Posts Tagged ‘federal judges’

Federal Judges

May 27, 2011

Federal judges have a pretty good work life. They work in great majestic rooms and when they enter and leave those rooms, everybody stands up. They can only be fired by the United States Senate and, unless they get caught taking a bribe, that hardly ever happens. Their pay can never be cut. If they decide to retire, they can take “senior status” and make almost as much money as if they were still working every day. They get the best health care possible, United States Marshals for protection, law clerks for the drudge work of judging, and big offices, all paid for by somebody else.

But if you go to watch them at work, you’ll often be left with the distinct impression that these people are not happy. So, you may ask, why not?

Well, until you reach the august realm of the U.S. Supreme Court, federal judges are basically overworked. They handle large caseloads in an increasingly bureaucratized system. They must deal with lawyers, too many of whom are less than ideally competent. And, like bankers who spend their days saying “no”, federal judges spend a lot of time saying “no” to litigants in their courtrooms and putting other people in jail. Often, the judges might have preferred saying “yes” to litigants but couldn’t because of the controlling law. Worse, judges know that they will always make someone unhappy every time they make a ruling. It’s the nature of the adversary system. All that wears on them. They’re only human after all. Most probably suspect that Tacitus was right:

Judges are best in the beginning; they deteriorate as time passes.

Walton's Cottage in 1888

I’m not completely objective you understand. I spend my career trying to change the status quo and the judiciary is the first line of defense for the status quo. By design and by nature the judiciary is the most conservative of our governing institutions and – especially since Ronald Reagan – the federal judiciary has been populated mainly by judges personally conservative both by design and by nature. Often they don’t like attempts to change the status quo. Still, I find many violate the great fisherman Izaak Walton’s injunction in his The Compleat Angler,

If thou be a severe, sour-complexioned man, then I disallow thee to be a competent judge.

I once found a federal judge on a catch and release fly-fishing stream. This stunned me. It was the first time I’d ever seen a federal judge engaging in a harmless activity. It disordered my mind and for some weeks I felt unbalanced, like I’d seen a ghost gibbering in the streets. I watched the apparition for a while, studying the thing in my mind.

I’d been a trial lawyer for a couple of decades by then and had learned that no evidence is less reliable than eyewitness testimony. Our eyes fool us all the time so I knew that they might be fooling me now. The first thing I did was get out my camera and take a picture of the thing. But, upon reflection, I realized that any apparition capable of assuming the form of a fly-fishing federal judge could easily rearrange the pixels in my camera so I couldn’t trust any photographic evidence.

I determined to go down there and confront the thing up close. I don’t claim that I wasn’t terrified as I walked down that slope to the river: I was, but I went down there anyway, expecting at any moment to be swallowed by a wormhole and instantly transported to some place on the far side of the universe.

But nothing happened. I walked right up to that federal judge apparition and it spoke to me! Called me by my name. Shook my hand. Asked how the fishing had been for me. Wanted to know what fly I was using.

Even smiled once.

So I knew it wasn’t real. I got out of there as fast as I could.


Webcasting from Court

April 17, 2009

courthouse-boston3Probably you believe that the federal courts of the United States are public operations.  And, to a limited extent, they are.  If you go to a federal courthouse, they are going to let you in; assuming you clear security, which is akin to the security checks at airports.  If any trials or hearings are in process you are allowed to go into the courtroom, sit quietly, and listen.

But suppose you are interested in a court proceeding in Boston and you live in San Francisco.  What then?  Suppose, for instance, you are a college student — one of those sued by the record companies for allegedly illegal downloading of music — and you want to listen or watch the hearings in the lawsuit that Sony brought against alleged college miscreants, but you can’t afford to jet across the country to attend in person.  You should be able to watch it on the internet, right?  It’s a public proceeding after all, in your United States Court system, paid for with your tax dollars. It would be simple and inexpensive for a student attending college in Boston to take a webcam to the courthouse and broadcast the proceeding over the web.

webcam1You would be perfectly reasonable and logical if you thought that way, but you haven’t accounted for the institutional and intellectual arrogance of federal judges.  They have rules against that sort of thing.

In fact, federal judges have rules against all sorts of things but today we’ll content ourselves with the almost universal rule that no one is allowed to broadcast anything that happens in their courtrooms.  The federal judges worry that someone – they don’t say who, but you can guess – might be “intimidated” by cameras in the courtroom, even little tiny webcams.

There are exceptions, of course, but the majority of today’s federal judges are white, middle and upper class males, born and raised in the Republican party, and conservative by nature. [1] They are not often the first members of our society to embrace new ideas, new technologies.

One exception is the honorable Nancy Gertner, a federal district judge in Massachusetts and the first judge from that state to operate a blog. The case that Sony brought against alleged music pirates was assigned to her.  All cases, including Sony’s, have pre-trial matters that the assigned judge must resolve before proceeding to a trial.  Most such issues are raised by the parties to the lawsuits by motions.  Many federal judges still have hearings on those motions in their courtrooms.  Lawyers for the parties stand up on their hind legs and argue the motions, the judge listens, and renders a decision on each motion, either right then in person or later, in writing.

Judge Gertner scheduled such a pre-trial motion hearing in the Sony case.  One of the college students who Sony has sued asked the judge for permission for the hearing to be webcast and Judge Gertner agreed.

But, like I said, federal judges have rules against that sort of thing.  Besides, Sony did not want you or those college students to listen to the hearing for one reason or another, so it appealed Judge Gertner’s decision to the First Circuit Court of Appeals which outranks Judge Gertner.


The three judges on the First Circuit to whom the case was assigned were not amused.  As I said, they have rules against this sort of thing.

Here is some of what they had to say.

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

In other words, you can go to the court, but the court is not coming to you.

We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted.

Historically, the way information about court cases was imparted to the public was through newspapers.  Period.  Even the opinions of the courts were not widely available, although has changed.

Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.

The court acknowledges the “ubiquity” of internet webcasting, but all broadcasting of federal court proceedings is and remains forbidden.  They have their rules and they like them.
You can read the entire opinion of the First Circuit Court of Appeals here.

Warning: the opinion was written by Judge Selya of that court.  Judge Selya, appointed to the court by Ronald Reagan, is one of the best writers on the federal bench today, but he is given to using very large, archaic words no longer in common use even among lawyers. To save you time, here are the three stand outs from this opinion.

1. “Impuissant” – weak, lacking strength or power
2. “Perscrutation” – a thorough, diligent inquiry
3. “Sockdolager” – a conclusive blow or remark.

Two of the three judges on the case were appointed by President Reagan, the third by President Clinton.

[1] Disclosure – Even though I am a white male myself, I have spent much time arguing cases in front of federal judges with whom I have often disagreed, so I may not be the most objective observer of the species.