The Courts and Congress – Annual Report 2022
Communication with Congress about Judicial Conference goals, policies, and positions forms the foundation of the Judiciary’s relationship with Congress and its committees and enhances the Judiciary’s role as a coequal branch of government.
The Daniel Anderl Judicial Security and Privacy Act
On Dec. 23, 2022, President Biden signed the Daniel Anderl Judicial Security and Privacy Act into law, capping an intensive two-year effort by officials across the Judiciary and led by New Jersey District Judge Esther Salas, whose son gave the legislation its name. Daniel Anderl, a 20-year-old college student, was killed in July 2020 by a former litigant who was stalking Judge Salas with information gleaned from internet searches. Her husband was seriously wounded in the attack.
Judge Salas turned her grief into a tireless quest to protect her colleagues on the bench from being similarly victimized when personal information is easily acquired on the internet.
The law limits the availability of federal judges’ personally identifiable information in federal databases and restricts data aggregators from reselling the information. Currently, the information often is publicly available at little or no cost. The law also will improve the courts’ ability to monitor and react to internet threats and provide enhanced training for judges in security best practices.
The legislation had broad bipartisan support. But attempts by Senate supporters to pass it by unanimous consent were unsuccessful, and they attached it to the must-pass defense authorization bill. That bill passed the Senate on Dec. 15.
The initial bill was introduced by New Jersey Democratic Senators Bob Menendez and Cory Booker. Additional co-sponsors were Senate Judiciary Committee Chairman Dick Durbin (D-IL), Sen. Lindsey Graham (R-SC), and several other senators. Representatives Mikie Sherrill (D-NJ) and Brian K. Fitzpatrick (R-PA) sponsored the companion bill in the House. Several judges and law-related associations and interest groups supported the legislation.
There has been a sharp rise in threats and inappropriate communications against federal judges and other court personnel, from 926 incidents in 2015 to 4,511 in 2021, according to the U.S. Marshals Service.
The armed man who killed Judge Salas’s son was a lawyer who came to her house posing as a delivery courier after acquiring her address and photos of her home and vehicles on the internet.
In November 2022, the Judiciary launched a new system that provides online public access to financial disclosure reports for federal judges and to their periodic securities transaction reports, as required by the Courthouse Ethics and Transparency Act of 2022 (CETA).
The bill, signed into law in May 2022, extended to federal judicial officers the Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act) requirements for periodic stock transaction reporting, which already were in place for the executive and legislative branches. CETA requires the online publication of financial disclosure reports. The Administrative Office of the U.S. Courts (AO) established an online searchable database for financial disclosure reports ahead of the Nov. 9, 2022, deadline in the legislation. The Judiciary had such a system under development prior to the bill’s passage. The Judiciary’s authority to redact the reports for security reasons did not change.
The Judiciary’s Workplace Policies
In April 2022, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing about workplace protections for federal Judiciary employees. The Judicial Conference provided two witnesses, Ninth Circuit Judge M. Margaret McKeown and Kansas District Judge Julie A. Robinson, to discuss the many improvements in workplace protections put in place since Chief Justice John Roberts Jr. called for an evaluation of policies and procedures in December 2017. In conjunction with the hearing, the Federal Judiciary Workplace Conduct Working Group issued a report with additional recommendations, which the Conference began considering in 2022.
Companion bills that would affect Judiciary workplace policies and procedures were pending in Congress in 2022. Called the Judiciary Accountability Act, the legislation would extend to the judicial branch certain employment laws applicable to employees of the executive branch. It also would create an oversight commission, with some members selected and appointed by the other two branches of government, to oversee Judiciary workplace conduct matters and make significant changes to the Judicial Conduct and Disability process.
The Judicial Conference opposes the legislation on grounds that it raises separation of powers concerns, interferes with the internal governance of the Third Branch, creates structures that compete with existing governing authorities within the Judiciary, and imposes intrusive requirements on Judicial Conference procedures.
Electronic Court Records Legislation
In 2022, bills that would require the Judiciary to replace its Case Management/Electronic Case Files system (CM/ECF) and establish a single, consolidated system for court records were pending in both houses of Congress. The Open Courts Act also would require that documents be made available to the public free of charge. Currently, the public gains access to records in the CM/ECF through a fee-based service known as PACER, for Public Access to Court Electronic Records.
The Judiciary is committed to improving its electronic records system and public access to court records. Since 2020, the AO has been at work on a modernization plan for a state-of-the-art, sustainable digital platform to improve communication, collaboration, and engagement among courts, the public, and partners. The plan, supported by the Judicial Conference, will enable the Judiciary to add features on an iterative basis, leverage talent in the courts, and incorporate feedback from users in product design and development. When completed, the project will accomplish most of the objectives of the legislation. The bill’s prescriptive language could interfere with those efforts and negatively impact litigants and the public.
In a letter to House Judiciary Committee Chairman Hank Johnson (pdf) in January 2022, Judge Roslynn R. Mauskopf, the AO Director, enumerated serious concerns with the legislation. She noted that it would create a substantial obstacle to litigants’ seeking access to justice by raising filing fees. She also warned that it would disrupt current revenue streams needed for technology modernization efforts already underway. Letters also were sent to House Majority Leader Steny Hoyer (pdf) and Senate Majority Leader Chuck Schumer (pdf).
In its December correspondence with the Senate, the Judiciary suggested collaboration between the two coequal branches of government. Meanwhile, the Judiciary and Congress continued to discuss a funding strategy for the new system that would be fair to litigants, effective, reliable, and administratively workable if PACER fees were eliminated.
At the close of the 117th Congress, neither the Senate nor the House took action on the Open Courts Act, though Congress seemed likely to continue its oversight and remain interested in legislation that requires the Judiciary to modernize its case management system and make electronic court records free.
Judiciary Studying Patent Case Assignments
At the request of Chief Justice John Roberts, the Judicial Conference’s Committee on Court Administration and Case Management undertook an examination of filing patterns in district courts, including those with the highest volume of new patent case openings, to identify any contributing factors or limitations, such as courts’ current case assignment policies, local rules, procedures, or practices. The Chief Justice made the request in response to a November 2021 letter from Sen. Thom Tillis (R-NC) and Sen. Patrick Leahy (D-VT) expressing concern about possible forum shopping in patent litigation. The committee will make recommendations to the Conference as warranted.
Twenty-First Century Courts Act
Introduced in the House in April 2022 by Rep. Hank Johnson (D-GA), the bill would make a number of changes in ethics laws affecting federal judges, including Supreme Court justices. Among other provisions, the bill would require the Supreme Court to develop an ethics code, require public disclosure of federal judges’ recusal decisions and change the terms under which they should recuse themselves from hearing cases, tighten prohibitions on gifts of travel and hospitality from organizations that appear before the courts, require the livestreaming of courts of appeals and Supreme Court proceedings, and limit judicial authority to seal court records. Sen. Sheldon Whitehouse (D-RI) introduced a companion bill in the Senate.