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Newsletter of the Federal Courts

Vol. 42

Number 12

December 2010

OSCAR Comes of Age

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The Central District of California held two naturalization ceremonies in November at the Pomona Fairplex, in which over 5,800 new citizens took the Oath of Allegiance. Senior Judge Ronald S. W. Lew presided over the morning proceedings and he invited the new citizens to give themselves a round of applause for completing “a long, arduous process” that included a great deal of study and hard work to reach their goal. Judge Lew, the son of Chinese immigrants, shared his family’s story with the attendees.

See OSCAR on page 4

Study on Re-arrest Data to Hone Probation Strategies

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recent, first-of-its-kind study of federal offenders shows less than a quarter are re-arrested after three years under supervision. Probation officers will use this and other data collected in the study—along with annual updates— to evaluate the effectiveness of federal supervision at reducing recidivism, and thus improving community safety. The objective is to measure not only what the federal probation and pretrial services system does, but how well they do it. At the request of the Office of Probation and Pretrial Services, Administrative Office, an independent research firm analyzed data

lthough only six years old, OSCAR has come of age. The federal Judiciary’s Online System for Clerkship Application and Review, or OSCAR, grew in 2010 to include 1,501 federal judges and 98 percent of all law schools accredited by the American Bar Association. “I am pleased with how the program has handled its growth,” said Judge Nicholas G. Garaufis (E.D. NY), who chairs the OSCAR Working Group. “I believe that if we continue to listen to our constituents—the judges, applicants, and law schools—OSCAR is here to stay and will continue to grow.”

interview

for 185,297 offenders from every federal probation office who began their supervision terms between October 1, 2004 and August 13, 2009. See Re-arrest Data on page 2

INSIDE 111th Congress Ends..................................pg. 3 Survey Rates BNC......................................pg. 6 Kennedy Nominees Still Serving Country.................................pg. 7

Committee Answers Courts’ Calls for Help

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udge J. Frederick Motz chairs the Judicial Conference Committee on Intercircuit Assignments. The Committee has become increasingly proactive in its efforts to provide assistance to overburdened courts. Read how in his Interview beginning on page 10.


111th Congress Ends

Study on Re-arrest Data to Hone Probation Strategies

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continued from page 1

The study, unprecedented in its size, summarizes arrest rates and identifies the offenses of these offenders, excluding minor offenses and technical violations of the conditions of supervision. For federal offenders in the community for three years the re-arrest rate is less than 25 percent. Analogous figures for state systems are significantly higher. For this study, the re-arrest rates represent the first re-arrest of the offender’s period of supervision. The study showed that: ■■ Less than 11 percent of offenders were arrested within the first year; ■■ About 17 percent were arrested within two years; and ■■ Almost 23 percent were arrested within three years of beginning supervision. Overall, offenders in the study who served terms of supervised release following imprisonment (TSR) had a higher overall re-arrest rate than probationers over a three-year period. This may be, the study noted, because offenders serving TSR have more extensive criminal records and other characteristics that put them at elevated risk to recidivate, when compared with offenders serving terms of probation. Approximately 80 percent of persons under federal supervision are serving terms of supervised release. Most re-arrests of federal offenders were for drug offenses, followed by violence and property offenses, whether it was one-, two-, or three-years under supervision. This was true regardless of whether the offender was serving TSR or probation. The recidivism studies provide a framework for evaluating the effectiveness of federal supervision and will ultimately help inform policymakers about practices that are most effective at reducing recidivism. “The goal of supervision is both 2

The Third Branch n December 2010

community protection and the successful completion by the offender of the term of supervision or probation,” said Judge Robert Holmes Bell, chair of the Judicial Conference Criminal Law Committee. “This and future studies will us tell more about recidivism, and who is most vulnerable. With that information, we can hone strategies and improve our supervision.” The complete study, “Re-Arrest Rates and Offenses of Offenders on Federal Probation and Supervised Release,” can be read online in the December 2010 issue of Federal Probation Journal at http:// www.uscourts.gov/FederalCourts/ ProbationPretrialServices.aspx.

■■ A term of supervised release

is imposed by the court during sentencing in addition to the sentence of imprisonment. The supervision term is served after a person is released from prison. Approximately 80 percent of federal offenders on supervision are serving terms of supervised release. ■■ In probation the court releases the

person directly to the community for a period of supervision.

Arrest Rates for Serious Offenses by Year and Offense Category % of Offenders with Arrest Offense Category Drugs Violence Property Unknown Immigration Escape/Obstruction Firearms Sex Offense Public Order Other Total

1 Year (n=147,030) 2.9% 2.4% 2.4% 0.7% 0.5% 0.4% 0.3% 0.3% 0.2% 0.2% 10.3%

2 Years (n=88,283) 5.1% 4.2% 4.0% 1.1% 0.7% 0.6% 0.5% 0.4% 0.4% 0.3% 17.1%

3 Years (n=39,652) 6.9% 5.7% 5.2% 1.3% 0.8% 0.7% 0.6% 0.5% 0.5% 0.4% 22.6%

he 111th Congress ended in December. In its second session, Congress passed, and the President signed into law, legislation that improves court functions, influences federal caseloads, and changes sentencing for certain offenses. In its lame duck session following the November election, Congress did not pass bills creating new Article III and bankruptcy judgeships. This marks two decades since an omnibus Article III bill was last passed by Congress. New temporary bankruptcy judgeships were last authorized in 2005, although fewer were created than needed. They already have begun to lapse, causing a decline in the number of bankruptcy judgeships. Before 2005, new bankruptcy judgeships had not been authorized by Congress since 1992. The workload of the district and bankruptcy courts has increased significantly since then. Bankruptcy filings in particular are nearing record levels at the same time as bankruptcy judgeships are set to revert to 1992 numbers. All unpassed bills introduced during this Congress, along with all judicial nominations, must now be reintroduced in the 112th Congress if they are to be considered again by either the House or the Senate next year. Among the bills of interest to the Judiciary passed in the second session were:

The Fair Sentencing Act of 2010 Pub. L. No. 111-220, the Fair Sentencing Act of 2010, lowers crack cocaine sentences to reduce the disparity between crack and powder cocaine sentences, narrowing the ratio from 100:1 to 18:1. It also eliminates the mandatory minimum sentence for simple possession of crack cocaine, and directs the U.S. Sentencing Commission to amend the Sentencing Guidelines on the basis of certain aggravating and mitigating factors.

No COLA for Congress, Federal Judges or Judiciary Employees Pub. L. No. 111-165 prohibits a January 2011 pay adjustment for Members of Congress. Under the Ethics Reform Act, federal judges would have been eligible to receive a 0.9% pay adjustment effective January 2011. But Congress did not comply with Section 140 of Pub. L. No. 97-92, which provides that Congess must affirmatively authorize a pay adjustment for judges. In contrast, Members of Congress automatically receive a pay adjustment, unless Congress acts to deny itself one. Congress generally has denied judges their pay adjustments when Congress does not take one. This is the third time in the last five years that Congress has denied judges an annual pay adjustment. The President has proposed a pay freeze for General Schedule federal employees for 2011 and 2012. Pay for Judiciary employees also would be frozen because, by law, adjustments to the Judiciary pay schedules may not exceed any adjustments made to the General Schedule. Congress must approve the President’s proposal. In addition, the President has announced that locality pay for Executive Branch employees will be frozen in 2011. The Judiciary follows Executive Branch adjustments on locality pay for its own employees. Congress’ approval is not needed to have the locality pay freeze take effect.

The Federal Judiciary Administrative Improvements Act of 2010 Pub. L. No. 111-174, the Federal Judiciary Administrative Improvements Act of 2010 contains several Judicial Conferenceendorsed improvements to court operations and other provisions that address Judiciary needs. For example, the new law will: ■■ resolve current law to allow senior judges who meet minimum workload requirements to participate in the selection of magistrate judges, as well as other court governance matters; ■■ allow for the separate filing of the “statement of reasons” that judges issue upon sentencing, so as to better protect confidential information such as the identity of government informants. ■■ clarify the scope of authority of federal pretrial services officers to supervise and assist juveniles awaiting delinquency disposition in federal court as an alternative to incarceration; and ■■ apply an inflationary index to the threshold amount requiring approval by the chief judge of reimbursements for the cost of hiring expert witnesses and conducting investigations for indigent defendants.

The Tribal Law and Order Act of 2010

of 2010, became Pub. L. No. 111-211 in the second session. It provides extensive grants, support, and legal reforms for reservations and calls for enhanced activity and cooperation by federal law enforcement agencies in Indian country. It is anticipated the Act will result in a significant increase in federal criminal prosecutions in Indian country. Tribal governments, which are regulated by federal statutes, but not by the federal Constitution, have the power to design their own criminal laws and justice systems, applicable only to Indians. Individuals who are incarcerated by a tribe have a statutory right to habeas corpus in federal court. Prior federal law limited tribal governments to imposing a sentence of no more than one year incarceration per criminal count, and required that tribes allow defendants to hire a defense lawyer, but federal law did not previously require tribes to provide counsel for indigent defendants in any kind of case. The version of the bill enacted extends tribes’ sentencing power to a maximum of three years of incarceration per count, and expands a significant number of procedural and substantive protections for criminal defendants facing the longer sentences.

H.R. 725, the Tribal Law and Order Act The Third Branch n December 2010

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Judiciary’s BPAs Are Effective Product of Teamwork

OSCAR Comes of Age continued from page 1

OSCAR is a single, centralized online resource for notice of available clerkships, clerkship application information, and law clerk employment information—a service for federal judges and those hoping to work for them. “It’s a valuable tool, benefitting judges, applicants, and law schools,” Garaufis said.

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hen it comes to shopping, simpler can be better. For the federal Judiciary, blanket purchase agreements, or BPAs, offer a simplified and cost-effective way for courts to buy information technology products and services. “We assist the courts by helping them acquire IT products and services in a quicker, more efficient manner,” said Roch Turco, deputy chief of the Technology Management Services Division in the Administrative Office (AO). “Partnering with the AO’s Procurement Management Division, we establish BPAs for IT commodities that allow the federal Judiciary to leverage its aggregate purchasing power, making it cheaper and easier to buy them,” he said.

The numbers of applicants and applications have mushroomed since OSCAR’s start in 2005. Begun in 2005 as a local court initiative, OSCAR had 388 participating judges in its first year. The number has grown each year, growth aided by OSCAR becoming a national program in 2009. In 2010, the judges’ participation level rose 4.25 percent over 2009 to reach 1,501, two-thirds of all federal judges. Participating jurists include circuit, district, magistrate, and bankruptcy judges. Eighty-two percent of the participating judges now accept online applications. OSCAR features great flexibility as some judges use it to accept and screen applications electronically, while others use it to post positions and accept paper applications. The numbers of applicants and applications, too, have mushroomed since OSCAR’s start in 2005. There were 4,902 applicants who generated 94,693 applications in the first year, and 9,570 applicants who generated 382,828 applications in 2010. The 2010 figures were down slightly from 2009, when 10,722 applicants generated 401,576 applications. Although there continues to be a small population of applicants who create large numbers of clerkship applications, this group appears to be diminishing. The 4

The Third Branch n December 2010

single highest number of applications created by one applicant in 2010 was 613, down from a peak figure of 942 in 2008. Most applicants (65 percent) generated fewer than 25 applications in 2010, and 80 percent of all applicants submitted 50 or fewer applications. There was an even split among 2010 applicants—50 percent were law school alumni and 50 percent were third-year students, a slight change from the 52–48 percent alumni-student ratio in 2009. Students created 72 percent of all the applications in 2010, however. “Law school participation is critical because they support their applicants in

using the system and assist their faculty recommenders,” Garaufis said. “Before OSCAR, many judges received individual application materials from applicants and recommenders as well as bundled materials from law schools, which were extremely difficult to process. Some judges received literally thousands of separate envelopes that needed to be sorted, coordinated, and screened by hand. With OSCAR, judges can receive a complete electronic application.” In 2010, OSCAR expanded to include staff attorney hiring in federal appellate courts. Staff attorney offices were able to create a profile, post a position, and

The upside: Time and money can be saved. The downside? “There really is no downside,” Turco said. “BPAs offer reduced administrative burden and costs when orders are placed at the court unit level, but use of our BPAs by court units is purely optional.” A BPA, which typically runs for five years, is a written agreement spelling out the terms and conditions of future transactions if and when orders are placed against the agreement. BPAs for personal computers, laptops and other IT products and services account for more than $25 million annually in federal Judiciary spending. Savings occur through discounted prices and the decreased time courts have to spend in the administrative procurement process. “Court units can often place orders under the BPAs without obtaining multiple quotes, although some specific BPAs may

require further competition,” explained Henry Weeks, chief of the Technology Management Services Division’s Vendor Management Branch. Just what commonly used IT products and services should be included in the Judiciary’s BPAs becomes a matter of teamwork between the courts and the AO. “I’m excited about the interest the AO has in expanding the availability of products and vendors through additional BPAs,” said Jeannette Clack, chief deputy clerk of the Bankruptcy Court for the Northern District of Texas. Clack is a member of a new working group, led by Weeks, to investigate opportunities to expand the way the Judiciary’s buying power is leveraged. “BPAs are a good resource for courts to streamline and simplify the procurement process,” she said. “I look forward to bringing a faster turnaround time to even more purchases.”

More expansion is planned. “For 2011, the OSCAR Working Group endorsed a proposal to add a module for pro se, death penalty, and bankruptcy appellate panel law clerk hiring,” Garaufis said. “The transition to the Administrative Office as

a national program in 2009 was seamless, and made additional resources available that allowed better web integration, improved program communications, and the development of a formal training program for OSCAR’s users.”

“…if we continue to listen to our constituents—the judges, applicants, and law schools— OSCAR is here to stay and will continue to grow.” —Judge Nicholas Garaufis

manage candidates’ applications electronically. Applicants have a separate section in OSCAR to search for and apply to staff attorney positions. The staff attorney module was introduced last May, and 10 positions were posted between that month and the end of September. The positions posted by staff attorney offices accepting online applications attracted 2,598 applications.

The Third Branch n December 2010

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Survey Rates BNC

Kennedy Nominees Still Serving Country

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emember former New York Mayor Ed Koch’s favorite phrase, “How am I doing?” Users of the Bankruptcy Noticing Center were asked that question in a survey covering the 12-month period ending September 30, 2010. In response, the bankruptcy courts gave the BNC top grades. The BNC electronically retrieves data from the bankruptcy courts’ case management system, and prints, addresses, batches, and mails notices to the creditors of bankruptcy filers. Every bankruptcy court in the country uses the BNC, which last fiscal year sent out over 170 million notices—a record year for overall volume.

Every bankruptcy court in the country uses the BNC, which last fiscal year sent out over 170 million notices—a record year for overall volume. The annual surveys help the AO pinpoint program changes that may be needed. In this year’s survey, BNC performance scored 9.7 on a scale of 1 to 10, with 10 being the highest grade. Bankruptcy courts evaluated the BNC on the timely retrieval of data and noticing of creditors, whether electronic confirmation of receipt of a court’s transmission of data was sent within 30 minutes, whether courts received all the necessary files, copies and reports following a production cycle, and whether errors were resolved quickly. The print quality of notices was evaluated as well as BNC responsiveness and its willingness to accommodate special requests. Even the BNC’s website was under scrutiny. The noticing program contract has been performance-based since 2008, with 6

The Third Branch n December 2010

I

financial incentives for the contractor to offer new features, provide efficiencies, and improve customer service. Since its inception in 1994, the BNC program has saved the Judiciary over $100 million over court-based noticing in salaries, supplies, postage, and equipment. The performance-based contract, while including financial incentives for the contractor, still results in lower contract rates for the Judiciary. Recent emphasis by the BNC has been on moving more recipients to electronic noticing, rather than paper. Pursuant to the Electronic Bankruptcy Noticing (EBN) program, notice recipients may elect to receive notices via Electronic Data Interchange (EDI), email, or facsimile. Electronic noticing is faster and less expensive than paper noticing. Paper notices cost the Judiciary approximately $.40 per piece, while electronic notices cost just $.06. The BNC also transmits notices to electronic subscribers the same

day it retrieves the notices from the courts, while paper notices can take up to a week to be delivered. Not surprisingly, creditors increasingly prefer to receive their notices electronically. In fiscal year 2009, less than 21 percent of creditors opted for electronic notices. By September 2010, 25.5 percent of creditors elected to have notices sent to them electronically. The BNC helped this trend along by providing a largely online sign-up process for the EBN program. The BNC also has worked to eliminate duplicate notices to joint debtors at the same address, and to cross reference the postal service database to suppress printing and mailing notices to invalid addresses. In addition to grading the BNC, bankruptcy court staff members were given the opportunity to comment on any aspect of BNC service. Overall, staff comments were glowing, expressing appreciation for the BNC’s customer service and program support.

n the fall of 1960, Ray Charles’ “Georgia On My Mind” hit Number One on the charts, Allen Drury’s Advise and Consent was a bestseller, and Senator John F. Kennedy won the Presidential election. In the next few years, Kennedy would appoint 126 judges to the federal bench, including 21 court of appeals and 102 district judges. Today, just six of President Kennedy’s federal court nominees remain on the bench, all of them senior judges. Under the “Rule of 80” (28 U.S.C. §371), they could retire in senior status when they attained the age of 65 and had 15 years of service—which was decades ago for these appointees. All, in their time, have witnessed significant changes in the federal Judiciary, presided over historic federal cases, and emerged with an unshaken love of their daily work. Of the six remaining Kennedy nominees, Judge James Robert Browning is one of two court of appeals judges. He was confirmed in 1961 to the Ninth Circuit Court of Appeals, the only former Clerk of Court of the Supreme Court to join the federal bench. He held the Bible as Chief Justice Earl Warren swore in JFK as the 35th President of the United States. A leader and visionary in the field of justice and court administration, Browning, while an attorney with the Department of Justice, also established the Executive Office for U.S. Attorneys in the 1950s and became its first chief. During his years on the bench, including 12 years as chief judge, Browning is credited with keeping the largest of the circuits intact when there were calls to split it, a debate that continued for the next 50 years. In an article in the Spring 1989 Arizona State Law Journal, Judge Mary Schroeder, a former chief judge of the circuit, called Browning, “the right man in the right

Judge James Robert Browning

Judge Wilfred Feinberg

Judge George Cressler Young

Judge Wesley Brown

Judge Edward Joseph McManus

Judge William Joseph Nealon Jr.

place at the right time.” He saw the future, Schroeder recounts, in innovations still in their infancy that would revolutionize the federal courts, such as staff attorneys, telecommunications, and automatic data processing. He talked about “paperless dockets” before computers were commonplace. Fittingly, the James R. Browning U.S. Courthouse, the home to the Ninth Circuit Court of Appeals, is named in his honor. As one of the architects who helped renovate the courthouse said, “To me [the courthouse] exemplifies everything that is great about the law: honor, decency, respect, fairness… and Judge Browning is all that…” Browning, who is 92 years ago, took senior status in 2000. Across the country, Judge Wilfred Feinberg sits on the Court of Appeals for the Second Circuit, but he began his judicial career in 1961 with a recess appointment from JFK as a judge on the U.S. District Court for the Southern District of New York. He took senior status in 1991. One of Feinberg’s most

famous cases was United States of America v. New York Times Company, Inc., in which he, Judges James L. Oakes, and Irving Kaufman upheld a lower court ruling denying an injunction against the publication of the Pentagon Papers. Another case, NLRB v. J.P. Stevens & Co., a famous labor union case, inspired the movie, Norma Rae. As Professor Maurice Rosenberg wrote in a 25th year anniversary tribute to Feinberg published in the Columbia Law Review, “Wilfred Feinberg is the kind of jurist the Founding Fathers must have had in mind when they bestowed life tenure on federal judges… Judge Feinberg regards judicial office as a way to serve justice, not as a chance to wield power. And he renders his service superbly—with intelligence, understanding, kindness, and craftsmanship… [His] commitment to serving justice reveals itself not only in hundreds of opinions, but also in his continuing efforts to strengthen the judicial process by improving the structure and procedures of See Kennedy on page 9 The Third Branch n December 2010

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December Judicial Milestones Appointed: James R. Sacca, as U.S.

Bankruptcy Judge, U.S. Bankruptcy Court for the Northern District of Georgia, October 21.

Elevated: U.S. Court of International Trade Judge Donald C. Pogue, to Chief

Judge, U.S. Court of International Trade, succeeding Judge Jane A. Restani, November 1.

Appointed: Stephanie K. Bowman,

as U.S. Magistrate Judge, U.S. District Court for the Southern District of Ohio, October 29. Senior Status: U.S. District Judge Jerome B. Friedman, U.S. District Court

for the Eastern District of Virginia, November 30.

Kennedy Nominees Still Serving Country

Deceased: U.S. Senior Judge Robert Earl Maxwell, U.S. District Court for

the Northern District of West Virginia, November 20. Deceased: Retired U.S. Bankruptcy Judge A. Pope Gordon, U.S. Bankruptcy

Court for the Middle District of Alabama, November 17, 2010.

continued from page 7

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 www.uscourts.gov DIRECTOR James C. Duff EDITOR-IN-CHIEF David A. Sellers MANAGING EDITOR Karen E. Redmond

New Members Named To Executive Committee

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he Executive Committee of the Judicial Conference has added two new members, completing its eightmember roster. Chief Judge Sarah S. Vance (E.D. La.) and Judge Robin J. Cauthron (W.D. Okla.) have been named to the committee by Chief Justice John Roberts Jr. Cauthron was a member of the Judicial Conference Committee on Defender Services, from 1995–2002, serving as the committee chair from 1998 to 2002. Vance was a member of the Conference Committee on the Administration of the Bankruptcy System from 1996 to 2003, and was a Board member of the Federal Judicial Center, 2003–2007. They join Executive Committee chair, Chief Judge David B. Sentelle (D.C. Cir.), and other committee members: Chief Judge Harvey Bartle III (E.D. Pa.), Chief Judge Joel F. Dubina (11th Cir.), Judge Rodney W. Sippel (E.D. Mo.), Chief Judge William B. Traxler, Jr. (4th Cir.), and ex-officio member James C. Duff, Director of the Administrative Office. 8

The Third Branch n December 2010

PRODUCTION OmniStudio, Inc. CONTRIBUTOR Dick Carelli, AO

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

JUDICIAL BOXSCORE As of December 1, 2010 Courts of Appeals Judge Robin J. Cauthron (W.D. Okla.)

Vacancies............................................ 21 Nominees........................................... 13 District Courts Vacancies............................................ 87 Nominees........................................... 40 Courts with “Judicial Emergencies”..................... 50

Chief Judge Sarah S. Vance (E.D. La.)

Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/ JudgesAndJudgeships/JudicialVacancies.aspx

the courts and the morale of the judges. His continued service for many more years is the ardent hope of those who know his record.” Judge George Cressler Young also was nominated by JFK to the federal bench in 1961. Now a judge in the Middle District of Florida, he began as a judge in the U.S. District Court for both the Northern and Southern Districts of Florida. He assumed senior status in 1981. Young was the first federal judge to be assigned to the Orlando Division of the newly created Middle District of Florida, and he remains the only judge to serve in all three of Florida’s district courts. As the area and federal caseload grew, he worked to increase the number of judges and add courtrooms. Today the George C. Young U.S. Courthouse and Federal Building bears his name. Young also oversaw the desegregation of Orange, Seminole and Brevard County schools and handled land-condemnation cases for what is now the Kennedy Space Center. He remains one of Florida’s most well-respected federal judges. Judge Wesley Brown in the District of Kansas has been a senior judge since 1979; he joined the bench in April 1962. Age has never been an issue for him. When he served in World War II as a Navy Lieutenant, he was unusually old, at 37, to enlist. Now at 103 years of age, he continues to hear cases, carrying a full load of criminal cases, just one year shy of being the oldest active federal judge ever to serve. Why does he still work? “Because I want to,” Brown responds with a touch of impatience. “I was appointed for life or good behavior.” In his time, he has seen the judicial system change. Since he became a federal judge, Congress has passed, by his estimation, 675 pieces of legislation

that confer federal jurisdiction. He tallies it up: “Cases are filed by email, opinions are published electronically. We have magistrate judges who handle discovery matters; we have mediation. The bankruptcy courts have been reorganized.” And he has embraced the change. “District courts need to do what is necessary to dispose of cases,” he says. “The federal courts have done a good job maintaining the balance between the legislative and executive branches, and in resolving the problems that arise in society. It all depends on individual judges to do their jobs.” Paraphrasing the President who appointed him: “Don’t ask what your government can do for you, ask what you can do for your government.”

“We keep busy and enjoy the work. And when you reach an advanced age, it is helpful to be around younger people. They help strengthen the spirit.” —Judge William Joseph Nealon Jr.

Certainly senior judges “do” a great deal for the federal courts. For the 12-month period ending June 30, 2009, senior judges participated in 17.8 percent of all oral arguments and submissions of briefs in the appellate courts, terminated 21.2 percent of all civil and criminal cases in district courts, and conducted 26 percent of all trials. “I enjoy the work so much,” says Judge Edward Joseph McManus, who will celebrate 50 years on the federal bench in 2012, with no plans to retire. He credits being around much younger law clerks and staff with keeping him young at heart. McManus was confirmed by the Senate in July 1962, just a month after his nomination to the U.S. District Court for the Northern District of Iowa by President

Kennedy. He recalls that when he joined the bench there were 407 Article III judgeships; today there are 864 (and 11 temporary) Article III judgeships. The increase in numbers has not kept up with an ever-increasing caseload. An early case McManus decided, Davis v. Synhorst (1963), resulted in a population-based reapportionment of the Iowa legislature. Another high-profile case for McManus involved the trial of two members of the American Indian Movement accused of killing two FBI agents at the Pine Ridge Indian Reservation in South Dakota. In the trial, a well-known attorney, the late William Kunstler, defended the accused. However historically memorable the cases may be, McManus insists: “To a judge, every case is important and of interest.” As Democratic candidate for governor in 1960 and the Iowa lieutenant governor (1959–1961), he appeared many times with Kennedy in campaign events. “My impression of him?” asks McManus. “He was quite charming with a great sense of humor. A good companion.” Judge William Joseph Nealon Jr. received a recess appointment to the District Court for the Middle District of Pennsylvania from President Kennedy in December 1962. He met JFK only once—in 1960 when JFK campaigned in Scranton. But Nealon had the opportunity to visit with Attorney General Robert Kennedy on several occasions. He convinced Bobby Kennedy to make one of his first public appearances, following the assassination of his brother, at a 1964 Friends of St. Patrick dinner in Scranton. At the conclusion of his talk, Kennedy quoted the moving Irish ballad on the assassination of Chieftain Owen Roe O’Neill by Cromwell’s agents, a lament evocative of the recent death of JFK. “There were 1,200 Irishmen, and not a dry eye in the room,” Nealon remembers. See Kennedy on page 12 The Third Branch n December 2010

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interview

Committee Answers Courts’ Calls for Help

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udge J. Frederick Motz was named chair of the Judicial Conference Committee on Intercircuit Assignments in 2008. He was appointed to the U.S. District Court for the District of Maryland in 1985.

Q: What are intercircuit assignments and how does your Committee assist in these assignments? Does your Committee also consider intracircuit assignments? A: Intercircuit assignments are temporary assignments of judges from one circuit to serve in another judicial circuit. The Judicial Conference Committee on Intercircuit Assignments assists the Chief Justice with his statutory authority to temporarily assign judges and works with courts facing excessive caseloads to develop case management solutions using intercircuit assignments. The Committee assists the Chief Justice in processing requests for intercircuit assignments by: (1) coordinating the proper documentation among the lending and borrowing courts’ chief judges, judges, and clerks; (2) recommending whether the Chief Justice should approve an assignment and preparing and forwarding the designation to the Chief Justice for signature; and (3) maintaining the records of and statistics for intercircuit assignments. The Committee further assists the Chief Justice by developing guidelines regarding the use of intercircuit assignments, maintaining rosters of judges willing to take intercircuit assignments, and recruiting judges willing to undertake such assignments. The Committee is not formally involved with intracircuit assignments,

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The Third Branch n December 2010

which are authorized by the chief judge of the circuit and arranged within the circuit. However, intercircuit and intracircuit assignments have the same purpose, and when a court needs assistance, the Committee will gladly work with the chief judge of the court’s circuit to provide both intercircuit and intracircuit help. I might note that my personal view is that, all other things being equal, intracircuit assignments may be preferable to intercircuit assignments for three reasons: (1) the assigned judge knows the law of the circuit; (2) the circuit court knows the quality of the work of the assigned judge; and (3) travel costs may be reduced.

Q: Who takes intercircuit assignments? Are they always senior judges? A: Intercircuit assignments are undertaken by both active and senior judges. However, senior judges undertake a substantial majority of visiting judge assignments because they have the flexibility to determine their own workloads and schedules, and are best positioned to take on assignments quickly and assume caseloads in courts outside of their own circuits. In addition, senior judges are often available to assist in other courts for longer periods of time.

Q: Why do courts request intercircuit assignment of Article III judges? Does the type of assistance offered vary? What is the typical duration of an intercircuit assignment? A: The need for assistance varies—for example, there may be an insufficient number of judgeships to handle the court’s caseload, task force initiatives may generate an increase in a particular

or case[s], and for such time as needed in advance to prepare, and thereafter as required to complete unfinished business.

Q: Have requests for judges to take intercircuit assignments increased or decreased over the last few years?

Judge J. Frederick Motz (D. Md.)

type of case in a specific court, judgeship vacancies may exist for too long a time, the death or resignation of a judge may create a temporary workload emergency, or a number of particularly lengthy and complex cases, any one of which would create an overwhelming caseload, may have been filed. In addition, a court may have no judges who can preside over a case because the entire court has recused itself from a case because of a potential conflict of interest. The type of caseload assistance provided by visiting judges depends on the need of the court. Several district courts seek the assistance of visiting judges to handle civil motions, while others seek judges to preside over trials or other proceedings in civil and criminal cases. In the courts of appeals, visiting judges are primarily used to participate on oral argument panels. Intercircuit assignments to the courts of appeals are usually for periods of two or three days, while assignments to district courts are for at least two weeks. All intercircuit assignments are for a specific period

A: They have increased substantially. Two hundred and thirty-eight intercircuit assignments were processed by the Committee and approved by the Chief Justice in calendar year 2009, the highest number in the last 20 years. The increase probably is due to the fact that the Committee has become more proactive in its efforts to provide assistance to overburdened courts and because the caseloads in many courts continue to grow.

Q: Do judges taking assignments always physically relocate to the court/district/circuit making the request? A: No. With Case Management/Electronic Case Files System (CM/ECF) and the use of telephone or video conferencing, judges are able to decide motions remotely and handle matters without traveling. The use of CM/ECF makes it easier for judges to take on a few cases or even just three or four motions. Remote access also allows assigned judges to save time and money when they do travel, by facilitating short, focused visits, such as a “sentencing week,” or by hearing stacked trials.

Q: You began a Special Work Assistance Taskforce in 2009. What is the Taskforce and why was it formed? A: The Committee on Intercircuit Assignments initiated the Special Work Assistance Taskforces (SWATs) to assist courts

with heavy dockets. This approach focuses on assembling teams of judges from courts throughout the country to assist an individual court facing a burdensome caseload. It has been used under various circumstances—for example to provide help to courts which have lost a judge by death or resignation, which have experienced unfilled vacancies for an extended period of time, or which have been faced with increased work because of a barrage of unexpected cases, such as the Guantanamo detainee cases that were brought in the District of Columbia.

Q: Can judges taking intercircuit assignments replace the need for new judgeships? A: No. The Committee encourages courts to consider visiting judge assistance, but realizes that doing so is only a short-term solution to workload problems and does not replace the need for additional judgeships. The use of visiting judges demonstrates to the Judicial Conference and to Congress that courts are maximizing the use of all available judicial resources before requesting additional Article III judgeship positions.

Q: What initiatives are you and your committee currently working on? A: Our newest initiative is to offer help to transferor courts to which cases are being remanded for trial by the Judicial Panel on Multidistrict Litigation ( JPML). Frequently, these remands present a problem because while it is important that the trials be conducted expeditiously, the transferor courts cannot schedule them promptly because of their length or complexity. Indeed, as to cases that have been pending in the transferee districts for a long period of time, the judges in

the transferor districts who were initially assigned may have left the bench by the time of remand. For example, the Committee is now working to identify judges who are willing to preside over trials in asbestos cases being remanded by the JPML pursuant to suggestions of remand being made by the Eastern District of Pennsylvania, the transferee district. It is essential that the trials in these cases be scheduled promptly to prevent the federal courts from again becoming overwhelmed by the asbestos docket.

Q: What are the most common misunderstandings about intercircuit assignments? A: The most common misunderstandings about intercircuit assignments are that using visiting judges draws upon your local court’s budget and harms your chances for demonstrating your need for additional judgeships. The cost of the visiting judge and two staff is paid from the centrally held judges travel fund and does not affect the borrowing court’s budget. The use of visiting judges (along with the use of senior and magistrate judges) demonstrates that the court is maximizing the use of all available judicial resources before requesting an additional Article III judgeship position.

Q: What benefits are there for using intercircuit assignments? A: The use of intercircuit assignments helps courts stay current with their cases and continue to deliver the excellent service the public deserves. And now, with electronic docketing and networked courtrooms, temporary judicial assignments can be less disruptive and more effective than ever. Overall, the benefits of intercircuit and intracircuit assignments far outweigh the costs of the visiting judge program.

The Third Branch n December 2010

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Kennedy Nominees Still Serving Country continued from page 9

In his career, Nealon has presided over many significant cases, but one, in particular stands out for him. “The local school board adopted a program encouraging the formation of school clubs. Twenty-one clubs were formed, one of which was a Bible Club and the board refused to recognize it. The case was filed by a man who sat on the board and whose son attended a local high school.” Nealon found it was discriminatory to eliminate that one club, arguing for equal

access. He was reversed by the Court of Appeals, but the Supreme Court granted cert in the case. Meanwhile, Congress passed legislation providing equal access. Nealon, now 87, was 36 years old when he began his judicial career as a Lackawanna County judge. He is quick to point out that his district court bench includes a still active 96-year-old ( Judge Malcolm Muir, a Nixon appointee) and three 85-year-old senior judges ( Judges William Caldwell, Richard Conaboy and Edwin Kosik). “We keep busy and enjoy the work. And when you reach an advanced age, it is helpful to be around

younger people. They help strengthen the spirit.” He has needed that energy for an ever-increasing caseload. For example, in 1963, when he began on the federal bench, there were 450 civil case filings in the district. Last year, there were over 2,500. From five motions to vacate a criminal sentence, the number of motions has risen to 57 in 2010. But Nealon may speak for all judges who accept their President’s nomination to serve. “All our judges work hard,” he said. “Sometimes there isn’t enough time in the day. But we face challenging problems and there is a satisfaction in solving them.”


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