Monday, February 16, 2009

ABA Midyear Meeting: CLEs Abound, Judiciary Discussed

Attendees at the ABA Midyear Meeting in Boston last week had their pick of CLEs to choose from, as sessions ranged from Student Rights to Health Care for Immigration Detainees. Also included was a panel entitled "The New Administration, the New Congress and the Federal Judiciary: Judicial Appointments, Compensation, and Judicial Retention," featuring Dean Kenneth W. Starr, Pepperdine University School of Law, Former Solicitor General and Judge, United States Court of Appeals for the District of Columbia.

Moderated by Professor Judith Resnik, Arthur Liman Professor of Law, Yale Law School, the panel also included Honorable Eleanor D. Acheson, Vice President and General Counsel of Amtrak and former Assistant Attorney General for Policy Development in the Clinton Administration; James C. Duff, Director, Administrative Office of the United States Courts; and Honorable D. Brock Hornsby, United States District Judge, United States District Court, District of Maine.

Hornsby opened the panel by describing the changes in the Federal Judiciary. "It's not your father's Federal Judiciary," he said, elaborating that changes in the career trajectories of judges, the changes in sentencing, the change of the business of being a federal judge, and a change in the growing politization of the bench were responsible for the new judicial landscape.

When Duff took the microphone, he introduced the problem of judicial salaries – namely, that Congress must affirmatively vote for a cost of living adjustment (COLA) to judges' salaries, that there needs to be a higher COLA, and that the judges' salaries need to be brought up to speed with today's salaries. Most realistically, he said, a general COLA schedule would be created.

Starr was optimistic for the prospects for the federal judiciary, citing that the new Attorney General is a former judge. He emphasized that the constitution said part of the perfect union was establishing justice, and that the federal judiciary is a key player in that establishment. "What matters is the administration … of justice," he said.

Acheson pointed out that most Americans experience justice on the state level.

Pointing out the massive amount of activity in the courts and the shortage of funds and staff, Resnik asked the panelists what they would want at the legislative level to deal with the current problems. Hornsby responded by requesting no sentencing legislation – returning sentencing to the discretion of judges – and judicial salary restoration. "The judiciary is the most important part of the infrastructure" in the United States, he said, using the Minneapolis bridge collapse as a metaphor.

The panel also discussed how the news media has hindered their progress. Resnik pointed out articles in the New York Times that referred to PACER and CM/ECF fees as things that should be free. Duff countered that these charges are mandated by Congress, and in any case, the fees are waived for law schools, parties to the cases, and indigents. He also said that these fees only recoup the costs of running these programs. Duff had also noted that the last federal judiciary COLA had been bundled into the auto bailout bill, but that the media had immediately run headlines that read, "Judicial Pay Raise Hidden in Auto Bailout Bill," when the reality was that the increase was just a COLA.

Atchison noted that the judiciary should fight back against Congress for the increases and resources it needs to preserve justice. Justices in the audience agreed. Justice W. Scott Bales of the Arizona Supreme Court said that, on the state level, this is not just about judge salaries and staffing; it is about way for the public to access justice: protective orders and child custody, for example.

Associate Justice Patricia Timmons-Goodson of the North Carolina Supreme Court had been informed of a hiring freeze in the North Carolina courts, and immediately she thought about how this would affect domestic violence victims. "We will be affected very much by the economic crisis," she said.

In addition to social services, the commerce in the United States is also affected by inadequately-funded state courts, said retired Los Angeles Superior Court Judge David Horowitz. These courts are where business is litigated, disputed, and transacted, he said, and "if you wish for the economy to proceed effectively, you must fund the state courts effectively."

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