THIRDNewsletter

of the

Federal

Courts

Vol. 39

Number 8

August 2007BRANCH

INSIDE

THE

Federal Courthouse Recognized by AIA ............................... pg. 3 Public Comment Invited on Judicial Guidelines ................ pg. 4New Committee Attuned to Security Concerns ................. pg. 10 See Ninth Circuit on page 9

See Appropriations on page 6

See Lag Behind on page 2

First All-Hispanic Panel Sits in Ninth Circuit

The U.S. Court of Appeals for the Ninth Circuit made judicial history in July when an appellate panel consisting of three judges of Hispanic descent heard oral arguments in Seattle. This was the first all-Hispanic panel to sit in any of the nation’s federal courts of appeals since they were established in 1891.

Judicial Salaries Lag Behind Other Federal Employees

Any discussion of judicial compen-sation inevitably leads to the issue of linkage—the tradition of matching the pay of Members of Congress, deputy cabinet secretaries and execu-tive agency heads to those of U.S. district court judges. However, a recent Brookings Institution study, How to Pay the Piper: It’s Time to Call Different Tunes for Congressional and Judicial Salaries, showed that linkage has had no bearing on keeping sala-ries at adequate levels, and in fact has had a detrimental impact on keeping

Senate Appropriations Committee Acts on Judiciary’s Funding

In mid-July, the Senate Appropria-tions Committee approved its version of H.R. 2829, the FY 2008 Financial Services and General Government Appropriations bill.

“The Committee’s recommended funding levels support the federal Judiciary’s role of providing equal justice under the law and include sufficient funds to support this critical mission,” the H.R. 2829 committee report noted. The Committee also acknowledged the cost-containment measures undertaken by the Judiciary and strongly supported the continua-tion of those efforts.

Overall, the Judiciary would receive $6.337 billion, a 6 percent increase over the FY 2007 level and $79 million above the House version of the bill. The Committee also approved a cost-of-living pay adjust-ment for judges in 2008.

“We were very pleased that the Senate took this action on the judges’ COLA,” noted Administrative Office Director James C. Duff, “and we will work with the House to ensure the COLA is agreed to in conference on a final bill.”

There is no timetable for when the full Senate will take action on the

Judiciary’s appropriations bill. Differences between the House and Senate versions of the bills must be reconciled in conference before a bill can go to the White House. The Office of Management and Budget has said, however, that the President would veto the bill on policy grounds if the final bill includes provisions—unrelated to the Judi-ciary—that the Administration opposes. Given these potential delays it is likely the Judiciary will begin the new fiscal year operating under a continuing resolution.

Accounts FundedThe Senate recommendation for

the Judiciary’s largest account, Sala-ries and Expenses, is a 5.2 percent increase over FY 2007. From this account, courts must pay for rent, judges’ and court personnel salaries and benefits, operating expenses, information technology costs, and other expenses.

“The Committee has adequately funded this account to enable the courts to meet their workload demands,” the report stated. The

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Lag Behind continued from page 1

salaries up with the cost of living. Moreover, salaries in the executive branch, which have been delinked from those of Members of Congress and the Judiciary, are closer to keeping pace with the cost of living. Last spring, when appearing before a House subcommittee, Justice Stephen Breyer flipped through a ream of vacant executive branch positions, each paying more than a federal judge’s or a Member of Congress’ salary.

Justices Breyer and Samuel Alito testified on federal judicial compensation at a hearing held by the House Judiciary Committee Subcommittee on the Courts, the Internet, and Intellectual Property. In the course of the justices’ testi-mony, both compared judicial sala-ries to salaries in the private, non-profit and academic sectors—and judicial salaries suffered greatly by comparison. There was, as Justice Breyer expressed it, “the significant widening of the chasm.”

Justice Alito added that judges’ salaries haven’t just eroded when compared to those of their peers in the nonprofit sector, in academia and in the private sector; they’ve also been permitted to lag behind the salaries of other federal employees.

How did this happen? “Since the enactment of the

Ethics Reform Act of 1989, the sala-ries of numerous career federal executive branch employees have been delinked from the salaries of Members of Congress and federal judges,” Justice Alito told the subcommittee. “As a result, the federal salary structure has become inverted, so that rank-and-file employees may now be paid salaries well above those of constitutional officers.”

The Brookings Institution study reported that executive agencies offer salaries above $165,200 “to significant numbers of individuals

who have less responsibility and impact than agency heads, deputy secretaries, members and district judges. This is because Congress has exempted specific executive branch departments and independent agen-cies from government-wide pay and personnel restrictions in Title 5 of the U.S. Code.”

Justice Breyer offered the exam-ples of the Federal Deposit Insur-ance Corporation, and the Securities and Exchange Commission, among others, that offer salaries to lawyers, accountants, and economists, as well as to administrators and other professionals, of $200,000 or more.

“The Office of Thrift Supervi-sion, for example,” Justice Breyer said, “recently recruited for five high-level positions, offering annual salaries of up to $305,166.” Legis-lation helped the Department of Veterans Affairs establish a compen-sation system in which the aggre-gate compensation for federally employed physicians and dentists is capped only by the Presidential salary, which is currently $400,000. According to the Office of Personnel Management, these pay authori-ties have been extended admin-istratively to the Departments of Defense, Health and Human Services, Justice, and the Federal Aviation Administration. A federally employed pharmacist or scientist at DHHS may be paid up to $200,000 annually. Since 1998, the Internal Revenue Service has been statuto-rily able to fix the salaries of up to 40 key officials at the Vice Presidential salary, which is currently $215,700.

As the Brookings report stated, these salaries are allowed because Congress recognizes that it is in the government’s own interest to recruit and retain the most highly qualified individuals to deliver and manage its essential services. “But fear of voter hostility precludes Congress applying the same understanding to those who make the nation’s laws and apply them through executive

policy and judicial decisions,” the report said.

“In recent years, federal depart-ments and agencies with increasing frequency have convinced friendly congressional oversight commit-tees to exempt them from all or part of the pay and personnel restriction of Title 5, U.S.C.” explained Justice Alito. “Stated differently Congress has already determined to break the link in compensation between employees in the executive branch and officers and employees in the legislative and judicial branches whose annual pay is now capped at $165,200.”

As a consequence, according to Justice Alito, it is not uncommon to find federal employees in the executive branch, as well as in the banking and financial government agencies who are paid significantly more than justices and judges in the federal courts, and Members of Congress. In fact, based on these pay policies, Justice Alito concluded that a district judge who presides over an SEC case “may be the lowest paid attorney in the courtroom.”

In 2003, the National Commission on Public Service recommended that “Congress should break the statu-tory link between the salaries of Members of Congress and those of judges and senior political appoin-tees.” The Commission said that the pay gap at the top of the salary structure “is indisputable, as are its consequences in lost morale and uncertain accountability.”

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Federal Courthouses Recognized by AIAThree federal courthouses have been selected to receive citations for architectural and design excellence from the

American Institute of Architects Academy of Architecture for Justice in 2007. According to AIA, six representatives from the justice, architecture, and government sectors reviewed newly built facilities that ranged from courthouses to forensic laboratories to maximum security prisons. The cited projects “demonstrate quality of form, functionality, and current architectural responses to complex justice design issues.”

The three federal courthouses are:

Davenport U.S. Courthouse Renovation, Davenport, IowaSouthern District of Iowa

Architect’s Statement

The mission of this project was to restore, renovate, and convert a trea-sured National Register multiple-tenant federal building and court-house into an expanded U.S. courts dedicated facility. Continued crim-inal caseload growth, poor inmate transportation and security, insuf-ficient space to expand court opera-tions, and an aging infrastructure rendered the historical building inadequate. The program included upgrading and restoring the historic courtroom; adding two new court-rooms, support space, and three new judges’ chambers; expanding court-related offices; and adding new prisoner holding facilities and new secure judges’ parking. The design removes previous renova-tions, exposes and restores signifi-cant original interior features, and introduces a textured glass wall paralleling the original public lobby beyond which two new courtrooms and support space are inserted. The courthouse renovation preserves and restores key historic interior features; provides a high level of function-ality; responds to separation of

public, restricted, and secure circula-tion; and gives contemporary inte-rior treatment to space outside those identified for restoration.

Architect of record: Downing Architects, Bettendorf, Iowa Design architect: Leonard Parker Associates (part of the Durrant Group), Minneapolis Managing architect: The Durrant Group, Hartland, Wisconsin Photographer: Don Wong Photo Inc., Bloomington, Minneapolis

Wayne Lyman Morse U.S. Courthouse, Eugene, OregonDistrict of Oregon

Architect’s Statement

The Wayne Lyman Morse U.S. Courthouse in Eugene, Oregon, serves the District of Oregon as part of the Ninth Circuit. The four-acre site is the previous home of the Agripac cannery plant and is regarded by the city as an impetus for redeveloping the surrounding area with civic and commercial development. Rising 72 feet high, the 2,641-square-foot courthouse has five stories above grade and one level of

below-grade parking. The first two floors hold offices for the courts, the U.S. Attorney, probation and pretrial services, the U.S. Marshals Service, the General Services Administration, two U.S. senators, and one member of the U.S. House of Representatives. The building’s six courtrooms, all on the third floor, are paired by their purpose: two district, two magis-trate, and two bankruptcy court-rooms. Above the courtroom level there are six judges’ chambers, one visiting judges’ chamber, and two separate judicial library spaces. Architect: DLR Group, Portland, Ore. Design architect: Morphosis, Santa Monica, California Photographer: Tim Griffith, San Francisco

Wilkie D. Ferguson Jr. U.S. Federal Courthouse, Miami, FloridaSouthern District of Florida

See Courthouses on page 4

Architect’s Statement The building is composed of three

elements: two opposing towers and a glass “crystal” that medi-ates. There are four courtrooms on each of the upper floors, grouped around a central circulation space

The Third Branch n August 2007

Public Comment Invited on Judicial Guidelines

The federal Judiciary is seeking public comment on proposed rules on how the federal judicial system should deal with judicial misbehavior and disability.

Nearly 30 draft rules governing judicial conduct and disability proceedings in the federal courts have been posted on the Judiciary’s Internet website for 90 days of public comment. Navigate to the proposed rules from the Judiciary’s home page at www.uscourts.gov; a link to the draft rules is under “What’s New.” Comments on the rules may be sent to JudicialConductRules@ao.uscourts.gov. A public hearing on the draft rules will be held in New York City on September 27, 2007.

The Judicial Conduct and Disability Act of 1980 authorizes the filing of a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effec-tive and expeditious administra-tion of the business of the courts.” It also permits complaints that allege conduct reflecting a judge’s inability to perform his or her duties because of “mental or physical disability.”

In 2004, in the wake of Congres-sional criticism of how complaints against judges had been handled, the late Chief Justice William H. Rehnquist appointed the Judicial Conduct and Disability Act Study Committee to examine the Act’s implementation and make recom-mendations.

In September 2006, the Committee, chaired by Justice Stephen Breyer, made its report to Chief Justice John Roberts, Jr. The Judicial Conference Executive Committee then asked the Conference Committee on Judicial Conduct and Disability “to undertake a prompt, comprehensive review of the Breyer Committee Report with a view toward presenting to the Judi-

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punctured by a cone-shaped atrium. The east and west façades are composed of alternating concave and convex curtain wall “bay” windows surrounded by precast stone frames. The alternating rhythms, depths, and colors of the horizontal and vertical sunshades frame blue-green tinted glass. The primary material for the north and south façade of the tower is the same precast stone used to frame the curtain wall, providing solidity to the elevations. The monumental windows are arranged horizontally and vertically, each orientation and fenestration unique, reflecting the hierarchy between office space and courtroom functions. The architec-ture is meant to reflect the importance of what goes on inside making the building a recognizable icon both day and night. Architect: Arquitectonica, Miami, Florida Associate architect: Hellmuth, Obata + Kassabaum Inc., Miami, Florida Photographers: Robin Hill and Norman McGrath, Miami, Florida

The AIA Academy of Architecture for Justice (AAJ) promotes and fosters the exchange of information and knowledge between members, professional organi-zations, and the public for high-quality planning, design, and delivery of justice architecture. In total, eight projects were selected by AAJ for citations. For addi-tional information on the AAJ projects visit http://www.aia.org/caj_nwsltr_cur-rent.

cial Conference at its March 2007 session any recommendations that may be ripe for Conference action, information on administrative and other activities related to the report and a status update . . .”

“To meet the reform goals pre-sented by the Breyer Committee,” said Judicial Conduct and Disability Committee chair Judge Ralph K. Winter, “and in order to ensure the consistent application of the Act throughout the Judiciary, our Committee concluded that a set of rules or guidelines governing the proceedings under the Act needed to be drafted and published for comment. For example, the Breyer Report noted that in many critical areas the Act provided little guid-ance as to the disposition of complaints filed or when chief circuit judges are themselves required to initiate complaints.”

The rules proposed by the Judicial Conduct and Disability Committee and now posted for public comment would establish standards to guide decisions on the merits of complaints; standards for when chief circuit judges should initiate complaints; responsibility for cred-ibility decisions, confidentiality and public access provisions; and procedural rules for proceedings under the Act. On the website, each proposed rule is accompanied by an explanation and/or background information

After the public comment period, the Committee will send another draft of the rules to the Judicial Conference with a recommendation that the Conference consider it at its March 2008 meeting. Informational and educational programs for judges and staff regarding the rules will be established after their promulgation.

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Supreme Court Fellows Selected for 2007-2008 TermFour Supreme Court Fellows have been selected for the 2007-2008

term. They are Carolyn Dubay, an attorney with the Administrative Offi ce who will be assigned to the Supreme Court during her fellow-ship; Monica Fennell, the executive director of the Indiana Pro Bono Commission, who will work at the AO; Karyn Kenny, an Assistant U.S. Attorney in Nevada and adjunct law professor at the Univer-sity of Nevada William S. Boyd Law School, who will be at the U.S. Sentencing Commission; and Elizabeth Murrill, an attorney in Baton Rouge and assistant professor of professional practice at the Loui-siana State University Law Center, who will be a fellow at the Federal Judicial Center.

The Fellows Program was founded by Chief Justice Warren Burger in 1973 to provide an opportunity to study fi rsthand both the admin-istrative machinery of the federal Judiciary and the dynamics of inter-branch relations. The Fellows Program selects outstanding individ-uals from diverse professions and academic backgrounds.

Coming this FallMembers of Congress were in

their home districts during August, but they return after Labor Day, hopefully to take up a number of legislative items that could have an impact on the federal courts.

Bail Bond Fairness Act of 2007

The House passed H.R. 2286, the Bail Bond Fairness Act of 2007 in June. The bill would amend 18 U.S.C. and the Federal Rules of Criminal Procedure to limit judges’ authority to declare bail bonds forfeited except “where the defendant actually fails to appear physically before the court as ordered” and not where the defen-dant violates some other collateral condition of release.

According to bill language, judges now order bonds forfeited in cases in which the defendant fails to comply with some collateral condition of release. As a result, bail agents must guarantee the defendants’ general good behavior, not simply their physical presence. This has caused the industry to adhere to strict underwriting guidelines, requiring full collateral in most cases, and, according to the industry, depriving some defendants of the bail bond option. The Judicial Conference opposes this legislation, and Magis-trate Judge Tommy E. Miller (E.D. Va.) testifi ed in June 2007 that its passage would likely increase the number of persons incarcerated pending trial.

The Court Security Improvement Act of 2007

The House passed H.R. 660, the Court Security Improvement Act of 2007, in mid-July. The Senate passed its own version, S. 378, in April. Both bills contain provisions supported by the Judicial Conference, including authorization for the Conference to redact sensitive information from judges’ fi nancial disclosure forms,

new penalties for the malicious fi ling of fi ctitious liens against federal judges or law enforcement offi cers, and a requirement that the U.S. Marshals Service consult with the Conference on matters of court secu-rity. Several differences between the two bills still must be worked out in conference. For example, the House bill amends the REAL ID Act of 2005 to allow federal judges to use their courthouse address instead of their home address when applying for such state-issued documentation as driver’s licenses. The Senate bill does not address this security concern.

Judgeships

In March 2007, the Judicial Conference asked Congress to create 67 new federal judgeships—15 for the courts of appeals and 52 for the district courts. The Conference also requested that Congress make permanent fi ve temporary judge-ships and extend one temporary judgeship by another fi ve years.

No single bill has been introduced with all of the recommended judge-ships.

S. 1327 was introduced in the Senate to address the Conference request for the addition of tempo-rary judgeships in the Eastern District of California and the District of Nebraska, and the extension of temporary judgeships in the District of Hawaii, the District of Kansas, and the Northern District of Ohio.

S. 1192, the Federal Criminal Immi-gration Courts Act of 2007, would create eight permanent judgeships and two temporary judgeships: one temporary and four permanent judgeships in the District of Arizona; two permanent judgeships in the Southern District of Texas; one permanent and one temporary judge-ship in the District of New Mexico; and one permanent judgeship in the Western District of Texas. Although S. 1192 does not include all of the judge-ships recommended by the Judicial Conference, all the judgeships in the bill are supported by the Conference. For a list of the judgeships recom-mended by the Judicial Conference, visit www.uscourts.gov/judges/2007recommendations.html.

See This Fall on page 7

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Senate mark would allow those court units experiencing workload increases—primarily district clerks and probation and pretrial services offi ces—to hire additional staff in FY 2008. Based on the House-passed funding levels and the Senate mark, Director Duff encouraged court units with suffi cient salary funding to hire staff to meet their workload demands.

“At these funding levels, we are confi dent there will be suffi cient funding in FY 2008 to support new staff hired in FY 2007,” Duff said.

The Defender Services account would receive $840.6 million, $10 million above the House-passed level. The Senate approved a $2 per hour infl ationary increase in the non-capital panel attorney rate that

Judiciary Appropriations($000)

Appropriation Account FY 2007 FY 2008 FY 2008 House Senate Enacted Full Current Passed Committee Appropriations Requirements Services H.R. 2829 Mark

U.S. Supreme Court Salaries & Expenses $62,576 $66,522 $65,952 $66,526 $66,522 Care of Building & Grounds 11,427 12,201 10,814 12,201 12,201 Subtotal 74,003 78,723 76,766 78,727 78,723U.S. Court of Appeals for The Federal Circuit 25,311 28,442 27,072 27,976 27,438U.S. Court of International Trade 15,825 16,632 16,632 16,544 16,632Courts of Appeals, District Courts & Other Judicial Services Salaries & Expenses 4,480,521 4,730,489 4,707,153 4,664,689 4,714,090 Defender Services 776,283 856,344 833,947 830,499 840,601

Fees of Jurors 60,945 63,081 63,081 62,350 63,081 Court Security 378,663 414,726 396,539 396,476 412,720 Subtotal 5,696,412 6,064,640 6,000,720 5,954,014 6,030,492

Administrative Offi ce 72,377 78,536 78,536 75,667 78,536Federal Judicial Center 22,874 24,475 23,971 23,994 24,475Judicial Retirement Funds 58,300 65,400 65,400 65,400 65,400U.S. Sentencing Commission 14,601 15,477 15,477 15,477 15,477 Total, The Judiciary $5,979,703 $6,372,325 $6,304,574 $6,257,799 $6,337,173

Appropriations continued from page 1 would raise that hourly rate to $96. The House approved a $6 per hour increase, taking that rate to $100.

The Court Security account would receive $412.7 million, essentially full funding, and $16 million above the House level. The Committee also approved a pilot project to have the U.S. Marshals Service assume perim-eter security functions at a limited number of primary courthouses, a function currently provided by the Federal Protective Service.

Courthouses“The Committee urges the Judi-

cial Conference to weigh carefully its need for more space to adjudi-cate cases against the federal Judi-ciary’s rent needs. . . .,” the Senate Appropriations Committee reported.

Courthouse construction funds are also under the Committee’s juris-diction, as part of the funding for the General Services Administra-tion. The Senate Appropriations Committee mark provides GSA with $179.5 million in FY 2008—partial funding for six projects on the Judi-ciary’s Five-Year Courthouse Project Plan. The courthouse construction projects would be in Jefferson City, Missouri; Savannah, Georgia; San Antonio, Texas; Mobile, Alabama; Rockford, Illinois; and San Jose, California. The Committee also provides an additional $80 million to GSA for the San Diego courthouse project and $183.3 million for court-house repair and alteration projects in Reno, Nevada and New York City, New York.

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Federal Judiciary Salary Restoration Act of 2007

S. 1638, the Federal Judiciary Salary Restoration Act of 2007, was introduced in June 2007 by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and now has eight co-sponsors from both parties, including Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY). S. 1638 would adjust the annual salary of district court judges to $247,800, the salaries of courts of appeals judges to $262,700, and the salaries of Supreme Court justices and the Chief Justice, respectively, to $304,500 and $318,200. A similar salary restoration bill is expected to be introduced in the House when Congress returns after the August recess.

Support for pay restoration for judges has been expressed by the American Bar Association, law school deans, and many legal and profes-sional associations, including organi-zations as diverse as the Sierra Club, the AFL-CIO, Yahoo, Inc., and the U.S. Chamber of Commerce. Over 60 corporate counsels, among others, support a substantial salary restora-tion for federal judges.

Patent Reform Act of 2007

Both the House and Senate Judi-ciary Committees reported out their versions of the Patent Reform Act of 2007 in mid-July. The Judicial Confer-ence has not taken a position on patent reform legislation and does not have a position applicable to the pending proposals.

Current patent reform legislation would largely affect administrative proceedings within the U.S. Patent and Trademark Office; however, certain provisions of the related bills, H.R. 1908 and S. 1145, would affect the federal courts. Interlocutory appeals of claim construction deci-sions to the U.S. Court of Appeals for the Federal Circuit would be

possible at the discretion of the district judge. The venue provision in 28 U.S.C. § 1400(b) would be replaced with new criteria for determining where a patent case may be brought, including a special provision for suits by universities. In addition, provi-sions would be amended that govern the award of damages and deter-minations of willful infringement in federal courts. Finally, the House bill would require the Administra-tive Office, working with the Federal Judicial Center, to conduct a study on the use of special masters in patent litigation.

Sunshine in the Courtroom Act of 2007

Bills have been introduced in both the House and Senate that would allow cameras in the Supreme Court, courts of appeals and district courts at the discretion of the presiding judges. It is anticipated that the House Judiciary Committee will hold a hearing on its bill, H.R. 2128, some time this fall.

H.R. 2128 is identical to S. 352, which was introduced in the Senate. Both would permit the “photo-graphing, electronic recording, broad-casting, or televising to the public of any court proceeding over which that judge presides.” Televising of jurors would not be allowed, and non-party witnesses could ask that their faces and voices be obscured. The bills provide that the Judicial Conference may promulgate advisory guidelines on the management and administra-tion of photographing, recording, broadcasting or televising. Authority for cameras in district courts would sunset three years after enactment of the legislation.

This Fall continued from page 5 Feedback Requested on Technical Aspects of Laws

The humor in a well-known joke about a panda hangs on a misplaced comma, which effectively changes the nature of the animal from vege-tarian to gun enthusiast in the line, “eats, shoots & leaves.” Unfortu-nately, what is funny in a punch line may cause serious problems in a piece of legislation. Misplaced commas and other punctua-tion errors, ambiguous terms and phrases, the omission of effective dates or jurisdictional authority, may play havoc with how the courts inter-pret a statute.

To improve communication between the judicial and legislative branches on questions of drafting, a “statutory housekeeping” project has been reinvigorated, whereby courts of appeals identify opinions that point out possible technical problems in statutes and send those opinions to Congress for its information and for whatever action it wishes to take. In July 2007, Judge D. Brock Hornby (D. Me.), chair of the Judicial Confer-ence Judicial Branch Committee, committee member Judge Robert A. Katzmann (2nd Cir.), and Admin-istrative Office Director James C. Duff, wrote to all judges and clerks of court of the U.S. courts of appeals urging their participation in the project.

In 1995, the Judicial Conference in its Long Range Plan for the Federal Courts, endorsed the project. Partici-pation in the project began well, but has declined.

In the last few months, the chair of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), with ranking member Senator Arlen Specter (R-PA), and House Judiciary Committee chair Representative John Conyers (D-MI), with ranking

See Feedback on page 9

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THE

THIRD BRANCH

Published monthly by theAdministrative Office of the U.S. Courts

Office of Public AffairsOne Columbus Circle, N.E.

Washington, D.C. 20544(202) 502-2600

Visit our Internet site at http://www.uscourts.gov

DIRECTORLeonidas Ralph Mecham

EDITOR-IN-CHIEFDavid A. Sellers

MANAGING EDITORKaren E. Redmond

PRODUCTIONLinda Stanton

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

JUDICIAL BOXSCORE

J U D I C I A L M I L E S T O N E S

As of August 1, 2007

Courts of Appeals

Vacancies 16 Nominees 8

District Courts

Vacancies 34 Nominees 18

Courts with“Judicial Emergencies” 17

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

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

Appointed: Robert James Jonker, as U.S. District Judge, U.S. District Court for the Western District of Michigan, July 18.

Appointed: Paul Lewis Maloney, as U.S. District Judge, U.S. District Court for the Western District of Michigan, July 30.

Appointed: Liam O’Grady, as U.S. District Judge, U.S. District Court for the Eastern District of Virginia, July 13. Judge O’Grady previously served as a U.S. Magistrate Judge.

Appointed: Benjamin Hale Settle, as U.S. District Judge, U.S. District Court for the Western District of Washington, July 9.

Appointed: Joseph Van Bokkelen, as U.S. District Court Judge, U.S. District Court for the Northern District of Indiana, July 20.

Elevated: U.S. Court of Appeals Judge Karen J. Williams, to Chief Judge, U.S. Court of Appeals for the Fourth Circuit, succeeding U.S. Court of Appeals Judge William W. Wilkins, July 2.

Elevated: U.S. Bankruptcy Judge Randy Davis Doub, to Chief Bank-ruptcy Judge, U.S. Bankruptcy Court for the Eastern District of North Carolina, succeeding U.S. Bankruptcy Judge A. Thomas Small, July 29.

Senior Status: U.S. District Court Judge Glen H. Davidson, U.S. District Court for the Northern District of Mississippi, June 1.

Senior Status: U.S. District Court Judge Lawrence E. Kahn, U.S. District Court for the Northern District of New York, August 1.

Retired: U.S. Magistrate Judge Jordan D. Lewis, U.S. District Court for the Southern District of Indiana, June 30.

Retired: U.S. Magistrate Judge Marshall P. Young, U.S. District Court for the District of South Dakota, June 10.

Deceased: U.S. Senior District Judge Alan A. McDonald, U.S. District Court for the Eastern District of Washington, July 26.

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Ninth Circuit continued from page 1

See Feedback on page 12

Judge Kim McLane Wardlaw, Judge Arthur Alarcón, and Judge Ferdinand Fernandez comprised the panel. Judges Wardlaw and Alarcón have parents who were born in Mexico, while Judge Fernandez’ father was born in Spain and his mother was of Spanish descent. They are among six Hispanic judges on the Ninth Circuit Court of Appeals, the most on any circuit court in the country.

For Alarcón, appointed in 1979 by President Carter and currently the longest-serving Hispanic circuit judge in the country, an all-Hispanic panel may be overdue, but is grati-fying nonetheless. “I would hope that it will encourage Hispanic kids that they can go after their dreams and achieve. There has never been a Hispanic on the Supreme Court and I think that’s something that will be available very soon,” he said.

Appellate panels are drawn randomly and there has been the possibility of an all-Hispanic panel in the Ninth Circuit since 1998. The

U.S. Court of Appeals for the Fifth Circuit has had at least three judges of Hispanic descent since 1994, but has not drawn an all-Hispanic panel yet. All told, there are currently 14 judges of Hispanic descent currently serving on the 12 regional courts of appeal and the Court of Appeals

for the Federal Circuit, according to the Federal Judicial Center, which maintains a database on the gender and ethnicity of federal judges. The Second Circuit has two Hispanic judges and the First, Third and Tenth Circuits each have one.

minority member Representative Lamar Smith (R-TX), urged the proj-ect’s revitalization. To realize that objective, Russell Wheeler, presi-dent of the Governance Institute, a D.C. organization which originally designed the project, worked with the Judiciary Committees and the legislative counsels as well as the Judicial Branch Committee.

“For our office, which is respon-sible for drafting legislation,” said James Fransen, head of the Senate Office of the Legislative Counsel, “it is useful for us if we can identify ways we can improve clarity and eliminate ambiguity.” House Legisla-tive Counsel M. Pope Barrow added, “The opinions of judges would be especially useful if they can identify persistent patterns in drafting errors.”

Courts of appeals either ask the clerk of court or staff attorney to identify appropriate opinions, or leave the task to each three-judge panel. The clerk of court sends the selected opinion without comment, in the nature of an executive commu-nication, to the Speaker of the House and the President Pro Tempore of the Senate. The House and Senate Offices of Legislative Counsel have asked to receive the opinions by e-mail. They analyze the drafting issues identified in each opinion, and send the opinion with an explana-tory note to the committee with juris-diction over its subject matter.

Katzmann’s involvement in this project actually predates his Second Circuit tenure. As president of the Governance Institute at the

project’s inception, he worked with Judge Frank M. Coffin (then chair of the Judicial Branch Committee) in designing a pilot effort. In a 1997 review of the project, Katzmann wrote, “With knowledge of the courts’ opinions, Congress may respond as it deems appropriate. But as important if not more so, the legis-lative branch has a better apprecia-tion of how courts interpret its work and the courts have a better sense of how the legislative branch digests its opinions.”

“It is important to recognize that Congress itself seeks the Judiciary’s assistance in encouraging judges to share appellate opinions that bear upon its work,” Director Duff observed.

Feedback continued from page 7

(Left to right) Judge Arthur L. Alarcón, Judge Kim McLane Wardlaw, and Judge Ferdinand F. Fernandez, U.S. Court of Appeals for the Ninth Circuit, comprised the federal Judiciary’s first all-Hispanic appellate panel.

The Third Branch n August 2007

10

I N T E R V I E W

New Committee Attuned to Security Concerns

Judge David B. Sentelle was appointed chair of the new Judicial Conference Committee on Judicial Security in 2005. In his career, Sentelle has served as an assistant U.S. attorney, a state court judge on the North Carolina General Courts of Justice, a federal district judge in the Western District of North Caro-lina, and since 1987, he has been a judge on the U. S. Court of Appeals for the District of Columbia.

Q:The Judicial Conference Committee on Judicial Security

is the newest Conference committee. Why was the Committee formed?

A:The Judicial Conference, in 2005 after the murders of the

Lefkow family, declared an emer-gency in judicial security and estab-lished this Committee dedicated solely to ensuring that the courts and judges are provided with adequate security.

Q:The jurisdiction statement for your Committee includes

responsibility for coordinating the Judiciary’s Emergency Preparedness Program and for Internet security. Can you talk about what responsi-bility for these areas will entail?

A: Emergency Preparedness, of course, came to our full atten-

tion because disasters like Hurricane Katrina create the same sort of emer-gencies for judicial life and limb and for personnel and facilities as judi-cial security problems in general. We think that in order to prevent secu-rity dangers from arising from those types of disasters, every court needs

an emergency disaster plan in place. For example, the Eastern District of Louisiana did a great job in the horrible emergency they had in the aftermath of Hurricane Katrina. There ought to be plans in place and we want to encourage and assist in that sort of preparation.

The Internet—while in a sense a technology issue—still exposes judges and their families to secu-rity concerns. It’s scary how much you can find out about yourself or someone else on the Internet. We thought it was necessary to begin an educational initiative—including self-help steps judges can take to protect themselves—and also to explore state and federal legislative remedies to help judges and everyone else protect their private information on the Internet.

I caution that we are not going to find an easy way to keep personal information off the Internet or remove it once it’s there. There is going to be no easy or perfect way, but we will try to help the judges, as much as possible, in keeping their personal information private.

Q:How do judges and the court family learn about security?

A:First thing, when anybody is nominated for a judgeship, they

receive a joint briefing from the U.S. Marshals Service and Administrative Office security personnel as part of the confirmation preparation process. But the best way—or the most persuasive way—in which new judges are going to learn about security will be from current judges and court personnel. If a court’s current judges are actively engaged in security, then the new judges will learn from them. If not, then they’ll learn sloppy practices. We need to get everybody attuned to security concerns, in order to keep it passing from generation to generation.

Our Committee works with the AO and the U.S. Marshals Service on initiatives to make security infor-mation readily available. We have used, and will continue to use, the Federal Judicial Television Network. We are overseeing the production of a new security orientation video to be shown to judicial nominees when they’re in Washington. And we hope to use something similar with refer-ence to communication to the circuit judicial conferences and other meet-ings of judges around the country.

Q:A program to install home intrusion detection systems

in the homes of federal judges will provide increased judicial secu-rity outside of courthouse facilities. A national contract to install the systems was awarded by the U.S. Marshals Service in December 2005, and installations began in February 2006. What is the status of the home intrusion detection systems program?

A:The U.S. Marshals Service tells us they’ve installed 97

percent of the 1,584 systems that were requested, so we feel like we’re in good shape on that. This has not gone without problems. It’s just a big task, but I think it’s going well. We hope to have the remaining 3 percent installed during this fiscal

Judge David B. Sentelle (D.C. Cir.)

The Third Branch n August 2007

11See Interview on page 12

year. Funds are included in the U.S. Marshals Service budget to continue the program through FY 2008 for newly appointed judges and for judges who change residences.

The actual installation and phys-ical monitoring is done by a U.S. Marshal Service contractor, and the Marshals Service is the inter-face between the contractor and the judge.

Q:How does your Committee interact with the U.S.

Marshals Service?

A: We’re on very good terms with the U.S. Marshals Service

at the present time. John Clark, the current director, has been very coop-erative. He is an experienced U.S. Marshal Service employee who has been a chief deputy and a U.S. Marshal himself. And he has been in close touch with the Committee. We invite him and he attends our bian-nual meetings. We jointly testified before the House Judiciary Subcom-mittee on Crime, Terrorism, and Homeland Security on H.R. 660, the “Court Security Improvement Act of 2007.” He and I stay in touch in between meetings by phone and e-mail on a very regular basis. He has been very attuned to our concerns and has tried very hard to meet them.

Q:During the Judiciary’s Senate appropriations hearing, the

Judicial Conference representative was asked to comment on reports that perimeter security provided by the Federal Protective Service (FPS) has not been maintained or repaired in courthouses. Is there a problem with FPS, and if so, how is the Judi-ciary resolving it?

A:We are trying to work with Senator Richard Durbin (D-

IL), who asked the question, and

with other members of Congress. We really haven’t been satisfied with the service received from the FPS since they were transferred from the General Services Administration to the Department of Homeland Secu-rity. And they have their own prob-lems of acclimation.

But, you know, they don’t receive an appropriation from Congress. They rely on reimbursements from tenant agencies and they’re not very forthcoming as to what it is we’re paying for. We’re not, in every instance, getting what we’re paying for. FPS has been unable to repair or replace some perimeter security cameras and monitors due to insuf-ficient resources. We’ve had vulner-able courthouses for that reason. The U.S. Marshals Service has had to replace the equipment even though it’s not their responsibility or in their budget.

We’ve addressed these concerns by endorsing, and the Judicial Conference has adopted, a recom-mendation that the FPS be made a direct appropriation agency and that the U.S. Marshals Service, by admin-istrative or legislative means, assume the FPS security functions in primary courthouses. That would not help us in multi-tenant federal buildings, but at least it would solve some of the problems. The U.S. Marshals Service has proposed a pilot program of seven primary courthouses to test the feasibility of them assuming these functions. I don’t know how much of the pilot program will go into effect, but at least we’ll have something to work with in having the U.S. Marshals Service take over a lot of the FPS functions.

Senator Durbin, as chair of the Senate Appropriations Subcom-mittee on Financial Services and General Government has met with AO Director Duff and the directors of the U.S. Marshals Service and the FPS. He’s been a lot of help to us and we have hopes of improving the situation.

Q:The Federal Protective Service, Court Security Offi-

cers (CSOs), USMS—how do these all interrelate in providing security to the federal Judiciary?

A:It’s going to vary between primary courthouses and

multi-tenant buildings, as to the FPS’s responsibility. But histori-cally, at your primary courthouse the FPS responsibility is princi-pally for the perimeter and the U.S. Marshals Service—working either directly with or through the CSOs—is responsible more for the interior security. Over time, however, we have seen the U.S. Marshals Service play a greater role in providing all security services at primary court-houses.

Q:A system of court security committees operates at the

local court level. How do these committees interact with your Conference Committee?

A:The court security commit-tees were established in the

early 1980s. I think it was a 1982 recommendation contained in the report of the Attorney General’s Task Force on Judicial Security. The court security committees are respon-sible for assessing security district-wide. The chief district judge chairs the committee. The district’s U.S. Marshal is the principal coordinator.

Court security committees are associated with primary court-houses—that is where the court, U.S. attorney’s office and/or U.S. Marshals Service occupy three-quar-ters of the rentable square footage of the building. We hear anecdotally that some of the district committees are very active and engaged; others either don’t meet or only rarely meet. We encourage the use of the district court security committees as liaison with the district’s U.S. Marshal and for dealing with district problems.

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Interview continued from page 11

We get some contacts that probably really ought to be handled within the district, so we encourage their use.

Q:Your Committee recently endorsed Judiciary participa-

tion in the Homeland Security Presi-dential Directive-12. What is this Directive and what will participation mean for the Judiciary?

A:The Homeland Security Presi-dential Directive (HSPD-12)

is an executive branch initiative that establishes a mandatory govern-ment-wide standard for security and reliable forms of identification cards—the personal identity verifi-cation card, PIV-ID in government-speak—that would be issued by the government to its employees and contractors, initially for identifica-tion purposes and eventually to gain access to government buildings. We are housed in federally controlled facilities, so although the directive does not cover us, if we don’t find a

way to cooperate with it, we’re going to find ourselves shut out of the buildings we work in. We budgeted funds to provide the same kind of PIV-ID cards to judges and court personnel to comply with HSPD-12, even though we’re not covered by it.

Q:In your opinion, what is the greatest problem we face in

terms of judicial security?

A:It’s very difficult to identify one problem. So we’ve created

a Subcommittee on Strategic and Long-Range Planning to identify the areas where we need to assess the current security of the Judiciary, to determine where the Judiciary needs to be headed in the next 10 years, and how to accomplish that goal. They are interfacing with the U.S. Marshals Service and they’re also available for contact with any other source.

So, rather than identify a single problem, I would say we have a subcommittee working on that.

“By responding to this legisla-tive initiative, courts are partners in interbranch cooperation in ways that promote mutual under-standing to the benefit of both branches,” commented Hornby.

Assistant General Counsel Bret Saxe has been designated by the Administrative Office to track the number of opinions sent and consult periodically with the legis-lative counsels and the appellate courts as to whether the project needs adjustment.

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