THIRDNewsletterof theFederalCourts

Vol. 41Number 10October 2009BRANCH

INSIDE

THE

Judiciary Supports New Judgeships .......................................... pg. 2Courts Help After Traumatic Cases ............................................ pg. 32009 Director’s Awards Recognize Court Employees ............. pg. 4

IN DEpTH

Celebrating a Masterpiece:The 75th Anniversary of the Rules Enabling ActAs the Rules Enabling Act celebrates its 75th anniversary this year, The Third Branch spoke about the Act and its impact on the federal Judiciary with Judge Lee Rosenthal (S.D. Tex.), chair since 2007 of the Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee), who also served on the Advisory Committee on Civil Rules from 1996–2003 and as its chair from 2003–2007; with Judge David F. Levi, now dean of the Duke University School of Law, who served on the Civil Rules Advisory Committee from 1994–2003, and as chair of the Standing Committee from 2003–2007; with Chief Judge Anthony J. Scirica (3rd Cir.), who served on the Civil Rules Advisory Committee from 1992–1998, and as chair of the Standing Committee from 1998–2003; and with Judge Alice-marie Stotler (C.D. Cal.), who served as a member of the Standing Committee from 1991–1993, and as its chair from 1993–1998.

Stamp Sheet Honors JusticesFour Supreme Court justices and

their contributions to the law have been commemorated with the issu-ance of a stamp souvenir sheet bearing their likenesses: Justices Joseph Story (1779–1845), Louis D. Brandeis (1856–1941), Felix Frankfurter (1882–1965), and William J. Brennan Jr. (1906–1997).

Chief Justice John Roberts, Jr., and Thurgood Marshall, Jr., son of Justice Thurgood Marshall, with Post-master General John E. Potter and

Washington, DC Postmaster Yverne Moore, unveiled the stamp sheet during a ceremony at the Court. Marshall is a member of the U.S. Postal Service Board of Governors; his father was honored with his own stamp in 2003.

Along with the justices’ likenesses, the stamp souvenir sheet incorporates images of the Supreme Court building and a detail from the first page of the United States Constitution.

(Left to right) Postmaster General of the United States John E. Potter; Thurgood Marshall, Jr., Board of Governors, United States Postal Service; Chief Justice John G. Roberts, Jr., and Yverne “Pat” Moore, Postmaster of the District of Columbia. PHoTo: STEvE PETTEWAY, CoLLECTIoN oF THE SUPREME CoURT oF THE UNITED STATES

See In Depth on page 6

The Third Branch n October 20092

Judiciary Supports New Judgeships

“To enable the Judiciary to continue serving litigants efficiently and effectively, the judicial work-force must be expanded,” a Judicial Conference representative told the Senate Judiciary Subcommittee on Administrative oversight and the Courts, testifying this month in support of S. 1653, a Senate bill that would create new federal judgeships. The subcommittee hearing was enti-tled, “Responding to the Growing Need for Federal Judgeships: the Federal Judgeship Act of 2009.”

Judge George Z. Singal (D. Me.) chair of the Judicial Conference Committee on Judicial Resources, told the subcommittee that the last comprehensive judgeship bill was enacted 19 years ago. In that time, filings in the courts of appeals grew by 38 percent, while case filings in the district courts rose 31 percent. His testimony is available at www.uscourts.gov/Press_Releases/2009/newJudgeships.cfm.

Also testifying before the subcom-mittee on the judgeship needs of their courts were Judge Lawrence J. o’Neill from the U.S. District Court for the Eastern District of California, and 11th Circuit Court of Appeals Judge Gerald B. Tjoflat.

Singal thanked Senator Patrick Leahy (D-vT), chair of the Senate Judiciary Committee, for introducing S. 1653, which reflects the Judicial Conference recommendation that Congress establish 63 new judge-ships in the courts of appeals and district courts, convert five tempo-rary district court judgeships to permanent, and extend one tempo-rary judgeship.

According to Singal, no addi-tional judgeships have been created for the courts of appeals since the last comprehensive judgeship bill was passed in 1990. “As a result,” he

said, “the national average caseload per three-judge panel has reached 1,067. Were it not for the assistance provided by senior and visiting judges, the courts of appeals would not have been able to keep pace, particularly in light of the number and length of vacancies.”

The average number of weighted filings per judgeship in the district courts has reached 471, exceeding the 430 weighted filings per judgeship

the Conference uses as a starting point in recommending new judge-ships at the district level. As a group, the district courts in which judge-ships have been recommended have seen a growth in weighted filings per judgeship from 427 in 1991 to 575 in June 2009, an increase of 35 percent.

The situation in district courts where the Conference has recom-mended additional judgeships is much more dramatic than indicated by national totals. In 20 of the district courts where the Conference recom-mends an additional judgeship, the workload exceeds 500 weighted filings. In seven courts, weighed filings exceed 600.

Despite national data supporting the need for additional judgeships, the Conference recognizes that the

Judiciary’s growth must be limited to the number of new judgeships that are necessary to exercise federal court jurisdiction.

“The Conference does not recom-mend (or wish) indefinite growth in the number of judges,” Singal said. “The Conference attempts to balance the need to control growth and the need to seek resources that are appropriate to the Judiciary’s caseload. In an effort to implement

that policy, we have requested far fewer judgeships than the case-load increases combined with other factors would suggest are now required.”

To assess judgeship needs in the circuit and district courts, the Conference conducts a survey every two years. The latest survey was completed in March 2009. Before a judgeship recommendation is trans-mitted to Congress, it undergoes multiple levels of review and consid-eration. Although recommendations are based in large part on a numerical standard based on caseload, other court-specific information is weighted, such as the number of senior judges and the levels of activity, the assistance

Judge George Z. Singal (D. Me.), chair of the Judicial Conference Committee on Judicial Resources, testified on the need for new judgeships.

See Judgeships on page 9

The Third Branch n October 20093

As the 2010 fiscal year began on october 1, 2009, the federal Judiciary kept operating under a Continuing Resolution (CR) passed by Congress. The CR continues through october 31. Congress has not yet passed the 2010 Financial Services and General Government Appropria-tions bill, under which the Judiciary receives its annual appropriations, and the CR allows court operations to continue in the new fiscal year. While courts should not start new projects or activities while operating

under a CR, they can continue to obligate funds at the same rate as they did in FY 2009.

Both the House and the Senate Appropriations Committees have reported their versions of the Judi-ciary’s FY 2010 appropriations bill. As of october 1, none of the 12 appropriations bills funding opera-tions in government departments and agencies had been enacted, and it is uncertain when Congress will act on them.

Judiciary Operating Under CR

Courts Offer Jurors Help After Traumatic Cases

Chief Judge Joseph Bataillon, of the U.S. District Court for the District of Nebraska, did more than just thank jurors after their verdict in a gruesome child pornography trial earlier this year. He extended their jury service long enough so that any one of them who wanted to could receive professional counseling.

“Judges and lawyers must be sensitive to just how stressful being exposed to troubling evidence or testimony, especially in child pornography and death penalty cases, can be for jurors,” Bataillon said. “Jurors are performing a civic duty for only $40 a day, and the material they are exposed to in such cases is fundamentally known to be traumatic.”

The federal trial court in Nebraska is one of several around the nation that have made counseling services available for grand and trial jurors.

After a six-month capital punish-ment murder trial, Judge Maxine Chesney (N.D. Cal.) likewise extended the jury’s term of service so that coun-seling could be made available.

“Because such counseling is confidential, I don’t know if any juror actually opted for one or more sessions, but I can tell you that there were looks of apprecia-tion on the jurors’ faces when they were told about its availability,” said David Weir, the district’s courtroom services supervisor.

“A court doesn’t have to jump through a lot of hoops before it can offer counseling in such cases,” Weir said. “In fact, it’s actually a very simple process involving nothing more than a couple of phone calls and an administrative order from the judge. We called the Administrative

office, and Attorney Advisor David Williams in the District Court Admin-istration Division got the ball rolling.”

Current occupational health liter-ature says it is common for jurors to experience some emotional or physical reactions after concluding

their service in emotional cases. Coping tips include talking to family members, friends, or neighbors, and getting lots of exercise.

The U.S. District Court for the Northern District of New York has produced its own pamphlet, “Tips for Coping After Jury Duty,” that includes the telephone numbers of the New York Psychological

Association, the state government’s office of Mental Health, and the American Psychiatric Society.

“After an emotionally difficult case, we make the brochure avail-able to jurors,” said Clerk of Court Larry Baerman.

District of Nebraska Clerk of Court Denise Lucks said her court formalized its process for helping jurors cope about a month after the child pornography trial presided over by Bataillon. “Discovering what resources are out there is half the battle,” she said. “We first talked to David Williams. Then, Cam Burke, the former clerk of court for the District of Idaho, shared his court’s letters to jurors and administrative orders so we could take them and make them our own.”

Her court’s written materials tell employees to “pay extra attention to the little things,” such as making sure water and tissues are avail-able for jurors in the courtroom, and watching jurors for signs of distress during the trial and recesses.

Earlier this year in the Eastern District of Pennsylvania, Judge Lawrence Stengel presided over a trial involving child pornography that included the victimization of very

See Help on page 9

The Third Branch n October 20094

The Director’s Awards for 2009 recognize Judiciary employees for their contributions to the federal courts. This year’s recipients includes individuals who have fought for a second chance for offenders, increased public aware-ness of drug penalties, created their district’s first mobile probation divi-sion, and kept their courts up and running through a flood and the largest law enforcement operation their district has known. The 2009 Director’s Award winners are:

For Outstanding LeadershipGiven in recognition of a manag-

er’s leadership skills, recipients have shown exemplary stewardship of resources, improved service through innovations, developed workforce programs that increase productivity, and enhanced the image of the Judi-ciary, among other criteria.

Theodore W. Johnson, Chief U.S. probation Officer, Western District of pennsylvania

Johnson, who became chief of

probation in the Western District of Pennsylvania in January 2004, brought a new approach to super-vision in the district. Believing that probation is a period during which offenders have an opportu-nity at a second chance, Johnson initiated a workforce development program designed to help offenders find employment or the schooling needed for employment. As a result, more than 70 percent of the 300-plus participants in the Probation office’s reentry program now find work. Less than 6 percent have re-offended.

Johnson also initiated a number of programs to expand service, address the growing workload,

involve the community in offender reentry, and improve supervision in the district. He made exemplary use of resources, saving the district over $1 million through 2009 by combining the pretrial services and probation offices; reducing rent costs; and partnering with state and county supervisory agencies to share the costs of some training and programs.

“Mr. Johnson’s efforts have proven to break the habits of habitual offenders . . . The Federal Court in Western Pennsylvania is now viewed as a vibrant organization committed to the betterment and revitalization of the communities it serves,” said the nominating board of Western District of Pennsylvania judges. “This has been done without abandonment of public safety.”

For Excellence in Court Operations (Mission Requirements)

Recipients of this award have contributed to the economical and efficient operation of the Judiciary, have provided innovations that improve service, or have established community outreach programs that enhance the public’s understanding of the Judiciary.

Sarah pfeiler, U.S. pretrial Services Officer, Northern District of Ohio

Project Penalty Awareness is Pfeiler’s brain-child, a program

to educate the public about federal drug trafficking offenses and penal-ties. Many defendants are completely unaware of the severity of the penal-ties associated with federal drug crimes. Presenting the facts about federal drug laws provides much-needed information to the public and facilitates the fair administration

of justice. Beginning in 2005, Project Penalty Awareness has been promoted through schools, neigh-borhoods, and public and private agencies. The Cleveland Public Schools adopted the program as a permanent part of the eighth grade social studies curriculum in 2008, and other school districts may follow.

Wendy Landry, U.S. probation Officer, Northern District of Texas

Landry’s over-sight of a pilot project to deter-mine if officers

could be effective working in the community without the benefit of an assigned office space has resulted in reduced spending and reliance on space and facilities while increasing the probation office’s effectiveness. The district now has the first mobile office division in the Judiciary—with Landry as the supervisor of the nine-officer unit. officers in the program have learned to use technology more effectively and report improved rela-tionships with clients.

For Extraordinary ActionsRecipients of this award have

responded in an outstanding manner to emergencies and other critical situ-ations. They have exhibited bravery and concern for others, displayed creativity and resourcefulness, and ensured that the Judiciary’s mission was met during an adverse situation.

The Office of the Bankruptcy Clerk of Court, Northern District of Iowa

Fifteen members of the clerk’s office of U.S. Bankruptcy Court for the Northern District of Iowa are recognized for their response to the flooding and closure of their court on June 12–13, 2008. Thanks

2009 Director’s Awards Recognize Judiciary’s Employees

The Third Branch n October 20095

to the successful implementation of their Continuity of operations Plan (CooP), court services continued throughout the disaster and essential functions were restored less than 24 hours after the court’s closure.

For the first 72 hours, as flood waters inundated the city of Cedar Rapids, the entire Cedar Rapids staff conducted court operations via J-Port, while the Sioux City staff covered main line phone calls and the majority of case traffic. Members of the court’s Information Tech-nology staff had already transferred operations to replication servers in Sioux City. Meanwhile, the bank-ruptcy clerk of court worked with the General Services Administra-tion and the district clerk of court to lease space. on June 17, the first bankruptcy pleading was accepted for filing in the court’s temporary location. Staff of the bankruptcy clerk’s office returned to work at the temporary location on June 23, and the first in-court proceeding was held there on June 24. on September 8, court operations returned to a permanent court location in down-town Cedar Rapids.

Robert L. phelps, Clerk of Court, Northern District of Iowa

Phelps played an integral role in both the largest criminal worksite

immigration enforcement opera-tion ever conducted in the Northern District of Iowa and, a month later, in the district’s successful continuity of operations following the Flood of 2008, the worst natural disaster in the history of the Cedar Rapids area.

Both the flood and the worksite operation required a relocation of court operations. Phelps oversaw all clerk’s office operations, procuring

Cedar Rapids bankruptcy court recipients of the 2009 Director’s Awards—Back row, left to right—Kent Boese, Karen Hanover, Shane Deam, Tim Mielke, Rebecca Hoefer, Jean Hekel, and Julie Hubbell; Front row, left to right—Nicole Becker, Rhonda Hansen, Sharon Mullin.

equipment and finding and outfitting courtroom and office space. When more than 320 people were held at the local fairgrounds in the work-site immigration operation, Phelps arranged for 26 court interpreters, scheduled personnel, and saw that the temporary courtrooms were outfitted with complete IT, sound systems and recording equipment. When the U.S. Courthouse’s first floor was under four feet of floodwater, Phelps was instrumental in having temporary court facilities and opera-tions up and running in only eight business days. He continues to share the CooP lessons he learned during these events, contributing his experi-ence on a national level.

Sioux City bankruptcy court recipients of 2009 Director’s Awards—Back row, left to right—Theresa Stapelman, Ruth Dean, Nancy South; Front row, left to right—Tina Hall and Som Many Greigg.

The Third Branch n October 20096

On the Rules Enabling Act . . .Judge Alicemarie Stotler: I think it’s a master-piece, in the sense that it contemplated a careful review process, a vetting process, and yet has a

balance so that, if there’s something amiss in the eyes of Congress, they have a way to stop it. It has in place a complete flow of rule making. The Supreme Court and Congress can say yes or no, and all of us who have a concern with procedure have our say. It’s a very thoughtful procedure that gave us, who live in this world of federal courts and procedures, a mech-anism if we wanted to make changes.

Dean David F. Levi: What I take away from it is great admiration for a certain kind of decision-making process that is very open. It is such a

good mechanism for dealing with something complicated, where unin-tended consequences are likely to be the order of the day.

Judge Anthony J. Scirica: I think it was a brilliant solution to the making of procedural law. It has been described as a treaty between

the Legislative and the Judicial—co-equal branches of government. I think it functions enormously well. I would not change any of it.

On the impact of the Act on the federal court system . . .

Judge Lee Rosenthal: It’s hard to know what life would have been like without the Rules Enabling Act because it has so shaped the

way in which we do business. The first set of rules enacted were the

Federal Rules of Civil Procedure in 1938 and the subsequent sets of rules followed. But what the Rules of Civil Procedure did, in one fell swoop, was provide a single set of rules for every federal court in the country. It merged law and equity. It’s hard to imagine a set of rules having that kind of revolutionary scope and impact today.

Levi: The fundamental premise of the Federal Rules is that a lawyer with the civil, the bankruptcy, the evidence rules, or the criminal rules in hand can be confident in any federal courthouse in this country. There’s an efficiency in that. There’s a sense of fairness in that. There’s no local advantage. It’s a nationwide court system for national law. And that is the basic philosophy of the Federal Rules.

On criticism that Rule change comes slowly—and the criticism that there are too many changes . . .Scirica: It’s not too slow; it’s delib-erate, careful, and thoughtful—and it should be that way. The proce-dural law is very important and changes should only be adopted after a great deal of thought. The open-ness mandated by Congress facilitates the process, which of course requires consideration by the Judicial Confer-ence, then adoption by the Supreme Court, and then a seven-month hiatus on the part of Congress when they consider whether they want to permit the rules to become law. So the struc-ture builds in a considerable period of time, but that’s all to the good. The process ensures the rigorous scrutiny and public review essential to estab-lish the credibility and legitimacy of the rulemaking process.

Rosenthal: Sometimes people view the frequency of the changes as unset-tling. The bar and judges need time to adjust to changes, and we don’t

want the rules to change the way phone books change, as some have characterized it. At the same time, the world—and practice—change incred-ibly quickly. We recognize the danger to the Rules if they become divorced from practice and that separation solidifies. So we are always balancing the need to keep the system current without changing the Rules so often that it is disrupting.

Levi: There is empirical work that is done, so we’re not just making guesses about how the system is operating and whether a new rule is necessary or not. And then the different bar associations and indi-vidual judges and lawyers around the country contribute immensely to the process by writing, by testifying, or by talking to committee members informally. It is quite a reticulated process, with lots of decision-making stages and opportunities for public comment, for review and reconsider-ation by the committee (see Timeline on pages 10–11). You could say that because it involves so much open-ness and because these topics are so complicated, there’s a tendency to be too cautious. That might be right. on the other hand, it’s a system that affects the people’s life, property, and liberty and most of us would say that caution is appropriate. The point is that you don’t do it lightly.

Stotler: I have a very expansive over-view of how this process should work. It’s meant to take a long time because, if we’re going to affect 94 districts and all the judges and lawyers who practice, we want to make darn sure that this is going to work out fairly and efficiently. It can be exhausting, but I think the process is meant to give all the participants time to weigh in. In short, there shouldn’t be a need for a quickie rule of procedure change.

I N D E p T H continued from page 1

The Third Branch n October 20097

On Rule amendments . . . Rosenthal: The amount of work that is done at the advisory committee level, before any rule amendment is even proposed, is huge. If we get a proposal for a rule change or a complaint about practice under the rule, we first have to decide whether the complaint is rule-based, that is, is it a problem created by the way the rule is written? We look at the historical background, to the prac-tice problem that’s reported. We look at the case law. We often will reach out and talk to judges, to groups of lawyers, or to members of academe to get the benefit of their experience, and to see if it’s a shared problem. We’ll do empirical research. We’ll gather a whole lot of information and analyze. All of that occurs before an advisory committee even makes a recommendation.

Scirica: The advisory commit-tees’ makeup gives different points of view, different perspectives throughout the rulemaking process. The lawyers are crucial because they are in the forefront. They’re using the rules as practitioners, and they have a great deal of knowledge as to how the rules are working in various situ-ations. The academics take a longer view. They’re constantly thinking and re-thinking how the system can be improved. And judges, of course, have the responsibility to make sure that the rules are even-handed and promote, at least in the civil system, the resolution of disputes without undue cost or delay. The combi-nation brings the best thinking all together in one place.

Stotler: We have a lot of perspectives around the Committee table, and we know that some of the suggestions for rule changes are non-starters. But somebody thought that a fix was

See In Depth on page 10

A Brief History of the Federal Rulemaking Process*1934 28 U.S.C. section 331 delegates to the Supreme Court “the

explicit power to prescribe rules for the district courts governing practice and procedure in civil actions.”

1935 The Supreme Court appoints a blue ribbon advisory committee to draft the first Federal Rules of Civil Procedure.

1938 The Federal Rules of Civil Procedure take effect in September.

1940 Congress authorizes the Supreme Court to promulgate rules governing criminal cases in the district courts.

1946 The Federal Rules of Criminal Procedure take effect in March.

1958 Congress enacts legislation transferring the major responsibility for the rulemaking function from the Supreme Court to the Judi-cial Conference of the United States. The Conference is mandated to “carry on a continuous study of the operation and effect of the [federal] rules” and to recommend appropriate amendments to the rules. The Conference establishes the Standing Committee on Rules of Practice and Procedure and five advisory committees.

1965 Chief Justice Earl Warren appoints an advisory committee to draft Rules of Evidence.

1966 The Admiralty Rules are merged into the Federal Rules of Civil Procedure.

1972 The Federal Rules of Evidence are transmitted to Congress, which defers the proposed rules and holds hearings on them. The rules process is criticized by Congress for not being suffi-ciently open and allowing adequate public input.

1973 The Federal Bankruptcy Rules become law.

1975 The Federal Rules of Evidence, revised by Congress, are enacted into law.

1977 Rules governing post-conviction collateral remedies for pris-oners take effect.

1980 Chief Justice Warren requests that the Judicial Conference and the Federal Judicial Center study the Rules enabling process in light of criticism from Congress. The Rules Committee begins a comprehensive review of the rulemaking procedure.

1983 The House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice begins its review of the rule-making process.

1988 Congress amends the 1934 Rules Enabling Act to codify formally the rulemaking procedures, to stem the proliferation of local rules of courts, and to require that all meetings of the Rules committees be open to the public.

*For more on the history of the federal rulemaking process, current procedures, and future initiatives, please read, “Renewal of the Federal Rulemaking Process,” by Peter G. McCabe, in the June 1995, Volume 44, Number 5, issue of the American University Law Review, which can be found on the federal rulemaking website at www.uscourts.gov/rules/index.html.

I N D E p T H

The Third Branch n October 20098

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 www.uscourts.gov

DIRECToRJames C. Duff

EDIToR-IN-CHIEFDavid A. Sellers

MANAGING EDIToRKaren E. Redmond

PRoDUCTIoNomniStudio, Inc.

CoNTRIBUToRSDick Carelli, Ao

Please direct all inquiries and address changes to The Third Branch at the

above address or to Karen_Redmond@ao.uscourts.gov.

JUDICIAL BOXSCORE

Up-to-date information on judicial vacancies is available at http://www.uscourts.gov/judicialvac.html

As of October 1, 2009

Courts of Appeals

vacancies 20 Nominees 7

District Courts

vacancies 75 Nominees 9

Courts with“Judicial Emergencies” 29

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

Appointed: Anita Louise Shodeen, as U.S. Bankruptcy Judge, U.S. Bankruptcy Court for the Southern District of Iowa, August 26.

Appointed: Joseph J. Volpe, as U.S. Magistrate Judge, U.S. District Court for the Eastern District of Arkansas, July 30.

Elevated: U.S. Court of Appeals Judge Alice M. Batchelder, to Chief Judge, U.S. Court of Appeals for the Sixth Circuit, succeeding Danny J. Boggs, August 14.

Elevated: U.S. District Judge Charles N. Clevert, Jr., to Chief Judge, U.S. District Court for the Eastern District of Wisconsin, succeeding U.S. District Judge Rudolph T. Randa, September 1.

Elevated: U.S. District Judge Gary L. Lancaster, to Chief Judge, U.S. District for the Western District of Pennsylvania, succeeding U.S. District Judge Donetta W. Ambrose, September 23.

Elevated: U.S. Bankruptcy Judge Thomas p. Agresti, to Chief Judge, U.S. Bankruptcy Court for the Western District of Pennsylvania, succeeding U.S. Bankruptcy Judge M. Bruce McCullough, September 22.

Retired: U.S. District Judge Lacy H. Thornburg, U.S. District Court for the Western District of North Caro-lina, August 31.

Retired: U.S. Magistrate Judge Leo S. papas, U.S. District Court for the Southern District of California, July 31.

Retired: U.S. Magistrate Judge David L. piester, U.S. District Court for the District of Nebraska, July 31.

Retired: U.S. Magistrate Judge J. Gregory Wehrman, U.S. District Court for the Eastern District of Kentucky, September 1.

Retired: U.S. Bankruptcy Judge Warren W. Bentz, U.S. Bankruptcy Court for the Western District of Pennsylvania, September 21.

Resigned: U.S. District Judge Brian E. Sandoval, U.S. District Court for the District of Nevada, September 15.

Deceased: U.S. Senior District Judge Shirley Wohl Kram, U.S. District Court for the Southern District of New York, August 21.

Deceased: U.S. Senior District Judge Robert M. Takasugi, U.S. District Court for the Central District of California, August 4.

Deceased: U.S. Senior District Judge Rodney S. Webb, U.S. District Court for the District of North Dakota, August 9.

THIRDBRANCH

THE

The Third Branch n October 20099

New Committee Chairs Named Four current committee members

have been named by Chief Justice John Roberts, Jr., to chair their respective Judicial Conference committees. Their appointments began october 1, 2009.

Judge Julie A. Robinson (D. Kan.) succeeds Judge John R. Tunheim (D. Minn.) as chair of the Committee on Court Administration and Case Management.

Judge George H. King (C.D. Cal.) succeeds Judge Dennis M. Cavanaugh (D. NJ) as chair of the Committee on the Administration of the Magistrate Judges System.

Judge Jeffrey S. Sutton (6th Cir.) succeeds Judge Carl E. Stewart (5th Cir.) as chair of the Advisory Committee on Appellate Rules.

Judge Michael A. Ponsor (D. Mass.) succeeds Chief Judge Joseph F. Bataillon (D. Neb.) as chair of the Committee on Space and Facilities.

With the exception of the Execu-tive, Judicial Branch, and Budget Committees, committee chairs usually serve for a term of three years. Six years of cumulative committee service usually is consid-ered the maximum a member may serve. The Judicial Conference oper-ates through a network of committees created to address and advise on a wide variety of subjects.

Judge Julie A. Robinson (D. Kan.)

Judge Jeffrey S. Sutton (6th Cir.)

Judge Michael A. Ponsor (D. Mass.)

Judge George H. King (C.D. Cal.)

of magistrate judges, the size of the district or circuit, the complexity of caseload, temporary or prolonged caseload increases or decreases, and the use of visiting judges.

For a list of the circuits and districts where new judgeships are recom-mended by the Judicial Conference, visit www.uscourts.gov/Press_Releases/2009/recommendations.pdf.

Judgeships continued from page 2

young children. Concerned about the case’s impact on jurors and court staff, he and Senior Probation officer Leslie Maxwell, who specializes in child pornography prosecutions, met with jurors—along with a psychologist—after the trial verdict.

“The discussion lasted nearly two hours. [The psychologist], Ms. Maxwell and I spoke briefly, then the jurors asked questions and offered

Help continued from page 3 comments. I believe the session was extremely valuable, and I will consider this option in future cases where the jury is exposed to very troubling evidence,” Stengel said.

Bataillon noted that counseling and other help also is available to court staff who are exposed to troubling evidence and testimony. “We have an obligation to our employees to provide a safe work environment, so it is appropriate to offer employee assis-tance in these instances,” he said.

The Third Branch n October 2009

Timeline of the Federal Rulemaking Process

10

needed, so we give it its due. But unless somebody at the table says, this is really going to help matters, this is really going to make things more efficient, or this is going to make things less expensive, it’s prob-ably not going to go anywhere.

On whether the Rules reflect the current state of litigation or anticipate what might be needed . . .Rosenthal: We generally don’t move that fast. And that’s good. It takes three years for even the smallest rule change, absent some sort of very unusual expedited approach. So we usually have the benefit of enough time to understand the consequences of what we are proposing. Now, if there’s a statute that we know is immi-nent or just passed, yes, we’ll make preparations. For example, when the recent bankruptcy reform act passed, that required immediate action and a huge number of rule changes. But we know the importance of really under-standing what is happening in the courts before we make a rule change.

Stotler: I think the rule amendments generally do bubble up from the real world of business and criminal proce-dure and it’s not usually the judges who are looking to make changes. You can take e-discovery as a prime example. All of a sudden, litigators and lawyers realized more than half of their discovery was now contained on a computer chip someplace. So those rules procedures were respon-sive to what the lawyers and litigants needed to have changed in order to make sure that when that case went to trial it has a fair, level playing field as far as the discovery goes.

Scirica: The Rules Enabling Act asks the Supreme Court to continu-ally monitor the rules, engage in a continuous study of the operation of the rules—and that’s what we

I N D E p T H continued from page 7

do. We get suggestions from judges, from lawyers, from academics as to whether the Rules are functioning properly and suggestions for their amendment. The Rules commit-tees are, at the same time, reacting to suggestions, reacting to changes in the practice of law, and they’re thinking of ways themselves to improve the rules.

Levi: When you’re devising rules for a litigation system, you have to realize that the system itself is a dynamic one that is ever changing. So, to expect that the rules would not change means that they were probably not speaking to the actual problems coming up in litigation. When that happens, there is a vacuum and something else will take the place. By and large, that some-thing else will either be local rules or orders that are developed by indi-vidual judges. If that continues, you get different districts diverging in their practice. If the rules don’t keep pace with the change in national litiga-tion, then lawyers and litigants will be deprived of that fundamental premise that the Federal Rules of Procedure are the same throughout the country.

On the interaction of the advisory committee and Standing Committee with Congress . . .Rosenthal: There are three kinds of exchanges between the courts and Congress established by the Rules Enabling Act. one, in which we say to Congress: “Here’s what we’ve done. Please look at it carefully. We’re happy to answer questions, but we would like you to do nothing so this can be enacted.” The second, in which we go to Congress and say, “Please affirma-tively enact this to help the rules work better.” And then the third, in which Congress wants to do something that would directly affect, by statute, the rules and we go to Congress and say, “Please don’t, and here are the reasons

we have.” All of those things are part of this partnership. It’s a partnership in which both sides make important contributions that take advantage of their distinct areas of expertise and the resources and processes that each can bring to bear.

Levi: one part of the rules process that isn’t obvious to outsiders is the amount of consultation with committee chairs and staff as to the rules that will be of interest to Congress. The invitation is always put out to Congress to attend conferences, perhaps to consider materials and empirical studies that have been devel-oped by the Federal Judicial Center, and to come to committee meetings where there may be information or testimony or a panel discussion.

Scirica: Like all treaties between powerful actors, there is bound to be tension and conflict. But in my view, the treaty performs admirably. Its success depends on a delicate balance of authority, on mutual respect, on cooperation between the Judicial and

Step 1 Step 2

• A suggestion is made for a change in the rules.

• It is referred to and considered by a Rules advisory committee.

• If approved, authority is sought from the Standing Committee to circulate it to bench and bar for comment.

• A public comment period, typically six months, follows.

• Public hearings are held.

The Third Branch n October 2009

Timeline of the Federal Rulemaking Process

11

Legislative branches of government. And, at least since the adoption of the 1988 amendments, the result has been deliberative rulemaking, largely insu-lated from the influence of raw political interests.

On transparency . . .Rosenthal: Particularly since 1988, when revisions were made to the Act, the Rules Enabling Act has ensured that there is inclusiveness and trans-parency. Instead of having small groups of people meeting privately, the participants in the entire process were expanded and sunshine became the rule. All of that has, of course, been increased exponentially by the Internet. Not only do we now have public access to what we’re doing, we have instantaneous and easy public access. With a push of button, we disseminate information about what we’re doing to everyone, and have comments and discussion carried on remotely, as well as in the public hearings. We have a much more robust public debate than could have been possible previously.

Scirica: The openness mandated by Congress plays a crucial role. It encourages the expression of different points of view and provides the constructive criticism essential for careful deliberative rulemaking. Each rule runs the gauntlet of painstaking drafting in both the Advisory and Standing Committees, always with the benefit of public comment from experts and generalists.

On the future of the Rules Enabling Act . . .Scirica: In its current form, the Rules Enabling Act is structurally sound, carefully administered, and, most importantly, has resulted in thoughtful rules. It is well worth preserving. But without comity and cooperation among all three branches of government, it cannot function. And comity requires continuing dialogue and mutual respect.

Levi: I would say that the Rules enabling system works very well. However, I think, particularly in the civil litigation area, that there’s a sense

I N D E p T H

of uncertainty about where we are heading. There are fewer trials—that’s of concern to many—and the system does seem unduly expen-sive. We have a set of rules that are designed for trial, and yet we know that most cases aren’t going to go to trial.

Rosenthal: Seventy-five years is a long time. It would be easy to take for granted the partnership between Congress and the Judiciary in the Rules Enabling Act, kind of like a very long friendship or a very long marriage. But, just like any successful partnership, this one requires very careful, indeed loving, attention. With full appreciation expressed to the other partner for the unique contributions that it makes, and with the mutual respect that a successful partnership requires to continue to be successful. Happy anniversary!

Step 2 Step 3 Step 4 Step 5 Step 6 Step 7

• In light of public comment, the Advisory Committee again considers the amendment.

• The amendment’s final form is approved and transmitted to the Standing Committee.

• The Standing Committee approves the amendment, with or without revisions, and recommends approval by the Judicial Conference.

• The Judicial Conference approves the admendment and transmits it to the Supreme Court.

• The Supreme Court has until May 1 to consider the amendment. It then goes to Congress for consideration.

• Congress may enact legislation to reject, modify, or defer the amendment.

• Absent Congressional action, the amendment becomes law on December 1.

FIRST CLASS MAILPoSTAGE & FEES

PAIDU.S. CoURTS

PERMIT No. G-18

FIRST CLASS

THE THIRD BRANCHAdministrative Office of the U.S. CourtsOffice of Public Affairsone Columbus Circle, N.E.Washington, D.C. 20544

oFFICIAL BUSINESSPENALTY FoR PRIvATE USE $300

Chicago Hosts First AO Select OrientationFor a week in September, 12 employees from the Administrative Office had the opportu-nity to experience first-hand the daily activ-ities of a federal court—in this case, the 7th Circuit Court of Appeals, the U.S. District and Bankruptcy Courts for the Northern District of Illinois, the district’s Probation and Pretrial Services Office, and the Com-munity Defender Office in Chicago. The participants in this first AO Select orienta-tion represented nearly every directorate in the AO, and were selected with the expecta-tion that their better understanding of the courts will promote a more effective work-ing relationship between the AO and the courts it serves.

Throughout the week, AO staff had the opportunity to watch court proceedings at every level. They discussed what they saw with judges, federal public defenders, and court executives; rode along with probation officers on client visits, and learned how staff attorneys, mediators, courtroom depu-ties, and other court staff perform their jobs.

The goal of the AO Select Orientation, according to AO Director Jim Duff, is for AO staff to “gain a greater awareness and understanding of the unique challenges faced by the courts and defender organi-

zations so that they can enhance the AO’s delivery of core services and programs for the courts, while expanding and strength-ening our partnership with the courts.”

After watching a sentencing in his courtroom, the Ao Select group members had their ques-tions answered by U.S. District Judge Charles R. Norgle, Sr. (N.D. Ill.) (photo left).