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Wednesday, April 16, 2003

Notes From Today's FBA Lunch With Chief Judge Mary Schroeder

The following notes were hastily scrawled on my tiny pocket notepad during today's Federal Bar Association lunch, and are reproduced here with the kind permission of Chief Judge Schroeder. Judge Schroeder promised at the outset to speak quickly and cover a good deal of ground, and she was as good as her word. Accordingly, my notes capture the topics covered in as much detail as I could manage, but do not come close to doing full justice to the Chief's lively and entertaining talk.

The introductory remarks included some interesting facts about Judge Schroeder: she was the youngest person ever appointed to the Arizona Court of Appeals, was succeeded there by Justice Sandra Day O'Connor, and in January of this year had the pleasure of swearing in her former law clerk, Janet Napolitano, as Arizona's 21st Governor. (Upon taking the podium, Judge Schroeder quipped that her first order of business upon returning to her office would be removing the exact dates of some of these events from her bio.)

Judge Schroeder framed her remarks by recalling a morning recently spent hearing cases at the Ninth Circuit's scenic courthouse in Pasadena. The docket consisted primarily of intellectual property issues, with subject matter ranging from minimalist jazz music theory to the technique of pitching a movie in Hollywood. In other words, it was a judicial experience "unique to sitting in the Central District of California." Taking her cue from that morning, Judge Schroeder said her remarks today would cover some of the more "tonal" aspects of the administration of the Central District of California and the Ninth Circuit, and move on to the more "atonal" or "dissonant" notes sounded by current struggles between the branches of government affecting the Court.

The Central District of California is the largest, most diverse and often most frustrating federal judicial district. Los Angeles is in dire need of a new federal courthouse, and Judge Schroeder foresees a long and hard funding fight ahead. Judge Jane Roth of the Third Circuit has been supportive of this priority among the many competing budgetary items, and deserves our thanks. Judge Schroeder also discussed the challenge of interpreter staffing in the Central District, which on any given day must be prepared to handle proceedings in some fifty languages.

Judge Schroeder described some of her whirlwind experiences visiting parts of the Central District, including a stay at Riverside's Mission Inn, a trip to Newport Beach where (unsurprisingly) her "MapQuest estimated driving time proved two hours too short," and a just-behind-Harrison-Ford seat at the filming of Hollywood Homicide, atop a building at the famous intersection of Hollywood and Vine, arranged by a relative of a friend. "I really do get around," said Judge Schroeder, and expressed her great appreciation for the growth, diversity and scenic grandeur that is the Central District of California, a jurisdiction that originates some of the most colorful and intellectually challenging cases on the docket in the Ninth Circuit and the nation.

Judge Schroeder then expressed cautious optimism about the new judgeships approved for the Ninth Circuit, but noted that "We're not holding our breath" as far as getting them filled. Recently confirmed appointees include Judge Richard R. Clifton (of Hawaii; "You never saw so many flowers"), who filled Judge Choy's former seat left vacant since 1984, as well as Judge Jay S. Bybee. President Bush's latest nominee for a Ninth Circuit Judgeship is San Francisco Superior Court Judge Carlos T. Bea. Los Angeles Superior Court Judge Carolyn Kuhl and Justice Consuelo Maria Callahan of the California Court of Appeal also await confirmation. (More here.)

The Court recently has encountered some unforeseen events with unexpected consequences for its administration and workload. Due to Justice Department mandates about the processing of immigration appeals, the Ninth Circuit now is experiencing the filing of over 100 immigration appeals per week, thus placing a considerable extra burden on the Court's docket. The record preparation process for these appeals is particularly slow and backlogged, further hindering the Court's ability to resolve the cases quickly. The Ninth and Second Circuits are hit the hardest by these requirements, since they generate the highest volume of these appeals.

Splitting the Circuit: Judge Schroeder discussed how she was called to testify before Congress last summer, on five days' notice, on the topic of splitting the Circuit. In her view, as she feels historically has been the case with this issue, the hearing had much to do with the Ninth's controversial Pledge of Allegiance decision, and little to do with concerns of efficiency and judicial administration. She mentioned the two bills now pending before Congress. One would move Arizona from the Ninth Circuit to the Tenth, an option favored by neither Circuit. Judge Schroeder noted that it's much easier for litigants from Arizona to get to San Diego by car than it is to get to Denver, and shared the email she received from the Tenth Circuit's Chief Judge Deanell Reece Tacha about the potential increase to the Tenth Circuit's workload: "Egad!" The other bill would put California and Nevada in their own Circuit, which presents its own geographic and other difficulties.

Circuit Initiatives: Judge Schroeder then discussed a number of projects where her Court is at the forefront of judicial administration concerns. The Court's Public Information and Community Outreach Committee (PICO), headed by District Judge Alicemarie Stotler, focuses on educational materials, model civics programs and media relations. Another committee is busy trying to improve the lot of Ninth Circuit jurors through the implementation of the one day-one trial rule, better communication and use of broader source lists for jury pools. The Judicial Wellness Committee headed by Judge Susan Graber makes a counselor available via a hotline for the Ninth Circuit's judges, families and staff, and assists with nutrition, fitness and pre-retirement concerns. "An unbelievable number of our judges are signing up for yoga." [Ed.—you just know how this warmed my heart.] The Pro Se Litigation Task Force headed by District Judge Thelton Henderson is helping the Court address the special needs of unrepresented litigants. The next Ninth Circuit Judicial Conference will take place this June in Kauai.

Sentencing Guidelines: Judge Schroeder commented that the judiciary has underestimated congressional will to do away with judicial discretion in sentencing. She discussed a recent case in which a congressional subpena for judicial sentencing records nearly issued, and pending legislation dealing with the standard of review for all downward departures from sentencing guidelines. (The bill first contemplated de novo review of such rulings, prompting one district judge to email that should this come to pass he or she was "moving to France;" in its present form the bill would require a showing of clear error.)

Conclusion: On the issue of judicial nominations and appointments, the federal judiciary continues to be held hostage to stalemates in Washington. The outlook on budget problems is not bright; justice sometimes gets short shrift in times of war and crisis. However, it fairly can be said there is no larger and no greater Circuit. As Wilt Chamberlain once said, "Nobody loves Goliath." This will continue to be true both of the Central District and the Ninth Circuit as they seek their fair share of scarce judicial resources.

Epilogue: After lunch, I spoke briefly with Judge Schroeder and explained I am one of those strange folks who writes a weblog. She was familiar with the concept, had read Howard's 20 Questions with Judge O'Scannlain, and looks forward to his next installment with another member of her Court (coming soon). She also gave me her card so I could email the link to Bag and Baggage. (Borrowing from Judge Tacha, "Egad!")

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