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December 2009

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This article is in the news archives --- for current news go to the Third Branch News.


To Speak with One Clear Voice: The Executive Committee's Role in the Judiciary

Chief Judge Anthony J. Scirica (3rd Cir.) has chaired the Executive Committee of the Judicial Conference since May 2008, but his work within the Judicial Conference began long before that. He has served as chair of the Judicial Conference Standing Committee on Rules of Practice and Procedure, and he was a member of the Advisory Committee on Civil Rules. He has served as chair of the working group on mass torts and as a member of the Judicial Panel on Multi-District Litigation.

His career has encompassed the judicial, legislative, and executive branches at the state level. Before his appointment to the federal bench, Scirica practiced law in Montgomery County, Pennsylvania, where he also served as an assistant district attorney and judge of the Court of Common Pleas. Scirica was a member of the Pennsylvania legislature and also served as chair of the Pennsylvania Sentencing Commission. In 1984, he was appointed U.S. District Judge for the Eastern District of Pennsylvania, and in 1987 he was elevated to the Third Circuit Court of Appeals. He is a graduate of Wesleyan University and the University of Michigan Law School.

Q: The chair of the Executive Committee often is the voice of the Judicial Conference. What is the significance of the Judicial Conference in terms of national governance? And why is it important for the Judiciary to speak with one voice on certain matters?

A: The Judicial Conference, consisting of 27 judges and chaired by Chief Justice John Roberts, is the national policy-making body of the federal Judiciary. Generally, the Judicial Conference works through its committees, where most policy matters are initiated, but it also originates its own policy initiatives. Over 300 federal judges serve on the 25 conference committees. The Conference meets twice a year to act on the committee recommendations.

Governance of the Judiciary is shared among the Judicial Conference, the 12 Judicial Councils, and the Director of the Administrative Office (AO). Through the Conference and Councils, which together claim the active participation of about one third of all federal judges, policy proposals at the national and circuit level are initiated, debated, adopted, and implemented.

The Executive Committee plays a special role. It works closely with the Director of the AO, Jim Duff, in addressing a multitude of issues. Together with the Director, it makes recommendations to the Conference and its committees on matters of priority and coordination. Working with the Judicial Conference Committee on the Budget and the AO, the Executive Committee approves spending plans for the Judiciary’s appropriations and, working with the Judicial Branch Committee, it acts to maintain and improve judicial-legislative relations. The Executive Committee is authorized to act on behalf of the Conference on emergency matters arising between its regular sessions.

Governance under our Constitution requires a continuing dialogue among our three co-equal branches of government. Once judicial policy is made on certain matters, like those affecting our independence or our appropriations, it is important to speak with one clear and unmistakable voice.

Q: Nearly six years ago, the Chief Justice tasked the Executive Committee with coordinating the effort to contain costs in the federal Judiciary. Has this effort been successful?

A: In 2004, the budget forecast showed a significant and widening gap between the courts’ financial needs and expected future funding. At the request of Chief Justice William Rehnquist, the Executive Committee, together with the Budget Committee, took the lead in coordinating cost containment in the Judiciary. The result was a comprehensive and effective strategy for controlling future costs. This cost-containment initiative has been an enormous success. It began under the direction of the Executive Committee, with its former chairs, Judge Carolyn King (5th Cir.) and Judge Thomas Hogan (D. D.C.), and is now coordinated through the Budget Committee with its chair, Judge Julia Gibbons (6th Cir.) and its Economy Subcommittee, chaired by Judge Bob Broomfield (D. Ariz.), and their superb staff, and with others in the federal courts. As a result of these combined efforts, the Judiciary reduced its need for more space, implemented more efficient operating procedures to improve productivity, and reduced the cost of supporting technology systems through more efficient development of computer services. The process has enhanced the Judiciary’s transparency and its credibility with Congress, and has demonstrated that we are serious about being good stewards of the public’s funds.

Q: What financial challenges do we face, given the current economic downturn, and how should we deal with them?

A: Because of the hard work done with cost containment, we’re in the best position we could be in, given the state of the economy. We have earned the trust of the Congressional appropriations committees and they understand that our budget requests are reasonable and proper. Without these efforts in cost containment, we would not have the same credibility with Congress that we have today.

A gap remains, however, between projected future needs and anticipated funding. The current national economic downturn threatens to increase that gap to an unacceptable level. As a result, cost-containment initiatives must be sustained in areas that will not harm the Judiciary, in order to present to Congress credible budget requests that are likely to be funded.

Currently, the Executive Committee, with the Budget Committee and its Economy Subcommittee, is identifying new avenues for savings and cost avoidances. Cost containment will remain a high priority.

Q: You also have chaired the Judicial Conference Committee on Rules of Practice and Procedure. Do you find there are commonalities between these two committees?

A: Of course. Each plays an important institutional role. The Rules Committees monitor and amend the civil, criminal, appellate, bankruptcy, and evidence rules. The Executive Committee addresses the administrative and structural arrangements through which the courts carry out their functions.

The primary responsibility of the Standing Rules Committee on Practice and Procedure is to implement the Rules Enabling Act. The Act was a brilliant solution to the making of procedural law. Described as a treaty between the legislative and judicial branches, it provides a dispassionate, neutral forum that allows procedural law to be written in a deliberate and thoughtful manner. Key members of the Executive Branch (such as the Deputy Attorney General and the Solicitor General) have seats on the Rules Committees. The openness mandated by Congress invites public comment, and new rules are enacted only after approval by the Judicial Conference, adoption by the Supreme Court, and after a six-month interval while Congress considers whether to permit the rules to become law. All of this ensures the rigorous scrutiny and public review essential to establish the credibility and legitimacy of the rulemaking process.

The primary responsibility of the Executive Committee is to help the Judiciary to perform its constitutional role in a government of divided powers. It seeks to foster a productive dialogue with Congress and the Executive Branch, building a consensus whenever possible. The goal is to maintain our high level of competence and our independence so that we can perform the judicial function.

Both the Executive Committee and the Rules Committees work to mediate the relationships between the branches of government in ways that endeavor to promote the rule of law.

Q: You are also chief judge of the Third Circuit Court of Appeals. How do you balance these demanding responsibilities?

A: With unselfish assistance from wonderful colleagues and talented staff. Both jobs are rewarding and fun.

Q: Why is judicial accountability important?

A: Because we are independent and self-governing. The Constitution grants us a large measure of independence, and with that comes the responsibility to be accountable and to maintain the public’s trust.

Q: There have been several changes in recent years to the Judicial Codes of Conduct and in judicial discipline. Why were those changes made?

A: To promote accountability and increase transparency. There have been several significant actions. The first was the creation of the Judicial Conduct and Disability Act Study Committee, chaired by Justice Stephen Breyer, that issued a comprehensive report. The second was the work done by the Judicial Conference Committee on Judicial Conduct and Disability, chaired by Judge Ralph Winter (2nd Cir.), that wrote the new misconduct and disability rules. The third was the adoption of a revised Code of Conduct—the first substantial code revisions since 1992—under the leadership of the Judicial Conference Codes of Conduct Committee chairs, Judge Gordon Quist (W.D. Mich.) and Judge M. Margaret McKeown (9th Cir.). There was also important work done on recusals and potential conflicts of interest. They all build on the first Canon in the Code of Conduct: that judges should uphold the integrity and independence of the Judiciary. As the Commentary to Canon 1 notes, deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. All these changes help to ensure the integrity of the Judiciary.

Q: The fading purchasing power of a judicial salary is a concern for most judges, who haven’t had a real pay adjustment since the mid-1990s. Is there ever a good time to ask Congress for a salary restoration for judges?

There will be a good time. Nothing is more important to the long-term health or long-term stability of the federal Judiciary than to preserve its competence, integrity, and independence.

Unfortunately, since 1969, federal judges’ real pay has declined 28 percent—although during the same period, the average American’s wages, when adjusted for inflation, have risen 21 percent. It is important that we continue to attract lawyers of great ability and integrity, and lawyers who are able to devote a lifetime of service, rather than having to leave due to financial constraints. Congress understands this, and we hope that it will act at the appropriate time to secure a pay adjustment for judges.