecemeal, first in 
1999 with the creation of nine 
judgeships in the omnibus appro- 
priations act, and again in 2000 
when 10 new Article III judgeships 
were included in the Commerce, 
Justice, State, the Judiciary and 
Related Agencies Appropriations 
Act. The Judicial Conference last 
sent a request to Congress in July 
2000, asking for six permanent 
judgeships and four temporary 
judgeships for the courts of appeals, 
and 30 permanent district judge- 
ships and 23 temporary district 
judgeships. The Conference also 
recommended that seven temporary 
district judgeships be made perma- 
nent and one be extended. The 
Judicial Conference Judicial Re- 
sources Committee conducts biennial 
surveys of judgeship needs in the 
federal courts, making recommenda- 
tions for new judgeships after 
considering such factors as a court's 
caseload, its expressed need for new 
judgeships, and factors in the 
caseload that might make the current 
need for additional judgeships 
temporary. 

Border Court Judgeship Bills Introduced 
in House and Senate 

Judgeship bills addressing the 
needs of the border courts also have 
been introduced in the House and 
Senate. Representative Randy 
"Duke" Cunningham (R-CA) intro- 
duced H.R. 261, the Southern 
California Federal Judgeship Act of 



Article III Judgeship Recommendations 


Judicial 


Currently 


Conference 


Court 


Authorized 


Recommendation S. 147 


H.R. 272 


Courts of 








Appeals 










First 


6 


1T 






Second 


13 


2P 






Sixth 


16 


2P 






Ninth 


28 


2P, 3T 






District 










Courts 










AL-N 


7 


1P, 1T 






AL-M 


3 


1P 






AL-S 


3 


1T 






AZ 12 


4T 


4T 


4T 


CA-N 14 


1P 






CA-E 6, 1T 


2P, T/P 






CA-C 27 


2T 






CA-S 8 


5P, 3T 


5P, 3T 


CO 7 


1P, 1T 






FL-M 15 


1P, 1T 






FL-S 17 


1P 






HI 




3, 1T 


T/P 




IL-C 


3, 1T 


T/P 






IL-S 3, 1T 


T/P 






IN-S 5 


1T 






NE 3, 1T 


T/P 






NM 6 


1P, 1T 


1P, 1T 


1P, 1T 


NY-N 4, 1T 


1T, T/P 






NY-E 15 


3P 






NY-W 4 


1T 






NC-W 3 


2P 






OH-N 


11, 1T 


Extend T* 






OR 


6 


1T 




TX-E 


7 


1T 




TX-S 


19 


1P 


1P 1P 


TX-W 


11 


2P, IT 


2P, IT 2P, IT 


VA-E 


10, IT 


IP, T/P 




WA-W 


7 


IT 




T: Temporary judgeship. Temporary judgeships are created for a minimum time period, but where the first 


judicial vacancy occurring after that time period is not filled. 


P: Permanent judgeship. 


T/P: Temporary judgeship made permanent. 


* The first vacancy occurring 15 years or more after the confirmation date of the judge named to fill the 


temporary judgeship created in 1990 shall not be filled. 



2001. The bill would authorize 
eight additional district judgeships 
in the Southern District of Califor- 
nia. Cunningham said that the 
district ranks as the busiest court in 
the nation by number of criminal 
felony cases filed and total number 
of weighted cases per judge. Accord- 
ing to the U.S. Customs Service, "as 
much as 33 percent of the illegal 



drugs and 50 percent of the cocaine 
smuggled into the United States 
from Mexico enters through this 
court district." 

Similarly, citing "an unparal- 
leled surge of cases" and the lack of 
resources to handle them in their 
judicial districts, Senators Dianne 
Feinstein (D-CA), and Kay Bailey 
Hutchinson (R-TX), with cospon- 



Thc Third Branch 



February 2001 



sors Senators Jon Kyi (R-AZ), Jeff 
Bingaman (D-NM), Barbara Boxer 
(D-CA), Phil Gramm (R-TX), and 
Pete Domenici (R-NM), introduced S. 
147, the Southwest Border Judgeship 
Act of 2001. The bill would follow 
Judicial Conference recommenda- 
tions and create nine permanent and 
nine temporary judgeships for the 
five southwestern border districts of 
the Southern District of California, 
the Districts of Arizona and New 
Mexico, the Western District of 
Texas, and the Southern District of 
Texas. All five border courts cur- 
rently are among the top 10 most 
burdened districts in the country in 
terms of weighted caseload. 

"While these courts have faced 
an ever-rising caseload, their re- 
sources have remained stagnant," 
said Feinstein. Kyi agreed with 
Feinstein that "due to the growing 
population and caseload in the 
border districts, additional judge- 
ships are sorely needed." He, 
however, believes that all 18 judge- 
ships in the bill, not just nine, should 



be permanent because growth of 
both population and caseload are 
expected to continue. 

Feinstein noted the Southern 
District of California took the 
"unprecedented step" in October 
2000 of declaring a judicial emer- 
gency. "The court's criminal case- 
load is the heaviest in the nation," 
said Feinstein, "with 55 trials per 
judge for the year 2000. In civil cases, 
many judges no longer hear oral 
arguments; they base their opinions 
solely on written briefs." Feinstein 
said that Chief Judge Marilyn Huff 
(S.D. Calif.) had attempted to deal 
with the overwhelming caseload by 
asking seven retired judges to return 
to the bench. Unfortunately, two of 
these judges died recently. 

"The Southern District of Califor- 
nia and other border districts cannot 
continue to function effectively with 
a skeleton crew of judges," said 
Feinstein. "The crisis in San Diego, in 
particular, has reached a point where 
citizen access to justice is being 
threatened. It is imperative that 



Congress act proactively to address 
this shortage of resources ." 

In the House, Representative 
Charles A. Gonzalez (D-TX) led the 
Congressional Border Caucus with 
members Representatives Henry 
Bonilla (R-TX), Susan Davis (D-CA), 
Solomon Ortiz (D-TX), Bob Filner (D- 
CA), Ed Pastor (D-AZ), Ciro 
Rodriguez (D-TX), and Silvestie 
Reyes (D-TX), chair of the Congres- 
sional Hispanic Caucus, in introduc- 
ing H.R. 272, a bill to increase the 
number of federal judgeships along 
the United States-Mexico border. 
"This bill would offer some much 
needed relief, expediting prosecu- 
tions and alleviating caseloads," said 
Gonzalez, "by authorizing an 
additional 18 federal judgeships in 
the five U.S. district courts along the 
U.S.-Mexico border." 

Federal judges from the border 
courts in Texas, New Mexico, 
Arizona, and California met with 
the caucus last year to keep Con- 
gress informed on the continuing 
crisis. £»w 



Judiciary Goes to Congress with Courthouse Construction List 



Over the past four years, the 
White House has eliminated or 
substantially reduced the Judiciary's 
request to the General Services 
Administration (GSA) for courthouse 
projects. This year, the Judicial 
Conference decided to take the 
initiative and formally notify both 
the new Administration and Con- 
gress of the courthouse requirements 
the Judiciary has submitted to GSA 
for fiscal year 2002, and to do so 
earlier in the process, before the 
President has finalized his budget 
considerations. 

Funding for courthouse construc- 
tion projects is normally included in 
the GSA portion of the President's 
Budget. In spite of solid and com- 
pelling justification from the Judi- 
ciary, from FY 1998 through FY 2000, 



no funds for courthouse projects were 
included in the President's budget 
request, and Congress was only able 
to provide funding in one of those 
years (FY 1999). FY 2001 was the first 
budget in four years in which the 
White House actually incorporated 
funding for federal courthouse 
construction. Even then, only seven 
of the 21 projects on the Judiciary's 
five-year plan were included — and 
only at reduced levels. Congress ulti- 
mately funded eight, but funds for 
four of the projects cannot be obli- 
gated until the beginning of FY 2002. 

"While, in the end, we were able 
to obtain funding from Congress for 
courthouse projects in fiscal years 
1999 and 2001," said Judge Jane 
Roth, chair of the Judicial Confer- 
ence Committee on Security and 



Facilities, "it was only through 
extraordinary efforts by numerous 
judges and staff members. For FY 
2002, rather than let the Administra- 
tion be the only voice for us on this 
important issue, we are sending the 
relevant appropriations and autho- 
rizing committee chairmen and 
congressional leaders a statement on 
our courthouse needs, with justifica- 
tions. We hope this will be a more 
persuasive argument in our efforts." 
GSA and OMB will receive the 
Judiciary's courthouse project plan at 
the same time as congressional 
leaders. 

Last year, Roth appeared before 
congressional subcommittees three 
times in less than a month, to testify 
on the need for adequate facilities. 

See Construction on page 9 



The Third Branch m February 2001 



Federal Courts Report on Optimal Utilization of Resources 



In a federal courthouse, a 
bankruptcy clerk is able to use 
the Internet for transactions 
made by the Bankruptcy Notic- 
ing Program. The Internet 
connection replaces the old 
modem dial method, saving 
money and allowing the more 
reliable transmission of notices — 
at a fraction of the time. Postage 
costs also were significantly 
reduced when Internet, e-mail 
and fax options were introduced 
to the Bankruptcy Noticing 
Program in fiscal year 2000. This, 
and other features of the Bank- 
ruptcy Noticing Program will 
create a projected $1.2 million in 
cost avoidances for the Judiciary 
in FY 2001. 

That's just one example of 
how the federal Judiciary is 
improving productivity and 
efficiency and reducing costs. In 
the Judiciary's fifth annual 
Report to Congress on the Optimal 
Utilization of Judicial Resources, there 
are dozens more. As this report 
notes, the Judiciary is being a good 
steward of public funds while 
improving public service. 

For example, at the court where 
the bankruptcy clerk is on the Inter- 
net, the court executive might be 
checking e-mail for an important 
memo from the Administrative 
Office. In FY 2000 the Judiciary 
began to send official policy direc- 
tives, time-sensitive documents, and 
other important information to chief 
judges or court unit executives, fully 
formatted and signed via electronic 
mail rather than sending paper 
memos. The switch reduces printing 
and postage costs by at least $20,000 
annually. 

Meanwhile, in the clerk's office, 
staff are calculating juror payments 
using the Jury Management System, 
an automated software system that 
also prints and scans qualification 




Improved productivity and efficiency are 
reducing costs throughout the federal court 

questionnaires and summonses, and 
tracks jurors, among other things. 
Our sample court is just one of 51 
courts using the system, which is 
expected to go to all 94 courts nation- 
wide by 2002. The system, which 
reduces errors caused by redundant 
data entry, gives immediate access to 
juror statistics. Reducing outsourcing 
of these functions also is saving the 
Judiciary $800,000 in FY 2001. And if 
there's a question about this system 
or any other software application, 
staff simply put in a call to the 
automation help desk, which has 
been consolidated from five into one 
facility, and which now supports all 
national applications. 

The clerk of court's office also is 
receiving dozens of case filings from 
attorneys— none of whom are 
standing in line at the court. Instead, 
they may be miles away, in their 
own offices, making use of the Case 



Management /Electronic Case 
Files System to send and re- 
trieve case documents over the 
Internet. In turn, the court uses 
the case management compo- 
nent to make case intake and 
docketing, scheduling, and 
notices to litigants and the 
public more efficient. With the 
electronic file component, 
litigants will be able to search, 
locate, retrieve, and deliver case 
documents electronically. 

A version of the system is 
installed already in 14 bank- 
ruptcy courts and seven district 
courts. The Judiciary expects to 
complete testing of the bank- 
ruptcy version and begin 
nationwide implementation in 
early 2001. 

Upstairs from the clerk's 
office, staff in a judge's cham- 
bers are going on-line to post an 
available law clerkship. The 
Judiciary developed a national 
database to save time and help 
judges and law students with the 
annual process of hiring law clerks. 

Even staffing in the courthouse 
has been scrutinized to improve 
balance between the work and the 
staffing resources required. In FY 
2000, the Judiciary revised all 
staffing formulas for court support 
offices, conducting work measure- 
ment studies in the appellate court, 
district and bankruptcy clerks' 
offices, and probation and pretrial 
services offices. Under the new 
formulas, which reflect new work 
requirements and the impact of 
automation and changes in work 
procedures, there is a more accurate 
distribution of staffing requirements. 

Courtroom use in our hypotheti- 
cal courthouse has not been ex- 
empted from cost-consciousness. A 
study of the Judiciary's space and 
facilities program has found that 
new courtroom policies adopted in 



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1997 save money— in FY 2001, an 
estimated $48 million. In particular, 
the provision of courtrooms for 
senior judges for 10 years resulted in 
a reduction in the number of court- 
rooms planned for new facilities. 
Other recommendations will pro- 
mote effectiveness, efficiency, and 
fiscal stewardship. In the past year 
the Judiciary has reduced space and 
rental costs. In FY 2000, a total of 
15,800 square feet was released by 
closing facilities and /or sharing 
existing courtrooms and chambers in 
state or local courthouses, saving the 
Judiciary about $160,000 in rental 
payments to GSA in FY 2000. 

In our busy courthouse, one bank- 
ruptcy courtroom has a television 
monitor and a video camera in 
addition to the bankruptcy judge and 
attorneys. In this hearing, the parties 
are separated by several hundred 
miles, but they're participating in the 
hearing by videoconference. In the 
district courts, videoconferencing is 
being used in pretrial, civil, and 
criminal proceedings, prisoner 
matters, sentencing, settlement 
conferences, arraignments, and 
witness appeals. Videoconferencing 
saves travel time and reduces 
security risks in transporting prison- 
ers. At the appellate level, oral 
arguments may be heard using 
videoconferencing, again saving time 
and the cost of travel. 

Television monitors also are in use 
just down the hall in the courthouse, 
but in a very different role. Judicial 
employees at the court are participat- 
ing in classroom instruction on a 
popular word-processing program. 
Also on the agenda is a program for 
probation and pretrial services 
officers on the special needs of 
offenders. Programs transmitted 
over the distance learning network, 
the Federal Judicial Television Net- 
work, allow employees to receive in- 
struction without traveling to train- 
ing sessions. It is expected that the 
use of distance-learning technologies 
to train court staff on two new 



automation systems will reduce 
travel expenses by about $860,000 
annually. In addition, the Judiciary is 
working with other government 
agencies with similar networks to 
share equipment and a satellite 
services provider, as well as reduce 
costs. To date, more than 200 federal 
court sites are equipped for video- 
conferencing. 

Behind the scenes at our court- 
house, the Judiciary continues to 
improve the automation infrastruc- 
ture for greater efficiencies. System 
applications are being consolidated 
on single servers, and the old main- 
frame tape technology for backup 
and recovery is being replaced with a 
high-capacity, high-performance tape 
subsystem. A new contract covering 
long-distance voice and data commu- 
nications services will provide lower 
costs for voice and data communica- 
tions services as well as new network 
management services not previously 
available. A new Human Resources 
Management Information system is 
replacing the current personnel, pay- 
roll, and subsidiary systems with a 
modern, adaptable, and integrated 
software package. Once fully imple- 
mented, the system will reduce staff 
time spent on data entry, processing 
personnel actions, manually tracking 
data, and locating information — plus 
reduce the amount of printing, copy- 
ing, postage, long distance calls, and 
faxes. 

The Judiciary is committed to 



continuing and expanding efforts to 
identify savings and improve the 
administration of justice. Among 
other additional initiatives the 
Judiciary has 

■ Continued a review of court 
security officer staffing standards to 
ensure resources are used efficiently. 

■ Used data from the Integrated 
Library System to successfully 
negotiate pricing arrangements for 
lawbooks with major publishers, 
substantially reducing spending. 

■ Renegotiated computer-assisted 
legal research services with West 
Group for an additional four years 
for substantial cost avoidances. 

■ Developed a website to assist 
individual courts in designing and 
managing their internal control 
programs and establish dollar limits 
and restrictions on types of pur- 
chases for travel and purchase card 
programs. 

■ Followed recommendations from 
a court-wide postage review that 
will convert court units to commer- 
cial meters and institute a number of 
efficiencies that should allow the 
units to manage their postage-related 
activities more effectively. 

To read the complete Report to 
Congress on the Optimal Utilization of 
Judicial Resources, visit the Judiciary's 
website at www.uscourts.gov. ^v^ 



Outside Earned Income Ceiling Increased 



With the recent cost-of-living 
adjustment for federal judges comes 
a corresponding increase in the 
ceiling applicable to outside earned 
income. 

The Ethics Reform Act prohibits 
high-ranking government officials 
from having outside earned income 
exceeding "15 percent of the annual 
rate of basic pay for Level II of the 



Executive Schedule." See 5 U.S.C. 
App. § 501(a). The basic pay for Ex- 
ecutive Schedule Level II employ- 
ees increased to $145,100 effective 
January 1, 2001, which is the same 
salary district court judges receive. 
As a consequence, the ceiling on out- 
side earned income also increased 
to $21,765 in 2001, from its previous 
level of $21,195 in 2000. $v^ 



The Third Brancli ■ February 2001 



JUDICIAL MILESTONES 



Appointed: Linda K. Caracappa, as U.S. 
Magistrate Judge, U.S. District Court for 
the Eastern District of Pennsylvania, 
November 17. 

Appointed: Thomas C. Holman, as U.S. 
Bankruptcy Judge, U.S. Bankruptcy 
Court for the Eastern District of Califor- 
nia, December 16. 

Elevated: Court of Appeals Judge Mary 
M. Schroeder, to Chief Judge, U.S. Court 
of Appeals for the Ninth Circuit, 
succeeding Judge Procter Hug, Jr., 
December 1. 

Elevated: Bankruptcy Judge Wm. 
Thurmond Bishop, to Chief Bankruptcy 
Judge, U.S. Bankruptcy Court for the 
District of South Carolina, succeeding 
Judge J. Bratton Davis, October 1. 

Senior Status: U.S. Court of Appeals 
Judge Emmett Ripley Cox, U.S. Court 
of Appeals for the Eleventh Circuit, 
December 18. 

Senior Status: Court of Appeals Judge 
Bobby R. Baldock, U.S. Court of 
Appeals for the Tenth Circuit, January 
26. 

Senior Status: Judge S. Jay Plager, U.S. 
Court of Appeals for the Federal Circuit, 
November 30. 

Senior Status: Court of Appeals Judge 
Laurence H. Silberman, U.S. Court of 
Appeals for the DC. Circuit, Novem- 
ber 1. 

Senior Status: Judge Robert J. Bryan, 

U.S. District Court for the Western 
District of Washington, November 1. 

Senior Status: Judge James C. Fox, U.S. 
District Court for the Eastern District of 
North Carolina, January 31. 

Senior Status: Judge Paul V. Gadola, 

U.S. District Court for the Eastern 
District of Michigan, January 31. 

Senior Status: Judge J. Spencer Letts, 

U.S. District Court for the Central 
District of California, December 19. 

Senior Status: Judge Thomas C. Piatt, 
Jr., U.S. District Court for the Eastern 
District of New York, February 1. 



Senior Status: Judge Morey L. Sear, 

U.S. District Court for the Eastern 
District of Louisiana, October 31. 

Senior Status: Judge Jack D. Shanstrom, 

U.S. District for the District of Montana, 
January 30. 

Senior Status: Judge G. Thomas 
Vanbebber, U.S. District Court for the 
District of Kansas, December 31. 

Senior Status: Judge Henry R. Wilhoit, 
Jr., U.S. District Court for the Western 
District of Kentucky, December 31. 

Retired: Judge J. Robert Elliott, U.S. 
District Court for the Middle District of 
Georgia, December 31. 

Retired: Magistrate Judge Katherine H. 
Baker, U.S. District Court for the 
Western District of Texas, November 30. 

Retired: Magistrate Judge David L. Core, 

U.S. District Court for the Northern 
District of West Virginia, November 30. 

Retired: Magistrate Judge Raymond J. 
Durkin, U.S. District Court for the 
Middle District of Pennsylvania, 
September 30. 

Retired: Magistrate Judge Jerry D. 
Hogg, U.S. District Court for the 
Southern District of West Virginia, 
October 31. 

Retired: Magistrate Judge William T. 
Prince, U.S. District Court for the East- 
ern District of Virginia, September 30. 

Retired: Bankruptcy Judge Robert L. 
Bayt, U.S. Bankruptcy Court for the 
Southern District of Indiana, Septem- 
ber 30. 

Retired: Chief Bankruptcy Judge J. 
Bratton Davis, U.S. Bankruptcy Court 
for the District of South Carolina, 
October 1. 

Retired: Bankruptcy Judge Herbert A. 
Ross, U.S. Bankruptcy Court for the 
District of Alaska, September 30. 

Retired: Bankruptcy Judge David E. 
Russell, U.S. Bankruptcy Court for the 
Eastern District of California, Decem- 
ber 15. 



THE 

THIRD 

BRANCH 



Published monthly by the 

Administrative Office of the U.S. Courts 

Office of Public Affairs 

One Columbus Circle, N.E. 

Washington, D.C. 20544 

(202) 502-2600 

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

DIRECTOR 
Leonidas Ralph Mecham 

EDITOR-IN-CHIEF 
David A. Sellers 

MANAGING EDITOR 
Karen E. Redmond 

ASSISTANT EDITOR 
Sharon F. Waites 

PRODUCTION 
Laurie Butler 



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



JUDICIAL BOXSCORE 



As of February 1, 2001 



Courts of Appeals 




Vacancies 


29 


Nominees 


9 


District Courts 




Vacancies 


62 


Nominees 





Courts with 




"Judicial Emergencies" 


28 



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



The Third Branch m February 2001 



Construction continual from page 5 

She, other judges, and Director 
Leonidas Ralph Mecham and his 
Administrative Office staff worked 
throughout the budget process to 
educate Hill members and staff on 
these courthouse projects. They 
warned Congress that delays in 
courthouse construction have 
created a backlog of projects, which 
affects court operation and signifi- 
cantly increases costs. The GSA 
estimates that construction costs are 
increasing 3 to 10 percent for each 
year of delay. At a hearing last 
April before the House Subcommit- 
tee on Economic Development, 
Pubic Buildings, Hazardous Materi- 
als and Pipeline Transportation, 
Roth said, "the lack of sufficient 
space can cause great waste and 
inefficiency in court operations." 
She also cited the additional secu- 
rity risks that are a concern in 
overcrowded and aging courthouses. 



Courthouse Project Plan for 2002 


($ in millions) 




Fresno, CA 


Const. 


$121.2 


Erie, PA 


Const. 


30.7 


Eugene, OR* 


Const. 


75.2 


El Paso, TX 


S&D 


11.1 


Mobile, Al_ 


S&D 


11.3 


Norfolk, VA 


S&D 


11.8 


Las Cruces, NM 


S&D 


4.1 


Salt Lake City, UT* 


Const. 


76.5 


Little Rock, AR 


D/C 


75.0 


Rockford, IL 


S&D 


4.9 


Cedar Rapids, IA 


S&D 


15.1 


Nashville, TN 


S&D 


14.3 


Savannah, GA** 


Const. 


46.5 


Ft. Pierce, FL* 


S&D 


4.5 


Jackson, MS* 


S&D 


12.3 


Austin, TX* 


S&D 


8.5 


San Diego, CA* 


D 


14.3 


Cape Girardeau, MO* 


Const. 


36.9 


Orlando, FL* 


Const. 


71.3 


San Jose, CA* 


D 


19.4 
$664.8 


S=Site 






D=Design 






Const=Construction 






* Require authorization in the House and Senate 


** Requires authorization in the House. 





FY 2002 Courthouse Project Plan 

After considering such factors as 
the year the building is projected to 
be out of space, security concerns, 
the number of additional judges who 
could not be housed in the current 
facility, and operational consider- 
ations, the Judicial Conference unani- 
mously approved on January 30, 
2001, an updated Five- Year Court- 
house Project Plan. The FY 2002 
projects need funding, and some 
require congressional authorization. 
Funding also will be needed to 
provide additional space at the 
courthouse under construction in 
Brooklyn, NY. In addition to the 
projects list for FY 2002, four projects 
for which funding was provided in 
GSA's fiscal year FY 2001 appro- 
priations need their funding levels 
adjusted for inflation. These projects 
are in Washington, D.C.; Buffalo, 
New York; Springfield, Massachu- 
setts; and Miami, Florida. ^_ 



March 16 Public Hearing Planned nn Internet Access tn Court Files 



An eight-member Judicial Confer- 
ence subcommittee will conduct a 
public hearing next month on the 
privacy and security implications of 
public access to federal court docu- 
ments via the Internet. 

The Subcommittee on Privacy and 
Electronic Access to Case Files will 
hear testimony Friday, March 16, 
from invited witnesses during a four- 
hour hearing (8:30 a.m.-12:30 p.m. 
EST) in the Judicial Conference 
Center, Thurgood Marshall Federal 
Judiciary Building, in Washington, 
D.C. 

Judge John W. Lungstrum (D- 
Kan.) will preside over the hearing in 
his role as subcommittee chair. He 
also chairs the Judicial Conference 
Committee on Court Administration 
and Case Management. 

The federal Judiciary's Case Man- 
agement/Electronic Case Files (CM/ 



ECF) project is designed to replace 
aging docketing and case manage- 
ment systems in more than 200 
bankruptcy, district, and appellate 
courts by 2005. It also will let courts 
file documents in electronic format 
and accept filings over the Internet. 

Case files, long presumed to be 
open for public inspection and 
copying unless sealed by court order, 
often contain private or sensitive 
information. Creation of electronic 
files means they may be viewed, 
printed, or downloaded by anyone, 
at any time, through the Internet. 

The Judiciary is trying to fashion a 
policy on public access by deciding 
whether electronic case files should 
be protected from unlimited public 
disclosure or be treated the same as 
paper files. 

Over a three-month period 
(November-January), the subcommit- 



tee received 244 comments from 
organizations and individuals. Those 
comments are posted at 
www.privacy.uscourts.gov. 

Prototype CM /ECF systems have 
been in use in four district courts and 
five bankruptcy courts for several 
years. So far, more than 1.5 million 
documents in more than 130,000 
cases are on CM /ECF systems in 
these courts. More than 5,000 attor- 
neys have filed documents over the 
Internet. 

The four district courts are the 
Western District of Missouri, the East- 
ern District of New York, the North- 
ern District of Ohio, and the District 
of Oregon. The five bankruptcy 
courts are the District of Arizona, the 
Southern District of California, the 
Northern District of Georgia, the 
Southern District of New York and 
the Eastern District of Virginia. £^ 



The Third Branch 



February 2001 



INTERVIEW 



Interview with Judge Diana E. Murphy, Chair 
ot the United States Sentencing Commission 



Judge Diana E. Murphy was appointed 
to the U.S. Court of Appeals for the 
Eighth Circuit in 1994. She was named 
chair of the U.S. Sentencing Commis- 
sion by President Clinton in 1999, with 
a term expiring October 31, 2005. 



Q 

A 



. Tell us a little bit about the 
• new commissioners. 

We are fortunate to have a 



10 



very able group of commis- 
sioners. 1 The Sentencing Reform Act, 
our authorizing statute, requires that 
at least three of the seven voting 
members of the Commission be fed- 
eral judges. For the first time there are 
five judges on the Commission, all 
with experience in actually applying 
the guidelines in sentencing criminal 
defendants. The other commissioners 
also have had significant experience 
with the guidelines — one as former 
general counsel of the Commission 
and the other as a criminal law pro- 
fessor and formerly counsel to the 
Senate Judiciary Committee. There 
are also two ex officio non-voting 
members of the Commission — the 
representative of the Attorney Gen- 
eral and the chair of the U.S. Parole 
Commission. We all have two goals 
in common: to strengthen the 
Commission's working relationship 
with Congress, the Judiciary, and the 
federal criminal justice community, 
and to maintain and improve the 
federal sentencing guideline system. 
Our diverse life experiences enrich 
our understanding of the tasks 
before us. 



Q # How do you decide what 
• goes on the Commission's 
agenda? 



A # We develop our agenda with 
• input from a variety of 
sources. Congress enacts new cri- 
minal statutes and frequently directs 
the Sentencing Commission to con- 
sider changes to the guidelines. 
When we started last year, we faced 
a backlog of crime legislation and 
directives that needed attention. We 
understood that it was important to 
the Commission's credibility and 
good working relationships to ad- 
dress this business right away. On 
May 1, 2000, we submitted to Con- 
gress 15 amendments to the guide- 
lines that cover a wide range of 
criminal conduct of public concern, 
including use of computers in sexual 
crimes against children, identity theft 
and wireless telephone cloning, elec- 
tronic theft and copyright infringe- 
ment, and methamphetamine traffick- 
ing. These amendments went into 
effect on November 1, 2000, without 
congressional intervention. 

Another very important responsi- 
bility, delegated to the Commission 
by the Supreme Court in Braxton v. 
United States, is to resolve circuit con- 
flicts on guideline interpretation. 
During our first amendment cycle we 
learned how challenging this work 
can be, and we resolved to develop 
criteria to assist us in selecting which 
conflicts to address. We consider fac- 
tors such as potential impact on defen- 
dants and on sentencing disparity, 
the number of court decisions in- 
volved in the conflict, and the effect 
of the divergent rulings. The Criminal 
Law Committee of the Judicial Confer- 
ence also recommends conflicts for 
resolution by the Commission. 

We put items on our agenda on 
our own initiative, too, or because of 
suggestions of judges and other inter- 




Judge Diana E. Murphy 



ested groups. Last May we held a re- 
treat to reflect on the work we had 
just completed and to plan for the 
coming amendment cycle and 
beyond. Included on this year's 
agenda are a comprehensive reas- 
sessment of the economic crimes 
guidelines, money laundering, 
counterfeiting, sexual predators, and 
various drug and firearms issues. We 
also are reviewing possible adjust- 
ments to the safety valve and to 
criminal history categories. 

Q # What groups do you work 
• with on a regular basis? 

A # There are several groups we 
• communicate with on a regu- 
lar basis. We meet formally with the 
Criminal Law Committee twice a year 
to discuss topics of mutual interest 
and also cooperate with it on other 
programs, such as the National Sen- 
tencing Policy Institute held in Phoenix 
last September, co-sponsored by the 
Federal Judicial Center. During the 
amendment cycle, we receive input 
from various advisory groups, the 
Probation Officers Advisory Group, 
the Practitioners Advisory Group, 
and the Federal Public Defenders 
Working Group. We have close com- 
munication with the Department of 
Justice and regularly obtain informa- 



The Third Branch m February 2001 



243 86/02 

991 QQ 



USA 

4 



tion from relevant federal agencies 
and concerned groups of all kinds. 
Throughout the amendment process, 
we hold regular public meetings, 
publish in the Federal Register for 
comment our proposed agenda and 
our proposed amendments, and 
conduct a public hearing in March. 



Q 



How do you get input from 
federal judges? 



A # One of our main priorities 
• has been to expand the dia- 
logue the Commission has with 
judges. We take every opportunity to 
meet with judges and listen to their 
concerns and ideas. Invite us, and we 
will come! Individual commissioners 
have gone to meetings in the First, 
Second, Fifth, Sixth, Eighth, and Tenth 
Circuits, and as a group we have met 
with judges in Massachusetts and 
Arizona. Through such meetings, we 
gain a better understanding of the 
issues facing judges. Because of our 
meeting with some of the border 
judges we were prepared to explain 
the increase in downward depar- 
tures related to their enormous 
caseloads when called to testify in 
the Senate in October. As a result of 
that Arizona meeting and another in 
the Fifth Circuit in November, the 
Commission is now reexamining the 
immigration guidelines. We want 
judges to inform us of any problems 
with the guidelines, and we want to 
respond in a constructive manner 
where we can. We have created a 
new way to communicate with judges 
as a result of a dialogue with Judge 
Avern Cohn: all of our published 
notices now are available through 
the Judiciary's internal website. 



Q # You have mentioned Con- 
• gress several times. What 
contact do you have with Congress? 



A 



# Part of our formal relation- 

• ship with Congress involves 



testifying before various committees. 
At our confirmation hearing before 
the Senate Judiciary Committee we 
were asked questions about our 
knowledge of the guidelines and our 
experience with them, including our 
own departure records. In October 
we testified before the Senate Crimi- 
nal Justice Oversight Subcommittee 
about our work and in response to 
subcommittee concerns about down- 
ward departures. In May we pre- 
sented testimony before the House 
Governmental Reform Subcommittee 
on Criminal Justice, Drug Policy, and 
Human Resources. That subcommit- 
tee was interested in the Commis- 
sion's views on mandatory minimum 
sentences, which it has consistently 
opposed, and possible changes to the 
drug laws. On a less formal basis, com- 
missioners and staff meet with mem- 
bers and their staff to discuss sen- 
tencing policy and guideline options. 
We also talk with members of both 
the House and Senate and their staffs 
about our budget request and the 
resources needed to do our work. 



Q # How does the Commission 
• go about the work of formu- 
lating guidelines? 

A. Much work goes into 
• making guidelines! Our able 
staff begins the process by providing 
background papers and briefings on 
each topic on our agenda, including 
analysis of sentencing data. The 
commissioners discuss the policy 
implications of various options and 
provide staff with drafting directions. 
Sometimes we have experts attend 
our meetings to broaden our under- 
standing. We get feedback from the 
advisory groups, from our published 
notices, from public hearings, and 
from symposia such as the one we 
initiated in October on economic 
crimes and new technology offenses. 
We also are required by statute to 
consider prison impact. The commis- 
sioners spend considerable time 



deliberating before voting on guide- 
line proposals. Sometimes it is deal 
which option makes the most sense, 
but more often it takes considerable 
time to consider all the implications 
of each. History has shown that it is 
critical to send to Congress amend- 
ments that have the support of all or 
most of the commissioners. This takes 
time and may involve compromise. 



Q 



What do you see as longer 
term projects? 



A. Certain kinds of work cannot 
• be completed in one amend- 
ment cycle. The Department of Justice 
has suggested that the Commission 
relook at criminal history categories, 
recidivism data, and the safety valve. 
The Criminal Law Committee has 
suggested that the Commission up- 
date its August 1991 report to Con- 
gress, Mandatory Minimum Penalties 
in the Federal Criminal Justice System, 
and a variety of other constituents, 
including members of Congress, have 
suggested that the Commission 
further study the drug statutes and 
guidelines. The Commission itself 
has undertaken a study on the oper- 
ation of the guidelines to mark the 
15-year anniversary of their use, 
which will be in the fall of 2002. Since 
their implementation in November 
1987, the guidelines have been used 
to sentence over 400,000 defendants. 
We plan to review their operation in 
light of the statutory purposes of sen- 
tencing, which include crime control, 
ending disparity in sentencing, and 
provision for certain, fair, and 
uniform punishment. £v^ 

1 The members of the new commission are 
Judge Diana E. Murphy, Chair (Eighth Circuit); 
Judge Ruben Castillo, Vice Chair (Northern 
District of Illinois); Judge William K. Sessions, 
III, Vice Chair (District of Vermont); John R. 
Steer, Vice Chair (former General Counsel); 
Judge Sterling Johnson, Jr. (Eastern District of 
New York); Judge Joe Kendall (Northern 
District of Texas); Professor Michael O'Neill 
(George Mason University); Michael Gaines, 
Ex Officio (Chair, U.S. Parole Commission); 
and Laird Kirkpatrick, Ex Officio (Department 
of Justice). 



11 



The Third Brandt m February 2001 



Judge Honored by VA for Work With Homeless Vets 



The Department of 
Veterans Affairs recently 
honored Judge Harry 
Pregerson (9 th Cir.) for 
his work with homeless 
veterans. Acting Secre- 
tary of Veterans Affairs 
Hershel Gober (photo 
left) presented 
Pregerson (photo right) 
with a token of appre- 
ciation etched with the 
VA seal. 

The 77-year old 
Pregerson has been 
active since 1972 with organizations 
that provide housing, employment, 
and rehabilitation services for 
homeless vets. Pregerson is himself a 
war veteran, and was severely 
wounded in the battle of Okinawa 
during World War II. 

In addition to working to provide 
affordable housing, Pregerson 




founded the Bell Homeless Shelter at 
a federal supply center in southeast 
Los Angeles County. One-third of 
Bell Shelter's clients are veterans. He 
partnered with charities, veterans 
groups, labor organizations, the 
General Services Administration, 
and then Mayor Tom Bradley to start 
the Westwood Transitional Village, 



which provided furnished apart- 
ments for homeless families, with 
preference given to veterans. 
Pregerson also helped start the 
Salvation Army's Haven Program, 
which arranges housing and pro- 
vides support services for homeless 
vets. 

Recently, he helped bring togethei 
judges and law enforcement and 
county officials to create a "homeless 
court." The court can clear an 
offender's record of minor violations 
providing an incentive to complete a 
rehabilitation program and return to 
a productive life. 

Pregerson worked in private law 
practice and served as a judge of the 
Los Angeles Municipal Court and 
Superior Court before President 
Johnson appointed him in 1967 to the 
U.S. District Court for the Central 
District of California. He was ap- 
pointed to the U.S. Court of Appeals 
for the Ninth Circuit in 1979 by 
President Carter. 



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