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October 2010

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


Caucus Brings Courts and Congress Together

Representative Adam Schiff

Representative Adam Schiff

Representative Judy Biggert

Representative Judy Biggert

Why was the Congressional Caucus on the Judicial Branch formed?

Biggert: Back in 2003, Congressman Schiff and I launched the Congressional Caucus on the Judicial Branch to strengthen relations between Congress and the Judiciary. Outside of the Senate confirmation process, communication between the two branches of the federal government had become increasingly limited, a problem that former Chief Justice Rehnquist highlighted in his 2003 Year-End Report on the Federal Judiciary.

Schiff: Congresswoman Biggert and I both saw that relations between Congress and the Third Branch were at a dangerously low ebb. We wanted to help bridge the divide, so we approached then Chief Justice William Rehnquist about establishing the Caucus. He was enthusiastic and agreed to be our inaugural speaker. We’re now up to 45 members, and we’re hoping to continue growing and adding new members.

Your caucus is bipartisan. Why is that important to your activities?

Schiff: The issues we deal with are overwhelmingly bipartisan, which I find a very refreshing change. Having a well functioning Third Branch is not a partisan issue, and certainly having a strong line of communication between Congress and the Judiciary is an institutional interest that knows no political boundaries. The Caucus does get involved in controversial issues; our top priority is making sure that Congress is hearing from the judges and vice versa.

Biggert: The pursuit of justice should not be a partisan issue, and our members all share the same goal of strengthening communication between branches of government. For that reason, the issues that we work on rarely lend themselves to party-line divisions. In fact, the bipartisan nature of the Caucus often makes it easier for our members to seek out and share their expertise on the Judicial Branch with colleagues on both sides of the aisle, and lends credibility to the issues we advocate.

How does the Caucus identify issues on which you work? What are some of the key activities/issues in which the caucus is involved?

Biggert: Our mission is to work with the Judicial Branch on issues in which Congress directly impacts the court system, including new judgeships, sentencing guidelines, civil procedure, judicial vacancies, judicial compensation, the funding of courthouses, and other priority projects.

As with most legislative issues, topics can come to our attention through discussions with constituents, other Members of Congress, or even reading the newspaper. Most often, however, the Caucus is driven by the needs and concerns presented to us by officers of the court.

Schiff: The issues the Caucus gets involved in are driven by what we’re hearing from judges. We start from the premise that it is absolutely vital to ensure a strong and independent federal Judiciary to administer justice quickly and fairly. Some of the key issues I see as related to that are the need for additional judgeships, assisting with judicial compensation, securing funding for courthouse construction, addressing security concerns in the courts, and other necessities.

Biggert: For example, Rep. Schiff and I have worked on legislation to improve the way cost of living adjustments are administered for court employees. In the past, we worked to change the way the Judiciary pays rent to the General Services Administration (GSA) so that courts would not be overcharged for their operating expenses.

How can the Judiciary help the Caucus make the case for new judgeships to Members of Congress?

Schiff: One powerful message comes from judges who can speak to the impact that Congress’s failure to act has on their work administering justice. There’s a real world impact when cases wait for months or years for resolution because there is a shortage of judges in a particular area. But it is vital to hear from the public as well, and the court’s partnerships with bar associations, business organizations, and others concerned over the need to have a speedy and effective forum for dispute resolution is an important asset to bring to bear.

Biggert: Members of the Judicial Branch often rightly shy away from taking a hand in matters of policy, but that delineation is one for the courtroom. Off the bench, judges need to share with Members of Congress how legislative decisions on these matters impact the ability of constituents to access quick and fair justice under the law. This can be done through letters, phone calls, meetings, or through organizations like our Caucus.

As a Caucus, you meet with members of the Supreme Court, with state court judges and with other members of the Judiciary. What are the benefits of these interchanges?

Biggert: These meetings provide a critical and rare opportunity for Members of Congress to interact with senior judges in a context where no pressing decision, legal dispute, or Constitutional question is at stake. It’s a chance to communicate on a personal level about the challenges facing our justice system, discuss priorities for funding, and share experiences and perspectives on matters that might otherwise be neglected. In the future, I hope to seek attendance from those with a broader range of judicial experience, including those from the circuit courts, and to draw greater attendance by Members of Congress who might typically focus their attentions on other issues because they have a background other than law.

Schiff: The Caucus has had the opportunity to host nine Supreme Court Justices, with Justice Sotomayor as the most recent guest earlier this year. Of all the Caucus’ activities, that’s the one where we see the greatest member interest—the chance to have a frank, off-the-record exchange with a Supreme Court Justice is a rare opportunity. We are also looking at opportunities to bring in federal judges from the circuit courts who can speak to the issues they face. Those are important conversations as well.

The Caucus encompasses members who were practicing attorneys and have a lot of experience with the federal courts, but we also have members who have never practiced law. So for some members the Caucus provides an opportunity to learn more about the structure of the federal courts and how judges approach their duties. We have a great diversity in the Caucus in terms of parties, regions, interests, and backgrounds. I think that’s one of the strengths of the Caucus.

What could the Judiciary do to help Congress better understand our needs and interests?

Biggert: The House Judiciary Committee’s Subcommittee on Courts and Competition Policy recently heard testimony from several district judges regarding the challenges facing our nation’s Judicial Branch. These hearings and other “on the record” opportunities play a central role in turning judicial knowledge into legislative action. But less formal opportunities for communication should not be underestimated. Judges should seek out Members of Congress, build reciprocal relationships, and share their knowledge.

Schiff: Don’t be afraid to talk to Members of Congress about the needs of the Judiciary. Judges frequently have personal and professional relationships with Congressmen and Senators, and they should maintain those ties and keep the lines of communication open.

How has your personal experience informed your view of the federal Judiciary, and what do you see as the Judiciary’s most pressing needs/issues/problems?

Schiff: I spent a lot of time in federal courtrooms, first as a law clerk for a wonderful U.S. District Court Judge, Wm. Matthew Byrne, Jr., and then as an Assistant U.S. Attorney. I have always been impressed by the very high caliber of judges who are appointed to the federal bench and I am more than aware of the extraordinary caseloads that they carry. I am concerned that our ability to compensate judges appropriately will have an adverse impact on the quality of candidates for the bench in the future. What used to be the capstone of a distinguished legal career is now increasingly becoming a waypoint, as many judges leave the bench to go back into practice or become private judges.

As Chief Justice Roberts observed in his report to Congress, continued inaction on judicial pay threatens to erode the quality of the federal Judiciary over time as we lose judges to highly paid private sector jobs. No one expects the federal government to offer the same pay as a top law firm, but the larger the split becomes, the harder it will be to recruit and keep the best judges.

Additionally, the confirmation process in the Senate has become excessively partisan, and good candidates are being discouraged by the years it can take to get an up or down vote in the Senate. Clearly the Senate has the right and duty to perform their diligence on each nominee and ensure they are deserving of a lifetime appointment to the Federal bench, but I believe the Caucus has a role in educating Members about the impact of extended delays on attracting judges and leaving positions unfilled.

Finally, there is a pressing need for courthouse construction. Courthouses are expensive undertakings, but they are also worthy projects that create jobs and pay lasting dividends in terms of a healthy judicial system.

Biggert: I loved my very first job out of law school, clerking for a brilliant judge and great mentor, Judge Luther M. Swygert (7th Cir.). I developed a deep appreciation for the challenges of administering justice, and for the responsibility of interpreting the (often vague) language laid down by Congress. That is why I have always favored the use of legislative language that makes the will of Congress—and by extension, the American people—clear, concise, Constitutional, and readily applicable to real world circumstances. It is because of my respect for this responsibility that I have always viewed the attraction and retention of high-quality individuals to the bench as a key challenge in maintaining an effective Judiciary. Unfortunately, the current backlog of judicial nominations and Senate confirmations is discouraging and a hindrance to proper delivery of justice.

The Judiciary currently faces important space needs in the form of new courthouse construction. Are you concerned that forcing Federal Judges to share courtrooms could have a negative impact on the smooth operation of the courts and their ability to manage caseloads?

Biggert: Overloaded courthouses can have a serious impact on the ability of victims to seek restitution and the accused to access a fair and expeditious trial. At a time when Congress is spending hundreds of millions of dollars to expand its own office space, staffing, and eco-friendly amenities, it is especially concerning that federal courthouses are processing more cases with fewer resources. That said, all levels of government have faced increasing budgetary pressures in the current economic climate, and as with
so many other priorities, it may be some time before courthouse construction will be able to keep pace with the need for space.

Schiff: The sharing of courtrooms is far from ideal, and I do have concerns about the operational problems it is likely to create. For this reason, I think it should be avoided whenever possible. In these difficult financial circumstances, some courtroom sharing is probably unavoidable—the recent compromise over construction of the Los Angeles Courthouse is one example. Here, because of prolonged delays and escalating costs, the original design of the courthouse was shelved as part of a difficult compromise in order to advance the project and meet the imperative of addressing security and space needs.