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THE

THIRD BRANCH Cost-Conscious Federal Courts Trim Needs, Ask for FY 2008 Funding

Newsletter of the Federal Courts

Vol. 39 Number 4 April 2007

I N T E R V I E W

An Interview with Supreme Court Justice John Paul Stevens

Before opening the hearing on the Judiciary’s FY 2008 budget, Subcommittee chair Senator Richard Durbin (D-IL) (photo right) greeted AO Director James C. Duff and Judicial Conference Budget Committee chair Judge Julia Smith Gibbons.

In March hearings on Capitol Hill, representatives of the federal courts asked Congress for enough funding to cover basic operating costs in fiscal year 2008, while assuring both Houses that the Judiciary is doing its part to contain costs and enhance productivity. Judge Julia Smith Gibbons, chair of the Judicial Conference Budget

INSIDE

Committee, and Administrative Office Director James C. Duff appeared before both the House and Senate Appropriations Subcommittees on Financial Services and General Government on March 21. Their testimony is available online at www. uscourts.gov/Press_Releases/appropriations032107.html See FY 2008 Funding on page 2

Making Jury Service a Positive Experience........................... pg. 5 Courtroom Use Study at Mid-Point ....................................... pg. 5 The Last Straw—Why Judges Leave the Bench.................... pg. 9

Supreme Court Justice John Paul Stevens joined the nation’s highest court in 1975, and is the court’s senior member.

Q:

In March 2007, your Supreme Court tenure surpassed that of Justice Byron White, and you are now the tenth longest serving justice in court history. Had you been aware of that milestone?

See Interview on page 10


FY 2008 Funding continued from page 1 “The Judiciary recognizes that the Administration and Congress are rightfully concerned about overall federal spending and budget deficits and that you face tough choices,” said Gibbons. “It may seem obvious, but it is worth noting that every item in our budget request relates to performing the functions entrusted to us under the Constitution. We have no optional programs; everything ultimately contributes to maintaining court operations and preserving the judicial system that is such a critical part of our democracy.” “We all know the important role that an independent federal Judiciary plays in our constitutional system,” said Representative Jose Serrano, (D-NY), chair of the House Appropriations Subcommittee on Financial Services and General Government, in his opening statement. “But the Judiciary, like other government entities, needs sufficient resources to properly function and perform its constitutional duties.” Gibbons noted that while spending for non-defense homeland security has more than tripled since 2001, “appropriations for the courts’ operating budget have increased only 33 percent to meet workload requirements, but onboard staffing levels have declined by 5 percent.” The funding provided by Congress in 2007, she said, will allow the courts to begin to close this gap between staffing levels and workload. “It is therefore critical,” Gibbons stressed, “that the courts be funded at a current services level in fiscal year 2008 in order to sustain the staffing gains funded in fiscal year 2007.” Senator Richard Durbin (D-IL), chair of the Senate subcommittee, asked Gibbons to comment on reports that perimeter security provided by the Federal Protective Service (FPS) has not been maintained or repaired, compromising security in those courthouses.

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“This doesn’t appear to be a new problem; this appears to be a recurring problem,” he said, adding, “I take this very seriously.” Durbin cited the murder of members of Judge Joan Lefkow’s family, a judge Durbin had recommended to the federal bench in the Northern District of Illinois. Gibbons responded that the concerns with FPS security were important enough that the Judicial Conference “felt compelled to take a position on it and to seek a change in our situation with respect to responsibility for our exterior perimeter security. Obviously, we all have a much more heightened awareness today than we did a number of years ago of the need for such security. And we are reluctant to let these things go once we find out about them and realize that we’re not having difficulties that are of an isolated nature.”

Cost-Containment Efforts Gibbons also told the subcommittees that cost containment is a top priority for the Judiciary. “The courts realize it is necessary, and we have had great cooperation Judiciary-wide as we have moved forward on cost-containment initiatives,” she testified. Among the initiatives are: • A rent validation project that has identified savings and cost avoidance over three fiscal years totaling $52 million. “Although it is quite timeconsuming,” Gibbons said, “detailed reviews of GSA rent billings are now a standard business practice throughout the courts.” The federal courts’ rent bill, payable to the General Services Administration, consumes about 20 percent of the courts’ operating budget and is projected to exceed $1 billion in FY 2008. The savings identified in rent overcharges are re-directed

Representative José Serrano

to other Judiciary requirements, “thereby reducing our request for appropriated funds,” said Gibbons. Additionally, Duff reported that the AO is working cooperatively with GSA on significant changes in how GSA determines or calculates courthouse rents. • Budget caps in selected program areas. The Judicial Conference approved a cap of 4.9 percent on the average rate of growth for GSA rent requirements for fiscal years 2009 through 2016. “This cap will produce a GSA rent cost avoidance by limiting the annual amount of funding available for space rental costs,” said Gibbons, “and courts will have to further prioritize space needs and deny some requests for additional space.” • Other cost-containment initiatives adopted by the Judiciary include redefined work requirements for probation officers, tighter restrictions on appointing new magistrate judges, consolidated computer servers—which is projected to save several million dollars over five years—and modified courthouse space design standards.

Fiscal Year 2008 Budget Request The Judiciary is requesting a 7.6 percent overall increase above fiscal year 2007 enacted appropriations. “The courts’ Salaries and Expenses account requires a 6.7 percent increase for fiscal year 2008,” said Gibbons. “We believe this level of funding represents the minimum amount required to meet our constitutional and statutory


Judiciary Appropriations ($000) Appropriation Account FY 2006 Available*

FY 2007 Judiciary Enacted Request Appropriations

FY 2008 Current Estimate

$60,143 5,568 65,711

$63,405 12,959 76,364

$62,576 11,427 74,003

$66,526 12,201 78,727

23,783

26, 300

25,311

28,442

U.S. Court of International Trade

15,342

16,182

15,825

16,632

Courts of Appeals, District Courts & Other Judicial Services Salaries & Expenses Defender Services Fees of Jurors Court Security Subtotal

4,330,190 709,830 60,705 368,280 5,469,005

4,691,196 803,879 63,079 410,334 5,968,488

4,480,521 776,283 60,945 378,663 5,696,412

4,778,856 859,834 63,081 421,789 6,123,560

Administrative Office

69,559

75,333

72,377

78,536

Federal Judicial Center

22,127

23,787

22,874

24,475

Judicial Retirement Funds

40,600

58,300

58,300

65,400

14,256 $5,698,588 18,000

15,740 $6,256,542 0

14,601 $5,975,732 0

15,477 $6,427,150 0

3,795

3,952

3,971

4,099

$5,720,383

$6,260,494

$5,979,703

$6,431,249

U.S. Supreme Court Salaries & Expenses Care of Building & Grounds Subtotal U.S. Court of Appeals for The Federal Circuit

U.S. Sentencing Commission Supplemental Vaccine Injury Trust Fund

Total, The Judiciary

* FY 2006 appropriated funds include the effect of across-the-board discretionary rescissions where applicable.

responsibilities,” she said. “While this may appear high in relation to the overall budget request submitted by the Administration, I would note that the Judiciary does not have the flexibility to eliminate or cut programs to achieve budget savings as the Executive Branch does.” The Judiciary’s funding requirements essentially reflect basic operating costs, which are predominately for personnel and space requirements and would account for 86 percent ($390 million) of the $452 million increase requested. The

remaining $62 million is for program enhancements, of which $22 million would increase the non-capital panel attorney rate from $96 to $113 per hour. “I realize that fiscal year 2008 is going to be another tight budget year as increased mandatory and security-related spending will result in further constrained domestic discretionary spending,” Gibbons said. “The budget request before you recognizes the fiscal constraints you are facing.” The Judiciary’s costcontainment efforts to date have

significantly reduced the Judiciary’s appropriations requirements, without adversely impacting the administration of justice. Gibbons urged the subcommittees to fund the Judiciary’s FY 2008 request fully in order to continue to maintain the high standards of the federal Judiciary. “A funding shortfall for the federal courts,” she cautioned, “could result in a significant loss of existing staff, cutbacks in the levels of services provided and a diminution in the administration of justice.”

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Legislation Update: Bills Focus on Security, Cameras and Patents Legislation affecting the federal Judiciary was introduced in the first few months of the 110th Congress.

Court Security Bills

4

Identical bills to improve federal court security have been introduced in the House and Senate. The “Court Security Improvement Act of 2007,” S. 378, was introduced on January 24, 2007 by Senator Patrick Leahy (DVT), chairman of the Senate Judiciary Committee. On the same day in the House, Representative John Conyers, Jr. (D-MI), chairman of the House Judiciary Committee, introduced an identical bill as H.R. 660. Both bills include provisions that would create new penalties for the malicious filing of fictitious liens, and a requirement that the U.S. Marshals Service consult with the Judicial Conference on matters relating to court security. The bills also would authorize the Judicial Conference to redact sensitive information from judges’ financial disclosure forms. “This expired redaction authority,” said Leahy in a statement, “was used in circumstances in which the release of the information could endanger the filer or the filer’s family. I hope we can reinstate and expand this much needed redaction authority.” In a statement submitted to the Senate Judiciary Committee at its February 14, 2007 hearing on Judicial Security and Independence, Judge D. Brock Hornby (D. Me), chair of the Judicial Conference Committee on the Judicial Branch, expressed appreciation to the sponsors of the court security bill and stated that the bill would contribute significantly to the security of federal judges and their families. [See the March 2007 issue of The Third Branch.] Although the House and Senate bills were introduced as identical legisThe Third Branch

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lation, the Senate Judiciary Committee later approved an amendment to S. 378, which was introduced by Senator John Kyl (R-AZ) and co-sponsored by Senator Dianne Feinstein (D-CA), that would transfer a judgeship from the District of Columbia Circuit to the Ninth Circuit.

Cameras in Courtrooms Two bills have been introduced in the Senate that would allow cameras in federal courts. One bill, S. 344, introduced by Senator Arlen Specter (RPA), would require the televising of Supreme Court proceedings “unless the Justices decide, by majority vote, that such coverage in a particular case would violate the due process rights of one or more of the parties.” The second Senate bill, S. 352, introduced by Senator Charles E. Grassley (R-IA) is entitled the “Sunshine in the Courtroom Act”. It would allow “the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides,” at the discretion of the presiding judge of an appellate or district court. The bill contains provisions that would allow the obscuring of non-party witnesses, and would not allow the televising of any juror in a trial proceeding. A House bill, identical to S. 344, also has been introduced. Judicial Conference policy allows each court of appeals to decide whether to permit the taking of photographs and radio and television coverage; the Second and Ninth Circuits currently allow such media coverage of appellate proceedings. Conference policy, however, does not permit photograph and broadcast coverage of proceedings in the district courts, and the Conference opposes legislation allowing the use of cameras in federal trial courts.

Electronic media coverage of criminal proceedings in federal courts is expressly prohibited under Federal Rule of Criminal Procedure 53.

Patent Case Assignment Pilot Program The House passed H.R. 34 in mid-February, a bill that would establish a pilot program in at least five U.S. district courts “to encourage enhancement of expertise in patent cases among district judges.” The bill is now pending in the Senate. Introducing the legislation, Representative Darrell E. Issa (RCA) said that, “The core intent of this pilot is to steer patent cases to judges that have the desire and aptitude to hear patent cases, while preserving random assignment as much as possible.” The pilot program would terminate in 10 years, and periodic studies would occur to determine its success. Under the legislation, the Director of the Administrative Office would designate “not less than 5 United States district courts, in at least 3 different judicial circuits” to participate in the pilot program, choosing the courts “from among the 15 district courts in which the largest number of patent and plant variety protection cases were filed in the most recent calendar year.” The Judicial Conference has not taken a position on the patent pilot project legislation; however, the Conference has a long-standing position favoring the random assignment of federal cases filed. Last Congress, the House passed the same bill where it enjoyed bipartisan support and backing from many intellectual property associations. H.R. 34 is now pending in the Senate.


Federal Courts Aim to Make Jury Service Pleasant and Informative “Probably 99 percent of the people who come here for jury service have never been inside a federal courthouse before,” said Cindy St. Pierre, a jury administration clerk for the Middle District of Pennsylvania in Scranton. “They seem quite surprised to discover it’s not as intimidating as they thought.” She added: “Everyone in our courthouse, including our judges, work toward making jury service a pleasant learning experience. We don’t want to waste folks’ time. If you come in, you’re likely going to be in voir dire. And if a case is settled or a plea entered, the presiding judge will visit the jury room and explain how their presence made the settlement or the plea possible.” Many federal courts nationwide are mounting similar efforts to make jury service as positive an experience as possible. In the Western District of Washington, people reporting for jury service receive small welcome baskets with snacks and treats, a welcome letter, and an exit questionnaire. “The feedback we’ve received has helped shape the information we post on our website and how it is displayed,” said Jeff Humenik, a jury administrator in Seattle. The availability of online information for prospective jurors is just one of many technological developments in recent years. Online communication also can be a two-way street. “We send our questionnaires out by snail mail but those contacted can reply either by snail mail or online by going to the court’s website,” said Jury Administrator Bonnie Olsen See Jury Service on page 6

Courtroom Use Study at Mid-Point Data collection in the on-going Federal Judicial Center study on courtroom use reached its midway point in April. The study is collecting information on the use of courtrooms in 26 districts of various sizes nationwide. Half of the districts, the Wave I districts, recorded data for the period January 15 through April 15, 2007. The other half, the Wave II districts, are recording data for the period April 16 to July 15, 2007. For the list of the participating districts, see the November 2006 Third Branch newsletter. Note that the FJC recently removed the Eastern District of Louisiana from the study because recent filings have so altered the district’s caseload that it is no longer representative of the category of districts it was randomly selected to represent. Working with six training specialists from the district courts, the FJC traveled to 56 divisions and taught over 1,000 court employees how to record the data for the study. The FJC developed a specialized application, based on Lotus Notes, to record the data. “The application to submit data is designed to be convenient and reliable,” said FJC senior research associate Donna Stienstra, who along with senior research associate Pat Lombard, is directing the project. “We’ve tried to make it as easy as possible for staff to transmit to us the information we need—and that they have—about schedules and courtroom use.” Their success may be measured by the reams of data now streaming to the FJC from the Wave I courts. Some courts have even expressed interest in retaining the courtroom scheduling aspect of the software after the study is completed. The study is collecting timebased data on the actual use of

courtrooms; data about proceedings or ceremonies that might be held in a courtroom, but are held elsewhere; and data on the scheduling of events, whether they occur or not. Although several past studies have looked at courtroom usage in the federal courts, they generally relied on limited data. “In this study,” said Lombard, “we are collecting a broader spectrum of scheduling and actual use data than was ever collected in the past. Previous researchers and commentators have long been aware of the problems with earlier studies and have recommended collection of more comprehensive data. This may be the first study to look at the complete picture.” “Cooperation by the courts has been superb,” said Jim Eaglin, Director of the FJC’s Research Division. “The courts appreciate that the FJC has designed a study to produce a fair and accurate assessment of courtroom use. We’re especially gratified by the number of judges who have taken the time to attend our presentations about the study.” In a separate component of the study, the FJC will send a questionnaire this spring to every federal district and magistrate judge in all district courts. The questionnaire asks about the judges’ use of courtrooms, any experience they have had in sharing courtrooms, and the role courtrooms play in how judges manage their caseloads. The FJC is conducting the courtroom use study at the request of the Judicial Conference Committee on Court Administration and Case Management (CACM). The committee undertook the study at the request of the Subcommittee on Economic Development, Public Buildings and Emergency Management of the House Committee on Transportation and Infrastructure. The FJC will submit its analysis of the data to the CACM Committee in October 2007.

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Jury Service continued from page 5 of the Eastern District of Virginia in Norfolk. “Each year, the number who respond online grows.” Relatedly, the Administrative Office has begun work on a national webpage that will allow prospective jurors to complete qualification questionnaires and obtain reporting information online. Deployment of that product, an enhancement to the Jury Management System, will begin in 2008. Courts in the Seventh Circuit have conducted a series of pilot studies in which judges agree to employ different techniques in their jury trials, and then the judges, lawyers, and jurors report via survey questionnaires how well they think those techniques worked. In the Ninth Circuit, a 15member Jury Trial Improvement Committee issued its second report last October, with recommendations and suggested best practices. Among its recommendations: – Include juror-related training for judges during new judge orientations and recommend appropriate judicial training be provided by the Federal Judicial Center. – Permit juror note-taking during a trial, and provide individual juror trial books in appropriate cases. – Provide all jurors with both preliminary and final jury instructions in written form. The committee’s chair, Judge Susan Bolton in the District of Arizona, said both Ninth Circuit Chief Judge Mary Schroeder and the circuit’s Judicial Council have endorsed its recommendations, and have urged all district judges in the circuit to utilize them. “Some of the recommendations are appropriate in all cases, and some may be appropriate only in some cases,” Bolton said. “But it is an anti-

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quated notion to think that jurors simply sit in court with their hands folded and then make the best decision that can be made for the case. Jurors need to stay engaged and interested in the process.” Bolton added that jurors cannot be expected to reach an informed decision if they are not allowed to tell the court when they are not comprehending some aspect of the case. Joanne Cook, a jury administrator for the District of Idaho and a committee member, said, “The committee’s work is just another sign that our courts are taking very seriously their efforts to make the jury service process as efficient as it can be.”

The committee’s report recommended allowing jurors to take notes, and providing individual juror trial books in appropriate cases “to enhance juror comprehension and memory.” “There are a variety of ways to manage the confidentiality of these notes in order to protect against their misuse,” the report said. “The court can require that jurors do not remove their notes from the courthouse and order that notes be destroyed after the trial.” “Trial books can assist juror notetaking and enhance the juror’s memory. Trial books should include the preliminary jury instructions. Readily available copies of key exhibits can result in fewer questions from the jury once they have begun deliberations. When dealing with technical or complicated concepts, it may prove beneficial to include a glossary in the notebooks to enhance

juror recall of testimony, increase comprehension, and reduce confusion during deliberation,” the report said. “During deliberations, each juror should have a copy of the final written instructions.” One of the components of a National Center for State Courts (NCSC) national study on jury system improvements was a recent survey of judges and attorneys reporting their trial experiences. Among the more than 11,000 survey responses received were 884 about federal court trials. Federal judges submitted 235 of those survey responses. “The data show some fascinating differences among the federal circuits with respect to the frequency of using techniques such as juror note-taking . . . to improve juror comprehension and performance,” said Paula Hannaford-Agor, director of the NCSC’s Center for Jury Studies. Comparisons between federal and state courts also are drawn. Jurors were allowed to take notes during trial in 71.2 percent of the federal proceedings referred to by survey respondents, and 69 percent of state court proceedings. Juries were allowed at least one copy of written instructions during their deliberations in 79.4 percent of the federal cases and 68.5 percent of the state cases. And each juror received a copy of written instructions in 39 percent of the federal cases and 32.6 percent of the state cases. The Judicial Conference’s Executive Committee in March called for several jury-related reviews, including “possible measures with regard to the summoning of potential jurors that could make jury service less burdensome and more cost-effective.” The Conference Committee on Court Administration and Case Management will study this issue.


GPS: Your Supervising Officer is Watching A gang member on supervision is accused of violently assaulting a female victim while at a gang party. The defendant denies being at the location. However, pretrial services officers are definitively able to place him at the location of the attack. The information is provided to state parole agents, the police and the federal judge. The defendant is returned to state prison for parole violation, charged with a new criminal offense and his federal pretrial release is revoked. How did the federal pretrial services officers know the defendant was at the crime location? Because they were, in a way, looking over his shoulder. As a condition of his pretrial release, the defendant carried a Global Positioning System (GPS) device to track his whereabouts. When the officers researched his location information for the evening in question, the GPS data placed him at the scene of the attack. First developed by the Department of Defense in the late 1970s, GPS relies on a network of satellites transmitting signals to receivers to determine a receiver’s location, speed and direction. Today, as GPS equipment has shrunk to the size of a clunky cell phone, the technology is available to nearly everyone, from outdoor enthusiasts finding their way through the wilderness, to drivers negotiating cross-town traffic. GPS also lets federal probation and pretrial services officers monitor defendants and offenders—around the clock, if necessary. “GPS monitoring is becoming an increasingly favored form of electronic monitoring nationwide,” said John Hughes, Assistant Director of

the Office of Probation and Pretrial Services at the Administrative Office. “And although it can be time and labor intensive, for selected offenders it delivers continual supervision at a lower cost than incarceration.” In fiscal year 2007, the AO estimates that some 50 probation and pretrial offices will use GPS to supervise offenders or defendants. As a condition of their sentence or supervised release, an offender or defendant might be required to carry a GPS unit. The unit can be either a one-piece unit, looking much like an ankle bracelet, that transmits data to/from the GPS system; or it can be a two-piece electronically tethered bracelet and cell phone/GPS receiver. If the unit is left behind and/or tampered with, an alert is sent to the monitoring company, which then notifies the supervising officer. Some GPS units let officers send a text message or voice message directly to the receiver worn by the offender. Under certain circumstances, an alert also may be sent if the offender wanders into forbidden territory. A defendant on a GPS tracking device was ordered by the federal judge to stay away from his ex-wife due to a prior history of domestic violence. There also was an active restraining order. In the middle of the day, the defendant drove by his ex-wife’s place of employment. The pretrial services officer received a text message alert and immediately contacted the defendant on the tracking device, instructing him to come to the office. The officer contacted the ex-wife, the court was notified and appropriate action was taken. In this instance, the probation or pretrial services officer had established exclusion zones around the wife’s home and work. Similarly, an inclusion zone can be established that alerts an officer if the offender deviates from a set location, route

and schedule, for example, from home to work to drug treatment. An alert notifies the officer when an inclusion or exclusion zone is violated. Active GPS monitoring and passive GPS monitoring have been the exclusive type of electronic monitoring-based supervision for the Pretrial Services Office in the Central District of California for the last four years, where at any given time 180 defendants may be under supervision—the largest program in the Judiciary. “The accountability factor is what makes GPS monitoring superior to any type of electronic monitoring supervision for us,” said Chief U.S. Pretrial Services Officer George Walker, Central District of California. “We know where defendants are 24 hours a day. If someone violates a parameter, an alert is sent and we can take action.” The district also uses a hybrid of active and passive monitoring for some defendants. The Probation Office in the Southern District of California has used GPS to monitor offenders for the last four years. At any time, 40 to 50 people may be monitored. “In our district, offenders are on GPS monitoring usually a minimum of 30 days and up to six months,” said Chief U.S. Probation Officer Ken Young. “For us, it works best for those people with no history of violence or non-compliance. They’re also usually first-time offenders.” The level of monitoring also depends on the offender. “We have a number of sex offenders on active GPS, or real-time tracking,” Young said, “where we can literally track the offender moving in the community.” Passive monitoring, according to Young, is most common in the Southern District of California. The GPS receiver records the offender’s movements within a period of time, and a probation officer reviews it at least once daily, responding to alerts See GPS on page 12

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THE

JUDICIAL MILESTONES

Appointed: Henry S. Perkin, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Pennsylvania, March 2.

Senior Status: U.S. District Judge Dean Whipple, U.S. District Court for the Western District of Missouri, April 30.

Senior Status: U.S. District Judge Robert L. Echols, U.S. District Court for the Middle District of Tennessee, March 1.

Elevated: U.S. Bankruptcy Judge Carla E. Craig, to Chief Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of New York, succeeding U.S. Bankruptcy Judge Melanie L. Cyganowski, March 1.

Senior Status: U.S. District Judge T.S. Ellis, III, U.S. District Court for the Eastern District of Virginia, April 1.

Retired: U.S. Magistrate Judge John P. Cooney, U.S. District Court for the District of Oregon, February 28.

Opera�ng Expenses

Judges’ Salaries and Benefits

8%

9%

See Money on page 9

6%

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 James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond

PRODUCTION Linda Stanton

Circuit, the Court of International Trade, the Administrative Office, the Federal Judicial Center, the U.S. Sentencing Commission, and the Judiciary Trust Fund. The remaining 95 percent goes to the Courts of Appeals, District Courts, and Other Judicial Services—for the Salaries and Expenses, Defender Services, Court Security, and Fees of Jurors accounts.

Other Uncontrolled Costs

BRANCH

CONTRIBUTOR Dick Carelli

Where the Money Goes – FY 2007 Nearly five months of fiscal year 2007 lapsed before the Judiciary received its appropriation; until then the courts had operated at fiscal year 2006 funding levels. By midFebruary, the Judiciary was finally able to disperse $5.98 billion to its judicial branch accounts. Of the Judiciary’s total funding, 5 percent funds the Supreme Court, the Court of Appeals for the Federal

THIRD

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, 2007 Courts of Appeals Vacancies Nominees

14 6

Court Personnel Salaries and Benefits

District Courts Vacancies Nominees

34 21

57%

Courts with “Judicial Emergencies” 20

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

20% 8 The Third Branch

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Money continued from page 8 Of the four accounts, the Salaries and Expenses account receives 79 percent of the funding, the largest share. From this account, courts must pay rent, judges’ and court personnel salaries and benefits, their operating expenses, information technology and other expenses. The Defender Services account receives 14 percent of the money, funding federal public defender and community defender organizations, compensation for private attorneys representing indigent defendants, and fees of persons providing investigative, expert, and other services under the Criminal Justice Act. The Court Security account receives 7 percent. This account provides funds, which are subsequently transferred to the U.S. Marshals Service and the Federal Protective Service, for the procurement, installation, and maintenance of security equipment, and for protective services, including contract security officers for the courts. The Fees for Jurors account, 1 percent of the court’s total funding, pays for juror fees and expenses.

Judicial Compensation Website Has it All One stop on the web will give you the facts on judicial compensation. Visit http:// www.uscourts.gov/judicialcompensation/index.htm to find important facts, pay charts and comparative tables, reports and publications, along with statements of support from legal associations, academe and Members of Congress.

The Last Straw Ronald J. Hedges is leaving the bench after 21 years as a magistrate judge in the U.S. District Court for the District of New Jersey. The local legal newspaper reports he is leaving because he’s tired of “seeing law clerks go out and get higher salaries as first year associates than I have, after all my years of experience.” But talking with Magistrate Judge Hedges you hear the frustration of a man leaving a job he loves. “I became a magistrate judge to do public service,” says Hedges. “As a former litigator, I considered this job to be the pinnacle of the legal profession, the best job in the world. I wish I could stay.” The last straw came this year when hope for a cost-of-living adjustment evaporated. Hedges makes $151,984 a year. Outside of COLAs—six of which failed to materialize in the last 14 years— he hasn’t had a pay increase since 1991. “It’s hard not to be dissatisfied and disillusioned,” he said, “when you see your earnings erode over the years, and nothing being done to protect judges’ salaries. I hope the Chief Justice’s efforts to get a pay raise for federal judges are successful. The truth of the matter is, the salary is inadequate.” He’s also not optimistic that a single pay raise can correct the longstanding problem. “Even if we got a raise this year,” Hedges said, “it might only be a matter of time before we fell back into a pattern of missed pay raises. There is simply no mechanism in place to ensure adequate raises.” Hedges will return to private practice, joining the firm of Nixon Peabody in New York City where he will earn more than he did as a magistrate judge. And he has some parting words of advice. First, he has no problem with judges drawing salaries in the $300,000 range. “If judges’ salaries do increase,” he said, “ they should be commensurate with

Magistrate Judge Ronald J. Hedges

their market equivalent.” And as for those who say there are always people willing to take the job when judges leave the bench, he warns, “You’re losing corporate memory and institutional knowledge with every judge who leaves the bench. And the erosion of judges’ salaries and loss of sitting judges cannot help but raise threats to judicial independence, which we all know (or should know) is vital to the functioning of our Constitution.” In addition to Magistrate Judge Hedges, the District of New Jersey has lost six Article III judges through resignations and retirements since 2000. All the judges entered private practice after leaving the bench. According to statistics cited by Chief Justice John Roberts Jr. in his 2006 Year End Report, when adjusted for inflation, the average U.S. worker’s wages have risen 17.8 percent in real terms since 1969. Federal judicial pay has declined 23.9 percent— creating a 41.7 percent gap. “In the face of decades of congressional inaction,” Roberts wrote, “many judges who must attend to their families and futures have no realistic choice except to retire from judicial service and return to private practice.” In the past six years, 38 judges have left the federal bench, including 17 in the last two years. The Third Branch

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9


I N T E R V I E W

A:

No. I knew it was coming sooner or later, but it’s not something I attach any special importance to. I know there are a lot of people out there who think I’ve been here five or 10 years too long. But the reason I stay on is that I enjoy the job. It’s a rare privilege to have this job; to have work this interesting and challenging at this stage in your life. But I’m not trying to set any records.

Q:

You spent five years on the U.S. Court of Appeals for the 7th Circuit before joining the Supreme Court. How do you compare the dynamic of hearing and deciding cases as one of nine compared to doing so as one of three?

A:

It’s obviously easier with just three. There’s less diversity of opinion to deal with, and during the process you only have to persuade two others, rather than eight others, to agree with you. The process, however, is much the same. It is one of discussion and trying to work out what you all want to do. There’s a greater difference in the oral argument than in the deliberation part of the process. Having three judges is like having a smaller committee. It’s more spontaneous.

Q:

Chief Justice Rehnquist was known for meticulously assuring, during the discussion of cases to be decided, that each justice speak once before anyone spoke twice. Is that rule still honored?

A:

Essentially it is. But it is not quite as strict as it was before. I think we take a little more time under Chief Justice Roberts than we did with Bill Rehnquist. But it’s essentially the same.

Q:

Several court members, past and present, have discussed the period of adjusting to life at the Supreme Court. Did your time on the appellate court and your having served as a law clerk to Justice Wiley Rutledge ease or shorten your period of adjustment?

A:

Supreme Court Tenures 1. William O. Douglas, 36 years, 7 months 2. John Marshall, 34 years, 6 months 3. Stephen Field, 34 years, 6 months 4. Hugo Black, 34 years, 1 month 5. John Harlan I, 33 years, 10 months 6. William Brennan, 33 years, 9 months 7. William Rehnquist, 33 years, 9 months 8. Joseph Story, 33 years, 7 months 9. James Wayne, 32 years, 5 months 10. John Paul Stevens, since December 19, 1975

Frankly, I felt comfortable pretty promptly. I wasn’t a stranger here, and I did feel that my background and memories as a clerk brought a lot of practices and customs of the court back to mind. And it’s clearly true that experience on the court of appeals is a great help here because you’re confronting the same issues pretty much. It’s amazing, when arriving at this court, how many times you have bumped into an issue you dealt with before, either directly or indirectly. Also, my experience as a law clerk is the reason I didn’t join the pool (in which one clerk from each chamber prepares a shared memo on each of the thousands of petitions for writ of certiorari). I had some familiarity with cert work, and I thought I could get through the certs faster without joining the pool. And that opinion hasn’t changed.

Q:

Are you the only justice who does not participate in the cert pool?

A: Q:

That’s right.

Have the challenges facing the federal Judiciary changed much during your tenure?

A:

They seem to change every day. It’s responsive to the

10 The Third Branch

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April 2007

cases you’re working on. You think of the current controversies and challenges as always something new. That’s one of the fascinating things about the job. You’re constantly amazed to find issues that you would have thought would have been decided 20 years ago.

Q:

Certain times throughout history, the work of the court seems to be more politicized by those outside the court. Are you able to isolate yourself from such distractions?

A:

That’s a question that every federal judge thinks about over his or her career. You think you are totally isolated, and I think for the most part we are. We decide the cases on what we think the law requires, rather than the popular reaction. And it’s part of the job to write unpopular opinions. You certainly don’t decide the cases on the basis of popular vote.

Q:

You serve as the circuit justice for the 7th Circuit. How would you characterize your relationship with the judges of that circuit?

A:

I’ve served as its circuit justice since I joined this court. I speak to the circuit’s conference each year. I give a speech and then talk informally and off the


record with the judges. I’ve always enjoyed that. It is a larger group now, since they’ve included magistrate judges and bankruptcy judges in the meetings. It used to be just circuit judges, then it expanded to the district judges, and now it’s even broader. But it’s always been a pleasant occasion.

Q: A:

Did you, or do you, have any judicial heroes?

Yes. John Marshall, of course. And Brandeis, Holmes and Cardozo were the three heroes when I was in law school, and I still consider them among the greatest to have served on this court. And, of course, Justice Rutledge was and remains a hero. I served with some pretty fine justices, my contemporaries, too.

Q:

Are there some colleagues with whom you have felt a special kinship?

A:

I probably was closer to Justice White than anyone else. We struck it off very well. I had known him way back during World War II, and I used to play golf with him regularly in his last few years on the court. I had a special relationship with him. Justice (Lewis) Powell and I were quite close, in part because of the similarity of our duties during the war. I always admired Justice (Potter) Stewart. He was a wonderful judge, a very eloquent person. He could say in a paragraph or two what someone else had been trying to say in 25 pages. He was a very gifted, competent justice. I had great admiration for him.

Q:

Early in your Supreme Court tenure, you were called a moderate conservative by those

in the news media and academia. Today, you are called a liberal. Why do you think that change in perception has occurred?

A:

There are more members of the court now who are not moderate conservatives. And of course, it depends on whether you’re talking about a political conservative or a judicial conservative. There are changes in the court that have to be taken into account.

Q:

You have practiced law, taught the law, and have served as a judge. What has given you the most job satisfaction?

A:

I really enjoyed all three. You know, the law is a wonderful profession. One of the reasons is that is it full of variety, full of challenges, and full of interesting problems. The judicial work has the advantage over the practice of law of not having to keep time sheets, and you don’t have to travel as much. Practice is very stimulating and rewarding, too. I enjoyed the teaching except for the blue books. I never felt comfortable in the judgments I had to make in giving grades to my students. They mean so much; grades are very important. Speaking about law students, I have a bias in choosing law clerks. I prefer those who are only a year or two out of law school, closer to their academic experience. They keep me more abreast of what’s current in the thinking of law professors, and I just like the younger perspective.

Q:

Public opinion surveys consistently indicate that the Supreme Court enjoys a very high degree of public confidence. Why do you think that’s so?

A:

The principal reason is that, on the whole, the court does a good job. And it is the one institution

in government that gives the honest reasons for its decisions. It states its reasons in published opinions. I think the court really is a very open institution, despite the fact that our arguments are not televised and our conferences are not public.

Q:

You have worked with three chief justices. How would you assess and compare their styles?

A:

Chief Justice (Warren) Burger was particularly gracious in open court. He was a very good presiding officer—he looked like a chief justice ought to look and he was a very charming guy. On the other hand, he was not as efficient and disciplined in his leadership role in conference as Bill Rehnquist was. Bill was very fair. In arguments, he was perhaps a little more strict on the red light than he had to be, cutting off lawyers who hadn’t finished their answers and so forth. I think Chief Justice Roberts combines the virtues of both his predecessors. He’s a very charming guy with a wonderful sense of humor as you’ve probably seen in open court. And he’s equally effective in conference. He’s very fair in how he handles his responsibilities in conference. I’m sure he’s going to be a real credit to the court over the years. And I know that’s not an isolated opinion.

Q:

Any thoughts about how you’d like your judicial legacy to be perceived by future generations?

A:

I don’t know quite how to answer that. I just hope people will make their judgments based on what my written opinions say, and not on what people say they say. There’s a long record there, and an awful lot of words. I just hope they say he did the best he could.

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GPS continued from page 7 immediately. If that raises questions about catching an offender “in the act,” both Young and Walker stress that GPS monitoring is not intended to be a prevention tool. “It won’t stop a defendant from fleeing, or committing a crime,” says Walker. The awareness, however, that a probation officer is tracking movements can be a deterrent, and alerts can give officers lead time to respond. “We can’t be on their doorstep 24/7,” says Young, “but GPS is a way for us to monitor location and compliance of someone in the community. We can, with reasonable certainty, know where someone is or has been.” The surveillance also is what Young calls self sustaining. In most districts, offenders help defray the

cost of monitoring on an abilityto-pay basis. Young estimates that Southern California’s program is supported 60 percent by offenders. In the District of Maine, where they’ve used GPS since May 2006, at any time 25 percent of the district’s probation or pretrial services clients may be on either active or passive GPS supervision. Active GPS is difficult because large areas of the state have poor cell phone service. “We can still use passive GPS,” said Chief of Probation and Pretrial Services Karen Moody. “But then it becomes an issue of making sure the court knows we won’t have a client or offender on minute-to-minute coverage. In every case, we take into consideration the needs and risks and see if GPS is a good fit.” Ryan

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Petroff, the district’s electronic monitoring specialist, sees GPS as an enhancement to supervision. Unlike electronic monitoring that only tells officers if an offender has left the house, GPS can verify if a client has attended substance or mental health meetings or is at a job site. “With GPS, we can tell where an offender has been and how long they were there,” Petroff said. Because of that advantage, he believes as the cost comes down, “we’ll see a move toward more active GPS.” The cost of electronic monitoring is estimated to be $4.50 per day, while GPS monitoring can run $9 per day. Incarceration can cost over $63 per day, per offender.

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2007-04 Apr  

I N T E R V I E W Court tenure surpassed that of Justice Byron White, and you are now the tenth longest serving justice in court history. Ha...

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