Brookings: Topics - Judges

An Examination of the Judicial Conduct and Disability System

Russell Wheeler — Thu, 25 Apr 2013 13:30:00 -0400

Editor's Note: Russell Wheeler testified before the House Judiciary Subcommittee hearing on the federal judicial conduct and disability system on April 25, 2013. The Judicial Conduct and Disability Act of 1980 authorizes any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The text which follows is Russell Wheeler's opening statement.

Chairman Coble, Ranking Member Watt, Vice-Chairman Marino, and members of the Subcommittee: Thank you for this opportunity to testify at this oversight hearing examining the federal judicial conduct and disability system, and thank you for the oversight itself. Proper legislative oversight of the other two branches is a vital part of the checks and balances embodied in the Constitution. By way of summary, I believe the judicial branch is doing, overall, a very good job of administering the Act, which largely involves sifting through a high number of insubstantial and often frivolous complaints to find the few that justify further investigation.

Since September 2005, I have been a Visiting Fellow in the Brookings Institution’s Governance Studies Program and president of the Governance Institute—a small, non-partisan, non-profit organization that since 1986 has analyzed various aspects of interbranch relations. In both positions I have been especially interested, among other things, in various aspects of judicial ethics regulation.

Before assuming these positions I was with the Federal Judicial Center, the federal courts’ research and education agency, serving as Deputy Director since 1991. While at the Judicial Center and for about a year at Brookings, I assisted the six-member Judicial Conduct and Disability Act Study Committee, appointed in May 2004 by Chief Justice William H. Rehnquist and often referred to as the “Breyer Committee,” after its chairman, Associate Justice Stephen G. Breyer. The committee—Justice Breyer, two former chief circuit judges, two former chief district judges, and the Chief Justice’s administrative assistant— reported to the Judicial Conference of the United States in September 2006,[1] after which a renamed Judicial Conference Judicial Conduct and Disability Committee developed new, mandatory rules governing the processing of complaints, rules that the Conference approved in March 2008. [2]

Credit for the report and the subsequent rules goes in part to the House Judiciary Committee and its then-chairman, Representative F. James Sensenbrenner, who called attention in early 2004 to what he regarded as an improper dismissal of a judicial conduct complaint he had filed (the Breyer Committee subsequently agreed that the dismissal was improper)[3]. Chief Justice Rehnquist said in announcing the committee appointments, “There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act ... is being implemented, and I decided the best way to see if there are any real problems is to have a committee look into it.”[4]

The relatively few problems highlighted by the Breyer Committee, and the process enhancements in the 2008 rules, have no doubt led to improvements in how the federal courts handle complaints filed under the Act, although, as the Committee report documented, the courts had already been doing, overall, a very good job. In this statement, I describe the Breyer Committee’s methods and principal findings, and then offer a few fairly modest suggestions to strengthen further the judicial conduct and disability system.

The Breyer Committee and Its Work

At the outset, let me make very clear that I speak only for myself and in no way claim to speak for the Breyer Committee (which went out of existence after it filed its report) or for any former members of the committee or its small research staff (or, for that matter, for my two current affiliations).

What it did Working with two Judicial Center researchers and one from the Administrative Office of the U.S. Courts (and me as a coordinator of sorts), the committee selected two samples of complaints terminated from 2001-03: a 593-complaint sample, selected to overrepresent complaints most likely to have alleged behavior covered by the Act (e.g., the sample included a larger percentage of complaints filed by attorneys than in the initial unmodified sample and a lower percentage of complaints filed by prisoners) and a separate sample of 100 terminations drawn totally at random. It also identified 17 complaints terminated from 2001 to 2005 that received press or legislative attention—“high visibility complaints”.[5]

The research staff reviewed the 593 complaints and terminations to identify “problematic” terminations, based on committee-approved definitional standards[6] and after committee review of a subset of initial staff reviews to ensure the staff was applying the standards as the committee wished. The committee members alone reviewed the smaller 100-case sample without staff assistance. (The various forms for reviewing the complaints are in the report appendices.)

The purpose of both reviews was not to determine if the subject judges had committed misconduct or displayed performance-degrading disabilities but rather to assess whether chief circuit judges and judicial councils applied the statute as intended—mainly whether the chief judge conducted a “limited inquiry” (as the Act authorizes) sufficient to justify dismissing the complaint or concluding the proceeding, but not an inquiry that invaded the investigatory role reserved for a special committee.

Finally, staff, using survey instruments approved by the committee, interviewed current former chief circuit judges and staff.

What it found The committee concluded that 3.4 percent of the 593 stratified sample of terminations were problematic, as were 2.0 percent of the terminations in the 100 straight random sample complaints (not surprising given the larger sample’s oversampling of likely meritorious complaints). The Committee found a greater proportion of problematic dispositions among the high-visibility complaints (five of the seventeen), which it attributed to those complaints’ greater likelihood to confront the chief judge or circuit council with more decisions, and thus a greater chance of at least one incorrect decision. The Committee expressed concern that these five problematic dispositions could take on outsize importance because of their visibility, and convey an inaccurate impression to the public and would-be filers of the Act’s effectiveness.

To be clear, this was a methodologically rigorous analysis that let the chips fall where they may. (The non-partisan American Judicature Society praised the report for “not hiding the federal judiciary's dirty linen in the closet,” and for “thoroughly discuss[ing] situations in which the judiciary's performance was deficient [and] the causes that may be responsible”.[7]) The committee imposed strict—some might even say too strict—criteria in its review of the terminations it assessed. For one example, a complaint by a prisoner alleged that the person on the bench in a hearing in his case was a young man, probably the judge’s intern, not the judge. The judge informed the chief circuit judge that he had no intern at the time of the hearing and his law clerk was a middle-aged woman, after which the chief judge dismissed the complaint. The committee characterized the allegation as “bizarre, [but] not so outlandish as to be what our Standard 4 calls ‘inherently incredible,’” and classified the disposition as problematic because the chief judge did not obtain, or order his staff to obtain, the electronic recording of the proceeding to verify that the voice on the tape was that of the judge.[8]

These findings suggest that, despite occasional problematic dispositions, proper administration of the Act is by and large engrained in the culture of federal judicial administration. One might ask whether a replication of the research conducted on a more recent sample of cases would find the same low level of problematic dispositions. Obviously, we cannot know that without the replication itself, but there are reasons to suspect that such a replication would find performance at least as favorable as that found by the committee. One reason is the mandatory committee rules and the tougher enforcement and oversight regime they mandate. Also, though, the Breyer Committee findings track very closely those of an earlier study, conducted in 1991-92, using the same basic methodology, for the statutory National Commission on Judicial Discipline and Removal, chaired by former Congressman Robert Kastenmeier. The earlier study used only one modified random sample (of 469 complaints) and found a 2.6 percent problematic disposition rate (compared to the 3.4 percent that the Breyer Committee found in its 593-case sample). The difference is not statistically significant.[9]

Informal discipline outside the Act Finally, the committee interviews tracked a widely shared view within the federal judiciary, namely that informal resolution of misconduct and disability, perhaps in the shadow of the Act, is more extensive than resolutions that result from formal complaints. This is especially so as to performance-degrading disability, which is rarely the basis for complaints under the statute.[10]

Committee Recommendations and Additional Steps

The Committee offered twelve recommendations, principally to provide additional information to chief judges and councils including a vigorous role for the Conduct Committee; to provide additional information about the Act to potential users; and to enhance publically available information about the Act and its implementation. The judicial branch, mainly through the new rules, has adopted many of the recommendations. I am also aware of Professor Arthur Hellman’s specific proposals to improve the implementation of the Act, mainly in the areas of transparency, disqualification of certain judges in judicial conduct proceedings, and review of chief judge and council orders. Professor Hellman is probably the country’s leading expert on the federal judicial and disability system. In general I share his concerns and endorse his proposals, and add here only a few additional comments.

The role of the Conduct Committee The Act is clear that the chief judge, upon receipt of a complaint, may undertake a “limited inquiry” but “shall not undertake to make findings of fact about any matter that is reasonably in dispute.”[11] A complainant may appeal a chief judge’s dismissal order to the judicial council, but a judicial council’s “denial of a petition for review of the chief judge’s order shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.”[12] Perhaps because of some reported instances in which chief judges appear to have dismissed complaints after making findings of fact of matters reasonably in dispute—dismissals affirmed by the respective judicial council—Rule 21 seeks, in the words of its commentary, “to fill a jurisdictional gap.” It authorizes the Conduct Committee to consider, on petition of a dissenting council member or on its own initiative, whether the chief judge should have appointed a special committee. This is an important role for the Conduct Committee, even if it would be needed rarely. I tend to agree with Professor Hellman that a statutory change would help to clarify the Conduct Committee’s authority in such situations, rare as they may be.

In a related vein, the Breyer Committee recommended that the judicial branch monitor the Act’s administration periodically, but doubted that “a full-blown replication of our research would be necessary each time. This was a labor-intensive process for us, for our staff, and for the judges and supporting personnel in the circuits.”[13] The Conduct Committee has taken an important step in this direction by examining of some of the universe of terminations it receives from the circuits and doing so in a manner the highly respected Committee chair, Judge Anthony Scirica, characterizes as similar to the Breyer Committee’s review. Just as the Breyer Committee published summary data on its review of the terminations it examined and explained why some terminations were problematic, the Conduct Committee might release similar periodic summary analyses.

Providing information on how the Act has been interpreted The commentary to Rule 3 states that the “responsibility for determining what constitutes misconduct under the statute [“conduct prejudicial to the effective and expeditious administration of the business of the courts,” 28 U.S.C. § 351(a),] is the province of the judicial council of the circuit subject to such review and limitations as are ordained by the statute and by these Rules.”

The judicial branch needs a transparent way of accessing the decisions of the judicial councils (and chief judges) in order to allow chief judges, council members, and other process participants and observers a means of identifying and assessing the determinations the councils are making—accessing what some have called the common law of judicial misconduct and disability.

One of the Breyer Committee’s main recommendations was for selected orders to be posted on the judicial branch website “in broad categories keyed to the Act’s provisions, and . . . with brief headnotes.”[14] This recommendation is embodied to a degree in the Rules’ promise that the Conduct Committee “will make available on the Federal Judiciary’s website . . . selected, illustrative orders, appropriately redacted, to provide additional information to the public on how complaints are addressed under the Act.”[15] The Conduct Committee’s forthcoming on-line Digest of Authorities can make a valuable contribution to this end.

The Act itself also requires each circuit to make available in the court of appeals clerks office all written orders implementing the Act’s provisions.[16] The Rules bolster that provision by suggesting the courts’ websites as an optional form for making the orders public, and, in terms of transparency and ease of access, website postings are obviously the better option.[17] A preliminary review of circuit practices as I prepared this statement suggest that these circuits do so[18]:

First	All orders from 2008 following, ranging in number from 14 to 45 per year.
Seventh	All orders since 2011 (93 in 2012, for example) with earlier years available on website archives.
Ninth	794 orders, from 2006 and later
Tenth	About 500, since January 2008
DC	Orders from 2011-2013 (53, for example in 2012)

Two other circuits (the Second and Fifth) have posted a small number of orders in high-visibility complaints, and the Federal Circuit has posted 24 orders from 2008, 2009, and 2010.

These postings are surely a positive, if incomplete, step. At the risk of sounding unappreciative of the posting circuits’ efforts, however, analyzing the orders, to compare dispositions of similar complaints, or to assess how different chief judges and councils define or interpret the statute and the governing rules, would require wading into an undifferentiated mass of orders (including routine council orders affirming chief judge dismissals), identified only by date, case number, and, in some circuits, a generic description (e.g., “Order, Chief Judge” or “Order, Judicial Council”). A more helpful typology is necessary (along with indicating the page length of each order as a rough way to identify non-routine orders).

Enhanced orientation for chief circuit judges

The Breyer Committee recommended an individual, in-court orientation program for each new chief circuit judge, provided by an experienced current or former chief judge and a member of the Administrative Office General Counsel’s office who staffs the Conduct Committee, and that the Federal Judicial Center develop a common core curriculum for the program to promote uniformity in the Act’s implementation. The recommendation, along with others, for on-tap resources, was designed to ensure “‘that the chief judge is not out there alone’.” [19] I do not believe the Conduct Committee to date has requested the Federal Judicial Center to develop such a program, or some other program toward the same end. It is worth exploring, however, whether the Center is in a position to develop and administer such a program and curriculum, and whether the Conduct Committee perceives a need for it in light of the other steps it is taking in its advisory role.

Providing information on the Act to potential users The courts, based on my most recent and admittedly non-exhaustive review have done a fairly good job with another transparency-related Breyer Committee recommendation, namely making information readily available on court website about the Act and how to file a complaint. Not all courts that post such material place it on the homepage, as the Committee recommended,[20] but for the most part I do not believe the information is hard to find. The Judicial Conference Committee on the Judicial Branch, under its former chair, Judge D. Brock Hornby, and current chair, Judge Robert A. Katzmann, with the assistance of its Administrative Office staff, has aggressively reminded the courts of the Rules requirements for such posting.[21] The Breyer Committee found, in 2006, only marginal compliance with a previous suggestion for such posting, and found that those courts that were posting the information on their websites did not experience a greater proportionate number of filings.[22] It accompanied its recommendation with a suggested paragraph warning would-be filers that the chief judge would dismiss their complaint if it related to the merits of an underlying decision, and a fair number of courts appear to have adopted that suggestion.

* * *

Thank you for the opportunity to testify this afternoon. I will do my best to answer any questions you may have.

[1] “Implementation of the Judicial Conduct and Disability Act of 1980, A Report to the Chief Justice,” (Sept, 2006), available at http://www.fjc.gov/library/fjc_catalog.nsf/autoframepage!openform&url=/library/fjc_catalog.nsf/DPublication!openform&parentunid=C6CA3DC8B22AC2D78525728B005C9BD3

[2] Available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/Misconduct/jud_conduct_and_disability_308_app_B_rev.pdf

[3] See report, id at note 1, at 73-75.

[4] Id at 131.

[5] Id at 39ff.

[6] Id at Appendix E, 144ff.

[7] “Politics and Progress in Federal Judicial Accountability,” Judicature (Sep’t., Oct., 2006), available at http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=530

[8] Id at 53.

[9] Id at 95ff.

[10] Id at ch. 5.

[11] 28 U.S.C. §352(a)

[12] 28 U.S.C. §352(c)

[13] Report at 123.

[14] Id at 117.

[15] Rule 24(b).

[16] 28 U.S.C. §360(b)

[17] Rule 24(b)

[18] The orders are available at these links:
http://www.ca1.uscourts.gov/?content=judicialmis.php;
http://www.ca2.uscourts.gov/judmisconduct.htm;
http://www.ca5.uscourts.gov/JudicialMisconductOrders.aspx;
http://www.ca7.uscourts.gov/JM_Memo/jm_memo.html;
http://www.ce9.uscourts.gov/misconduct/judicial_misconduct.html;
http://www.ca9.uscourts.gov/misconduct/;
http://www.ca10.uscourts.gov/misconduct.php;
http://www.cadc.uscourts.gov/internet/misconduct.nsf/DocsByRDate?OpenView&count=100;
http://www.cafc.uscourts.gov/judicial-reports;

[19] Report at 113

[20] Report at 120-21.

[21] Rule 28

[22] Report at 33

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Russell Wheeler

Publication: House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

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What's Behind all Those Judicial Vacancies Without Nominees?

Russell Wheeler — Thu, 18 Apr 2013 11:54:00 -0400

Last week, Senate Judiciary Committee ranking member Charles Grassley (R-IA.), said “we hear a lot about the vacancy rates. There are currently 86 vacancies for federal courts. But of course, you never hear the President mention the 62 vacancies that have no nominee. That is because those 62 vacancies represent nearly 75 percent of the total vacancies.”

This brief paper, after noting the considerable power that home state senators have over judicial nominations, reports that:

• Considerably fewer of the vacancies without nominees on April 12, 2013, could reasonably be expected to have had nominees by then, based on patterns in the previous two administrations.

• Of the vacancies without nominees, almost half are in states with two Republican senators, and those vacancies are older than those in other states.

• There are many more nominee-less vacancies now than at this point in President George Bush’s presidency.

• Of the vacancies that have received nominations, the time from vacancy to nomination was greater in states with two Republican senators.

• Although it is difficult to apportion responsibility for the number and age of nominee-less vacancies and the longer times from vacancy to nomination, we should consider a specific proposal for more transparency about pre-nomination negotiations that might produce more nominations, more quickly.

The Senate has long honored the concept of “senatorial courtesy”—a willingness to confirm judicial nominees only if the home state senators approve. Senate Judiciary Committee chair Patrick Leahy and most of his predecessors over the last half-century or more have refused to process nominees to whom home state senators have objected, although the form of the objections and the weight given to objections from majority and minority senators has varied.[1] This year, even the Senate majority leader couldn’t get a hearing for a Nevada state judge whom he had recommended, because his Republican colleague refused to let the nomination proceed. Home-state senators’ effective veto over judicial nominees leads to bargaining—how much currently, we outsiders can’t say—between the White House and home state senators to find nominees that the administration favors and that the home state senators are willing to let proceed. The practice now seems to be, in general, that senators propose district nominees to the White House and react to potential court of appeals nominees proposed to them by the White House.

Number and age of vacancies without nominees

As of Friday, April 12, 2013, 71 actual and future vacancies on the district courts did not have nominees before the Senate, nor did 13 court of appeals vacancies. (A “future” vacancy refers to a judgeship occupied by a judge in active status who has announced publically that s/he plans to leave active status at some future date. The Judicial Conference of the United States encourages judges to give a year’s notice of their intention to leave active status, but not all judges do so.)

Only 33 of the 71 district vacancies, however, and nine of the appellate vacancies occurred or were announced before the August 2012 recess. For this and the previous two administrations, vacancies occurring after those fourth-year recesses have not received nominations until mid-April or later of the fifth year, except for one of President Barack Obama’s nominees.[2] The 33 district and nine circuit vacancies also exclude those that became nominee-less when, after the August recess, a nominee withdrew or was not resubmitted. (For example, the Nevada nominee referenced above asked the president to withdraw her nomination on March 13, 2013. Although the president had nominated her in February 2012 for a vacancy created in August 2011, the new date of the vacancy is the date of the withdrawal, and, for that reason, is not one of the 33 district vacancies.)

District vacancies The table shows that of the 32 vacancies in district courts with Senate delegations, almost half—15—were in the 14 states with two Republican senators—including six in Texas, three in Georgia, and two in Kentucky.

Eight of the vacancies are in the18 states with two Democratic senators, including three in California and two in New York. Nine are in states with a mixed delegation, including two in Illinois, three in Pennsylvania, and two in Wisconsin (and one in Massachusetts that was announced three and a half years ago, when the state had a mixed delegation, even though the delegation reverted to all Democratic in January 2013). These 32 nominee-less vacancies include three that once had a nominee who dropped out—two in two-Republican senator states and one in a split-delegation state.

The nominee-less vacancies in the states with two Republican senators are considerably older than those in states with two Democratic senators—measured in average days from the vacancy date, here defined as when it was announced, when it was created if no announcement, or Inauguration Day for vacancies that Obama inherited. Average age of the district vacancies in states with two Republican senators is 672, versus 649 for states with mixed delegations, and 471 for states with two Democratic senators.

Court of appeals vacancies Court of appeals judgeships are not statutorily assigned to particular states within the circuit but strong and rarely disputed traditions dictate that each judgeship belongs to a particular state.

Of the six nominee-less appellate vacancies in states with Senate delegations, four are in states with two Republican senators (Georgia, Kansas, and two in Texas). One is in Wisconsin, where the incoming Republican senator made clear in early 2011 that he would veto a nominee whom the administration first submitted in 2010 and resubmitted in 2011. The Kansas vacancy also had a nominee who dropped out after the two senators would not allow the nomination to proceed. The other is a vacancy on the Ninth Circuit’s Court of Appeals—the oldest vacancy in the country—that has been the object of one of the rare interstate disputes over the seat’s proper location, this one between the California and Idaho Senate delegations. (The 1,543 days shown are from the 2009 Inauguration Day; the vacancy dates to 2004.)

The average age of the four nominee-less appellate vacancies in the judgeships from states with two Republican senators is 529 days and much longer for the Wisconsin vacancy.

Bush Administration Nominee-less Vacancies in April 2005

The current situation is different, certainly as to the district courts, than the one that prevailed early in President George W. Bush’s second term, as shown on the table below, indicating pre-2004 recess vacancies that had no nominees by mid-April 2005, and the days that had elapsed since the vacancies’ creation or announcement.

In 2005, there were five nominee-less district vacancies, as opposed to 33 now, in part because the Senate had confirmed 97 percent of Bush’s pre-recess district nominees, as opposed to 90 percent of Obama’s, and Bush submitted only three nominees from the recess through mid-April, versus 15 by Obama. The three nominee-less appellate vacancies are three fewer than the current six vacancies in states with Senate delegations. Two were in California, one a vacancy for which the administration did not resubmit its initial 2013 nominee due to the home state senators’ objections. The extended vacancy reflected in part a dispute over whether the judgeship belonged to Maryland or Virginia.

Time from vacancy to nomination

What about judgeships that got nominees, whether confirmed or not? The table below shows the total number of Obama district nominees as of April 12, 2013.

On average, the Obama administration has submitted its 171 district nominees 406 days after the date of vacancy. The average for the 28 nominees in states with two Republican senators was 457 days, compared to 412 for the 94 two-Democratic senator state nominees and 364 for the 43 split-delegation state nominees. These figures, though, show the analytical difficulties created by changes in the make-up of Senate delegations; three long-pending Pennsylvania nominations could be ascribed to either the mixed or two-Democratic group. I have ascribed them to the latter, but ascribing them to the former would increase the average days for mixed delegation state nominations to 419 and reduce those for two -Democratic states to 387.[3]

There was considerable variation within the three categories. The six Texas nominees waited on average 603 days from the date of vacancy (as defined above), while the four in South Carolina waited only 286. The nine in Florida, with its mixed delegation, waited 353 days. The two Pennsylvania nominations clearly ascribed to the mixed delegation group waited 665 and 850 days, while the three I ascribed (almost by a flip of the coin) to the two-Democratic category waited 1,152 days on average. The 20 New York nominees waited 399 days on average, and the six in Illinois when it had two Democratic senators waited 275 days.

Average days for making circuit nominations were lower in all categories. There were not enough nominations for individual states to identify reportable variations.

What explains these differences?

We can only speculate, but no doubt both the Obama White House and at least some of the senators bear some responsibility for the high number of long-lasting nominee-less vacancies, and the long times from vacancy to nomination. The 391 days on average from date of district vacancy to nomination in two-Democratic senator states under Obama is longer than the overall time for all nominations under Bush to this point—276 days on average (At this point, Bush circuit nominees had waited on average 300 days for nominations.)

Perhaps the Obama White House has been slower to suggest potential nominees in states with Republican senators, or react more slowly to suggestions from those senators. Perhaps Republican senators insist, more than their Democratic counterparts, on nominees they proposed over White House objections or object more to White House-proposed nominees. The entire Senate Republican caucus told the White House by a March 2009 letter that “if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee. . . .”[4] Perhaps Democratic senators from mixed-delegation states are the hold-ups, or perhaps Democratic House of Representative delegations have also stymied quick nominations by insisting that the White House pay attention to them as well as to their Republican senator counterparts.

Because we can only speculate on White House-senator negotiations, consider the proposal by Columbia Law School’s Michael Shenkman, a former Senate Judiciary staffer who later worked in the Obama administration. He has proposed that White Houses publish “the status of pre-nomination negotiations, although not the names of the [potential] nominees themselves.”[5] Senators could call out what they regard as misleading administration information, bringing the dispute into the open for verification. All in all, “[l]ocal editorial pages across the country would be newly equipped to comment on who is holding up the filling of” vacancies.[6] (Shenkman’s proposal is aimed at district vacancies, because his main objective is to try to fix the somewhat more fixable district judge confirmation process. Restricting the greater transparency proposal to potential district nominees may be the best way to inject any transparency into the process at all. The proposal, though, may merit consideration for court of appeals vacancies as well.)

The form of disclosure would resemble the Administrative Office of the U.S. Courts’ on-line list of “Current Judicial Vacancies,”[7] from which I have drawn some of the data for this short analysis. It displays the vacancy and the date it was actually created, the previous incumbent, the name of any formally submitted nominee, and the date of the nomination. The administration Web page would add to this information, for each vacancy without a nominee, the date on which the incumbent gave notice of the forthcoming vacancy or the date the vacancy was created in the absence of such notice, the date when the White House received senators’ recommendations, and an administration statement on whether it is still considering the unnamed, potential candidates or whether the administration has requested new names.[8] Where the administration initially provides names to senators for comment, the list could identify the date the names were provided, the date of any senatorial response, and, again, whether the administration is still considering the candidates. The administration list, to repeat, would include no names except those of the previous incumbents and those of nominees formally submitted to the Senate.

Shenkman acknowledges that candidates submitted to the White House who are identified in senatorial press releases or by the rumor mill could be embarrassed if they do not get the nomination, but argues the “[a]dministration’s priority should be on the health of the overall process.” Senators might not like the light such a list would shed on their dealings with the White House, but Shenkman argues that it would be difficult for senators to frame a principled objection to such disclosures, which could help repair the overall process.

* * *

At the least, such a public list (and any disputes over its accuracy) would shed more light on the vacancy situation than merely counting the number of nominee-less vacancies.

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[1] See M. Sollenberg, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present (2003), http://wikileaks.org/wiki/CRS-RL32013 . Thanks to my colleague Sarah Binder for calling this document to my attention and for her comments on the phenomenon at issue.

[2] In February, Obama submitted a nominee to a vacancy announced in mid-August on the (senator-less) Court of Appeals for the Federal Circuit.

[3] The three dates of vacancy were in early to mid 2009, when the state had two Democratic senators after Arlen Specter’s switch in April 2009, and persisted through the almost two years of the two-Democratic delegation until nominations in mid-and late 2012, when the state had had a mixed delegation for over a year and a half.

[4] Manu Raju, “Republicans Warn Obama on Judges,” Politico, March 2, 2009, available at http://www.politico.com/news/stories/0309/19526.html.

[5]M. Shenkman, Decoupling District from Circuit Bench Nominations: A Proposal to Put Trial Bench Confirmations on Track,” 65 Ark. L. Rev. 217, at 299 (2012).

[6] Id. at 302.

[7] See star note at p. 1.

[8] Shenkman, op cit at 300.

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Strangeness at Guantanamo

Paul R. Pillar — Tue, 29 Jan 2013 00:00:00 -0500

Editor's note: This article was originally published by The National Interest.

During a hearing Monday to consider pre-trial motions before the military tribunal at Guantanamo that is handling the case of Khalid Sheik Mohammed and four other defendants charged with perpetrating the 9/11 attacks, the audio and video feeds that run from the courtroom to media rooms and are the only way for the outside world to follow the proceedings were mysteriously interrupted for several minutes. No one who is saying anything to the outside world seems to know the reason for the interruption. The colonel who is the presiding judge seemed not to know on Monday. A member of the prosecution team said she does know but, with the cameras and microphones back on, would not explain. The following day the judge seemed satisfied with whatever explanation he apparently got, but he wasn't talking either.

The mysterious electronic gap is a fitting sample of much that is strange about the detention facility at Guantanamo and what goes on there. Part of the strangeness is about Guantanamo itself; other parts are about things that are centered at, or symbolized by Guantanamo, including the basis for indefinite detention of people suspected of involvement in terrorism and the military tribunal system used to try some of them.

What is odd about the facility itself is its anomalous legal status, being on a U.S. military base with a long-term lease from Cuba. Decision-makers in the George W. Bush administration selected the place to establish a detention center that would be as much as possible out of the reach of anyone's law. The Supreme Court has frustrated whatever hope there may have been to keep it entirely outside the reach of the law, but the anomaly of the place continues to be a basis for the legal uncertainty of much of what goes on there.

One of the latest of the many legal uncertainties about the military tribunal system concerns whether it can be used to try defendants for anything other than crimes of war. There is disagreement about whether prosecutors can bring to a tribunal conspiracy charges of the sort that can certainly be brought in a civilian court. The Department of Justice says they can; the military judge in charge of the tribunals says they can't (while adding that this very disagreement demonstrates the tribunals' independence and by implication their fairness). Besides the uncertainty, there is an irony given how members of Congress who have forced the handling of terrorism cases out of the civilian courts and into military tribunals may have thought that this tough handling of the subject as “war” would mean greater power and freedom to punish terrorists without prosecutors' jobs being complicated by all the rules of evidence and whatnot that civilian courts have. With regard to something like the use of conspiracy charges, the move to military tribunals means less, not more, flexibility in what prosecutors can do.

Also in the news this week is the administration's announcement that the State Department official who has been charged with negotiating new custody arrangements for Guantanamo prisoners is being reassigned without being replaced. This move is being interpreted as a tacit admission by the Obama administration that it will not realize its goal of closing the detention facility at Guantanamo, although officially the administration says that is still the goal. Failure to meet that goal is partly due to facing the reality of each detainee's case being different and many of them being complicated. The failure is in large part due again to Congress, which has restricted movement of detainees both to the United States and to some of the key foreign countries. Thus another irony: the actions of those who think in terms of a “war on terror” with a beginning and an end have laid the basis for a supposedly temporary detention system that will have no end.

President Obama recently appointed former prosecutor Mary Jo White to head the Securities and Exchange Commission. As U.S. attorney for the Southern District of New York, White's office successfully prosecuted several of the highest profile terrorism cases—the experience that most refutes some of the chief arguments made in favor of reliance on the military tribunal system. Although at the SEC White will be a regulator rather than a prosecutor, the administration's evident hope and message in making this appointment is that Wall Street crooks will face effective punishment. Maybe the United States will handle the cases of such crooks with greater rationality, consistency and effectiveness than it seems to be handling the cases of suspected terrorists at Guantanamo.

Authors

Paul R. Pillar

Publication: The National Interest

Image Source: © Bob Strong / Reuters

Filling Judicial Vacancies In Obama's Second Term—Some Prospects

Russell Wheeler — Mon, 28 Jan 2013 15:00:00 -0500

A recent American Constitution Society Issues Brief I authored considers various proposals to fix the broken process of filling judicial vacancies during the second Obama term.

As documented in a December Brookings paper, partly updated in the ACS Brief, filling those vacancies in the first Obama term was hampered by the comparative paucity of nominations, especially for the district courts, by the slow pace of those nominations, and by long periods from vacancy to nomination, and from nomination to floor vote. On almost all those measures, the administration’s and the Senate’s performance in Obama’s first term lagged behind those in the Clinton and Bush first terms.

This continuing breakdown in the process has at least two deleterious effects. First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs—to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.

Second, though, the nomination and confirmation process itself has increasingly become a factor discouraging well-qualified potential district and circuit judges from putting themselves up for consideration. The 223 days on average from nomination to confirmation of district judges—up from 154 days in Bush’s first term and 93 in Clinton’s— leads potential candidates, especially lawyers in private practice, to ask whether they can afford to go into nomination limbo for eight months—perhaps much longer—especially when confirmation, unlike in earlier years, is something other than a sure thing. And the job is less attractive: growing caseloads but negligible increases in judgeships over the last several decades, changes in the case mix—more drug and immigration violations in the district courts, for example—and stagnant judicial salaries with declining buying power, a special problem for would-be judges in high-cost areas.

We should not want to return to the average nine days from nomination to confirmation faced by Harding’s nominees, but the roughly 60 to 70 day averages in the Carter and Reagan administrations are a reasonable goal, even if “reasonable” does not mean “attainable.”

The recent Senate rules changes may ameliorate the wait for district judges. Previously, the mere threat of a filibuster over a nomination made any majority leader reluctant to bring a nominee to the floor, because even if the Senate voted to end the filibuster, it faced the possibility of up to 30 hours of debate before a vote on the nomination itself. The rules change reduces that post-cloture debate time for district judges to two hours, which should make the majority leader more likely to risk a cloture vote without fear of squandering a lot of valuable floor time simply to get some district confirmations.

That the rule does not apply to circuit (or Supreme Court) nominees makes a certain perverse sense, in that those nominations have been more contentious. In Obama’s first term, 46 percent of district confirmations were by voice vote or unanimous consent, double the 23 percent of circuit confirmations that went that route. And, on roll call votes, 11 percent of district confirmations received 11 or more negative votes, versus 24 percent of circuit confirmations. The rules change may be a step toward putting district and circuit nominations on different paths, as advocated, for example, by Columbia Law School’s Michael Shenkman.

The rules change, however, does nothing to speed the time from vacancy to nomination, which rose from 370 days on average in Clinton’s first term for district judges and 276 in Bush’s to 406 in Obama’s. During that time, an active rumor mill can spew invidious speculation about potential candidates and their chances of nomination.

This delay results in part from bargaining between home state senators and the White House; the senators’ bargaining bargaining chip is a threat to kill a nominee by refusing to allow Judiciary Committee hearings on a nominee of whom they disapprove. The White House could shed some sunlight on the process by publicizing the status of its negotiations with home state senators over a vacancy (without revealing the names of any potential nominees). Such publicizing would also afford senators an opportunity to contest, publically, White House assertions. The result—equipping editorial writers and others to pressure those standing the in the way of expeditious nominations. (This is another Shenkman proposal.)

The nomination and confirmation process in Obama’s second term may reveal the effect, if any, of the rules change (and, if implemented, publicizing the status of pre-nomination negotiations). They have more promise than other proposals, also analyzed in the ACS Issues Brief, including time tables for the steps in the process and fast-track procedures for nominees endorsed by senators’ allegedly bi-partisan vetting committees.

Bigger changes, however, are highly unlikely in the midst of the second term’s confirmation battles. For that reason, the administration might consider creation of a three-branch, truly bi-partisan task force to develop more substantial proposals that could be debated in the 2016 campaign and perhaps implemented by the next president and the 115th Senate. But implementation is likely only if all parties realize that it is in their self-interest to fix the broken judicial nomination and confirmation process.

Authors

Russell Wheeler

Image Source: © Chip East / Reuters

Putin's Artful Jurisprudence

William Partlett — Wed, 02 Jan 2013 00:00:00 -0500

At 8:00 P.M., Moscow time, on September 21, 1993, Russian president Boris Yeltsin read out an emergency decree on national television. Blaming Russian parliamentary leaders for ignoring the will of the Russian people, Yeltsin abolished the existing constitution and disbanded every legislative assembly in Russia. Russian parliamentary leaders immediately called an emergency session and removed Yeltsin for treason. They named his vice president, Alexander Rutskoi, acting president. The Russian Constitutional Court chairman, Valery Zorkin, then appeared before Parliament and reported that a majority of the court had found Yeltsin’s decree unconstitutional. Russia now had two presidents.

These two presidents eyed each other warily across a tense Moscow for more than a week. They issued competing laws and decrees to strengthen their respective positions. With the backing of the West and the Russian armed forces, Yeltsin quarantined the Russian Parliament in its building. The Parliament surrounded itself with armed supporters and called for a general strike. Fears of civil war spread as both sides sought to gain support and project political legitimacy. Amid this “war of laws,” legality broke down. Chairman Zorkin frantically sought to forge a compromise that would restore the political struggle to a legal plane.

Zorkin’s effort failed. After a series of armed street clashes, Yeltsin ordered the army to storm the Russian Parliament. A shocked Russian populace looked on as tanks took up positions across from Parliament. As tank shells slammed into the building, Rutskoi called Zorkin and asked him to alert the embassies. He went on: “They won’t let us out of here alive. Is the world community actually going to let them shoot the witnesses? There’ll have to be an investigation later, you know. They’re murderers! Do you understand me? You’re a believer, it will be on your head.”

Read the full article »

Authors

William Partlett

Publication: The National Interest

Image Source: © POOL New / Reuters

Judicial Nominations and Confirmations in Obama’s First Term

Russell Wheeler — Thu, 13 Dec 2012 11:20:00 -0500

President Obama's first term saw comparatively fewer nominations, submitted relatively later, with greater times from district vacancy to nomination and confirmation, and an increase in vacant judgeships. This paper explores these and related aspects of the first term record.

Download Paper » (PDF)

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Judicial Nominations and Confirmations in Obama’s First Term

Authors

Russell Wheeler

Image Source: © Larry Downing / Reuters

Egypt’s Democratic Dictator?

Omar Ashour — Mon, 03 Dec 2012 00:00:00 -0500

Mohamed Morsi, Egypt’s first-ever elected civilian president, recently granted himself sweeping temporary powers in order, he claims, to attain the objectives of the revolution that overthrew Hosni Mubarak’s dictatorship. But the decrees incited strong opposition from many of the revolutionary forces that helped to overthrow Mubarak (as well as from forces loyal to him), with protests erupting anew in Cairo’s Tahrir Square.

Morsi has thus been put in the odd position of having to defend his decision against the protesters while simultaneously making common cause with them. “I share your dream of a constitution for all Egyptians and with three separate powers: executive, legislative, and judicial,” he told his opponents. “Whoever wants Egyptians to lose this opportunity, I will stop him.” So, was Morsi’s “auto-coup” necessary to realize the revolution’s avowedly democratic goals?

The new Constitutional Declaration, the Revolution Protection Law, and the new presidential decrees have several aims:

To remove the public prosecutor, a Mubarak-era holdover who failed to convict dozens of that regime’s officials who had been charged with corruption and/or abuse of power;
To protect the remaining elected and indirectly elected institutions (all of which have an Islamist majority) from dissolution by Constitutional Court judges (mostly Mubarak-era holdovers);
To bring about retrials of Mubarak’s security generals;
To compensate and provide pensions for the victims of repression during and after the revolution.

While most Egyptians may support Morsi’s aims, a dramatic expansion of presidential power in order to attain them was, for many, a step too far. Given Egypt’s extreme polarization and distrust between its Islamist and secular forces, Morsi should have anticipated the protests. Suspicion of the powerful, after all, has been one of the revolution’s animating factors. Another is a “zero-sum” attitude: any achievement by Morsi is perceived by his opponents as a loss.

The anti-Morsi forces are sharply divided ideologically and politically. Nobel laureate Mohamed ElBaradei, a liberal reformer, has little in common with Ahmed El-Zind, the head of the Judges Club and a Mubarak loyalist. But the anti-Morsi forces that backed the revolution regard the price of cleansing the judiciary as too high, arguing that the constitutional declaration will lead to dictatorship.

Indeed, the declaration protects presidential decrees from judicial review (although Morsi stipulated that it pertains only to “sovereignty” matters, and stressed its temporary nature). It also gives the president emergency-like power to fight vague threats, such as those “endangering the life of the nation.” Only if the new draft constitution is upheld in a popular referendum on December 15 will these provisions be annulled.

But the opposition factions have not been adhering to democratic principles, either. Mostly comprising electoral losers and remnants of Mubarak’s regime, some aim to topple Morsi, not just get him to backtrack on his decree. ElBaradei, for example, “expects” the army to do its national duty and intervene if “things get out of hand” – hardly a compelling democratic stance, given the army’s track record.

Morsi's decrees have undoubtedly polarized Egyptian politics further. The worst-case scenario is street clashes between pro- and anti-Morsi hardliners. Historically, such clashes have often sparked civil war (for example, Spain in 1936 or Tajikistan in 1992) or brutal military coups (as in Indonesia in 1965 and Turkey in 1980).

For Morsi and his supporters, it was imperative to neutralize the Constitutional Court judges, whose ruling last June dissolved the first freely elected, post-revolution People’s Assembly (the parliament’s lower house). According to the Morsi camp, the politicized Court intended to dissolve the Consultative Council (the upper house) and the Constitutional Assembly, as some of its judges publicly hinted. Likewise, the sacked public prosecutor had failed to present any solid evidence against those of Mubarak’s security chiefs and officers who were accused of killing protestors, leading to acquittals for almost all of them.

As a president who was elected with only a 51.7% majority, Morsi needs to be sensitive to the demands of his supporters, mainly the Islamists and revolutionaries victimized by the security forces. But, for many revolutionaries, there were other ways to sack a tainted prosecutor and cleanse the judiciary. For example, a new law regulating the judiciary has been a demand of the revolution since its early weeks.

For Morsi, the dilemma was that the Constitutional Court could strike down the law, rendering the effort meaningless. He had already backed off twice: once in July 2012, when he abandoned his effort, under pressure from the Supreme Council of the Armed Forces, to reinstate the elected parliament; and once when he tried to remove the public prosecutor by making him Egypt’s ambassador to the Holy See.

Morsi's “Constitutional Declaration” was a decisive – though undemocratic, polarizing, and thus politically costly – step to break the impasse. And, while such decrees have led to dictatorships, not democracies, in other countries undergoing political transition, none had a politicized judicial entity that played the role of spoiler in the democratization process.

Indeed, almost two years after the revolution began, Egypt’s security forces have not been reformed in any meaningful way. Now, Morsi, in his effort to force out the prosecutor, will have to avoid opening another front with the Mubarak-era security generals, whom he will need to protect state institutions and maintain a minimum level of public security.

The security sector may, it seems, emerge from this crisis as the only winner. It will enforce the rule of law, but only for a price. That price will be reflected in the constitution, as well as in the unwritten rules of Egypt’s new politics. This constitutes a much more serious and lasting threat to Egypt’s democratization than do Morsi’s temporary decrees.

Authors

Omar Ashour

Publication: Project Syndicate

Image Source: © Amr Dalsh / Reuters

Are We All Copyright Infringers?

John Villasenor — Sun, 28 Oct 2012 00:00:00 -0400

I’ve never thought of myself as a copyright infringer. But now I’m not so sure. My possible “crime”: I recently purchased a book in London’s Heathrow Airport to read on a flight back to the United States. While reading it onboard, it occurred to me that someone else I know would find the book interesting. Under a strained – but unfortunately no longer unthinkable – interpretation of U.S. copyright law, bringing the book home with the awareness that I might well lend or give it to that person could be a violation of Section 602 of Title 17 of the United States Code.

Whether or not innocuous behaviors like passing along a book bought lawfully overseas to a relative, friend or coworker constitute copyright infringement depends on the outcome of Kirtsaeng v. John Wiley & Sons, Inc., a case scheduled to be heard by the Supreme Court this week (background here).

Historically, the first sale doctrine has provided strong rights to owners of legitimately purchased copyrighted works. Once you buy a book, music CD, or movie DVD in the United States, you are free to later sell it, lend it to a friend, or donate it to a library or charity without seeking permission from the copyright owner. As the Supreme Court wrote in a 1998 decision, the “whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.” However, in the 2011 ruling that set the stage for the Supreme Court argument in Kirtsaeng, the Second Circuit held that “the first sale doctrine does not apply to copies manufactured outside of the United States.”

If the Supreme Court arrives at the same conclusion, your ownership rights for copyrighted works you bought overseas and brought back to the United States will change – and not for the better. Why? Because the first sale doctrine affirmatively protects owners of lawfully purchased works by limiting the ability of a copyright holder to impede their downstream actions. In its absence, to comply with U.S. copyright law you would have to keep track, in perpetuity, of all foreign-sourced works in order to avoid inadvertently selling, lending, gifting, donating, or otherwise distributing them without permission from the copyright holder. You would be burdened with this task forever – or at least until the copyrights expire, which is often many decades in the future.

Of course, people can’t be expected to perform this kind of accounting on their personal possessions. Most things we own will part company with us sooner or later. In the long run, all of them will. Under the Second Circuit’s view of copyrighted items manufactured abroad, that parting, whenever it occurs, will often become an act of copyright infringement.

The implications of the Supreme Court’s Kirtsaeng decision could go far beyond imposing an obligation (which almost no one would follow) to track the provenance of personal items. Retailing giant Costco, for example, has filed an amicus brief [PDF] in the case citing the negative impact that upholding the Second Circuit’s ruling could have on its continued ability to offer low-cost goods to consumers. eBay is concerned [PDF] about the possible negative consequences to secondary markets. Goodwill Industries International’s amicus brief [PDF] raises the possibility of reduced donations. Some extremely well-known bookstores are worried [PDF] about a decision that could turn many of their routine transactions into violations.

Another less commonly articulated concern is the possible reciprocal impact on American individuals and American businesses abroad. If other countries were to adopt a view analogous to the Second Circuit’s, then Americans who travel overseas with copyrighted works legitimately purchased in the United States could find their ownership rights dramatically curtailed once they arrive on foreign soil. American businesses could be forced to drop the prices of their exported goods, because buyers would have increased exposure to claims from American copyright holders.

The potential for collateral damage from well intentioned – and, to be fair, in many ways very beneficial – copyright statutes is a consequence of the legislative dynamics at play when they were enacted. In drafting laws, there is a choice between 1) casting a wide net when defining unlawful behavior, and then assuming that the combination of generally reasonable enforcement and a rational court system will protect people who engage in harmless technical violations from being punished, or 2) casting a somewhat narrower net that leaves harmless, reasonable behavior clearly on the right side of the law.

Today’s copyright statutes often reflect the first approach, largely because they embody the concerns of well-organized industry groups of copyright holders, such as the music, movie, and publishing industries. It is completely reasonable for these industries to seek laws that will protect their valuable intellectual property and give them the tools they need to combat piracy and other abuses. But they have little incentive to oppose laws that are too expansive in scope. From their standpoint, it is desirable to have broadly worded statutes providing more flexibility to bring selective enforcement actions.

Copyright users, on the other hand, tend to be a much more diverse group. Use of copyright may be one of the only things in common among the American Library Association, the Association of Art Museum Directors, Costco, eBay, Goodwill, Google, and Powell’s Books – all of which have submitted amicus briefs urging the Supreme Court to reverse the Second Circuit’s ruling. As a result, the voices of copyright users have been more muted when Congress drafts and enacts copyright legislation. That may change in the future. Earlier this month a new coalition called the Owners’ Rights Initiative was launched to “protect ownership rights in the United States.”

Copyright and other forms of intellectual property are vital assets to people, companies, nations, and to the global economy. Creators of copyrighted works deserve to be protected both by law and through appropriate enforcement. But purchasers of copyrighted works have rights too, provided they acquire those works legitimately and use them in a manner respectful of the intellectual property they contain. Copyright approaches that don’t reflect this balance can hurt us all by reducing the ability to engage with our collective cultural heritage.

Last week, a company called Faulkner Literary Rights filed a copyright infringement claim against Sony Pictures Classics. The issue: One of the characters in the movie Midnight in Paris mentions Faulkner by name and voices a brief (and slightly modified from the original) quote from one of his novels. That, apparently, has set off the alarm bells among the guardians of Faulkner’s literary legacy.

I’m sure that Faulkner himself has written something appropriate to describing this situation. In fact, I even have a good quote in mind. But, I’m not going to write it here. After all, if I do, I might be sued for copyright infringement.

Authors

John Villasenor

Publication: Forbes

Image Source: © Reuters Photographer / Reuters

Will Drones Outflank the Fourth Amendment?

John Villasenor — Thu, 20 Sep 2012 00:00:00 -0400

In a word, no. The Fourth Amendment, which provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has been a cornerstone of privacy from government intrusion since 1791. It has served us well across more than two centuries of technology advances, and there is no reason to expect that it will suddenly lose its protective power when domestic use of unmanned aircraft becomes common.

In February 2012, President Obama signed an FAA bill into law that provides for the integration of “drones,” or more properly, unmanned aerial vehicles (UAVs), into the nation’s airspace. This has generated legitimate concerns that UAVs could be used by the government in ways that infringe privacy rights, particularly in light of three 1980s-era Supreme Court decisions that found no Fourth Amendment violation in warrantless observations from manned government aircraft.

In 1986, the Court ruled in California v. Ciraolo that police officers who identified marijuana plants in a suspect’s backyard from a plane at an altitude of 1000 feet did not violate the Fourth Amendment. Three years later in Florida v. Riley, a majority of justices reached the same conclusion regarding observations of marijuana plants in a greenhouse from a helicopter at 400 feet. And in Dow Chemical Co. v. United States, a 1986 decision addressing government use of a commercial mapping camera to take aerial photographs of an industrial facility (as opposed to the “curtilage” of home considered in Ciraolo and Riley), the Court ruled in favor of the government.

These decisions do indeed indicate that government investigators will sometimes be able to use UAVs without a warrant. However, that does not mean that all government UAV observations, no matter how invasive, will be constitutional. In fact, a careful review of the opinions in these and other relevant Supreme Court cases suggests that the Fourth Amendment may provide significantly more protection than is often assumed.

In Ciraolo, for example, the Court held that the “Fourth Amendment simply does not require the police traveling in the public airways at this altitude [1000 feet] to obtain a warrant in order to observe what is visible to the naked eye.” A UAV equipped with an imaging system capturing much more detail than could the human eye would fall outside the scope of this holding. So, too, would one operating outside of public navigable airspace, though defining exactly where that lies for UAVs can be complex.

In Riley, which also involved naked eye observations, Justice White and the three other justices who joined his opinion found no Fourth Amendment violation in part because “no intimate details connected with the use of the home or curtilage were observed.” Justice O’Connor’s Riley concurrence emphasized that reasonable expectations of privacy, and not “compliance with FAA regulations alone,” should determine the constitutionality of aerial observations.

The Dow Chemical Court concluded that “the open areas of an industrial plant complex are not analogous to the ‘curtilage’ of a dwelling for purposes of aerial surveillance.” Yet, even under that much lower privacy standard, the Court implied the existence of some constitutional bounds, noting that “the photographs here are not so revealing of intimate details as to raise constitutional concerns.”

Several more recent Supreme Court decisions in non-aviation cases are also relevant to UAV privacy. In 2001, the Court ruled against the government in a case involving use of a ground-based thermal imager to detect an indoor marijuana growing operation by measuring the temperature of the roof and outside wall of a house. Writing for the Court in Kyllo v. United States, Justice Scalia expressed concern that allowing the government to freely collect any information “emanating from a house” would put people “at the mercy of advancing technology – including imaging technology that could discern all human activity in the home.” The rule adopted by the Kyllo Court provides that when “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

As has often been noted (including in Justice Stevens’ dissent in Kyllo), the “not in general public use” restriction can weaken with time as a formerly rare technology becomes common. However, Kyllo stops well short of endorsing the constitutionality of using a commonly available technology to observe a home. As Justice Scalia wrote in response to the dissent on this specific point, the thermal imaging in Kyllo was not “routine.” The Kyllo Court did not need to address the question of observations using routine technology, and specifically declined to do so.

Under a balanced reading of Kyllo, government use of a UAV to reveal “details of the home that would previously have been unknowable without physical intrusion” would be unconstitutional today. Ten years from now, when UAVs will be common, that still may be the case – but that conclusion will need to come from a ruling other than Kyllo.

Most recently, the Supreme Court found against the government in United States v. Jones [PDF], a January 2012 decision that addressed the constitutionality of affixing a GPS tracking device to a vehicle without a valid warrant. While the basis for the decision was narrow – the Court found a Fourth Amendment violation in the physical trespass that occurred during the placement of the GPS device on the vehicle – the aspects of the Jones opinions addressing extended surveillance are directly relevant to long-endurance UAVs.

The opinion of the Court, delivered by Justice Scalia, stated that extended electronic surveillance “without an accompanying trespass” may be unconstitutional, but noted that the “present case does not require us to answer that question.” In a concurrence, Justice Alito wrote that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” And in a separate concurrence, Justice Sotomayor noted the “existence of a reasonable societal expectation of privacy in the sum of one’s public movements.” Thus, the justices are on record recognizing the constitutionality question raised by new technologies enabling extended surveillance, though they deferred its resolution to another day.

In the aggregate, these rulings provide cause for optimism that, with respect to government UAV observations, the Fourth Amendment will be reasonably protective. Whether it will be sufficiently protective is a different question, and one well worth attention. But when engaging in that discussion, it is important not to lose sight of the substantial constitutional foundation we already have.

Authors

John Villasenor

Publication: Forbes

Image Source: © Reuters Photographer / Reuters

The Case for Confirming District Court Judges

Russell Wheeler — Tue, 18 Sep 2012 00:00:00 -0400

The accepted wisdom on Congress is that the presidential campaign is likely to crowd out most real work until after Nov. 6, when all its focus abruptly changes to the fiscal cliff.

There is, though, one important noncontroversial matter that the Senate should take up now — as have previous Senates at this time: confirming district judges.

A government that can't do its mundane business is surely unlikely to be able to deal with more controversial problems. History shows that the Senate should be able to confirm a respectable number of long-standing district court nominations before Election Day — certainly before adjournment. If it cannot, this may signal that the past four years of delayed and confrontational nominations have not been an aberration but represent the new normal of district court confirmations.

Sixty-one of the nation's 673 lifetime appointment district court judgeships are vacant. President Barack Obama has submitted nominees to fill 24 of the vacancies. Seventeen of the 24 have cleared the Senate Judiciary Committee and are awaiting final action by the full Senate.

Read the full piece at Politico »

Authors

Russell Wheeler

Publication: Politico

Image Source: © Chip East / Reuters

Obama’s Judicial Confirmations at the Election Year Summer Recess, and Prospects for the Fall

Russell Wheeler — Thu, 02 Aug 2012 11:36:00 -0400

On June 14, Roll Call reported that Senate Republicans had invoked the “Thurmond Rule” and would not allow votes for any more pending court of appeals nominees in the run up to the 2012 presidential election. Both parties have at least paid lip-service to the "rule" in some form, anticipating the possibility that come January, their presidential candidate will be nominating judges. (Why June 14 is discussed here. No blanket moratorium on district confirmations is probably because Senates controlled by both parties have approved district nominations well into the election years.)

Confirmations slowed in July and August of 2012, as they did in previous election years. Only one circuit nominee in the four previous election years got confirmed after June (viz., July 21, 2000). And this year, Republicans beat back a July 30 effort to allow a vote on an Oklahoma circuit nominee supported by the state’s two Republican senators. Except for 16 district confirmations in July and August 1996, there have been only a handful of district confirmations in those months in election years: four in 2000 and this year, and one each in the other two years.

Even though circuit confirmations are apparently over for 2012, President Obama’s circuit confirmation success rate so far stacks up fairly well compared to those of his immediate predecessors. His district numbers lag behind, but some late-year confirmations could improve his tally, as they did those of his immediate predecessors. Unlike under Clinton or Bush, district vacancies have increased rather than decreased under Obama, but that can be explained in part by the much greater number of district judges who have left active judicial service (creating vacancies) under Obama than under Clinton or Bush during the same time period.

Confirmations Slow Down in Presidential Election Years

As in previous presidential election years, the Senate will recess in early August for campaigning and conventions. Here are confirmation rates at the summer recess for Obama’s 2009-12 term and for his immediate predecessors’ two terms—for the election years and, for comparison, for the three-plus years leading up to the summer break. For example, in 1996, up to the August 2 break, the Senate confirmed 18 of President Clinton’s 39 district nominees—those carried over from 1995 and those submitted in 1996 (for a 46 percent rate). From Inauguration Day in January 1993 through August 2, 1996, the Senate confirmed 87 percent of his 195 district nominees.

District Confirmations at Summer Recess *
	Election Year Only	Term to Recess	Recess Date
1993-96 (Clinton)	46% (18/39)	87% (169/195)	Aug. 2
1996-2000	57% (27/47)	82% (132/161)	Jul. 27
2001-04 (Bush)	73% (24/33)	93% (162/174)	Jul. 22
2005-08	33% (14/43)	73% (83/114)	Aug. 1
2009-12 (Obama)	52% (28/54)	80% (125/156)	Aug. 3
*In all tables, the base numbers are nominees, not nominations; one nominated in one Congress then renominated in next counts as a single nominee. The district figures exclude the term-limited territorial court judges.

Obama’s district confirmation rate, 52 percent so far in 2012, is roughly in the middle of the four preceding election years. His 80 percent rate over the three-plus years of his presidency, however, surpasses only that of President Bush in his second term.

Obama’s circuit confirmation rate, 45 percent so far in 2012, is greater than either predecessor’s, and his 71 percent rate overall is only exceeded by the 77 percent rate in Clinton’s first term.

Court of Appeals Confirmations at Summer Recess
	Election Year Only	Term to Recess	Recess Date
1993-96 (Clinton)	18% (2/11)	77% (30/39)	Aug. 2
1996-2000	35% (8/23)	63% (35/56)	Jul. 27
2001-04 (Bush)	24% (5/21)	67% (34/51)	Jul. 22
2005-08	27% (4/15)	60% (26/43)	Aug. 1
2009-12 (Obama)	45% (5/11)	71% (30/42)	Aug. 3

Numerous commentators have noted that judicial vacancies under Obama are greater now than they were on Inauguration Day, unlike in 2004 and 1996, which they attribute to Obama’s fewer nominations as well as the pace of confirmations.

The number of circuit vacancies at the 2012 summer recess—14— is the same as in January 2009. Clinton and Bush experienced the same thing--from 17 to 16 for Clinton and 13 to 13 for Bush.

District vacancies in the same periods decreased from 90 to 42 under Clinton and from 27 to 15 under Bush, but increased from 41 to 61 under Obama. One little-noted reason for that, however, is that many more district judges left active service during Obama’s administration than they did during Clinton’s or Bush’s during the same period. Under Obama, 144 district judges have left active service, mainly by taking senior status, but also through death, court of appeals appointments, resignation and retirement (and one conviction on impeachment.) The 144 is 27 greater than the 117 who left active service under Clinton in the same time period and 31 greater than the 113 who left active service under Bush, although Congress created 15 additional vacancies in 2002 through new judgeship legislation.

Possible Overall Four-Year Record

Obama’s full term circuit confirmation rate and numbers, while not spectacular, hold up fairly well in comparison to his predecessors’ terms (especially the more analogous first terms), but, even with some unlikely late year district confirmations, his district confirmation numbers and rate will lag behind his predecessors’ first term tallies.

Here are his current numbers and the final four-year numbers for his predecessors:

	District*	Court of Appeals*
1993-96	87% (169/195)	77% (30/39)
1996-2000	84% (136/161)	63% (35/56)
2001-04	97% (168/174)	67% (34/51)
2005-08	82% (93/114)	60% (26/43)
2009-8/3/12	80% (125/156)	71% (30/42)
*The base numbers, nominees (e.g., 195 and 39 in 1993-96), exclude the handfuls of nominees submitted after the presidential election year summer recesses, none of whom was confirmed.

Obama’s circuit confirmations are on a par with the four previous terms as to numbers. His 30 confirmations match Clinton’s first-term record and are four below Bush’s first term. They are five less than in Clinton’s second and four more than in Bush’s. His circuit confirmation rate—71 percent—is second highest of the five years, slightly below Clinton’s first term 77 percent and slightly above Bush’s first term 67 percent.

These confirmations have altered the balance in the courts of appeals. Eighty-one (49 percent) of the 165 circuit judges in active status on August 2 are Democratic appointees; when Obama took office, with the same number of active judges, the 65 Democratic appointees were 39 percent of the total. In January 2009, one of the 13 courts of appeals had a majority of Democratic appointees; today, six do, although some of the majorities are slim, and the balance of Republican and Democratic appointees is a weak predictor at best of decisional tendencies.

Obama’s district confirmations are a different story. As it stands now, Obama’s 125 confirmations, an 80 percent rate, are well below either of the final figures for the first terms of Clinton (87 percent) or Bush (97 percent), and slightly below those of their second terms.

Autumn confirmations, though, could change the final picture, as they have in previous election years. There will almost surely be no circuit confirmations for the rest of 2012 (despite some reports of possible post-election votes), just as there was none in the four previous years.

However, in all but one of those years, Clinton and Bush benefitted from post-recess district confirmations, as seen below. Most dramatically, at the August 2008 recess, the Democratically controlled Senate had confirmed 73 percent of Bush’s district nominees. Ten late-September confirmations—with Bush a lame duck and an Obama victory in November a distinct possibility—boosted the rate to 82 percent. (Of those ten confirmed nominees, eight had been waiting less than 100 days since their July 2008 nominations.)

District Confirmations
	At Recess' Start	After the Recess	Final Rate*
1993-96	87% (169/195)	0	87% (169/195)
1996-2000	82% (13/161)	4	84% (136/161)
2001-04	93% (162/174)	6	97% (168/174)
2005-08	73% (83/114)	10	82% (93/114)
2009-8/3/12	80% (125/156)	___	__% (___/156)
*Excluding post-recess nominees

Post-convention district confirmations in 2012 could also boost Obama’s final tallies. If the Senate, as in 2008, were to confirm ten more Obama district nominees—a huge “if”—his overall rate for the four years would rise to 87 percent. That’s the same as Clinton’s first term, although well below the 97 percent in Bush’s first term. Five autumn confirmations would raise the rate to 83 percent.

The nominees are certainly in place—24 currently pending. Come late September 2012, for comparison to the 2008 situation, three district nominees will have been pending for over 300 days, seven more for at least 200 days, 11 more for over 100 days, and three more at 94 days.

Despite the higher confirmation rate that ten late-year confirmations would produce, the number of first term Obama district judge confirmations would remain below those in both of his predecessors’ first terms, and below Clinton’s second term. They would outpace Bush’s second term. The number of judges confirmed, though, is partly a function of the number of nominees. The comparatively low number of Obama, and Bush second term, nominees, helps explain the comparatively low number of appointees.

Confirmation rates and numbers of confirmations are only one comparative measure of presidential-Senate judicial confirmation politics. Democrats claim, for example, that unlike Bush, Obama has nominated mainly middle-of-the road candidates for circuit judgeships, justifying more confirmations than the Senate has allowed, and that Bush’s comparatively low circuit confirmation record reflects in part a greater number of ideologically or otherwise unacceptable nominees. Republicans, obviously, express a different view, charging Democratic senators with initiating filibusters of highly qualified Bush nominees. But those and similar claims need enough time to permit accumulation and assessment of comparative voting records and are beyond the scope of this modest inquiry.

This piece was updated on August 5, 2012 to include the Senate's unscheduled confirmation vote held on August 2.

Authors

Russell Wheeler

Image Source: Darren Greenwood

Judicial Confirmations: What Thurmond Rule?

Russell Wheeler — Mon, 19 Mar 2012 12:44:00 -0400

In this new paper, Russell Wheeler analyzes use of the so-called “Thurmond Rule”—the historical practice of the Judiciary Committee and the Senate slowing down the pace or completely stopping the judicial nominations process in the run-up to a presidential contest—in the past four election cycles.

Confirmations in the four most recent presidential election years, especially for district nominees, have been more robust than most formulations of the Thurmond rule would have predicted. Those experiences, though, may have little predictive value for 2012. The shifting landscape of judicial nominations and confirmations, as described in January, makes it risky to look to the past to predict how the increasingly contentious confirmation battles will play out in 2012. Being a “consensus nominee” may have been a ticket to confirmation in earlier years, but it’s difficult even to define the term in 2012, when nominees with little if any opposition still have a hard time getting floor votes. And Republican senators’ objections to the president’s January recess appointments to some executive branch positions may also affect the judicial confirmation process.

Nevertheless, the 2004 Senate—with a 52-member Republican majority—confirmed district judge nominees at about the same rate as the Senate had confirmed district nominees in 2001-03—in the mid-80 percent range. Based on that precedent, it’s tempting to say that the 2012 Senate—with essentially a 53 member Democratic majority—will confirm district judges at at least the same rate as the Senate had confirmed district nominees in 2009-2011—in the mid-70 percent range.

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Judicial Confirmations: What Thurmond Rule?

Authors

Russell Wheeler

Image Source: Tom Grill

Trial Court Judges and Math, Senate Style

Sarah A. Binder — Tue, 13 Mar 2012 15:41:00 -0400

Just in time for tomorrow’s celebration of Pi Day, Senate Majority Leader Harry Reid (D-Nevada) has given the Senate its own special math problem. Reid filed cloture motions yesterday on 17 nominees to the U.S. District Courts currently pending on the Senate’s Executive Calendar. If Democrats secure sixty votes on each cloture vote, the Senate would be facing 510 (17×30) hours of “post-cloture” debate before reaching final confirmation votes on each of the nominees. For a chamber that often starts the day with Morning Business at 2 pm, this could be a really long month for the most deliberative body in the world. (Fortunately, the Senate doesn’t have much else on its plate this year.)

Reid is unlikely to secure sixty votes on each of the nominees, and it’s still possible that Reid and Minority Leader Mitch McConnell (R-Kentucky) reach an agreement to guarantee confirmation votes for a small handful of the pending nominees (although that might require a commitment from the president not to make any more contentious recess appointments). Regardless of the immediate outcome, Reid’s move is noteworthy because it shines a light on a new feature of advice and consent: the spread of partisan conflict to the Senate’s consideration of federal trial court nominees. For most of the Senate’s postwar history, nominees for vacancies on the district court have been immune from the ever-rising partisan heat over advice and consent for judicial nominations. No longer. Some recent Senates have shown only a bare difference in confirmation rates between appellate and trial court nominees:

This sea change has not gone unnoticed in the Senate, as Democrats have bemoaned Republicans’ more aggressive tactics against trial court nominees. In their excellent piece on Obama’s judicial appointments in Judicature last spring, Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni spoke with staff on both sides of the aisle about the increased scrutiny of trial court nominees. One Democratic aide worried that:

They have approached district court nominees with the same exacting inquiry standards that used to be reserved for the Supreme Court and for controversial circuit court nominees, not even all circuit court nominees. But now it extends to every lifetime appointment….It used to be that district court nominees, unless quite extreme, quite unusual, were accorded a different path forward. And now, that’s changed.

Republican staff happily owned up to the new strategy, making plain the policy consequences of giving trial court judges a free pass to the bench:

Each nominee is assessed on his or her own merits regardless of the position in the court system to which they are nominated because this is a lifetime appointment…They [district court judges] deal with serious issues. They deal with Proposition 8, they deal with “don’t ask, don’t tell,” they deal with terrorism cases, health care, and that’s my boss’s view of it…When President Bush was in power and you didn’t want to do this and you just rubber stamped District Court nominees, that’s your problem.

In some ways, the GOP strategy is just tit for tat—retaliating against Democrats for their foot dragging over Bush’s second term trial court nominees that began in 2005. One Republican strategist has also suggested that Obama’s relatively moderate Court of Appeals nominees—and the White House’s sluggishness in sending nominations up to the Senate—leaves relatively few appellate targets for Republicans to oppose. So to some degree, this year’s slowdown on district court nominees—and Reid’s salient push to confirm them—is situational. But we shouldn’t expect the heat over the district courts to go down anytime soon, as both parties now realize the policy implications of every vacant judgeship.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Judicial Nominations and Confirmations after Three Years—Where Do Things Stand?

Russell Wheeler — Fri, 13 Jan 2012 00:00:00 -0500

Democrats groused in the Obama administration’s first two years about the slow pace of judicial nominations and Senate confirmation.* By the end of the administration’s third year:

the pace of both nominations and confirmations has picked up, but district court vacancies have nevertheless increased noticeably, due partly to the still comparatively low number of nominations and confirmations but also due to an atypically large number of retirements;
President Obama’s appointment of district judges does not match his two predecessors at this point in their administrations, but he is doing better as to circuit judges;
he has already changed the face of the courts of appeals nationally and as to individual circuits in terms of the ratio of active judges appointed by Democratic and Republican presidents (a less-revealing variable than some think it is); and
he has continued the demographic diversification of the federal bench, and the decrease in the number of district judges appointed from private practice, a fact that may be linked to lengthening delays between nomination and confirmation.

Overall, from President Jimmy Carter’s administration to that of President George W. Bush, confirmation rates for circuit nominees have declined steadily (counting someone who was renominated in the same or different Congresses as a single nominee). District nominees’ confirmation rates, though, have hovered around the 90 percent mark (President George H.W. Bush’s district judge figures are misleading+).

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* The data for this paper come partly from the Federal Judicial Center’s Biographical Directory of Federal Judges at fjc.gov, partly from data posted by the Administrative Office of U.S. courts at uscourt.gov and partly from data I have collected. I welcome any and all corrections. Thanks to Christopher Ingraham of Brookings for the graphics.

+ The Senate confirmed 48 of 52 district nominees in 1989-90. It confirmed 101 of 147 1991-92 nominees; those 147 included some for over 70 district judgeships that Congress created in late 1990. (D. Rutkus and M. Sollenberger, Judicial Nomination Statistics: U.S. Circuit and District Courts, 1997-2003 at 15 (Congressional Reference Service, February 2004).

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Authors

Russell Wheeler

Image Source: Darren Greenwood

What’s So Hard About Regulating Supreme Court Justices’ Ethics? — A Lot

Russell Wheeler — Mon, 28 Nov 2011 15:32:00 -0500

The Supreme Court’s decision to hear a challenge to the health care law is renewing calls for recusal, described here and here and here. Some, mainly Democrats, charge that Justice Thomas (and his wife) have been too close to some of the law’s strongest critics. Others, mainly Republicans, charge that as solicitor general Justice Kagan may have had even a limited role as the administration crafted the law’s defense. There are no signs that either justice will sit out the case.

These recusal demands are mostly tactics to try to influence who decides the case or delegitimize the decision, but they reflect a growing debate over whether the justices’ ethics need more regulation to avoid conflicts of interest, or their appearance. With Gallup reporting the Court’s approval rating at 46 percent, second lowest since 2000, it’s a debate worth having.

The problem is not that federal judicial ethics provisions only apply to lower federal court judges— a common but erroneous claim. The problem—unsolved so far—is creating mechanisms to regulate the justices’ behavior that don’t create more problems than they might solve. Some proposals, for example, would suck other federal judges into partisan battles over Supreme Court recusals. In this short piece I try to summarize the principal sources of federal judicial ethics regulations and their relation to the justices—about which confusion abounds—analyze the possible impact of proposals to tighten ethical constraints on them, and comment on what the justices themselves might do.

The disqualification statute binds federal judges and justices alike, as do several ethics-in-government law provisions, including a financial disclosure requirement. The United States Judicial Conference directs its advisory Code of Conduct to judges, but at least some justices have said they also seek its guidance. The Judicial Conduct Act provides for the disposition of complaints about all federal judges except the justices; the Act, contrary to what many assume, is not simply a Code of Conduct enforcement mechanism.

Agencies in the judiciary apply these provisions: the courts in their judicial capacity; the Judicial Conference—26 circuit and district judges, chaired by the chief justice—which provides administrative direction to federal courts other than the Supreme Court; and the judicial councils in the twelve regional circuits.

The Judicial Disqualification Statute

This statute directs “[a]ny justice [or] judge . . . [to] disqualify himself [sic] in any proceeding in which his impartiality might reasonably be questioned,” and in specific, listed situations—such as owning even one share of stock in a party to the litigation. Recusal may come on motion of one of the parties or, even without a motion, when the judge or justice learns of a conflict.

Enforcement is through appellate review by the courts, in their judicial capacity. Litigants sometimes ask judges to recuse themselves at the outset of a case and might seek a mandamus order from a higher court if the judge declines. Or, litigants who lost a case may ask an appellate court to vacate the decision, claiming that the judge sat on the case despite a recusal-requiring conflict of interest.

But the appellate process doesn’t work as to Supreme Court justices because there’s no higher court to hear the appeal. A bill introduced last March would tell the Judicial Conference to create such a court—of sitting or retired judges or justices—to hear appeals from unsuccessful recusal motions and “decide whether the justice . . . should be so disqualified.” (HR 862, introduced in March, has 32 sponsors and cosponsors; 43 members have called for House Judiciary Committee hearings.)

Such a court of lower court judges would most likely violate the Constitution’s “one Supreme Court” mandate. Some have argued that a justices-only court would not. Chief Justice Hughes, however, in challenging FDR’s 1937 proposal to add justices to the Court, objected to the idea that the Court could sit in divisions if the extra justices made it too large to sit as a single body. The “Constitution,” he said, “does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning in effect as separate courts.” Hughes took flak for issuing an advisory opinion, but his warning has relevance to HR862’s proposed court.

More important, consider the practical problems were HR 862’s court to survive a constitutional challenge: In the first place, only parties to a litigation may move for a recusal, and Supreme Court litigants rarely do. (There have apparently been no motions requesting recusals in the health care case.) So the bill would not produce much action to solve whatever problems worry proponents.

But when a party moved for recusal and the justice declined, the HR 862 court would have to balance the motion against what some see as a judge’s “duty to sit,” discussed briefly here. Because a recused justice cannot be replaced by another judge, the prospects increase for a four-four decision, which would leave the matter at issue without a national resolution. It’s one thing for the justices to balance those considerations, but quite another for lower court judges on the HR 862 court to do it for them. And, finally, suppose a party sought recusal and the HR 862 court denied an appeal when a justice declined to do so, but, after the decision, additional evidence of a possible conflict emerged. Could the party renew the recusal motion before the special court, trying to get the decision vacated and, in the process, adding a new complication to constitutional adjudication?

Limitations on Outside Income, Employment, and Gifts

The Ethics in Government Act limits the outside income and employment of those whom the Act covers (including the justices), as well as the gifts they may accept. Congress authorized the Judicial Conference to issue implementing regulations for those in the judicial branch (available at the links above), and the Conference has delegated to the Chief Justice its authority to issue such regulations for the Court.[1] Common Cause paraphrases a letter from a Court official stating that the justices have agreed by resolution to abide by the Conference regulations.

When Justices Breyer and Scalia testified at recent Senate Judiciary Committee hearing on “the role of judges,” however, a senator said the justices and Court employees are the only federal workers “who are exempt from the[ ] restrictions” on “receiving certain gifts and outside income under the Ethics Reform Act of 1989” and asked should “the Supreme Court . . . be required by law to follow the same financial restrictions as everyone else in government.” Rather than point out the error in the question, Justice Breyer instead described the justices’ compliance with a different statute, the financial disclosure law.

The Financial Disclosure Statute

An Ethics in Government Act provision requires all high-salaried government employees to file annual financial reports. Justices and judges file them with a Judicial Conference committee (apparently the only instance of the Conference’s exercising administrative jurisdiction over the justices). The statute also directs the report-receiving agencies to refer to the attorney general anyone whom they have “reasonable cause to believe has … willfully failed to file information required to be reported.” The attorney general may initiate a civil action, seeking a civil penalty.

Common Cause and the Alliance for Justice in September petitioned the Conference to investigate whether to refer Justice Thomas for his since-corrected failure to report his wife’s well-known employment by conservative policy groups, and his possible error in not reporting certain travel expenses. Some House Democrats made the same request after the administration asked the Court to take up the health care law.

The Conference will likely conclude that even though the disclosure forms are not very complicated for those with no or modest investments (I know from my own experience), honest mistakes do occur, which fall short of the statute’s “willfully failed” standard.

Consider, though, the precedent a referral would create. Encouraging a group of lower court judges to refer a justice to the attorney general for civil prosecution creates the potential for sucking them into the partisan skirmishes over the Court. And the attorney general hardly needs the headache of deciding whether to pursue a civil action against a justice.

The Code of Conduct

The Judicial Conference’s Code of Conduct, in the Code’s words, “applies to” judges on courts in the Conference’s administrative ambit, which doesn’t include the Supreme Court. However, Justice Kennedy told a House appropriations subcommittee hearing that the Code “appl[ies] to the justices in the sense that . . . by resolution we’ve agreed to be bound by them.” It’s unclear, however, whether the justices actually adopted such a resolution, or whether some or all of them simply “go to those volumes”, as Justice Breyer said he does, “[w]hen I find a difficult question.” As noted earlier, Common Cause has said a Court official told it that the resolution at issue involves not the Code but instead the Conference regulations that implement some of the ethics in government act provisions for lower court judges.

In any event critics say that “voluntary compliance . . . isn’t enough.” The justices, editorialized the New York Times, “must adopt the rigorous code of conduct that applies to all other parts of the federal judiciary.” But “applies to” as the Code uses the phrase, doesn’t mean “binds,” the verb commonly used by editorial writers and others in describing the Code. The Code says that it “provide[s] guidance to judges;” the Conference’s Codes of Conduct Committee chair said that the Code is “advisory and aspirational”. Nevertheless, HR862 (see above) would have the Code “apply to the justices… to the same extent as [it] applies to circuit and district judges.” The bill’s sponsors are apparently unaware that it would make the justices’ compliance what it is now—voluntary.

And the Code isn’t “rigorous.” It says itself that many of its provisions “are necessarily cast in general terms.” For example, it tells judges to “discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require,” but it can’t spell out how much “discouraging” is sufficient or when the “demands of justice” require an exception.

Judges do, though, look to the Code for guidance—almost all judges want to do the right thing, and the right thing is not always obvious. The Codes of Conduct Committee provides judges advisory opinions on whether a contemplated action would be consistent with the Code. And, Justice Kennedy told the budget hearing, “We can ask for advice from the committee …. And we do ask for that.”

The Judicial Conduct and Disability Act

This law authorizes “[a]ny person” to file a complaint alleging that a federal judge—but not a justice—“has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” Chief circuit judges dismiss most complaints as unsubstantiated or rearguing the merits of a case; the circuit judicial councils decide the handful that remain (with right of appeal to the Conference).

Enforcing the Code of Conduct is not the Act’s principal purpose. The Conference’s implementing rules say that while the Code may be “informative” and some activities covered by the Code “may constitute misconduct,” “determining what constitutes misconduct under the statute is the province” of the councils, subject to the Act and the Conference’s rules.[2]

Nonetheless, HR 862 would direct the Conference to investigate “complaints . . . that a justice . . . has violated the Code of Conduct,” and to take “appropriate” action, using procedures “modeled after” the Judicial Conduct Act. Thus, were Congress to enact HR 862, the federal judiciary’s disciplinary mechanisms would have two overlapping standards: the “conduct prejudicial” standard as the councils interpret it for lower-court judges and, the Code of Conduct as the Conference interprets it for the justices.

Apart from that problem, consider the impracticality of having lower court judges decide what behavior by justices isn’t acceptable and what to do about it. The Judicial Conduct Act authorizes councils to suspend a judge’s case assignments. A Conference order telling a justice to sit out a few cases could create a constitutional crisis.

Given the Supreme Court’s visibility, and use of ethics charges to try to influence or delegitimize decisions, the Conference likely would be flooded with complaints, almost none of them meritorious. The high dismissal rate would breed more cynicism, and perhaps stoke unjustified legislative antagonism. And, while it’s highly unlikely that lower court judges would take any action against members of the Supreme Court—why pull those judges into partisan recusal battles over the Supreme Court?

What Can the Supreme Court Do?

The absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system. The frustration behind recent proposals to establish such mechanisms is understandable, but those proposals would likely create more problems than they would solve.

The states use judicial conduct or performance commissions (judges are in the minority in most of them) to hear some complaints about state judges, including state supreme court members. There has been little interest in that at the federal level, just as there has been little interest in having federal judges stand for election. The states, more than the federal system, generally tip the judicial independence-accountability balance more toward accountability. Since the framing of the Constitution, the federal system has tipped the balance more toward independence, but that doesn’t deny the importance of accountability.

We rely on the justices to make decisions about their ethical matters in part because the buck has to stop somewhere and in part because we trust them to make those decisions in good faith. That doesn’t mean every decision a justice makes is beyond legitimate criticism or that their decisions never merit an explanation. The Code of Conduct soundly advises judges, and by extension justices, that they “must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” Several suggestions:

More transparency: When Justice Scalia explained in a 2004 memorandum opinion why his hunting trip with Vice President Cheney did not require recusal in a case involving the Vice President, many responded that he was right but asked why it took almost a month to respond to the recusal motion, which was preceded by considerable press commentary. HR862’s requirement that justices disclose the reason for a recusal or a failure to recuse is worth considering.
The justices could adopt and release a formal set of standards to guide—not control—whether recusal is warranted in any particular case and describe any mechanisms, even if informal, for advising colleagues about recusal. (The Court released some time ago a statement of recusal policy for cases in which relatives were attorneys.)
If the Court has adopted resolutions pursuant to the delegations of regulatory authority under the various ethics acts, or concerning the Code of Conduct, why can’t they be made public?
It’s likely that the justices will continue to get questions about ethics regulations at appropriations and other legislative hearings, making it important to master the admittedly arcane web of statutes and policies that govern and guide them.

Few believe the activities currently being cited as grounds for recusals in the health care case will have any influences on any justice’s vote, but appearances matter. Recusal tactics may be inevitable when the courts are front-and-center in disputes over contentious policy issues. The justices should take what steps they can to avoid making things worse.

[1] §§1020.50(b) and 620.65(a) of the respective regulations at the links above.

[2] See the commentary to Rule 3 at the link above.

Thanks to Professor Arthur Hellman of the University of Pittsburgh School of Law for helpful comments on an earlier draft, even as he has a somewhat different take on some of these matters than I do.

Authors

Russell Wheeler

Options for Federal Judicial Screening Committees (Second Edition)

Rebecca Love Kourlis and Russell Wheeler — Tue, 13 Sep 2011 11:38:00 -0400

Executive Summary

Selecting federal judges is a time-consuming and increasingly contentious process. Home-state senators, particularly those of the president’s political party, have historically enjoyed the prerogative to propose nominees to the White House. Traditionally, senators have identified potential nominees through relatively informal means. This guide describes senator-appointed committees that screen potential nominees as alternatives to those informal means. Committees can preserve the senators’ prerogative while being more open, transparent, and inclusive.

The Governance Institute and the Institute for the Advancement of the American Legal System at the University of Denver, and the Governance Studies program at the Brookings Institution prepared this report to describe, from the admittedly limited information currently available, how such screening committees have been constructed and how they typically work. It outlines factors that senators and their staffs may wish to consider in creating a committee, and highlights issues to consider with respect to committee operations. Our goal is to identify some of the choices that legislators, their staffs, and committee members will face, and to suggest an array of options; our goal is not to prescribe “best practices.”

Screening committees have been in use by some senators for more than 30 years. In 1977, President Carter created a national committee to screen potential nominees for the U.S. courts of appeals, and he urged senators to appoint their own committees for district judgeships. Senators in 29 states responded, but by the time of President George W. Bush’s administration, committees were in place in only eleven states. 2009 saw an upswing in their use, with the number of committee states increasing to at least 21 (and the District of Columbia) as of September 2011, embracing 420 (62 percent) of the 673 life-tenured district judgeships. Information on their operation—even their existence—is not abundant, however.

The reasons senators may choose to use screening committees include the hope that an individual who has the endorsement of a committee may move to nomination and confirmation more quickly. The record during the Obama administration offers little empirical support for that hope, although differences in confirmation times are affected by many factors other than the work of committees. Other advantages of a committee process may include the ability to screen applicants and catch problems before any ABA or White House involvement; providing a voice to varied constituencies, including non-lawyers and members of both political parties; and inviting applications from individuals who might not otherwise come to the senators’ attention.

Below is a decision tree for senators and their staffs regarding the creation of a committee, and for committee members about the operation of a committee: what are the decisions to be made and what are the options from which to choose? The decision tree provides senators, their staffs, and committee members with a roadmap drawn from the experience of other senators.

REASONS to consider the use of screening committees:

Ease contention and delay in the nomination-confirmation process
Anticipate and complement ABA reports
Provide a voice not from the president’s party, without compromising the ultimate
choice, to preserve partisan prerogatives in the nomination process
Open the process to more applicants
Enhance public trust in the process

STRUCTURE of the committee:

Creation by one or both senators
One or more committees: a geographic question
Bar association collaboration
Jurisdiction of the committee: district judgeships only, or circuit judgeships and U.S.
attorney and marshal positions as well
Permanent or ad hoc
Committee size
Formal bylaws or other governing documents, or informal process

APPOINTMENT of the committee members:

Lawyers only or lawyers and others, and what mix of trial and other lawyers
Political representation/bipartisanship
Demographic representation
Judge participation
Chair, co-chairs: independence, visibility, experience

OPERATIONS of the committee:

Guidance from the senator(s)
- Criteria for evaluating applicants
- Confidential aspects of the process versus public aspects
- Roles of the senators’ staff
- Whether the senators will interview the candidates
- What information the senators want from the committee in addition to names
Funding of committee operations
Application process: notice, forms, deadlines
Developing the list of potential nominees to be vetted: procedures to govern the
committee’s decisions/process in advance (even if informal)
Background research: who does it, how much, and what portions are confidential
Organizing and conducting interviews
Releasing information: when, how much

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Authors

Rebecca Love Kourlis
Russell Wheeler

Publication: The Brookings Institution, The Governance Institute, and the Institute for the Advancement of the American Legal System, University of Denver

Image Source: Tom Grill

Regulating the Ethics of Supreme Court Justices?

Russell Wheeler — Mon, 21 Mar 2011 11:21:00 -0400

Recent proposals, although varying in particulars, would apply the United States Judicial Conference’s Code of Conduct for United States Judges to members of the Supreme Court and establish a new appellate route to consider justices’ refusals to disqualify themselves (recuse) when parties request it. The immediate motivation are accusations that Justices Scalia and Thomas are too close to conservative groups interested in Supreme Court cases on which both sit; the proposals build on persistent grumblings about justices’ declining to give reasons for why they don’t recuse (and why they do).

A New York Times editorial on “The Court’s Recusal Problem” and a Washington Post op-ed’s call for “An Ethics Code for the High Court” followed a March 1 House bill, the “Supreme Court Transparency and Disclosure Act,” which picked up on a letter that over 100 law professors sent to the House and Senate Judiciary Committees.

Whatever the merits of the accusations—about which I express no opinion here—the proposals rest on basic factual misunderstandings about federal judicial ethics regulation, could create a “cure-worse-than-the-disease” situation, and are probably unconstitutional in part.

The proposals assume, as the professors’ letter states, that, except for Supreme Court justices, “all other federal judges are required to abide by the Code of Conduct and are subject to investigation and sanctions for failure to do so.” Justices, the letter goes on, “look to the Code for mere ‘guidance.’” The letter doesn’t name the “investigation and sanctions” to which it alludes but no doubt that’s a reference to complaints filed pursuant to the Judicial Conduct and Disability Act of 1980, as amended. Thus, the bill directs the Judicial Conference of the United States to “establish procedures, modeled after [procedures laid out in the Act], under which ... complaints alleging that a justice . . . has violated the Code of Conduct may be filed with or identified by the Conference,” which is to review them and take “further action, where appropriate.”

Judicial Conduct Complaints

Let’s stop here. It’s true that the Code applies, by its own terms, only to judges of the lower federal courts. But there’s little basis for the claim that those judges “are required to abide by” it. The Code itself says that it is (merely) “designed to provide guidance to judges.” And the Judicial Conduct Act does not elevate the Code to anything stronger, because the Act does not, contrary to the letter, “subject [judges] to investigation and sanctions for failure to” abide by the Code. In fact, the Judicial Conference’s rules that implement the Act explicitly reject the position that a Code violation is, per se, a ground for finding misconduct. The accompanying commentary explains: while “the Code . . . may be informative, its main precepts are highly general; the Code is in many potential applications aspirational rather than a set of disciplinary rules.” The Code itself says only that it “may provide standards of conduct for application” in proceedings under the Act.

Instead, the grounds for a judicial discipline complaint under the Act are facts alleging “conduct prejudicial to the effective and expeditious administration of the business of the courts.” The Act authorizes any person to file a complaint about a federal judge with the appropriate chief circuit judge and authorizes the respective circuit judicial council to impose sanctions. (They rarely do, because almost all complaints are groundless and thus dismissed.) The important point, though, as the commentary to the Judicial Conference’s rules says, “what constitutes misconduct under the statute is the province of the judicial council of the circuit, subject to such review and limitations as are ordained by the statute and by these Rules.”

So, what are federal judges “required” to do? All federal judges—and justices—are required to obey conduct-regulating statutes, such as those mandating disqualification in certain circumstances and those requiring annual financial disclosure reports. Beyond that, federal judges are required not to engage in conduct that could produce a valid misconduct complaint. The Act does not reach members of the Supreme Court, most likely because, given that it’s the Supreme Court, there is no body comparable to a judicial council to consider plausible complaints.

The Code’s major contribution to judicial ethics is not to provide bases for judicial conduct complaints but rather stating general propositions that the Judicial Conference Codes of Conduct Committee applies to specific fact situations in confidential advisory—repeat, advisory—opinions when requested by judges who want the Code’s guidance, as almost all do.

The Court might create its own advisory mechanism, but that’s a far cry from authorizing a group of lower court judges to receive complaints about the justices, impose sanctions on them, and in so doing, develop a common law of Supreme Court misconduct rules. The practical effect, however, would not be sanctions but high rates of complaints by people disgruntled about the substance of the Court’s decisions and equally high rates of dismissals and correspondingly high rates of cynicism.

Recusals

What about failure to recuse from a case when a litigant requests it under the principal judicial disqualification statute? That statute, section 455 of title 28, directs a justice or judge to “disqualify himself [sic] in any proceeding in which his impartiality might reasonably be questioned,” or under specific circumstances, such as stock ownership. Justices or judges sometimes recuse on their own, but a litigant may file a motion with the judge or justice requesting recusal. A denial of a recusal motion is a judicial act, subject to appeal, except as to Supreme Court justices. Given that it’s a “supreme” court, there’s no higher court to which litigants may appeal a justice’s decision. Creating one would take the judiciary into uncharted territory, creating a cure that could be worse than the occasional problems created by the status quo’s lack of transparency

And, let’s be clear: despite the terminology, the proposals would create such a court—and in so doing, probably run afoul of the Constitutional mandate that there be “one Supreme Court.” The bill tells the Judicial Conference to “establish a process” by which some group of justices or judges, in active service or otherwise, “shall decide whether the justice with respect to whom the [recusal] motion is made should be so disqualified.” Put differently, it would authorize an appeal of a supreme court justice’s judicial decision to what would most likely be a body of lower court judges.

And doing so as to recusal appeals creates its own set of problems. Given the absence of qualifying language, the bill would permit such appeals while the case is before the Court or even after it decided the case. That is how many disqualifications get litigated, because possible grounds for recusal emerge only later. If parties in a case before the Supreme Court became aware of grounds for recusal only after the Court rendered a decision, and if the court the bill proposes were in place, the parties could ask that court to reverse and remand the Court’s decision. That may sound good to opponents of Citizens United, but that’s not enough reason to authorize the potentially radical change the bill would create.

The bill is unlikely to pass, and if it did, it’s unlikely that lower court judges would ride roughshod over the justices in considering misconduct complaints or appeals from a denied recusal motion, which most Supreme Court litigants are reluctant to file anyway. But even if these two proposed bodies never did anything but ratify the challenged Supreme Court justices’ conduct and recusal motion denials, the damage to our judicial institutions would be done.

The Court might well benefit from more transparency from the justices when their actions come under responsible criticism, and the proposals’ provisions requiring justices to explain their decisions not to recuse when parties file disqualification motions seem entitled to further consideration. But some problems are better abided than subject to formal measures that create greater problems. Thomas Jefferson cautioned that “moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.”

Authors

Russell Wheeler