EMBARGOED FOR RELEASE
January 1, 2003, 12:01 a.m. E.S.T.
2002 YEAR-END REPORT
ON THE FEDERAL JUDICIARY
The 2002 Year-End Report on the Federal Judiciary is my 17th. As I look back on these reports, I am struck by the number of issues that seem regularly to crop up, or perhaps they never go away -- judicial vacancies, the need for additional judgeships, judges' salaries, judicial appropriations. Each of these issues relates to the fundamental
interdependence of our three separate branches of government when it comes to funding our nation's priorities. Although Article III of the Constitution of the United States protects federal judicial independence by promising district and appellate judges tenure during good behavior and "a Compensation, which shall not be diminished during their Continuance in Office," the federal courts of course depend on the Legislative and Executive Branches for funding and staffing. I am
concerned about the effect of the current budget impasse on the courts and reiterate my request that Congress extricate the Judiciary by promptly passing a full-year appropriation that addresses the needs of the federal courts.
In this report, I will focus on three key priorities for the federal Judiciary: creating sorely needed new judgeships, promptly filling judicial vacancies, and increasing judicial pay.
II. Creating Necessary New Judgeships
In my last two Year-End Reports, I expressed hope that Congress would take action on the Judicial Conference's request to establish ten additional court of appeals judgeships, 44 additional district court judgeships, and 24 new bankruptcy judgeships. We are grateful that in November, Congress created eight permanent district court judgeships and seven temporary district court judgeships, converted four temporary district court judgeships to permanent status, and extended one temporary district court judgeship for an additional five years.
But no additional court of appeals judgeships have been created since 1990. Despite a substantial increase in workload, the number of judgeships in the Courts of Appeals for the First, Second, and Ninth Circuits has not increased for 18 years -- since 1984. During that time period, appellate filings in the First Circuit have risen 56%, in the Second Circuit they have risen almost 70%, and in the Ninth Circuit appellate filings have more than doubled -- rising almost 115%. The Judicial Conference has asked that Congress create one new judgeship for the First Circuit, two judgeships for the Second Circuit, five for the Ninth Circuit, and two for the Sixth Circuit, which has had only one additional judgeship since 1984.
No new bankruptcy judgeships have been created since 1992, although the number of cases filed has increased by over 570,000 since then. In 1992, each bankruptcy judge handled an average of 2,998 cases; each now handles an average of 4,777 cases.
I urge the 108th Congress to act on all of the pending requests for new judgeships during its next session.
III. Promptly Filling Vacant Judgeships
I spoke to delays in the confirmation process in my Year-End Report in 1997 and again last year. As I have noted in previous reports, to continue functioning effectively and efficiently, our federal courts must be appropriately staffed. This means that judicial vacancies must be filled in a timely manner with well-qualified candidates. We appreciate the fact that the Senate confirmed 100 judges during the 107th Congress. Yet when the Senate adjourned, there were still 60 vacancies and 31 nominations pending.
With the same party now controlling the White House and the Senate, some will think the crisis has passed and that the confirmation process does not need to be fixed. Be that as it may, there will come a time when that is not the case and the Judiciary will again suffer the delays of a drawn-out confirmation process. On behalf of the Judiciary, I urge the President and the Senate to work together to fix the underlying problems that have bogged down the nomination and confirmation process for so many years. It is of no concern to the Judiciary which political party is in power in the White House or the Senate. We simply ask that the President nominate qualified candidates with reasonable promptness and that the Senate act within a reasonable time to confirm or reject them.
IV. Increasing Judicial Pay
Despite my annual entreaties, there has been no effective action taken to resolve the mounting problem of judicial and other high-level Executive and Congressional pay. In fact, unless the 108th Congress acts, judges will not even receive the cost-of-living adjustment that nearly every other federal employee will receive during 2003. But I am hopeful that during the next year, a real solution to the pay crisis can be achieved.
At the risk of beating a dead horse, I will reiterate what I have said many times over the years about the need to compensate judges fairly. In 1989, in testimony before Congress, I described the inadequacy of judicial salaries as "the single greatest problem facing the Judicial Branch today.'' Eleven years later, in my 2000 Year-End Report, I said that the need to increase judicial salaries had again become the most pressing issue facing the Judiciary. It remains the most pressing issue today. We cannot continue to use an arrangement for setting pay that simply ignores the need to raise pay until judicial and other high-level government salaries are so skewed that a large (and politically unpopular) increase is necessary. This salary crunch also affects others in the public service by artificially compressing the salaries of those whose pay is tied to these higher salaries.
Inadequate compensation seriously compromises the judicial independence fostered by life tenure. That low salaries might force judges to return to the private sector rather than stay on the bench risks affecting judicial performance -- instead of serving for life, those judges would serve the terms their finances would allow, and they would worry about what awaits them when they return to the private sector.
This is not a hypothetical concern: According to the Administrative Office of the United States Courts, more than 70 Article III judges left the bench between 1990 and May 2002 -- either under the retirement statute if eligible or simply resigning if not -- as did additional numbers of bankruptcy and magistrate judges. During the 1960s, only a handful of Article III judges retired or resigned. Although we cannot say that the judges who are leaving the bench are leaving only because of inadequate pay, many of them have noted that financial considerations are a big factor.1 The fact that judges are leaving because of inadequate pay is underscored by the fact that most of the judges who have left the bench in the last ten years have entered private practice.2 There will always be a differential between government and private sector pay for excellent lawyers. But the Judiciary, in particular, will be compromised if there is too wide a gap. At the present time there is not just a gap, there is a chasm.
We do not want experienced judges to leave because they cannot afford to put their children through college or because their salaries are eaten away by inflation. It is not fair to the judges or to those who have litigation in the federal courts. Every time an experienced judge leaves the bench, the nation suffers a temporary loss in judicial productivity. It takes time for a new judge to gain the experience necessary to judge well and manage an ever-increasing docket efficiently. The judicial system benefits from the infusion of new judges required when judges leave after a lifetime of service. But our system cannot long tolerate the regular loss of experienced, seasoned judges now occurring.
Diminishing judicial salaries affects not only those who have become judges, but also the pool of those willing to be considered for a position on the federal bench. I am not suggesting that there is a shortage of lawyers lined up to apply for vacant judgeships. But many of the very best lawyers, those with a great deal of experience, are not willing to accept a position knowing that their salary will not even keep pace with inflation. Our judges will not continue to represent the diverse face of America if only the well-to-do or the mediocre are willing to become judges.
I recognize that the salaries of federal judges are higher than those in many occupations, and that some may be skeptical of the need to raise the salaries of judges who already earn at least $150,000 per year. But it is not fair to compare judges' salaries to salaries in other occupations. Those lawyers who are most qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges. I am not suggesting that we match the pay of the private sector -- but the large and growing disparity must be decreased if we hope to continue to provide our nation a capable and effective federal judicial system. Providing adequate compensation for judges is basic to attracting and retaining experienced, well-qualified and diverse men and women to perform a demanding position in the public service. We need judges from different backgrounds and we want them to stay for life.
The federal Judiciary in the past has been able to attract experienced and able lawyers who have had extended and successful experience in the private sector. Their experience in that sector brings a perspective and an independence that is vital to the Judiciary. But it is these potential candidates who are deterred by the current level of compensation. Although we cannot hope to come close to the amount they earn in private practice, the appeal of public service makes up a good deal of the difference. That appeal is not enough at the present level of compensation.
During the past year, the National Commission on the Public Service, chaired by Paul Volcker, has been looking into various issues relating to restoring and renewing the public service, including pay. Justice Stephen Breyer and I, along with Chief Judge Deanell Tacha of the Court of Appeals for the Tenth Circuit, testified before the Commission last July, focusing on the critical need to raise judicial pay in order to continue to attract well-qualified nominees to the federal bench and to keep them there for life. It is obvious that the current approach to judicial and other high-level salaries does not work. I hope that the Volcker Commission will suggest a way for the government to implement a permanent solution. And I urge the Congress and the President to take up this issue early in the new year.
V. The Year in Review
The Supreme Court of the United States
As I noted last year, the infrastructure of the Supreme Court's building has not been changed in any basic way since the building was opened in 1935. I remain hopeful that the remaining funds necessary to implement our building modernization program, which has been in the planning stage for several years, will be included in our Fiscal Year 2003 appropriation. Significant safety and security upgrades to the Supreme Court building are included in the project and should not be delayed.
The total number of case filings in the Supreme Court increased from 7,852 in the 2000 Term to 7,924 in the 2001 Term -- an increase of 1%. Filings in the Court's in forma pauperis docket increased from 5,897 to 6,037 -- a 2.4% rise. The Court's paid docket decreased by 68 cases, from 1,954 to 1,886 -- a 3.5% decline. During the 2001 Term, 88 cases were argued and 85 were disposed of in 76 signed opinions, compared to 86 cases argued and 83 disposed of in 77 signed opinions in the 2000 Term. No cases from the 2001 Term were scheduled for re-argument in the 2002 Term.
The Federal Courts' Caseload
The federal courts experienced record levels of activity in 2002. Significantly affected were the U.S. bankruptcy courts, where the number of filings grew 8% -- from 1,437,354 to 1,547,669.3 Civil filings in the U.S. district courts climbed 10% to 274,8414 and criminal cases rose 7% to 67,000 with the number of defendants growing 6% to 88,354.5 The number of persons on probation and supervised release went up by 4% to a new record of 108,792.6 This increase was matched by a 4% gain in the number of defendants activated in the pretrial services system.7 Filings in the 12 regional courts of appeals increased 0.2% to 57,555, another all-time high.8
VI. The Administrative Office of the United States Courts
The Administrative Office of the United States Courts serves as the central support agency for the administration of the federal court system. One of the Administrative Office's key priorities has always been to secure adequate funding for the Judiciary from Congress. As I noted above, the fiscal year 2003 budget process has been a difficult one, and it still has not been resolved. Despite the efforts of Judge John Heyburn, II, chair of the Judicial Conference's Budget Committee, Director Leonidas Ralph Mecham, his staff, and many others, the Judiciary, like most of the federal government, is currently operating under a continuing resolution. Because there continues to be uncertainty over the level of funding that will be provided to the Judiciary in 2003, agency staff are closely monitoring funding issues.
Since 1985, over $5 billion has been appropriated for 75 courthouse projects. Eleven additional projects totaling more than $300 million are likely to be funded by Congress in 2003 based on last year's request, and 26 buildings will be requested by the Judicial Conference this year for fiscal year 2004. Despite this level of success, there is still a significant backlog of projects. Administrative Office staff and the Judicial Conference Committee on Security and Facilities have revised the way projects are prioritized in the Judicial Conference's five-year courthouse construction plan to ensure that the most critically needed projects are considered by Congress.
This past year, a primary focus of the Administrative Office was to enhance court security and emergency preparedness. The Administrative Office created court security and emergency preparedness Web sites to provide timely security-related information to the courts, it broadcast security-related and emergency preparedness programs over the Federal Judicial Television Network and provided numerous briefings for judges and court managers. With the help of an independent consultant and the courts in New York, a continuity-of-operations model plan was produced to assist courts nationwide in developing their own individual plans. The model plan lays out steps to be taken to safeguard the welfare of Judiciary employees and the public and to ensure that essential functions and activities can continue and that normal functions can resume as quickly and safely as possible.
Director Mecham has spearheaded the decentralization of administrative and budgetary authority to the courts, and implemented modern automated systems to meet changing needs of the courts and their users. The delegation of management authorities from the Administrative Office has given courts considerable flexibility regarding the expenditure of funds and the hiring of personnel. Last year, a Management Oversight and Stewardship Handbook was published and training on management oversight was provided to chief district judges and chief bankruptcy judges. This year, a companion program for court executives was launched. In addition, a number of actions were taken this year to strengthen internal controls, including revising policies regarding contracting and procurement, property management, travel and transportation, time and attendance, and the appropriate use of government equipment, including information technology.
Another key Administrative Office responsibility is developing, implementing, and supporting new systems and technologies for the courts. A significant project underway is the continuing implementation of case management/electronic case files systems, which began in the bankruptcy courts in 2001. These systems will provide appellate, bankruptcy, and district courts with both a new case management system and the ability to manage electronic case files. The Administrative Office also completed installation of a new national electronic mail system, which includes a security feature that allows a sender to encrypt an outgoing message so it may only be read by the intended recipient. An automated jury management system has now been implemented in district courts and a new case-management system for probation and pretrial services offices has been installed in more than 20 districts.
VII. The Federal Judicial Center
The Federal Judicial Center is the federal courts' statutory agency for education and research. A few highlights of its work in 2002 include:
Public understanding of the judicial process -- Its interactive Web site, "Inside the Federal Courts," available at www.fjc.gov, helps federal court employees, as well as the media and citizens of this and other countries, understand the Judicial Branch's structure and operation. An 18-minute video, An Introduction to the Patent System, is now available for judges who wish to show it to jurors to help explain patents and the patent process. Bar associations are making copies available to lawyers and the public.
Education for federal judges and court personnel -- In 2002, at least 16,600 federal judge and support staff participants received orientation and continuing education through over 300 national, regional, and local seminars, and an estimated 7,500 viewed FJC programs on the Judicial Branch television network. These, along with publications, Web-based programs, and video and audiocassettes covered topics as diverse as redistricting, mediation, scientific evidence, federalism, law and the Internet, cyber terrorism, and supervision of sex offenders. (The Center also provided six programs for over 850 federal defenders, assistant defenders, and their staffs.)
Judicial Ethics -- Two publications provided guidance to judges and law clerks: Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144 and Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks. The Center, with the assistance of Administrative Office staff, provided a report requested by the chair and ranking member of the House Subcommittee on Courts, the Internet, and Intellectual Property on chief judges' public orders under the Judicial Conduct and Disability Act of 1980.
Technology in the litigative process -- At the request of a Judicial Conference committee, the Center is assessing the Conference's Criminal Case Files Pilot Program to identify whether on-line availability of criminal case files might pose special dangers to witnesses and others. The Center's courtroom technology project, which last year produced Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial (with the National Institute for Trial Advocacy), this year began an analysis of the perceived need for increased use of videoconferencing in federal criminal proceedings and the possible impact on trial rights.
Civil litigation -- A range of projects is in place to help a Conference advisory committee determine how, if at all, the federal rules should regulate discovery of information and evidence in digital form. Requests of other Conference committees led to assessments, currently underway, of class action filings, and of court orders to protect release of information about settlements.
Alternatives to traditional litigation -- To help federal court alternative dispute resolution administrators implement the 1998 Alternative Dispute Resolution Act, the Center is producing an ADR manual, model referral orders and other forms, model local rules, guidance for selecting and training ADR neutrals, and questionnaires for evaluating ADR programs.
Interjudicial relations -- Pursuant to statute, the Center staff worked with the Department of Justice to assess the effectiveness of the State Justice Institute, a private non-profit organization that Congress established to improve justice in state courts. The Center presented seminars or briefings for 522 foreign judges and officials representing 81 countries. More specific assistance included a two-day seminar for representatives of the Mexican Instituto de la Judicatura and the Canadian National Judicial Institute, a follow-up to the September 2001 judicial exchange in Mexico that I led, and collaboration with the Center for Russian Leadership at the Library of Congress on a series of exchange programs for Russian judges and law professors. (The Center does not use its own funds for these activities' direct costs.)
New director -- U.S. District Judge Fern M. Smith has announced her intention to return to San Francisco next July, when she completes four years of service as the Center's director. Judge Smith has been an able and dedicated director and on behalf of the federal Judiciary, I thank her for her exceptional service. The Center Board, which I chair, will announce the selection of a new director in February.
VIII. The United States Sentencing Commission
During the past year, the United States Sentencing Commission set up two ad hoc advisory groups on significant guideline topics, with both groups slated to operate for 18 months. In February, the Commission announced the formation of the Ad Hoc Advisory Group on Organizational Guidelines whose mission is to review the general effectiveness of the federal sentencing guidelines for organizations and corporations. In May, the Commission announced the formation of the Ad Hoc Advisory Group on Native American Issues to consider methods to improve the operation of the federal sentencing guidelines in their application to Native Americans prosecuted under the Major Crimes Act.
On May 1, 2002, the Commission submitted to Congress a package of guideline amendments that provide sentencing increases and/or expanded coverage for a number of offenses. The amendments went into effect on November 1, 2002. The Commission adopted a multi-part amendment in response to the USA PATRIOT Act, providing severe penalties for a host of terrorism offenses, including offenses against mass transportation systems and interstate gas or hazardous liquid pipelines. It also increases sentences for terrorist threats that substantially disrupt governmental or business operations or result in costly cleanup measures. The Commission also expanded guideline coverage of offenses that involve bioterrorism, including a new guideline to cover the provision of material support to foreign terrorist organizations.
In response to concerns raised by the Executive Branch and by Native American tribes that the guidelines inadequately addressed offenses involving cultural heritage resources, the Commission developed a new guideline that specifically covers such crimes. Other areas of Commission action included sex trafficking, money laundering, and drug trafficking. Also in May 2002, the Commission provided Congress with a comprehensive 112-page report on cocaine sentencing issues.
On August 28, 2002, the Commission adopted its policy priorities for the amendment cycle ending May 1, 2003. The Commission primarily plans to respond on an emergency basis to the Sarbanes Oxley Act of 2002 and to the Bipartisan Campaign Finance Reform Act of 2002, to continue implementation of the USA PATRIOT Act, to respond to the Public Health and Security and Bioterrorism Preparedness and Response Act of 2002 and to the Terrorist Bombings Convention Implementation Act of 2002, and to continue its work on several studies reflecting the operation of the guidelines over the past 15 years.
One of the Commission's statutory obligations under the Sentencing Reform Act of 1984 is to train criminal justice professionals in guideline application. In carrying out this responsibility, the Commission sponsored, with the Federal Bar Association, the Eleventh Annual National Seminar on the Federal Sentencing Guidelines, attended by more than 400 participants. Commission staff also trained thousands of individuals at many sessions across the country (including ongoing programs sponsored by the Federal Judicial Center and other agencies). Commission staff continue to work collaboratively with the Federal Judicial Center and the Administrative Office of the U.S. Courts to plan and develop educational and informational programming for the Federal Judicial Television Network. Throughout the year, the Commission's telephone "HelpLine" provided guideline application assistance to approximately 200 callers per month.
The appointments of Commissioners Sterling Johnson, Jr., and Joe Kendall expired October 1, 2001, but both continued to serve under the governing statute until Congress adjourned sine die on November 22, 2002. Their departure pares the number of voting commissioners down to five members, making it harder for the Commission to function effectively. I encourage the President and the Senate to act swiftly to fill these two vacancies.
We lost a good friend and a dedicated public servant during the last year. Justice Byron R. White passed away on April 15, 2002. Justice White was the 93rd Justice to serve on this Court and the first to have served as a Supreme Court law clerk. He served on the Court for more than 31 years. Justice White was a rare combination of brilliant scholar and gifted athlete. He was an able colleague and a valued friend who will be missed by all who knew him.
All of us in the Judiciary can look back upon the year ended as one of many accomplishments. Despite rising caseloads, too many judicial vacancies, and too few authorized judgeships, our courts continue to deliver the highest quality of justice and to serve as a standard of excellence throughout the world. My thanks go out to all of the federal judges and court staff around the country whose dedication and professionalism keeps our courts running so well.
I extend to all my wish for a happy New Year.
1 See, e.g., "Insecure About Their Future: Why Some Judges Leave the Bench," The Third Branch, Vol. 34, No. 2, February 2002.
2 June 14, 2002, Statement of Leonidas Ralph Mecham, Secretary of the Judicial Conference of the United States, submitted to the National Commission on the Public Service, at p. 7; "Federal Judicial Pay Erosion - A Report on the Need for Reform," by the American Bar Association and the Federal Bar Association, February 2001, p. 15, n. 46.
3 The 1,547,669 filings represent a new all-time high. Nonbusiness filings increased 8% and business petitions rose 2%. Filings under chapter 7 increased 7%, filings under chapter 11 increased 11%, and filings under chapter 13 increased 10%. Bankruptcy filings have risen 72.5% since 1993.
4 Filings involving federal question jurisdiction increased 18%, chiefly as a result of personal injury cases quadrupling to 29,636. Most of these cases were related to asbestos filings, where marked increases occurred nationally. Diversity of citizenship filings increased 16%, with personal injury cases, which grew by 32%, accounting for most of the increase. Most of these cases were filed in the Eastern District of Pennsylvania and the District of Minnesota. During the past year, both of these districts reported substantial increases in new filings related to the Bayer Company, with filings in the Eastern District of Pennsylvania rising by more than 3,500 cases and the District of Minnesota reporting more than 2,000 new filings. In anticipation of continued growth in these cases, they are being transferred to the District of Minnesota under Multidistrict Litigation Docket Number 1431 after being filed in their respective local jurisdictions. Despite the overall increase in civil filings, excluding personal injury, civil filings decreased 2%. Filings involving the United States as plaintiff or defendant dropped 15%, mostly because of a 36% decline in cases with the United States as plaintiff. Most of these filings involved the United States seeking the recovery of overpayments and enforcement of judgments related to defaulted student loans, which fell by 60%. Filings with the United States as defendant decreased 3%, mostly due to a sharp decline in federal prisoner petitions, which fell 17%. Despite the overall decline in U.S. defendant-based filings, Social Security filings increased 7%, primarily as a result of a 13% increase in supplemental security income filings. Over the last ten years, civil filings have increased 20%.
5 Nationwide, criminal filings rose in 65 districts, with 50 districts receiving 10% more filings than they did in 2001. Criminal cases per authorized judgeship rose from 94 to 101. During the last nine years, criminal filings and criminal cases per authorized judgeship rose every year except in 2001. In 2001, cases per judgeship declined as filings that year remained stable and ten new judgeships were created. This year's report covers the first full year of caseload statistics since the attacks of September 11, 2001. In 2002, overall criminal filings rose primarily due to increases in firearms, immigration, drug, and fraud cases. Federal courts received more defendants charged with firearms offenses and with fraud than in any previous year. Firearms filings surged 26% to 7,382 cases, fraud filings increased 8% to 8,204 cases, and drug filings rose 4% to 19,215 cases. Immigration cases, after declining in 2001, jumped 12% to 12,576 cases. Filings of cases involving extortion and racketeering climbed 27% to 594, and sex offenses increased 17% to 1,187. Offenses involving violation of aircraft regulations and explosives also rose. Criminal filings have risen 43% since 1993.
6 Persons serving terms of supervised release following their release from prison totaled 73,189 on September 30, 2002, and constituted 67% of all persons under supervision, while the number of individuals on parole declined 9% to 3,384 persons and comprised 3% of those under supervision. The number of persons on probation declined 1% to 31,272, due to a drop in the number of times probation was imposed by magistrate judges. Of the 108,792 persons under supervision, 43% had been charged with drug-related offenses, up 1% from one year ago. There are now 25% more persons under supervision than there were in 1993.
7 The number of defendants in pretrial services cases opened in 2002 increased 4% to 89,421, and the number of pretrial services reports prepared also rose 4%, while the number of defendants interviewed increased 2%. In conjunction with all pretrial services cases closed during the year, a total of 206,715 pretrial hearings were held, an increase of 6% over the total in 2001. During the past ten years, pretrial services cases activated have increased 57%.
8 An influx of immigration administrative agency appeals related to the Board of Immigration Appeals' effort to clear its backlog of cases was responsible for the overall rise. Administrative agency appeals surged 75% and criminal appeals grew 3%, which offset declines in original proceedings (down 34%), bankruptcy appeals (down 12%), and civil appeals (down 2%). Appeals filings have grown 15% over the past ten years.