Some thoughts on the Wendy Vitter nomination

I am quoted toward the end of this story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.

The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith.  None of these should derail her nomination.

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Federal courts will remain operational during government shutdown

The Administrative Office of the U.S. Courts has announced that all federal courts will remain open for during the current government shutdown, using reserve funds that can last approximately three weeks. The AO further explains:

If the shutdown were to continue past three weeks, and exhaust the Judiciary’s resources, the Judiciary would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers. Under this scenario, each court and federal defender’s office would determine the staffing resources necessary to support such work.

Funding is the court system’s most prominent externally acquired resource. Hopefully the courts’ ability to work through cases is not adversely affected by a long shutdown.

Houston Chronicle profiles Judge Lee Rosenthal

The Houston Chronicle has a very good profile of Lee Rosenthal, a highly respected federal district judge in the Southern District of Texas. Judge Rosenthal is well-known not only as an excellent jurist, but as a thoughtful and tireless worker on issues of court administration. I will add that she is a warm, gracious, and lovely person as well. A good read for anyone interested in the backgrounds of judges and (to some degree) the inner workings of the federal court system.

Chief Justice releases 2017 Year-End Report

For law geeks with small children, the highlight of every New Years Eve is the quiet posting of Chief Justice Roberts’s Year-End Report on the federal courts website. It is a predictably comfortable document that invariably begins with a 200-year-old anecdote, proceeds through a single chosen topic in 10th-grade detail, and ends with a brief recitation of court statistics. In other words, it’s a little like Dave Barry’s annual year-end column, if that column were written by John Roberts instead of Dave Barry.

This year the Chief Justice’s focus is on court preparedness in the face of terror and natural disaster — an appropriate enough topic in light of last year’s hurricane season.  He also includes a short discussion of the courts’ forthcoming internal sexual harassment investigation.

Finally, some interesting statistical notes:

  • The Supreme Court’s docket fell again, with a little under three percent fewer filings and only 61 signed opinions.
  • Filings in the Courts of Appeal fell sixteen percent, but civil appeals were actually up one percent.
  • Filings in the federal district courts fell eight percent, and bankruptcy filings fell two percent.

I will probably have more to say on these figures in subsequent posts.  In the meantime, Happy New Year.


The Federal Judicial Center turns 50

The Federal Judicial Center, the research arm of the federal courts, turned 50 yesterday.

The FJC is well-known but probably underappreciated. It allows the court system to investigate its own operations — from the ways procedural rules are employed to the manner in which cases are allocated. Its seminal work on weighted caseloads, court productivity, and the frequency and nature of motions to dismiss and motions for summary judgment (among many other things) have helped the court system understand and adapt its procedures to promote efficiency and cost-effectiveness. In addition, having a top-notch research institution in-house allows the courts to investigate issues of interest without having to rely on external sources.

If you have not explored the FJC’s research library, it’s worth a careful look. It is indispensable for those who study the federal courts, or simply want to know more about their operations.

Happy birthday and congratulations!

Inexcusable ignorance from a federal judicial nominee

On Wednesday, the Senate Judiciary Committee heard testimony from five more federal district court nominees. Unlike those nominated for the Supreme Court and Courts of Appeal, district court nominees often undergo little serious questioning. Their resumes speak to their qualifications, and the political stakes are lower than with appellate judges.

But basic qualifications are a serious problem for too many Trump nominees. When questioned by Senator John Kennedy, D.C. District nominee Matthew Petersen was unable to identify the most basic legal concepts that a federal judge must contend with on a daily basis.  He admitted to being unfamiliar with the Daubert standard for evidence, Younger and Pullman abstention, and even the current Federal Rules of Civil Procedure. This is not particularly surprising, since he has never tried a case, or even argued a motion, at any level of state or federal court.

Here is the jaw-dropping video, courtesy of Senator Sheldon Whitehouse’s Twitter feed.  Mr. Peterson, a member of the Federal Election Commission since 2008 (and twice its chairman) has since withdrawn his nomination.

Mr. President, how about populating the trial courts with, you know, people who have actually done some trials?

UPDATE/CORRECTION: Peterson’s nomination is still pending as of Friday evening. But it’s hard to imagine it won’t be withdrawn soon.

On paying disgraced judges

Roy Moore, the disgraced judge turned disgraceful Senate candidate, received good news recently when the Retirement Systems of Alabama (RSA) Board approved his $135,000 annual pension, representing 75% of his annual salary before he was suspended from his duties as Alabama Chief Justice in September 2016.  The RSA Board indicated that it has no legal authority to reject or change a judge’s pension.  Moore qualified for the pension under state law due to his previous years of service and age at the time he was suspended.

Meanwhile in Washington, Senator Charles Grassley recalled ex-judge Thomas Porteous’s efforts to fleece taxpayers with his own retirement pension. Porteous was impeached and removed from office in 2010 for taking bribes and engaging in a variety of corrupt acts. Shortly before he was impeached, Porteous tried to claim disability retirement in order to secure a lifetime annual salary of nearly $175,000.

No one could be blamed for wanting to deny retirement payments to judges whose conduct in office was reprehensible, as was the case (in different ways) for Moore and Porteous. The counterargument is that reprehensible conduct cannot be clearly defined, and the ability to remove benefits will become a weapon against judicial independence. Where and how should we draw the line?

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