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Newsletter of the Federal Courts

Vol. 39 Number 6 June 2007

“A Good First Step” in FY 08 Funding Process Nation’s Northernmost Federal Court Brings Judiciary to the Frontier The House Appropriations Committee approved its version of the federal courts’ fiscal year 2008 appropriations bill in early June. Overall, the Judiciary would receive $6.258 billion, a 4.7 percent increase over FY 2007 funding levels, with a 4.1 percent increase for the Salaries and Expenses account. The Judiciary had requested an overall 7.6 percent increase above FY 07 enacted appropriations with a 6.7 percent increase in the Salaries and Expenses account. The bill now goes to the full House for consideration. “The mark for the Salaries and Expenses account is not as high as we had hoped,” said Administrative Office Director James C. Duff. “But it does provide funding sufficient to support additional staff that may be hired during fiscal year 2007 based on the courts’ workload needs, as provided for in the national financial plan and allotments to the courts.”


Other accounts within the Judiciary’s appropriations were not funded fully, although Duff remained optimistic, characterizing the overall mark as “a good first step.” The Defender Services account received $830.5 million, a 7.0 percent increase over FY 07. The Committee approved an increase in the panel attorney non-capital rate to $100 per hour— although the funding provided does not fund fully the account’s requirements at the increased rate. The Court See 2008 Budget on page 2

Pilot Project Posts Audio Recordings Online........................ pg. 3 Restyled Civil Rules Win Burton Award............................... pg. 6 Devitt Recipient Announced.................................................... pg. 8

Less than 200 miles south of the Arctic Circle is the northern-most court in the federal Judiciary—Fairbanks, Alaska. The federal court presence here began in the early 1900s with a single judge and a dogsled full of court records. Today, court records have gone electronic and federal judges often fly in to hear cases. U.S. District Court Judge Ralph R. Beistline, part-time Magistrate Judge Terrance Hall, their chambers staff, three deputy clerks, a deputy bankruptcy clerk, and two probation office are the Fairbanks federal district court contingent. Hall, Beistline and U.S. Court of Appeals Judge Andrew J. Kleinfeld are the latest in a long line of federal judges going back to Fairbanks’ beginnings, more than a century ago. In 1903, the first district judge to sit in the Interior of Alaska, James Wickersham, followed a gold stampede to a collection of tents and a few log cabins in the Tanana Valley that would eventually become Fairbanks. At the time, his district covered some 300,000 square miles. Local history says he arrived by dogsled at the new See Fairbanks on page 4

2008 Budget continued from page 1 Security account received $396.5 million, a 4.7 percent increase and equal to current services, but $18 million below full requirements. The Fees of Jurors account received $62.4 million, which is slightly below full requirements. The House bill also extends the temporary judgeship in the Northern District of Ohio. Funding for the General Services Administration, which is included in the same spending bill as the Judiciary, would provide $525 million for new construction projects and $764 million for repair and alterations projects government-wide. The House bill does not specify which projects would be funded, so it is not possible at this time to say if any courthouse projects are included. The FY 08 appropriations process still has a long way to go before completion. The Senate Appropriations Subcommittee on Financial Services and General Government was expected to mark-up its version of the bill in June. Potential roadblocks to completing FY 08 appropriations bills before October 1—the beginning of fiscal year 2008— include congressional and White House differences on overall spending and Iraq war funding, with the White House indicating it will veto bills that exceed the President’s budget request.

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7 Circuit’s Wiki Lets Practitioners Contribute th

The 7th Circuit Court of Appeals is engaged in an interesting experiment in democracy. The court posted its Practitioners Handbook to the web and opened it up for revision by members of the bar, no holds barred. Attorneys are encouraged to make comments, change information, add topics; in short, post whatever they think is important to know about practicing in the 7th Circuit. “Our proposition is that everyone knows more than any one person,” says Chief Judge Frank H. Easterbrook. “As a group, the attorneys practicing before our court know more about appellate practice than any single person. With our wiki, we’re drawing on that wisdom.” A wiki is a website that allows visitors to add, remove and edit content. To Easterbrook’s’ knowledge, this is the first wiki of its kind among the appellate courts. “We’re attempting to be part of the 21st Century,” he says modestly. And they’re doing a very good job of it. The 7th Circuit was the first federal circuit with a bulletin board that allowed users to exchange messages and read news over a phone line, one of the first to make audio of arguments available online, and the first to make same day RSS feeds of opinions and audio recordings of oral arguments available from its website. Wikis are notorious for their wide-open, feel-free-to-contribute ethos. But the experiment isn’t completely without rules. Like all wikis, everyone is free to contribute content to the handbook on the 7th Circuit’s site—and everyone else is free to edit or criticize that content. “By their nature, wikis are self-policing,” says Easterbrook.

“An active community does our monitoring. A mistake made by one contributor can be corrected by another contributor within minutes.” As a necessary precaution, the circuit asks users to register and provide a real e-mail address. A confirmation code is sent by the court to the user’s e-mail address and only by using the code can a user edit the website. And if negative information is posted? “We are well aware that there are destructive as well as constructive people in the world,” says Easterbrook. “Some protection is provided by our community of users viewing the page often enough to catch mistakes. We also keep a log of any changes and who makes the changes. And, if all else fails, we’ve designated staff to monitor the page and revert to an old page if the changes are particularly damaging.” Easterbrook is unfazed by the wide-open world of the wiki. “After all, wikis are easier to change than a law review article,” he says. And he hopes that other experiments that tap into the collective legal knowledge can be added to the website— perhaps someday a style and legal language guide. “A wiki allows people to start pages as well as edit them, so the field is open to additions,” he says. “But right now we’re just hoping to make life easier for the bar with a better handbook.” The 7th Circuit’s wiki can be accessed at index.php?title=Main_Page

Pilot Project Will Post Digital Audio Recordings Online Continuing its efforts to enhance the transparency of courtroom proceedings, the federal Judiciary is about to launch a pilot project to make digital audio recordings publicly available online. Five pilot project participants— three bankruptcy courts and two district courts—will integrate their recording and Case Management/ Electronic Case Files (CM/ECF) systems to make audio files available later this summer on the Internet, the same way written files have long been available. “We’re just treating the audio file as we would a written file,” said U.S. Bankruptcy Judge J. Rich Leonard in the Eastern District of North Carolina. “We think providing access to an audio file will prove to be enormously helpful.”

ard’s court taking the lead for bankruptcy court development. “We’ve been in touch with the four other courts, and will continue with e-mail exchanges and face-toface meetings in the coming weeks,” Leonard said. The five courts will make audio file access available through the Public Access to Court Electronic Records (PACER) system. More than 600,000 subscribers already use PACER to access docket and case information from federal appellate, district, and bankruptcy courts. (Learn more about PACER at www. Digital audio recording has been one of three authorized methods of making an official record of court proceedings since 1999, when the Judicial Conference voted to make it an alternative to court reporters and analog Pilot Project Courts recording. U.S. District Court for the District of Nebraska But the Conference’s action initially U.S. District Court for the Eastern District of Pennsylvania carried the condition U.S. Bankruptcy Court for the District of Maine that no additional funds over the cost U.S. Bankruptcy Court for the Northern District of Alabama of a court’s analog system be spent for U.S. Bankruptcy Court for the Eastern District of North Carolina digital audio systems. That limitation was His court and a CM/ECF team lifted in 2005, and the pilot project within the Administrative Office won Conference approval last March. (AO) are developing the necessary Today, digital audio recording is software, and will share it with the used in most bankruptcy courts and bankruptcy courts in the Northern at least one-third of the 94 district District of Alabama and the District courts (where magistrate judges of Maine, and with the district courts account for most of the usage). In for the District of Nebraska and the those courts, computer disks of hearEastern District of Pennsylvania. ings have been available for the The lead programming work was authorized fee of $26 but prospective done by Leonard’s court for the audio purchasers have had to make a trip system, VoiceIQ, being used in three to the clerk of court’s office. of the five pilot courts. The other During the six-to-12-month pilot audio system being used is FTR-Gold. project, Internet access to the same The interface software for it will be content will cost 16 cents—eight developed by both court and AO cents for accessing the docket sheet staff, with AO staff taking the lead for and another eight cents for selecting district court development and Leonthe audio file.

“It’s going to be a PDF document that’s considered a single page,” Leonard explained. “The Administrative Office’s Electronic Public Access Program Office will determine during the pilot project what the appropriate fee should be if such access becomes permanent. The impact on bandwidth, costs of the required technology, and other factors will be part of that determination.” The EPA program’s mission is to facilitate and improve electronic public access to court information at a reasonable cost, in accordance with congressional and judicial policies, security requirements and user demands. “This pilot project is a logical step,” said Mary Stickney, the EPA Program Office chief. It was Leonard, previously a district court clerk and a magistrate judge, who first proposed the pilot project. “He has a keen interest in all aspects of the EPA Program, and his knowledge of history, technology, and policy is unsurpassed in the Judiciary,” Stickney said. “His leadership has been instrumental in shaping the discussion and resulting policy on electronic public access and privacy issues.” Judges in the five pilot courts will determine which of the hearings they preside over should have a recording posted on PACER for possible downloading. Those seeking to access audio files will find a specially designed icon—an audio speaker—to designate the digital audio recordings. “We anticipate that these files will be popular, particularly with members of the news media,” Stickney said.

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Fairbanks continued from page 1


settlement and built the first federal courthouse, financing construction with shop and saloon license fees. The structure burned down shortly thereafter. Wickersham was a lifelong booster for Alaska. After he resigned as a district judge in 1908 and was elected Alaska’s delegate to Congress, he helped pass the bill granting Alaska territorial status, and he introduced the first bill to give Alaska statehood. These days, Fairbanks, Nome, Ketchikan, and Juneau are court divisions of Anchorage, 358 miles to the south of Fairbanks. Beistline is one of the district’s three active Article III judges, which also has four senior Article III judges, one full-time magistrate judge and five part-time magistrate judges. “We all have spent decades in Alaska. Chief Judge John W. Sedwick grew up in Anchorage. In fact our two oldest senior judges, Judges James Von der Heydt and James M. Fitzgerald, were first appointed state court judges in 1959 when Alaska became a state,” relates Beistline. All of the active judges travel throughout the state for cases, with Beistline traveling between Anchorage and Fairbanks. Ninth Circuit Court of Appeals Judge Andrew J. Kleinfeld has his chambers in Fairbanks. He came to Alaska as a law clerk and liked practicing law in Fairbanks so much he never went back to a promised job in Boston. Through appointments as a U.S. magistrate judge, a U.S. district court judge, and finally as a court of appeals judge, Kleinfeld has called Fairbanks home. “When I was appointed to the Ninth Circuit, I could have had chambers anywhere in the circuit,” Kleinfeld says. “And I had calls from our U.S. Senators, and even President George H. W. Bush himself, asking where I wanted to sit. I wanted there to be an Alaskan seat as much as they did. Besides, this is where my wife and I have lived our adult lives, and The Third Branch


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Judge Ralph R. Beistline, Chief Justice John Roberts Jr., and Magistrate Judge Terrance W. Hall (photo left to right, back row) greeted newly naturalized citizens at a Fairbanks ceremony. Roberts is the first Chief Justice to visit Alaska.

this is my favorite place to live.” For Beistline, going to Fairbanks is like going home, which is only natural. He’s a fourth generation Alaskan; his great grandmother’s family came to Alaska when gold was found; his father was a professor and dean of Alaska University’s College of Engineering and Mines in Fairbanks for over 30 years, and Beistline grew up there. “I go to Fairbanks on an as-needed basis,” he says, “but generally I’m there at least once a month for several days, during which time I do hold court. If I have a trial, I could be there for several weeks at a time.” Fairbanks’ caseload reflects its proximity to the North Slope and the oil fields of Prudhoe Bay; when the oil pipeline was under construction several years ago, the caseload grew too. “We have a bit of everything,” says Clerk of Court Ida Romack. “We went through an increase in environmental cases in the 1980s. Now there are more social security cases.” In addition to district court staff in the Fairbanks office, a deputy bankruptcy clerk is available to serve the public and accept filings. A bankruptcy judge travels to Fairbanks from Anchorage when necessary to conduct hearings and trials, although, says Bankruptcy Clerk of Court

Wayne Wolfe, “as much as possible, matters are handled by teleconference from Anchorage to avoid undue cost to everyone.” Naturalization ceremonies are performed throughout the state and in as remote a site as Dutch Harbor in the Aleutian Islands. In Fairbanks there are generally four such ceremonies a year. Last month, a Fairbanks naturalization ceremony drew an unexpected guest—Chief Justice John Roberts Jr. “The state bar invited the Chief Justice to its convention,” said Beistline. “We moved our naturalization ceremony to Friday when he’d be in town and he agreed to come over. We’ve never had a Chief Justice in Alaska, let alone Fairbanks.” Beistline says that Roberts welcomed, and then shook hands with, all 21 new citizens. “It was a spontaneous moment,” he says. “The Chief Justice turned the ceremony into a lifetime experience for everyone.” As a state judge and now as a federal judge, Beistline is accustomed to jurors coming to court on snowmobile, and weather so unpredictable that, he says, “You have to be careful when you send jurors home for the weekend. You might not get them back.” Despite this, he claims the Fairbanks courthouse

The Federal Building and U.S. Courthouse in Fairbanks, Alaska. As the City of Fairbanks proudly points out, “Fairbanks has most of the amenities of a large city without the frenetic pace and overcrowding.”

seldom closes. “Thirty degrees below zero is not bad weather in Fairbanks,” Beistline asserts. Romack adds that although the roads and courthouses seldom close, sometimes getting jurors to court can be pretty interesting in a state where there are no roads to most places. “For Juneau and Ketchikan, it’s either ferry or plane, or plane and ferry and hope the weather cooperates,” she says. But Romack says she still gets the occasional call from the Administrative Office asking why they’re flying jurors in for court proceedings. “In Alaska,” she says, “getting on a plane is just so part of living here. It’s not like in the states where you get in a car and go to court.” Romack tells of one man, a gold miner, who in the summer hitchhiked down from his gold claim outside of Fairbanks to Anchorage and in the winter came by dogsled to Fairbanks and then on by plane to Anchorage to serve on a grand jury. “He was so scruffy-looking that the bank would not cash his juror check unless I went to the bank and identified him,” Romack recalls. “He was on jury duty for 18 months and he made it for all 18 months.” There are no certified interpreters in Alaska; they must be brought

up from the lower 48. “We use the telephone interpreting line a lot,” says Romack, “and we usually go to the university or the state court for language-skilled interpreters.” Spanish language interpreters are in demand—many of the people who come to work in the canneries are Hispanic, and there is a sizable Asian population, too. But occasionally Russian interpreters are needed. Afterall, in Nome you can look out from the courthouse and see Russia across the water. When the ice is solid, some Alaska natives would walk over to visit relatives. “A few years ago,” Romack recalls, “we naturalized a woman in her 90’s whose mother had walked over to Russia and given birth while there.” Not surprisingly, overseeing offenders on probation in the district also presents challenges. “Supervision is a bit difficult,” admits Toni Ostanik, one of two probation officers in the Fairbanks division. “A bit of our caseload is somewhat unreachable.” She explains that probation officers in Alaska—unlike their counterparts in the lower 48— can’t jump in a car and make home visits to check on offenders. “Most of our offenders are a plane ride,” says Ostanik, “and at least a few

hours away, if the weather is good.” Probation officers often rely on village safety officers or law enforcement officers where an offender lives. For example, local officers may drug test offenders with kits sent out from the Fairbanks probation office. “It’s hard to supervise a caseload,” Ostanik admits, “when you can’t see offenders, face-to-face, on a regular basis.” Instead, offenders may be required to call in with a monthly report. “The cost is just too high for them to come to the office,” says Ostanik. “They don’t have the means. In fact, some of our offenders may never have been out of their villages in their whole lives.” No matter how bad the weather or great the distance, the filing of civil, criminal, and bankruptcy cases in the district goes on. In January of last year, the District of Alaska implemented the Case Management/Electronic Case Files system. Because their old system could not be converted, every open case and all closed cases with activity had to be added manually and for a while clerks were doing double entry of cases. The transition went smoothly and the new system has been well received. “The public and the bar have been very receptive,” says Romack. “Chambers seem to like the new system too. It has really changed the way we do intake. Not very many people show up at the intake office now.” The district makes technology work for them in other areas too. Romack depends on her Blackberry to keep her continually in touch, and the court is trying out teleworking. Some staff work from home a few days a week using laptops and Romack would like to expand the program. All of which goes to prove that the frontier spirit—in the sense of the leading edge—is alive and well in the District of Alaska. “Here in Alaska,” Beistline says with some pride, “we’re in the forefront of everything.”

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Restyled Civil Rules Win Burton Award Remove ambiguous language. Replace archaic words and legal jargon. Root out inconsistent and stilted usage. Minimize the use of superfluous intensifiers, redundant words, and unnecessary cross-references. The Federal Rules of Civil Procedure have emerged from a fouryear comprehensive style revision with their language clarified, simplified, and modernized—and without changes to their substantive meaning. The simplification brings to a close the first comprehensive rewrite of the federal civil rules in the nearly 70 years they have been in existence. The restyled Rules of Appellate Procedure took effect in 1998 and restyled Rules of Criminal Procedure took effect in 2002. The Rules of Civil Procedure were slated third, recognizing that they would be more difficult because they are older, longer, and have been amended more often since they became effective. The four years required for the work attests to just how difficult it was. The rewritten civil rules were approved by the Judicial Conference in September 2006 and transmitted to the Supreme Court. The Court approved the rules and sent them to Congress on April 30. If Congress does not enact legislation to reject, modify, or defer them, the revised rules will take effect as a matter of law on December 1, 2007. This latest facelift was the responsibility of the Judicial Conference Standing Committee on Rules of Practice and Procedure and the Advisory Committee on Civil Rules, both composed of federal judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice. Each committee has a reporter, a law professor, who is responsible for coordinating the committee’s agenda

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and drafting appropriate amendments to the rules and explanatory committee notes. Staff from the Office of Judges Programs, Administrative Office, supported the project. They all obviously did a stellar job. Earlier this month the restyled civil rules project was recognized by the prestigious Burton Awards for Legal Achievement with the 2007 Reform in Law Award. Provided in association with the Library of Congress and the Law Library of Congress, the award was given to the Advisory Committee on Civil Rules, which carried out the project; the Standing Committee on Rules of Practice and Procedure, A comparison of the existing and restyled rules makes the case for the changes. As an example, the present Rule 8(e)(2) says: When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. The same rule, restyled: If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

and Professor Joseph Kimble from Thomas Cooley Law School, who served as drafting consultant. Judge Lee Rosenthal (S.D. Tex.), chair of the Civil Rules Committee, accepted the award on its behalf. Judge Thomas W. Thrash, (N.D. Ga.), who serves on the Standing Committee and on its three-member Style Subcommittee, accepted the award for the Standing Committee. The civil rules, which were described by Judge Edward T. Gignoux, former chair of the Rules Committee, as “among the most significant accomplishments of American jurisprudence,” originally took

effect in September 1938. “The age, length, and complexity of the civil rules make the benefits of restyling even more valuable and important,” said Rosenthal. “If we had not done this work, the rules would have become progressively more difficult to understand and use.” Some changes impacted entire blocks of text. Others were as simple as changing “infant” to “minor.” Dense block paragraphs and lengthy sentences were replaced with shorter sentences, progressively indented paragraphs, descriptive headings, and lots of white space. The rule numbers remain unchanged. Every change to the civil rules language was analyzed and documented, scrutinized and reviewed. Originally, there was some concern that a rewrite might change the substance of the rules, bringing on litigation to determine meaning. “In all cases the rules restyling is intended to be stylistic only,” said Chief Judge David F. Levi, (E.D. Calif.), chair of the Standing Committee on Rules of Practice and Procedure. “There was little risk that the restyled rules would cause inadvertent changes in the meaning of the rules. The relationship between the civil rules and existing laws is unchanged.” The Federal Rules of Appellate, Bankruptcy, Criminal, and Civil Procedure and the Federal Rules of Evidence govern procedure, practice, and evidence in the federal courts. Under the Rules Enabling Act, the Judiciary is authorized to prescribe the rules of the federal courts.


Karen K. Siegel 1947-2007

Karen K. Siegel, the first Assistant Director of the Office of the Judicial Conference Executive Secretariat, died June 5, 2007, after a long illness. Siegel was 60 years old. In 1982, she joined the Administrative Office as special assistant to the Executive Assistant Director. By 1991, she had been named the first chief of the Office of the Judicial Conference Executive Secretariat, and in 1994, OJCES Assistant Director, a position she held until 2004. Siegel is survived by her husband Mark and two daughters.

New Version of OSCAR Improves Law Clerk Application Process A new version of OSCAR, the Online System for Clerkship Application and Review, is now available to law schools, clerkship applicants, and judges nationwide. The upgrade incorporates several new features that promise to make the system even easier to use. Nationwide, over 750 federal appellate, district, bankruptcy, and magistrate judges use OSCAR to select their law clerks and approximately 200 law schools provide access to the system for their students and administrators. OSCAR takes what was a paperheavy—and expensive—process and puts it online. Applicants for law clerk positions can pull together and submit on-line applications complete with resumes, cover letters, transcripts, and writing samples. Letters of recommendation can be placed confidentially in an applicant’s online file, either directly by the person making the recommendation or through an applicant’s law school. In turn, federal judges and their chambers staff can read, sort, and manage those applications onscreen, select materials to download, and communicate with applicants via email. Version 3.0, the latest adaptation, bumps up OSCAR’s usability. Among the enhancements are a new “The Position” section that identifies the term of the clerkship, start/end dates, and application requirements. The new version also lets chambers open and close a clerkship for applications. Application folders are easier to rename and subfolders can now be added. Searching and sorting capabilities have been expanded to include geographic locations and text-word searches for a publication name in any of the submitted documents.

OSCAR also has spawned a web blog as a forum for law school students and administrators to post questions and share information. The blog has the additional ability to deliver RSS feeds. Of course, OSCAR retains those features that have made the system so successful. Judges can still search for applicants based on law school, graduation year, class rank, and law review/journal experience. Applications can even be searched for experience in a particular area by using the full-text word search capability. And when applications have been sorted into folders, OSCAR allows reviewers to assign a 1-5 star rating to each one. About the only things OSCAR can’t do is interview the applicants and make a final decision. Those activities are still up to the judge. Information on registering for OSCAR has been sent to all federal judges, who may sign up to participate in the program for the 2008 clerkship season by contacting the OSCAR Support Desk at 202-3543005 or by emailing oscar-support@ Participating judges are posted on the Federal Law Clerk Information System at as well as on the OSCAR website. Beginning June 11, 2007, applications were being accepted for 2008 law clerk positions. For more on OSCAR visit http://oscar.

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Appointed: Debra Ann Livingston, as U.S. Circuit Judge, U.S. Court of Appeals for the Second Circuit, June 1.

Senior Status: U.S. District Judge Robert E. Payne, U.S. District Court for the Eastern District of Virginia, May 7.

Appointed: Frederick J. Kapala, as U.S. District Judge, U.S. District Court for the Northern District of Illinois, May 10.

Retired: U.S. Senior Judge John C. Lifland, U.S. District Court for the District of New Jersey, May 31.

Appointed: Halil Suleyman Ozerden, as U.S. District Judge, U.S. District Court for the Southern District of Mississippi, May 3. Appointed: Ben T. Barry, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Eastern District of Arizona, April 26.

Deceased: U.S. Senior Judge Clifford Scott Green, U.S. District Court for the Eastern District of Pennsylvania, May 31. Deceased: U.S. Senior Judge James H. Jarvis, U.S. District Court for the Eastern District of Tennessee, June 6.

As of June 1, 2007 Courts of Appeals Vacancies Nominees

13 5

District Courts Vacancies Nominees

37 20

Courts with “Judicial Emergencies” 15

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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 DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond CONTRIBUTOR Dick Carelli

Please direct all inquiries and address changes to The Third Branch at the above address or to

King Receives 2007 Devitt Award




PRODUCTION Linda Stanton

Elevated: U.S. District Judge Edward W. Nottingham, to Chief Judge, U.S. District Court for the District of Colorado, succeeding U.S. District Judge Lewis Babcock, June 8.

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


Fifth Circuit U.S. Court of Appeals Judge Carolyn Dineen King is the 2007 recipient of the Edward J. Devitt Distinguished Service to Justice Award. King was chosen by a threemember panel chaired by U.S. Supreme Court Justice Ruth Bader Ginsburg; other members of the panel are Chief Judge Deanell Reece Tacha (10th Cir.); and Judge Gerard E. Lynch (S. D. N.Y.). In his nomination letter, Chief Judge Michael Boudin (1st Cir.), said: “Judge King has been an outstanding chief judge of her own circuit, almost legendary in her devotion to its needs. In her leadership of the Executive Committee of

Fifth Circuit U.S. Court of Appeals Judge Carolyn Dineen King

See King on page 9

Temporary Judgeship Bill to Help Five Districts

The Senate Judiciary Committee approved and sent to the Senate floor for a vote, a bill, S. 1327, that would create two temporary district court judgeships and extend three others. Committee chairman Senator Patrick Leahy (D-VT) also indicated he would support a more comprehensive judgeship bill in the future. “Last Congress two of these needed temporary judgeships were allowed to expire,” Leahy said. “One was in Nebraska and the other in California. That was unfortunate in my view since they continue to have high caseloads.” S. 1327 would create temporary judges in the Districts of Nebraska and the Eastern District of California.

The bill also would extend three temporary judgeships, one in the Northern District of Ohio and one each in the Districts of Hawaii and Kansas. All three districts have high caseloads with temporary judgeships close to expiring. “I support acting to ensure their continuation,” said Leahy, “until we have had the opportunity to conduct a comprehensive review of the judgeship needs throughout the Federal system. I hope to undertake that review next year.” During the Senate Judiciary Committee markup of the legislation, Leahy made clear, in response to a considered attempt to add judgeships to the bill, that he was willing to work with committee members to draft a separate judgeship bill—which would take effect in 2009. Although the judges appointed to the temporary judgeships have lifetime appointments, legislation creating temporary judgeships

specifies that the first vacancy in the district after a set date cannot be filled. Under the provisions of S. 1327, in any of the five districts, the first vacancy occurring 10 years after a judge was appointed to the temporary judgeship would not be filled. The Judicial Conference recommends a new judgeship be considered for a district where the current caseload is above 430 weighted filings per judgeship, after factoring in any additional judgeships. Nebraska’s weighted caseload per judgeship is now at 617 and the Eastern District of California’s weighted caseload per judgeship is at 952. The three other districts for which temporary judgeships have been recommended would see their weighted caseload per judgeship near or exceed 430 if they lose their current temporary judgeships.

King continued from page 8 the Judicial Conference, she has been the single most important figure in the [federal] Judiciary in guiding the courts through the financial crisis of the last several years.” In a 2004 address, Judge King said: “I have always believed that lawyers . . . are obligated to tithe their time and to devote a generous portion of their abilities on a continuous basis to the service of other persons and their community.” The selection panel noted King’s devotion to the public good through legal, civil, and charitable ventures. King was appointed to the U.S. Court of Appeals for the Fifth Circuit in 1979. As chief judge of her circuit, she led efforts to aid the hard-pressed district courts on the Southwest border, and when there was a severe overload of cases, she served for several months as a bankruptcy judge. Under her stewardship, the

Fifth Circuit was one of the first federal circuits in the nation to create an emergency coordinator post and establish contingency plans for court operations. Thanks to her foresight and planning, the circuit’s courts were able to return to regular business soon after Hurricanes Rita and Katrina. King served seven years on the Judicial Conference, the last three as chair of the Executive Committee. In July 2005, some weeks before his death, Chief Justice Rehnquist wrote to Judge King thanking her for her service. “You have been an exceptionally creative and vigorous chairman,” Rehnquist wrote. “I have been able to turn over the gavel to you at Conference sessions knowing that you would preside effectively and that you had the respect of your colleagues.” He penned at the end of his letter: “Good work Carolyn.” The Devitt Distinguished Service to Justice Award is named for the

late Edward J. Devitt, longtime chief judge of the U.S. District Court for the District of Minnesota. The annual award honors Article III judges whose careers have been exemplary, measured by their significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of society as a whole. It is administered by the American Judicature Society with funding provided by the Dwight D. Opperman Foundation, Minneapolis. The award will be presented at a ceremony this fall.

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An Interview with ABA President Karen Mathis Karen J. Mathis, a partner in the Denver office of McElroy, Deutsch, Mulvaney & Carpenter, LLP, is the president of the American Bar Association.


Chief Justice John Roberts Jr. has said that the failure to raise judicial pay “threatens to undermine the strength and independence of the federal Judiciary.” Where does the ABA stand on judicial pay raises?



Investing in our court system is vital to the proper functioning of our democracy. Yet Congress has allowed federal judicial pay to fall farther and farther behind inflation, and to lose any reasonable relation to other positions in the legal profession, such as law school faculty and even first-year associates. The American Bar Association strongly supports an immediate, significant pay raise to overcome years in which Congress failed to address the persistent erosion in real judicial pay. The ABA also lobbied Congress in April to stop linking judicial pay to congressional salaries, and instead to reestablish a nonpartisan salary review commission to recommend pay rates for members of Congress, judges, and other top federal officials. The issue is so important that Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. all have testified before Congress. Their leadership is admirable, but the organized bar has a special duty. Few understand the value, and expertise, of our judges better than do the lawyers who serve before them. We will continue pushing this important cause before Congress and the American people. The Third Branch


June 2007


The ABA’s participation in the Senate confirmation process of judicial nominees has sparked controversy on occasion. As the ABA continues to provide the Senate with information about nominees, what, if anything, can it do to minimize future criticism?


Much of the controversy stems from the fact that many people don’t fully understand the ABA’s judicial evaluation process. The ABA Standing Committee on the Federal Judiciary has provided its rating of Article III judicial nominees to the U.S. Senate for more than 50 years. The committee is the only entity that conducts a comprehensive, confidential peer review of professional qualifications of nominees. The committee typically interviews 60 or more judges, lawyers, and other community members who have personal knowledge of the nominee’s professional qualifications. The committee only considers candidates’ professional qualifications—specifically judicial temperament, professional competence, and integrity. A candidate’s ideology is not considered. The ABA has been praised and criticized at times, by both parties, and we think that fact speaks to the nonpartisan nature of these ratings. Even though it’s probably impossible to prevent all controversy, the ABA constantly strives to learn from experience and to refine and improve the evaluation procedures.


The federal courts saw a substantial drop in personal bankruptcy filings after implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act. You recently testified before Congress on BAPCPA. What are the ABA’s concerns?


While the ABA had no position on the overall act prior

ABA President Karen Mathis

to passage, it did support several narrow provisions in the new law that allow direct appeals of final bankruptcy orders to the courts of appeals in many cases and permit bankruptcy attorneys to pay referral fees to nonprofit attorney referral programs. On the other hand, the ABA strongly opposed provisions requiring debtor bankruptcy attorneys to: (1) certify the accuracy of the debtor’s bankruptcy schedules, under penalty of harsh court sanctions; (2) certify the ability of the debtor to make future payments under reaffirmation agreements; and (3) identify and advertise themselves as “debt relief agencies” subject to a host of new intrusive regulations that interfere with the confidential attorney-client relationship. These three provisions have forced debtor attorneys to charge substantially higher fees, and have discouraged many attorneys from providing pro bono bankruptcy services. The ABA has prepared draft legislation that would reverse the attorney liability provisions in the new law, and we are urging Congress to enact the bill as soon as possible. Your readers can learn

more at poladv/priorities/bankruptcy/brattyliability_resources.pdf.


Public opinion polls consistently indicate that Americans know very little about our nation’s legal system, for example, about the proper role of judges in sentencing. What is the ABA doing to change that?


When people don’t understand the basics of our democratic system, that’s a threat to our way of government. Yet schools have devoted less time to civic learning in recent years, as they struggle to keep up with standardized testing demands in other subjects. In 2005, the ABA renewed its longstanding commitment to public education on legal matters by forming the ABA Commission on Civic Education and the Separation of Powers. And the Association’s Public Education Division works actively to publish books and training materials to increase civic awareness. In August, the ABA House of Delegates is to consider a resolution calling for a greater national commitment to civic education. It says that civic learning should be accorded national educational priority on a par with reading and mathematics. The ABA will continue working with other civic learning organizations to promote this crucially important cause.

Q: A:

What is the ABA’s Rule of Law Initiative?

The Rule of Law Initiative is a public service project of the American Bar Association dedicated to promoting rule of law around the world, and providing technical legal assistance to more than 40 nations. It brings together five ABA regional rule of law initiatives. The first of these initiatives started in 1990, following the fall of the former Soviet empire. Over the

years, we have been honored and enriched by the assistance of Justices Sandra Day O’Connor, Ruth Bader Ginsburg and Justices Kennedy and Breyer. The rule of law is essential in addressing the world’s most pressing problems, including poverty, economic stagnation, and conflict. Rule of law programs have included efforts to train judges and lawyers in achieving greater professional independence; training lawyers and other advocates in public service law; assisting in postconflict resolution; and fighting corruption and human trafficking. In the last year, the ABA held a valuable symposium in Chicago with the International Bar Association and has worked to educate our many sections and other entities on the importance of the rule of law. Next year, my successor, Bill Neukom, plans to expand on this work with the World Justice Project. This exciting and ambitious project will seek to expand the rule of law effort by forming partnerships with other professional disciplines, including doctors, clergy, educators, labor officials, and journalists, to name a few.


One of your initiatives looks at “Baby Boomers.” What is your message for an aging generation of jurists and lawyers?


The legal profession in the United States is facing a massive movement of lawyers who will be leaving the full-time, active practice of law: as many as 400,000 of the nation’s 900,000 practicing lawyers will retire over the next 10 to 15 years. Like baby boomers in other fields, lawyers are reinventing retirement, and many of us are wondering what we will do with “the rest of our lives.” The ABA is uniquely able to assist in this transition, and we will bring all of our resources to channel this talented group’s attention back into

the communities that need it. We have created an online matching service for lawyers entering active retirement and the community organizations that need their help. The ABA is also addressing the impact of these retirements on lawyers and the legal profession. Readers can learn more about this initiative at www.


The federal court system sees a small number of juvenile offenders, but there is concern these numbers will grow in coming years. One of your initiatives targets these young people at risk. How can the legal system help them?


America’s youth is our most important asset—our future is in their hands. Yet many young people face problems that are getting wider, deeper, and more complex. We see this in the growth of girl gangs and the dramatic rise of adolescent girls in the juvenile justice system, in foster children released to the streets at age 18 with little preparation for life, in the numbing failure of courts and schools to assist “status offenders,” such as truant students and difficultto-parent children. Over the past year, the ABA has hosted more than a dozen roundtables in cities around the country, bringing youth specialists together, and discussing new ways to collaborate. We have formed partnerships with groups like the Girl Scouts of America and the Boys & Girls Clubs of America to develop non-violence education for youngsters. And we have highlighted programs that work. Recently, I met with the Dallas Bar, which showed me one of the most imaginative programs I’ve seen yet: an “ementoring” program that connects at-risk teenagers with lawyers by email. It’s cutting the drop-out rate, and that almost certainly means we’re cutting the future crime rate. See Interview on page 12 The Third Branch


June 2007


Interview continued from page 11 How is the effort to protect the Judiciary from political interference evolving?

Q: A:

Many members of the 109th Congress led a sustained and troubling attack on the federal Judiciary. This included threats of impeachment and funding cuts after the Terri Schiavo case, multiple court-stripping bills, and a bill that would have established an inspector general to conduct potentially intrusive investigations. These efforts failed, but critics of the Judiciary have taken their campaign to the states. Last year, there were several ballot initiatives targeting the courts, and we expect to see many similar battles in the coming years. The good news is that all the worst initiatives were beaten back last year. In particular, South Dakota voters overwhelmingly rejected the “Jail 4 Judges” initiative, which would have exposed judges to lawsuits and even jail for decisions made on the bench. Voters rejected other measures targeting the courts in Colorado and Oregon.

These campaigns are as big a threat to our courts as any federal legislative campaign. We don’t want them to gain traction at the state level. An attack on one part of our justice system is an attack on all of it.


Your term of office ends in August. What accomplishment are you most proud of during your term?


In accepting the ABA gavel last August, I said the theme of the bar year would be service, as it is in the nature of lawyers to serve. During my travels as ABA president, I have seen that spirit of that service again and again. This year, it has been an amazing honor and privilege to serve our profession. The ABA is the voice of the American legal profession; we strive to defend liberty and pursue justice. I am proud to have continued the ABA’s tradition of protecting the independence of the bar and bench. In addition to judicial pay, which we discussed earlier, I had the opportunity to testify twice before Congress in defense of the attorney-client privilege.

THE THIRD BRANCH Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E. Washington, D.C. 20544

And I am very proud of the forceful response by the ABA, and others in the organized bar, in support of the right to pro bono counsel for Guantanamo detainees. When Charles Cully Stimson, a high-level Pentagon official, threatened law firms whose lawyers were voluntarily helping the detainees, we cried foul. Mr. Stimson apologized, which was appropriate, and he later resigned. Finally, I am proud of the ABA’s work with bars of other nations. Last December, the ABA signed an agreement with the All-China Lawyers Association to pursue projects of mutual interest, and as ABA president I recently co-authored a newspaper column with presidents of the Law Society of the United Kingdom and the Canadian Bar Association, in defense of the great writ, habeas corpus. It was the first-ever joint column by our nations’ bar associations.





U.S. Government Printing Office 2007-331-009-60030


2007-06 Jun  

Newsletter of the U.S. Courts

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