tv [untitled] CSPAN June 13, 2009 7:30pm-8:00pm EDT
private school tuition when their child had not previously received special education in a public school. next term we have already granted petitions in three cases from the second circuit. first, reid alfamerev. munchnik. then we will consider when the federal courts have subject right -- over class actions when most members of the class have not registered their copyrights. second in hemi group v. city of new york, we will consider whether the city can meet ricoh's standing requirements by alleging injury resulting from nonpayment of taxes. and third, shady grove orthodick associates v. all state
insurance company presents an issue procedure teachers will follow with rapt attention. may a state legislature forbid recourse to class actions for claims arising under state law but filed as diversity cases in federal court. well, that completes my report on the 2008 to 2009 term. and i invite judge livingston and judge cravitz to join me in conversation. [applause] >> you're watching c-span's america and the courts. next, seventh circuit chief judge frank easterbrook on the issues and challenges the seventh circuit has faced this past term and what's ahead in the new term. he spoke at the seventh
circuit's judiciary conference in indianapolis on may 18th. >> thank you. two speakers at lunch makes for a long program. and you want to hear from chief justice shepard, so i will be brief. the most significant change in the circuit during the last year is our decision to invite some district judges to sit with us after a hiatus of 15 years. we're doing this needs assistance. we can do our own work. and any way, asking active district judges to sit with the court of appeals doesn't increase the judiciary system's capacity, since time devoted to appeals is lost to the district court. the reason we're doing this is not a desire to ease an overload of work, but a desire to promote understanding and cleanallity. i've begun by inviting the more
recent appointees to the district court so that they can get better acquainted with how the court of appeals works, how the appellate process works, with who the judges of the court of appeals are, with how they think. and at the same time i've urged judges of our court to hear some trials, to go and learn more about how the trial process works. seems to me that judiciary system as a whole is stronger when its members have experience with the process from beginning to end, and the judiciary knowledge and insight yield benefits for litigants as well. so all of the circuit's district judges with five years or less of service have sat for two days on the court of appeals during the last few months. there are really quite substantial benefits when appellate judges and district judges get to know one another as colleagues instead of just people who meet occasionally at conferences like this or who engage in back and forth in
their opinions about why the other made some hideous legal error. working cooperatively helps us, and i think that means it helps you. my plan is to invite next fall and winter district judges who were appointed between six and 10 years ago, plus awe newly-appointed district judges, roughly six months after they joined the bench. but i don't plan to invite any district or circuit judge from outside the circuit. those kind of invitations wouldn't have the benefits i've mention. and as we proceed along this path, i would welcome any reactions you have to this program. we always try to keep our ears open. we've got a quite a lot of years on the court of appeals, not just mine but those with all of my colleagues. so i hope you will pass on to me and my colleagues any reactions you have about whether you perceived this to be a benefit to the bar or a detriment.
now, there's another subject on which your assistance would help the court. this is something i mentioned at my state of the circuit address last year. and i want to emphasize again. judges, alas, are not immune to the risks of aging. and when a judge slows down, i need to know it. often the cause, we have found out, is a drug prescribed for a medical condition without awareness of a side effect, such as drowsiness, that can interfere with judicial work. and when that's so, a simple intervention such as a different prescription, may be very effective. other issues may be harder to cure but are no less important. you should feel free to talk to me, to collins fitzpatrick, our circuit executive, or to the board of the seventh circuit bar association, which has agreed to serve as an intermediary if you prefer and none imity. but before i know how well the judges of this court are functioning the better we can
administer justice. this morning gino manuel low gave his report about the courts' functions. i want to show the highlights which show i think that 15 courts of this circuit are in good shape. first and most important, court of appeals, the district courts and the bankruptcy courts, are current in their work. this isn't to say that some cases may not take too long. it isn't to say that there's no room for improvement. but i think we can be proud of the judiciary's everyday performance. this is possible in large part because case loads have remained reasonably steady. during the 1970's, for example, appeals rose about 9% per year. and with compounding that was deadly. i concentrate on the court of appeals but the numbers are very similar for the district judges. after all, appeals are coming from case closures in the district courts. so please excuse my concentration on appellate numbers. during the 1980s appeal rose
about 5% annually. but since then the annual rate has been 3% and under. a bad year, such as 2005, when appeals rose about 15% is balanced by good years such as 2006 and 2007 when appeals fell 10% per year. there was a 8% increase in appeals last year. and the upshot of that is that the seventh circumstance nut 2008 heard almost exactly -- circuit in 2008 heard almost exactly as many appeals as in the year 2000. in the district courts of the circuit, new filings rose last year by an average of 3.5%. the first increase after six years of declining litigation. we much appreciate the fact that you see less need to file litigation. we hope that's because our precedent is in good shape. but we can keep the system running as long as the docket
remains reasonably stable. and of course, a reasonably stable docket has other benefits for how well the court can operate. again, think of the -- i'll mention some numbers from the court of appeals. last year the seventh circuit heard oral argument in 57% of all appeals. and that is fundamentally all cases where there are lawyers on both side. there are few exceptions for cases covered by very recent decisions of the supreme court. but if you have a case where there are lawyers on both side you can expect that your case will be argued in the seventh circuit. no other court of appeals came close. the next-highest number is 45% in the d.c. circuit. and there are several courts of appeals that don't hear oral argument in even 20% of their cases. the fourth circuit for example heard arguments in 15% of its appeals. there is of course a tradeoff. that means that oral arguments
in the seventh circuit are short. we allow 10 minute per side arguments. the judges insist that lawyers get to the point. but i do think that those costs are worth bearing. the tradeoff, having a very leisurely oral argument, would put us down in the 20% range rather than the 57% range. our circuit also explains it is. last year the court of appeals issued 93 published opinions back in 2008, more than any other circuit. the ninth circuit which has three times as many judges and oodles of visitors issued 672 published opinions. seventh circuit publishes opinions in 51% of all appeals. the national average is 19%. i think those numbers speak for themselves. the court also continue well in outside measures of quality such as success when viewed by the supreme court and in -- in other
courts in the circuits. likewise the district courts are current and productive and again much aided by the stability -- not only by the stability of the caseload but by the fact that president in the senate of the three -- the senators from the three states of this circuit have avoided the wrangling that has afflicted other courts of appeals. -- and district courts. the fourth circuit, for example, has had one seat vacant since 1994. and another seat vacant since 2000. nothing like that has plagued any court within this circuit. we don't have quite full employment, but we are close to that. the coming year may pose a test, however. as many of you know, the western district of wisconsin will have a complete turnover in 2009. judge shabaz took senior stat news january and chief judge crab will take senior status effective on the appointment of
her successor. filings in western wisconsin went up 7% last year, and effective judiciary capacity fell by 50% because of medical leave. a crisis in that court has been averted only by the assistance of many other district judges in the circuit who have been pinch hitting. judges griefbach, statnewlier and -- all agreed to try cases in wisconsin last year. several arguments left them off the hook but without their willingness to pitch in the cases wouldn't have settled. and district judges moody and adelman are working on -- the southern district of end also faces hard times. it has -- of indiana faces hard times. it has five authorized position, but need more. it's among the district's busiest per filings per judge and has held its own only through superhuman efforts. this year there will be two
vacancies. david hamilton of chief judge has been nominated to the seventh circuit, and larry mckinney will take senior status in july. we hope the political positions will fill these positions promptly and with luck the political positions may add the needed sixth seat. i've mentioned that workload and the judges' long hours, despite modest compensation, we expect the active judge toss work hard and they surely do. but we have no right to expect but truly receive is the dedicated service of our senior judges. five senior judges of the court of appeals continue to provide help. 21 senior district judges are hard at work, and several recalled magistrate and bankruptcy judges likewise perform essential services. i'd like all our senior and recall judges to stand up and receive the recognition they richly deserve. [applause]
>> i close today, as is custom air, by mentioning some judiciary milestones. as i call your name please rise. but i'd like you to hold applause to the end. on the court of appeals, judge kenneth rip el took senior status after 23 years. he continues to carry a heavy caseload while also volunteering his services to other circuits. david hamilton has been nominated as his successor and we look forward to his confirmation. he's on the judiciary committee's agenda this week. and he should be reported to the floor then. in the northern district of illinois, judge robert get willman took senior status this month. judge david core will do so in august. -- david ashman will take senior
status in june and all will continue to serve. in the southern district of illinois, bankruptcy judge kenneth myers took senior stat news february but continues to serve as -- continues to serve as a recall judge. i already mentioned the senior status of judge mckinney in the southern district of indiana, and the senior status actual or pending of both chief judge crab and shabaz in the western district of wisconsin. one other change in western wisconsin, peter op is the new clerk and david blackwelder is the new clerk in the -- please join me in a round of appreciation. [applause] >>ly turn the program over now to the chief justice and i'll see you all next year in chicago. [applause] >> you're watching c-span's america and the courts.
next u.s. district judge royce lambert on salaries of federal judges and the confirm, process. he spoke at the u.s. district courthouse in washington, d.c. last march. this is a portion of the discussion. >> i really do want to talk about -- what i really want to talk about today is how we get more judges like tom flannery. and i don't mean just judge flannery. i mean judges like judge william bryant for whom our annex is named and joyce green and colleen fatelli. appointed by district judges as -- foreign intelligence veins court by chief justice rehnquist. judge flannery and the other judges i have named all share the view that federal judges should be neutral and should strive to apply neutral principles in their decision making. their personal views had to be and were set aside. they applied the constitution
and followed the law. chief justice roberts has spoken eloquently about the need for adequate pay for judges if we are to attract and retain more tom flannerys. i don't need to rye to supplement what the chief judge has stated on that point, and i hope to not undercut it by anything i say today either, frankly but last week at the university of idaho, chief justice roberts spoke about the judiciary nomination and confirm, process. the chief justice talked about how the process of appointing new justices to the supreme court has become polarized and politicized as senators try to pin down how a nominee might vote on particular issues. the chief justice expressed the view that judiciary nominees should not be expected to provide detailed i'd logical information during the -- i'd logical information during the confirm, process -- since judges are expected to be impartial in
hearing the case that is come before them. i agree with the chief justice. but i want to say more. the process for picking federal judges is totally broken, and it badly needs to be fixed. i think there's a great deal of merit to the editor in the los angeles times on february 8th calling for an end to the judge wars, and to move beyond parties in battle over nominations to the federal courts. the los angeles times observed that if president obama wants to deliver on the bipartisanship he promised he should focus on the process for selecting federal judges. i was nominated in march 1987 in the partisan fight in the senate over my nomination lasted six months and ended in a political compromise that allowed my nomination to be brought to a floor vote just before the senate recessed in november 1987. but that six-month fight over me pails in comparison to what occurs now. two years or even four years and
other lengthy political battles over judges are no longer unusual. it hasn't mattered which party controls the white house or the senate. the paybacks and the bickering have been thoroughly bipartisan. republicans are still seething about the way judge bork and justice thomas were treated. democrats are still seething about the way the republican-controlled senate blocked or delayed some of president clinton's judiciary nominees. republicans complain that the democrats seeking revenge oppose mainstream and well-qualified judiciary nominees of president bush. i will tell you as an independent observer that both parties are right. i think president obama and the democrats who now control the senate should recognize that excessive partisanship can fuel fire. it certainly has in the past. and republicans also need to recognize that fact. i think it's time for democrats and republicans alike to join
with administration and try to stop this war. an impartial federal judiciary should be the goal of both political parties. the appointment of the most qualified nominees available should be the goal of all americans. the long delays and partisan bickerings that have dissuaded some very capable lawyers from pursuing federal judgeships are a crime. we should be striving for the best and the brightest, outstanding lawyers who can be fair and impartial judges. i have to say that i think senator obama's opposition to the confirm, of chief justice roberts and justice alito was most unfortunate. i have to say that i disagree with candidate obama's comments about what he would look for when appointing judges. that highly difficult legal cases can only be determined on the bases of one's deepest values, one's core concerns, one's broader perspective on how the world works, and the depth
and health of one's sympathy. all of those are good qualities for elected officials and appointed executive officials but not the qualities needed for judges. we need judges who will set aside their personal political views and who will apply the constitution and the law fairly and impartially with the cases pending before them. the christian science monitor had an editorial on february 18th agrees. the newspaper noted that candidate obama said judges should use the constitution for social policy. judges, candidate obama said, must have the heart, the empathy to understand what it's like to be poor or african-american or gay or disabled or old. the newspaper noted that while such empathy is necessary for presidents or legislators, it runs counter to the judicial oath. judges must administer justice without respect to person and due equal right to the poor and to the rich.
the newspaper cites a rasmus enpoll from january of this year that found that nearly two-thirds of the american people think that court rulings should be based on what is writment constitution, but only one-third believe that president obama's belief agrees with them. i hope that president obama will reflect further on this subject. i know he'll be receiving advice from our esteemed attorney general, and the counsel of the president, greg craig, one of the brightest and best lawyers who ever appeared before me. and although the first nomination hasn't been made yet, i am very heartened by a "new york times" article last week. with considerable hand wringing, citing officials who spoke on the condition of and none imity because naming judges involves a delicate political process, involving senators among others, the "new york times" observed that at least so far the candidates being considered by
the obama white house for early nomination do not appear to have a special ideological profile. for that i say hooray. the nominations are of course just the first step because of the senate's role to advise and consent it certainly makes sense for the white house to consult with senators before the nomination is finalized. and for district judges at least there's a tradition of considerable senatorial courtesy. but courtesy is one thing. for the president to totally abdicate his constitutional power to nominate is not wise. and those who want to submit only one name for the president's consideration rather than three or a panel are asking the preses to totally abdicate his role in the process. the president should rightfully refuse such entreaties. presidents, however, still has to get his nominees confirmed. the 41 republicans in the senate sent president obama a letter on march 2nd in which they said
"we look forward to working with you as you consider nominees for the federal judiciary." they went on to say that unfortunately the judicial appointments process has become need lessly ack moanious. we would very much like to improve this process and we know you would as well. it is in that spirit that we write -- early on." the republicans then went on to request two steps the administration can take to achieve that stated goal. but before the white house had the opportunity to respond to the republicans' letter or even receive it as far as i know, an interest group was already quoted in news accounts as saying the letter seems the republicans as the party of no and said that voters gave president obama a mandate to appoint judges who understood that constitution and laws provide for equal justice for all. that kind of interest group reaction is exactly what causes or creates the poisonous
atmosphere that exists today in the senate judiciary committee. indeed, it is reliablely reported that the interest groups on both sides feed questions to senators on all the hot button issues that divide our country: abortion, gay rights, guns, separation of church and state, death penalty. and then stand in the committee room to make sure that their senator performs adequately according to the script. as might be expected, the "new york times" has already run its editorial on march 9th condemning the letter from the senate republicans. i hope our esteemed attorney general can persuade the white house to take the republicans' letter as an effort to engage in a genuine dialogue, not as a threat to filibuster, and hopefully that's what the republicans have in mind. having now shot off my mouth on the subject,ly do my part. we have two republican senators from texas. i'll make an effort to convey my views to both of them. senator kay bailey hutchinson
was in my class at law school at the university of texas and we've been friends ever since. and senator john corn anyone is on the senate judiciary committee. he could play the key role in helping move us to a new approach on judicial selections. i understand they've met with the president's counsel about judiciary vacancies in texas. i hope i can persuade them to play a broader role in putting an end to the current way of doing business. currently 67 vacancies in the federal courts and 22 of those are characterized as judicial emergencies. based on the size of the caseload and the amount of time the seat has been empty. short-handed courts cannot function properly, and many litigants who face lengthy delays and crowded dock et cetera are ultimately denied the justice they seek. the d.c. circuit has two vacancies, including the seat vacated by chief justice roberts. the district court has three vacancies. judge kessler's slot from two
years ago, judge holden who -- and judge robertson who took status on december 31st. our court is swamped with guantanemo cases which have been too long delayed and which we are currently trying to expedite. the result is we don't expect to try virtually any civil case this spring or summer, and only criminal cases where the speedy trial act dictates trial now. we need new judges u just as many other courts do. the partisan bickering over who -- who and when eventually resulted in the confirmings hearings where the wife of the judicial nominee left the hearing room in tears because of the smears of her husband's good name and reputation. that really has a powerful and negative impact on persuading the best and the brightest to undertake the process of becoming a federal judge. one nominee that i know whose nomination lapsed told me that she asked the president not to resubmit her name to the new congress because she found the
senate confirm, process to be so demeaning. escalating smear tactics and partisan grandstanding need to stop. and we need to end the war over selection of judges. the timing is right for a joint agreement to stop. i say to both republicans and democrats, you're injuring the federal judiciary. for the sake of our country, which needs a fair and impartial and independent judiciary, stop and stop this year. i want to end my talk today with some words spoken by judge flannery in response to an interviewer's question about his ruling in certain civil liberties cases including one involved a so-called squeal rule for abortions. judge flannery said, "i'm guided by the opinions of the higher courts. the court of appeals and the supreme court. i might disagree with an opinion of the higher court, but under my oath as i understand it i don't make the law, i follow the law and interpret the law.
i might not be sympathetic to a particular little gant's theory, but i apply ply existing law until a higher court of the legislature changes it. you mentioned my ruling of a so-called squeal rule case. because of my catholic upbringing and background, i personally disagree with those who advocate unrestricted birth control and abortions. that wouldn't stop me from following the law as laid down by a higher court, although it might be different from my personal beliefs. i think you have divorce your personal beliefs and views from what the law requires. i operate on that principle." that was judge flannery. he was my role model. that's why he was respected and loved by everyone in this room. thank you very much. [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute]
>> the government funding of direct aid to colleges and their students really is a late 1950s, early 1960s thing that has grown very rapidly since then. >> hills dale college has never accepted government funding. and today not even government-backed student loans are permitted. >> title iv of the higher education act is 400 roughly pages long. yet we have a lawyer here in town who tries to keep the government from giving us money. and i went to ask him to send me title iv. he said it wasn't any use. i wouldn't be able to read it. >> hills dale college pred larry