Federal Court Governance

Why Congress Should—

and Why Congress Should Not—

Create a Full-Time Executive Judge,

Abolish the Judicial Conference,

and Remove Circuit Judges from

District Court Governance

Russell R. Wheeler

Gordon Bermant

Federal Judicial Center

1994

This Federal Judicial Center publication was undertaken in furtherance of

the Center’s statutory mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the authors and not necessarily those of the Federal

Judicial Center.

iii

Contents

Acknowledgments v

A Note About Method vii

Introduction 1

Part I: Why Examine Federal Court Governance Now? 3

Part II: Understanding Governance 7

Part III: A Brief Description of Federal Court Governance and

Administrative Structures 9

A. National Governance Elements 11

B. Regional and Local Governance Elements 19

Part IV: A Summary Account of the Status Quo in Federal Court

Governance 25

Part V: Arguments for and Against an Alternative Approach to Federal

Court Governance 29

A. Federal Court Governance at the National Level 29

B. Federal Court Governance at the Regional and District Levels 65

Part VI: Conclusion 81

A. Why Is the Analysis of Structure Important? 81

B. What Has the Analysis Revealed About the Rationale for the Current Governance Arrangement? 83

C. What Should Be the Fundamental Purpose of Court Governance?

89

Coda: Other Suggestions 90

Appendices

A. Letter from Judge Otto Skopil, December 21, 1993 97

B. Tables and Figures 103

C. Statutory Authority for Court Governance (prepared by Thomas

E. Willging) 107

v

Acknowledgments

This paper benefited throughout its conceptualization and preparation from comments and suggestions by the Center’s director,

Judge William W Schwarzer. In addition, a major theme of the paper derives from Judge Schwarzer’s remarks on the future demands

on court governance (delivered as part of the planning program at

the June 1993 District of Columbia Circuit judicial conference) and

the interest that those remarks stimulated.

We sent a draft of this paper in late December to several people

for review and reaction, and are pleased to acknowledge the comments and assistance received from Judge Sarah Barker, Judge Edward Becker, Judge John Coughenour, William Eldridge, Judge

Wilfred Feinberg, Judge Martin Feldman, Steven Flanders, Judge

Ralph Guy, Denis Hauptly, Robb Jones, Judge James Lawrence

King, Judith McKenna, Director L. Ralph Mecham and his colleagues at the Administrative Office of the U.S. Courts, Chief Judge

Michael Mihm, Judge Virginia Morgan, Chief Judge Diana Murphy,

Wendy Pachter, Judge Elizabeth Perris, Judge Otto Skopil, Sylvan

Sobel, Chief Judge Michael Telesca, Thomas Willging, and Judge

Harlington Wood. We also express our gratitude to the staffs of the

Planning & Technology Division and the Information Services Office and the Editorial Office of the Center for their assistance in

helping us throughout the preparation of several drafts of the

manuscript.

In fairness to the reviewers named above, we note that some of

them emphasized their disagreements with the proposals for

change analyzed in this paper, or asserted their belief that no

changes were needed, or, indeed, questioned the value of the paper in its entirety. Responsibility for all errors of fact and interpretation rests with the authors alone.

vii

A Note About Method

This paper analyzes the current federal court governance arrangements and alternatives to those arrangements. In Part V we offer

arguments supporting change and responses to those arguments.

The alternative arrangements we offer for analysis include such

ideas as creating a full-time executive judge for the federal courts,

leading to a less active role for the Chief Justice; establishing a

policy-making body different from the Judicial Conference;

merging the Administrative Office of the U.S. Courts and the

Federal Judicial Center; relieving appellate judges of district court

governance responsibilities; and implementing a different way of

selecting chief judges.

We are grateful to several reviewers of a preliminary draft who

emphasized the importance of explaining our purpose. Lest our

goal be misinterpreted, we want to spell out as clearly as we can

what we are, and are not, trying to accomplish.

First, we are neither promoting the changes we discuss nor defending the status quo. We do not endorse the criticisms of the current arrangement or the responses to them, and we do not endorse

the alternative arrangements or the responses to them. We have

drawn these arguments, pro and con, from observations of current

operations over the years and conversations with the participants.

We think that some of the arguments, both pro and con, are much

stronger than others. However, we think that at this point in its

long-range planning process, the judiciary will be helped by a

chance to assess many conflicting points of view, organized within a

single coherent framework. Our hope is that the paper stimulates

focused analysis and discussion.

Second, we chose the particular alternatives to analyze because

they allow discussion of ideas currently under inquiry. Every aspect

of federal court governance discussed here has already been put on

the table for analysis by individuals or groups within the judiciary.

One indication of the current interest is the list of questions included in the Judicial Conference Long Range Planning Committee’s invitation to participants at its March 1994 retreat on governance; the invitation appears in Appendix A. To be sure, other al-
Federal Court Governance

viii

ternative arrangements have also been offered and are under discussion. We reference some of these alternatives in the body of the

paper, and we list them and others in a coda at the end of the paper.

Third, at several points, we use the format of statutory amendments to describe alternative governance arrangements and how

they differ from current operations. Those familiar with the legislative process will recognize that these presentations are not in any

form that could be submitted as legislation, and they know that preliminary draft statutes often serve mainly to encourage debate and

to accommodate revisions resulting from that debate. We hope the

statutes we have drafted serve the same function. The statutory

format has a second advantage: It forces readers to confront how in

fact a new system might work. For example, it is easy enough to argue that circuit representation on the Judicial Conference favors

smaller circuits over larger circuits and circuit judges over district

judges. However, one’s enthusiasm for changing those conditions

may cool when one is forced to weigh the pros and cons of an organic statute drawn to eliminate the disproportionality.

Fourth, we do not suggest that the alternatives we analyze must

be treated as a single package, to rise or fall as a unit. Although we

present a hypothetical governance arrangement with systematically

connected parts, readers are likely to conclude that some parts are

attractive and others are not. More district judges, for example, will

support the idea of restricting council membership to trial judges

than will support the idea that a single national judicial official

should select all the chief district judges. To repeat, our goal has

been to lay the various ideas out on the table for analysis and discussion.

Fifth, some reviewers suggested that any useful analysis of alternative arrangements must be preceded by a detailed assessment of

how well the current system is operating. Why, some reviewers

asked, did we not specify clear-cut criteria of successful federal

court governance and then use those criteria to analyze the actual

operations of the current system and assess the quality of leadership, communications, personnel and resource management, and

other attributes? We did not do that for several reasons, only one of

which is the difficulty any judicial branch employee would have in
Federal Court Governance

ix

performing the task in a politic manner, at least without extensive

negotiations and agreements with the many constituent elements

of the current governance system. We also believe there is some

danger of a long-range planning process becoming overinvolved in

examining present-day issues and losing sight of the system’s capacity to respond to conditions that may be on the horizon. At this

point in the planning process, the need is to paint with a somewhat

broader brush, to set out a range of criticisms and defenses in an

organized analysis that, we hope, many judges, staff members, and

outside observers of the courts will read and weigh in light of their

own experiences. If the paper serves only to confirm that current

governance arrangements are up to the task and should be defended against charges to the contrary, it will have made a contribution to the courts’ long-range planning process.

We hope this paper will stimulate others to respond in various

ways, including, for example, writing separate monographs on specific topics, arising perhaps from the work of individual study

groups.

1

Introduction

This paper analyzes the structure and practice of federal court governance. It first describes the current governance arrangement. It

then articulates the implicit assumptions on which the current arrangement appears to rest. Next, it offers arguments for and

against a detailed set of alternatives, as a way of assessing the

strengths and weaknesses of the current system. The final part returns to the underlying assumptions of the current governance arrangement, reassessing those assumptions in light of the analysis of

alternative arrangements. The paper does not review all of the important questions about federal court governance. For example, it

does not raise explicitly the question of the balance of authority

and power between the Judicial Conference, the circuit councils,

and the district courts, though some of the arguments presented

implicate these relationships. (The final part includes a coda with

suggestions for modest adjustments in the current governance arrangement—suggestions that emerged during our analysis of more

far-reaching changes but do not rise to the level of long-range

planning.)

The paper does not assume that there is a crisis or emergency

in the current governance arrangement that must now be addressed. Contrary to the otherwise sound advice that unbroken

things should not be fixed, the paper serves the purpose of longrange planning by looking beneath and beyond the apparent current effectiveness of federal court governance to assess its vitality

and its capacity to meet new challenges during the next several

decades.

This paper is one of six in a series analyzing important planning

topics facing the federal judiciary.1 We repeat here the disclaimer

that is standard in every paper of the series: The paper does not

present an official Federal Judicial Center position on the argu1. The first two papers in the series are Gordon Bermant et al., Imposing a

Moratorium on the Number of Federal Judges (1993) and William W Schwarzer &

Russell R. Wheeler, On the Federalization of the Administration of Civil and

Criminal Justice (1994). Subsequent papers will address alternative dispute resolution, criminal adjudication and sanctions, and the impact of demographic diversity

on the federal courts.
Federal Court Governance

2

ments it contains. The paper responds to the Center’s mandate to

“conduct research and study of the operation of the courts of the

United States, . . . to stimulate and coordinate such research and

study on the part of other[s], [and] to provide staff, research, and

planning assistance to the Judicial Conference of the United States

and its committees.”2

2. 28 U.S.C. § 620(b)(1)(4).
3

Part I: Why Examine Federal Court

Governance Now?

There are several reasons why the federal judiciary is reviewing

whether its current governance structures and procedures will be

adequate in the future. Some judges and commentators believe

that the present governance structure, conceived in an earlier era,

cannot provide the active, sophisticated management the courts

require. The judicial branch today dwarfs the judicial branch in

1939, when, in one statute, most of the major elements of the current governance structure were created. Then, a budget of $18.66

million supported a judicial system of fewer than 250 judges and

about 2,000 staff.3 Today, the courts are a $2.75 billion annual operation employing more than 27,000 persons.4 As of October 1,

1993, there were 837 life-tenured judgeships,5 approximately 315

senior judges who perform some judicial service,6 326 bankruptcy

judgeships, approximately 374 full-time magistrate judges, and 16

judgeships on the Court of Federal Claims. Of the 25,540 nonjudges working in the federal judicial system in September 1992,

24,315 worked in the courts themselves, and 1,225 worked in the

Washington, D.C., support agencies (the Administrative Office of

the U.S. Courts, the Federal Judicial Center, the U.S. Sentencing

Commission, and the Judicial Panel on Multi-District Litigation).7

Other judges and commentators believe that present arrangements are satisfactory for today but may be unable to respond effec3. Dept. of Justice Appropriations Act, 53 Stat. 903–07, 1223–24 (1939). See

also infra text accompanying note 59.

4. The judicial appropriation for fiscal 1994, including all accounts, is $2.754

billion. President Signs FY94 Appropriation Bill for Judiciary, The Third Branch, Nov.

1993, table at 2. The total number of personnel in the judicial branch on

September 30, 1992, the most recent date for which we have data, was 27,431. See

Administrative Office of the U.S. Courts, Annual Report of the Director, 1992, at

98 [hereinafter AO Annual Report, with year and page].

5. This number comprises 179 circuit judgeships (28 U.S.C. § 44), 649 district

judgeships, including temporary judgeships, and 9 judgeships on the Court of

International Trade; see 28 U.S.C. §§ 133(a), 251(a).

6. This number is subject to frequent change.

7. AO Annual Report, 1992, at 98.
Federal Court Governance

4

tively to future demands that the courts do more work with fewer

resources. In June 1993, Judge William W Schwarzer, director of

the Federal Judicial Center, suggested that “the dominant longrange planning issue before the judicial branch . . . will be how to

develop a long-range strategy for resource management and an institutional structure to effectively implement it.”8 More recently,

Chief Justice William H. Rehnquist noted that the past forty years’

trend of caseload increases will probably continue and that “for the

foreseeable future . . . a regime of fiscal austerity will predominate . . . . [The challenge is] to use even more efficiently the resources available today and those few which may be added in the

future to process a growing number of cases.” The Chief Justice

went on to say that additional rules and regulations for those involved in providing federal justice are virtually inevitable.9

Who will make those rules and regulations, and who will enforce them? What impact will they have on judicial independence?

The relationship between judicial governance and judicial independence is crucial, and it will become more problematic as resources shrink. As Judge Schwarzer pointed out, it is not easy to

“define and administer a bright line” between “decisional independence, which is essential, and operational autonomy, which is not.”

For example, decisions about space, facilities, and staffing—governance decisions about resource allocations—“influence [a judge’s]

job satisfaction and morale, and therefore . . . have a potential impact on decision making.” But “this line of reasoning can be carried

too far. It is doubtful that the spirit animating Article III includes

the satisfaction of judges’ personal comfort. Making this the touchstone of resource management is likely to frustrate its effectiveness.”10 What governance arrangement will best protect independence while providing rules adequate to manage a large entity operating on an increasingly tight budget?

8. Judge William W Schwarzer, Looking Ahead, Remarks at the District of

Columbia Circuit Judicial Conference 1 (June 1993) (unpublished manuscript, on

file with the Federal Judicial Center).

9. Chief Justice William H. Rehnquist, Address Before the American Bar

Association 15, 16–17 (October 21, 1993). See also William W Schwarzer, Challenges

in Developing a Long-Range Plan for the Judicial Council of the Ninth Circuit, in LongRange Planning for Circuit Councils 21 (Federal Judicial Center 1992).

10. Schwarzer, supra note 8, at 4.
Federal Court Governance

5

In the same vein, it is also important to remember that judicial

independence, while essential, is itself merely instrumental. Courts

do not exist to provide judges with independence. The Constitution protects judges’ independence so that they can provide justice.

Today, most would add that they should not only provide justice

but, as best they can, provide it economically and expeditiously.

What impact will governance arrangements have on the federal

courts’ ability to serve litigants and the public?

The future will undoubtedly include even greater congressional

interest in and oversight of the judicial branch. Some fear that current governance arrangements are inadequate to assert the judiciary’s interests in its dealings with the other two branches of government. Four statutes enacted during the past twenty years exemplify

the legislative branch’s inclination to control judicial conduct and

administration: the Speedy Trial Act of 1974,11 the Judicial Conduct

and Disability Act of 1980,12 the Sentencing Reform Act of 1984,13

and the Civil Justice Reform Act of 1990.14 Each statute was

intended to speed or regularize judicial conduct that the judicial

branch claimed it was capable of regulating on its own but that

Congress decided it was not. As each was being debated, the Judicial Conference of the United States officially opposed the legislation or strove to alter it (usually with partial success).15 Revisions in

governance arrangements coupled with planning to anticipate new

problems might enhance the judiciary’s ability to satisfy Congress

about the efficient administration and delivery of federal justice,

and communicate the fact of that ability to legislators and to

executive branch officials, whose decisions also affect the judiciary.

Finally, the future of governance must accommodate the tensions between the centralized authority located in the Judicial Conference and the Administrative Office (and, in a more limited

sense, the Federal Judicial Center), and the decentralized authority

11. 18 U.S.C. §§ 3161–3174 (1988).

12. 28 U.S.C. § 372(c).

13. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1988

(codified as amended in titles 18 and 28 U.S.C.).

14. 28 U.S.C. §§ 1, 471 (1991).

15. Report[s] of the Proceedings of the Judicial Conference of the United

States, Sept. 1973, at 76; Sept. 1978, at 49–50; March 1984, at 15; Sept. 1984, at 69;

March 1990, at 9 [hereinafter JCUS Report, with month, year, and page].
Federal Court Governance

6

located in the circuit councils, courts of appeals, and district courts.

There is a trend to decentralize some aspects of budget and personnel administration and other functions. The Administrative Office has delegated its authority for the fiscal year operating budget

to each court unit. Further delegation of authority for personnel

classifications, position descriptions, and staff size will be implemented during the next several years.16 As the courts grow in size

and complexity of operations, the balances between national, regional, and local governance authority will require continuing

evaluation and adjustment.

Having said all this, we note also that many judges and commentators believe that the current governance arrangements are

the best ones to protect judicial independence and promote service

to the public.

16. Court units include the offices of clerks, circuit executives, district court

executives, and staff attorneys; probation and pretrial offices; and libraries. Funds

for the supplies and equipment of chambers are part of the clerks’ offices allocation. There are approximately 400 court units.
7

Part II: Understanding Governance

Federal court governance is the means by which the judicial branch

manages its own affairs within the larger constitutional and statutory framework. A definition that would account for every aspect of

court governance is beyond the scope of this paper. For present

purposes, it is enough to say that governance encompasses the

structures and processes for maintaining and regulating performance (other than deciding cases), for allocating resources

(including judges and staff, and funds and physical resources to

support both), and for seeking adjustments in the judicial system.

In the following two parts of the paper, we describe the organizational elements of federal court governance and the functions each

element is assumed to serve.

Courts, like all organizations, are attracted to the idea that policy making and administration are separate functions.17 Judges

want to make policy decisions without having to take much time

away from their judicial duties to act as administrators. However,

the separation between policy making and administration is not

and cannot be strictly maintained within any organization. One

who implements policy must first interpret it, and the interpretive

discretion exercised by administrators within the frame of a policy

statement is itself interstitial policy making. Such discretion is not

only necessary but desirable if judges are not to oversee administration in detail. Even if it cannot be fully achieved, the goal of the

governance system should be to establish the correct degree of discretion for administrators and combine it with the correct amount

of oversight by judges and thus sustain the proper balance between

the roles of policy maker and administrator.

In most organizations of 27,000 people, the link between policy

and administration is a discrete executive and management component—the deputy attorney general, for example, or the corporate chief executive officer. The federal judiciary has historically

regarded such a component as inappropriate for the judicial

17. Alice M. Batchelder, The Internal Governance of the United States

District Courts: Leaving Well Enough Alone 32–35 (1989) (unpublished LL.M.

thesis, University of Virginia).
Federal Court Governance

8

branch, a creeping threat to the independence of each judge to

decide cases free of extraneous pressure. There is a sense among

judges that some inefficiencies of management and administration

are a reasonable price to pay to avoid this threat. Independence,

not managerial excellence, is the bedrock value of the judiciary.

Recently, however, some judges have concluded that greater executive management capacity should be created within the judicial

branch to manage it more efficiently and to enable it to speak to

the other branches with a single, strong executive voice. Whether

federal court governance elements should be rearranged to allow

for an executive officer is among the fundamental questions addressed later in this paper.
9

Part III: A Brief Description of

Federal Court Governance and

Administrative Structures

Figure 1 is an organizational chart of the governance and administrative structures of the courts at the national, regional (circuit),

and local (district) levels.18 This part describes those structures and

what they do.

Our structural and functional descriptions of court governance

will be only approximately accurate. The current governance arrangement is a historical product, rooted in the expansion of the

courts and the nation over the past 200 years, and the past century

in particular. Current governance arrangements are largely the

product of accretion rather than systematic design. An organization

chart showing the elements of governance, and the statutory assignments of powers and duties to the elements, oversimplifies how

the judicial branch develops and implements administrative policy.

In some instances, however, the relationships between governance

elements were clearly intended in legislation. For example, the

Administrative Office Act of 193919 rested on a vision of central

administrative support and decentralized management that persists

today, albeit much changed in particulars. The important point is

that current governance elements and their relationships should be

seen as a process in flux and under the influence of numerous factors, some, but not all, of which can be controlled from within the

judiciary.

18. Appendix C contains a list of the statutory duties of the various elements

of national, circuit, and district court governance. A separate Center publication,

Russell R. Wheeler, Origins of the Elements of Federal Court Governance (Federal

Judicial Center 1992), describes briefly the origin and evolution of each of the

major agencies and other elements of federal court governance since the

Constitution’s adoption.

19. An Act to Provide for the Administration of the United States Courts, and

for Other Purposes, 53 Stat. 1223 (1939).
Federal Court Governance

10

Figure 1

Federal Judicial Governance and Administration

Supreme Court

Chief Justice of the

United States

Chief judges of

the circuits

U.S. courts of appeals U.S. district courts

Federal Judicial Center

Administrative Office

of the U.S. Courts

Judicial councils

of the circuits

Judicial Conference of the United States

(chief circuit judges and district judges)

Judicial conferences

of the circuits

Committees of the

Judicial Conference

Congress Executive Branch

Federal Judicial Center 1994
Federal Court Governance

11

A. National Governance Elements20

Congress. The judicial branch operates in the shadow of Congress’s oversight. Thus, an important function of leadership in the

judiciary is to communicate the judiciary’s positions about policy

persuasively to Congress and to learn Congress’s positions. Some

proposals for change in the governance structure arise from a desire to improve the effectiveness of communication between the

branches. If Congress loses confidence in the judiciary’s ability to

manage its internal affairs, it may pass legislation that places additional limitations on the scope of the judiciary’s freedom to govern

itself; in the extreme case, such legislation could erode judicial independence.

Executive branch. The executive branch exercises governance authority over the courts in part as a constitutional participant in the

legislative process (e.g., approving, or vetoing, appropriations and

judiciary legislation). Executive branch legislative proposals and

priorities can influence legislation that directly affects the courts

and their governance. The General Services Administration plays a

major role in final decisions about the judiciary’s space and facilities, and the U.S. Marshals Service, in decisions regarding courthouse security. And, just as Congress affects the courts through jurisdictional change, the Justice Department affects them through

its prosecutorial policies, its frequent participation in civil litigation,

its representation on the judiciary’s rules committees, and its role

in selecting new federal judges and controlling the pace of the

selection process. Thus, another important function of leadership

in the judiciary is to maintain effective relations with the executive

branch.

20. Not discussed here are the United States Sentencing Commission or the

Judicial Panel on Multi-District Litigation. The commission is a quasi-legislative

body that promulgates rules that govern sentencing. Although the panel’s mission

(transferring, for pretrial, actions pending in different districts that involve common questions of fact) reflects an efficiency goal similar to that which motivated

creation of the Judicial Conference, it is generally not considered a governance

agency in the same sense as those discussed here.
Federal Court Governance

12

Chief Justice. The Chief Justice is at the apex of the judiciary’s

governance pyramid because of several statutory responsibilities,21

which include presiding over the Judicial Conference (including

appointing its committees), selecting the director and deputy director of the Administrative Office, and chairing the Board of the

Federal Judicial Center. Moreover, the unique position of the Chief

Justice has created a general expectation that the incumbent will

speak to Congress and the nation for and about the judiciary, and

in special cases, serve the nation in other capacities. The incumbent must balance these significant tasks in court governance with

the leadership expected of the Chief Justice of the Supreme Court.

Either of these roles might seem to be a full-time job in itself. Some

relief is available to the Chief Justice through the statutory authorization to appoint an administrative assistant and determine the

assistant’s duties. The legislative history of the Administrative Assistant Act clearly contemplated that the incumbent would deal

largely with matters of court governance and administration.22

Nevertheless, some have argued that the demands now placed on

the Chief Justice are too great and that some part of the job should

be subject to greater delegation.23

The incumbent has considerable latitude in meeting the formal

and informal expectations of the position, and individual Chief Justices have varied in how they distributed their energies. There is

not abundant information from which to draw conclusions about

the exercise of the Chief Justice’s role in the modern governance

structure. Even with eleven presidential administrations since the

1930s, when the modern presidency emerged, the keys to effective

21. See Appendix C for a list of the pertinent statutes. The Chief Justice also

has statutory duties outside the third branch, viz., to serve on the Board of Regents

of the Smithsonian Institution.

22. 28 U.S.C. § 677. Hearings on H.R. 6953, H.R. 7377 Before Subcomm. No. 5 of

the House Comm. on the Judiciary, 92d Cong., 1st Sess., esp. at 8 (May 6, 1971)

[hereinafter Hearings].

23. See, e.g., Peter G. Fish, The Office of the Chief Justice of the United States: Into the

Federal Judiciary’s Bicentennial Decade, in White Burkett Miller Center of Public

Affairs, The Office of the Chief Justice 135 (1984); Daniel J. Meador, The Federal

Judiciary and Its Future Administration, 65 Va. L. Rev. 1031 (1979); Alan B. Morrison

& D. Scott Stenhouse, The Chief Justice of the United States: More Than Just the Highest

Ranking Judge, 1 Const. Commentary 57 (1984).
Federal Court Governance

13

presidential leadership are still not clear. Information about Chief

Justices is even sparser. There have been only three Chief Justices

since the 1960s, when the federal courts began to grow significantly, and to the best of our knowledge, all the published studies

of the office predate the tenure of the incumbent Chief Justice.

Though the management styles of Chief Justices Warren, Burger,

and Rehnquist have differed markedly from each other, there is

not yet enough information to draw any but sketchy conclusions

about what works best.

Supreme Court. Except for the Chief Justice, the members of the

Supreme Court have practically no role in the governance of the

judiciary (other than the occasional effects their judicial decisions

may have on court governance). Although by statute each justice is

assigned to one or more circuits as a “circuit justice,” this role entails no governance responsibility. The Supreme Court’s lack of

governance authority distinguishes it from the highest courts of

many states, whose members have at least a formal role in the statewide governance of the courts. There has been a long-standing reluctance to involve the Court in the federal judiciary’s governance

process, arising in part from the sense that the justices are not necessarily knowledgeable about lower court affairs, in part out of a

concern that such involvement could compromise the actual or

perceived integrity of the Court, and in part out of a concern that

the justices should not be distracted from their judicial work. The

Court’s only governance task is to consider amendments to the

federal rules of evidence and of procedure that are forwarded from

the Judicial Conference. The Court, in its discretion, may promulgate the amendments so forwarded, although Congress has a statutory layover period during which it can prevent their taking effect.

Promulgating the amendments is usually a formality; some justices

have objected to the substance of amendments, and others have objected to the Court’s being involved in the process of review in the

context of governance rather than judicial review.

Judicial Conference of the United States. At Chief Justice Taft’s urging, Congress created the Conference of Senior Circuit Judges in

1922 to provide an annual forum in which the presiding judges of

the courts of appeals could try to improve performance in the district courts by developing plans for intercircuit assignments and
Federal Court Governance

14

considering recommendations for case management improvements. The Conference’s governance role increased substantially in

1939, when Congress transferred responsibility for federal court

budget preparation, data gathering, and administrative support

from the Justice Department to the newly created Administrative

Office of the United States Courts, which Congress directed to

function under the Conference’s supervision. The Conference’s

name was changed in 1948, and district judges became members in

1957.

The Chief Justice presides over the Judicial Conference, which

is composed of the chief judges of the courts of appeals, one district

judge from each regional circuit, and the chief judge of the Court

of International Trade. The circuit judges are Conference

members as long as they are chief judges (presumptively seven

years). The Conference statute provides that the district judges be

chosen for the Conference for three-year terms by the circuit and

district judges of their circuits during the circuit conference

(although, as a practical matter, circuit judges do not always participate in the selection process). The Chief Justice is directed by

statute to call at least one annual meeting; the practice since 1949

has been to hold two meetings each year, one in the spring and one

in the fall. Since 1987, the Executive Committee of the Conference

has proposed the agendas for the meetings and acted on the Conference’s behalf on limited matters between meetings.

The Conference is generally regarded as the “principal policy

making body concerned with administration of the United States

Courts,”24 and as the institution by which “[t]he federal court system governs itself on the national level.”25 However, the Conference’s organic statute (28 U.S.C. § 331) does not describe or suggest so broad a role. The statute directs the Conference to “make a

comprehensive survey of the condition of business” in the federal

courts, prepare plans for temporary assignment of judges, receive

certificates of judicial unfitness from judicial councils, study the

operation of federal procedural rules, and submit suggestions for

24. Administrative Office of the U.S. Courts, Judicial Conference of the

United States 1 (1992).

25. Administrative Office of the U.S. Courts, Understanding the Federal

Courts 12 (1992).
Federal Court Governance

15

legislation through the Chief Justice’s report on Conference proceedings. The Conference itself has no statutory authority to order

administrative action, and in 1991, it deferred indefinitely any action on a Federal Courts Study Committee recommendation that

the Conference statute be amended to provide such authority.26

The Conference thus differs from the circuit judicial councils,

which have statutory authority to issue administrative orders.27 The

Conference, in fact, has considerable practical authority, which

arises from its statutory responsibility to supervise and direct the

Administrative Office of the U.S. Courts, including the Administrative Office’s control of the distribution of funds appropriated

by Congress.

Among the more than sixty decisions made at its September

1993 meeting, the Conference reaffirmed its position favoring a

“relatively small Article III judiciary” but opposing a moratorium on

the number of life-tenured judges; forwarded various amendments

to the federal rules of procedure and federal rules of evidence to

the Supreme Court; approved the courts’ fiscal 1995 appropriations

request for submission to Congress; adopted a “Hepatitis B and

Other Blood-Borne Pathogens Policy” for probation and pretrial

services officers; and approved one additional court reporter position for the Eastern District of Wisconsin.28

Conference committees. The committees of the Conference perform a vital role in the Conference’s policy-making process. Normally, committees meet in person twice each year for one or two

days to discuss and prepare materials for submission to the Conference prior to its next meeting; these meetings are supplemented by

telephone conference calls, written memoranda, and occasional

26. Report of the Federal Courts Study Committee, April 2, 1990, at 148

(1990) [hereinafter FCSC Report]; JCUS Report, March 1991, at 11.

27. One example of a Judicial Conference policy that is honored even though

the Conference has no practical means of enforcing it is the general compliance

with its prohibition against the use of electronic media to cover civil court

proceedings. See, e.g., Lac Courte Oreilles Band of Lake Superior Chippewa

Indians et al. v. State of Wisconsin et al., 17 Media L. Rep. 1381, 1385 (1990). The

Federal Rules of Criminal Procedure prohibit electronic coverage of criminal proceedings. This deference is in contrast to an apparent rejection by numerous

judges of the Conference policy on the timing of judicial law clerk selections.

28. JCUS Report, Sept. 20, 1993, at 42, 47, 50, 51, 57–58.
Federal Court Governance

16

subcommittee meetings. The primary staff support for committees

is supplied by units within the Administrative Office; some committees also receive substantial research and planning support from

the Federal Judicial Center. The committees consider business they

have developed on their own as well as matters from the courts,

Congress, or other entities that are referred to them by the Executive Committee or the director of the Administrative Office.

Table 1 lists the active committees of the Conference as of January 1994. Almost all of the approximately 240 judges who serve on

committees are life-tenured (district and circuit) judges rather than

term-appointed (bankruptcy and magistrate) judges. In addition,

some committees include Justice Department officials, state

supreme court justices, law professors, and practicing lawyers. The

Chief Justice makes committee appointments after receiving information from several sources, including applications from judges

and advice from the Administrative Office.

Administrative Office of the United States Courts. Congress created

the Administrative Office (AO) in 1939. Its director and deputy director, who were appointees of the Supreme Court until 1990, are

now appointed and removed by the Chief Justice, following consultation with the Judicial Conference.29 The director appoints additional staff; at this time the AO has slightly fewer than 1,000 employees and operates on a fiscal 1994 appropriation of $44,900,000,

supplemented by funds from the courts’ budget. Essentially all the

duties of the AO reside in the office of the director, who then delegates them as necessary.

The AO statute identifies the director as “the administrative officer of the courts,” who is to act under the “supervision and direction” of the Judicial Conference.30 Table 1 shows clearly that the

AO’s organization parallels the committees of the Conference. It

might, however, be more accurate to put the matter the other way

around: Because explicit authority for many functions lies with the

director rather than with the Conference or its committees, the

Conference has organized its committees largely according to the

AO’s statutory duties. Although the statutory language nowhere

29. The change follows a recommendation of the Federal Courts Study

Committee. See FCSC Report, supra note 26, at 150.

30. 28 U.S.C. § 604(a).
Federal Court Governance

17

designates the AO as responsible for providing staff support to the

Conference and its committees, this function arises inevitably in response to the requirement for close communication between those

delegated to fulfill the duties of the AO director and the AO’s judicial supervisors. It is the Conference itself, rather than the committees, that has supervisory authority over the AO, but, as a practical

matter, much of the communication runs directly between AO staff

and committee chairs. Furthermore, since the Conference’s Executive Committee has taken on additional responsibility for governance between Conference meetings, the Conference has explicitly

recognized the AO director as secretary to the Conference and designated the director as an ex officio member of the Conference’s

Executive Committee.31

Federal Judicial Center. Congress created the Federal Judicial

Center in 1967 as an independent agency in the judicial branch

and charged it with furthering the development and adoption of

improved judicial administration in the federal courts. The Center

fulfills this responsibility through research and education for the

judiciary and its support personnel. The Center is also directed to

make recommendations to the Judicial Conference for improvements in judicial administration, provide planning and research assistance to the Conference and its committees, promote judicial

federalism, develop judicial history programs, and provide international judicial education. Table 1 shows the committees of the Conference the Center supports.

31. For example, in September 1987, the Conference approved a report on its

committee structure that also referred to “the Administrative Office’s Conference

secretariat function.” JCUS Report, Sept. 1987, at 60. In July 1990, the Executive

Committee approved a memorandum that referred to “[t]he Secretary of the

Conference, who is also the Director of the Administrative Office.” Judicial

Conference of the United States, Role of the Committees, the Committee Chairs,

and the Conference Secretary 3 (Nov. 1993 version of document approved by the

Executive Committee on July 5, 1990, attachment to Executive Committee of the

Judicial Conference, Memorandum of Action, July 5, 1990, dated July 23, 1990,

referenced in JCUS Report, Sept. 1990, at 66) [hereinafter Role of the

Committees].
Federal Court Governance

18

Table 1

Conference Committees and Parallel AO Units

(January 1994)

Conference Committee Parallel AO Unit

FJC

Assistance

Executive Office of Judicial Conference

Secretariat

Administrative Office Office of Management Coordination

Automation and Technology Office of Automation & Technology √

Bankruptcy System, Administration of Bankruptcy Division √

Budget Office of Finance & Budget

Codes of Conduct Office of General Counsel

Court Administration and Case

Management

Office of Court Programs √

Criminal Law Probation & Pretrial Services

Division

√

Defender Services Defender Services Division

Federal--State Jurisdiction Office of Legislative & Public Affairs √

Financial Disclosure Article III Judges Division

Intercircuit Assignments Article III Judges Division/

Office of Judicial Conference

Secretariat

International Judicial Relations Article III Judges Division √

Judicial Branch Article III Judges Division √

Judicial Resources Office of Human Resources &

Statistics

√

Long Range Planning Long Range Planning Office √

Magistrate Judges System,

Administration of

Magistrate Judges Division

Review of Circuit Council Conduct

and Disability Orders

Office of General Counsel *

Rules of Practice and Procedure Rules Committee Support Office √

Security, Space, and Facilities Office of Facilities, Security &

Administrative Services

√

Note: Not shown in the table are the five advisory committees on federal rules (appellate, bankruptcy,

civil, criminal, and evidence) that report to the Standing Committee on Rules of Practice and Procedure.

Committees in italics have responsibility for oversight of major programs. Some committees also receive

support from AO units in addition to those listed.

√ Indicates committees to which the FJC also provides research or education assistance.

*The FJC has provided substantial research assistance to judges and others tasked with analyzing judicial disability governance matters.
Federal Court Governance

19

The Center employs slightly more than 160 persons and operates on a fiscal 1994 appropriation of $18,450,000 and a small

amount of outside funding, mainly funding provided through the

statutory Federal Judicial Center Foundation. The director and

deputy director of the Center are appointed by the Board of the

Center, an eight-member statutory body comprising the Chief Justice as permanent chair, the AO director as a permanent member,

two active circuit judges, three active district judges, and one active

bankruptcy judge. The judges are elected by the Judicial Conference; none may be a member of the Conference while serving on

the Board.

B. Regional and Local Governance Elements

Chief judge of the circuit. The chief judge of the circuit comes to

the position as a function of seniority on the court of appeals and

age, as specified in 28 U.S.C. § 45. The position developed from the

former position of senior judge of the circuit; it received its current

title with the recodification of Title 28 in 1948. The current

method of selecting the chief judge, enacted in 1982, seeks to balance the values of continuity and fresh perspective by encouraging

but not requiring chief judges to serve seven-year terms. In fact, the

average tenure of chief judges (district and circuit) selected under

the statute has been approximately four years.32

The statute places little formal governance or administrative responsibility for the appellate court in the chief judge, noting only

that the chief shall “have precedence and preside” at court sessions

that he or she attends.33 The explicit regional governance authority

of the chief arises through the statutes creating the circuit judicial

councils and circuit conferences, as described below; at the na32. Based on information published in The Third Branch since 1982, when the

current arrangement took effect, covering twenty-eight chief judges in eight

circuits and seventeen districts. If all chief judges now in office complete their full

terms, the average tenure for all chief judges under the statute will be approximately six years.

33. The statutes covering appointment of court of appeals employees place

hiring authority in “the court” or in the judges of the court (for their law clerks

and secretaries), except that the chief judge is charged to appoint the senior staff

attorney (28 U.S.C. § 715(a)). Of course, in practice much of the hiring of senior

staff may fall to the chief judge.
Federal Court Governance

20

tional level, the chiefs govern through their membership on the

Judicial Conference ex officio. A 1981 Federal Judicial Center study

of chief judges found that almost all of the administrative tasks that

chief judges regarded as essential pertained to their circuit-wide

and national leadership rather than to their role as chief judge of

the court of appeals.34 A particularly important responsibility of the

chief judge is to review complaints under the Judicial Conduct and

Disability Act of 1980, 28 U.S.C. § 372(c). The chief judges create a

personal link between national and regional court governance

elements. And, despite the broadening of their charter, they remain primarily concerned with the administration of the district

courts, including the bankruptcy courts as units thereof.

Circuit judicial councils. Congress created the councils (in the

same 1939 statute that established the Administrative Office) to see

that “the work of the district courts shall be effectively and expeditiously transacted.”35 There was also some expectation, not explicit

in the statute, that the councils would be the “administrative

linchpin” of the judiciary, to effect the national policies of the Judicial Conference as well as be affected by them.36 Although the

statute requires that the councils consist of equal numbers of circuit and district judges, plus the chief circuit judge, it does not otherwise fix their size, leaving that determination to the active lifetenured judges within the circuit. The current councils range in

size from twenty-one (in the Seventh Circuit) to nine (in the

Fourth, Ninth, and Tenth Circuits). There is no direct relationship

between the number of judges in a circuit and the size of its judicial

council.

Unlike the Judicial Conference, a judicial council has explicit

authority “to make all necessary and appropriate orders for the ex34. Russell R. Wheeler & Charles W. Nihan, Administering the Federal

Judicial Circuits: A Survey of Chief Judges’ Approaches and Procedures, table 3, at

42 (Federal Judicial Center 1982). Though more than a decade old, this report

remains the most complete review of the administrative activities of chief judges.

See also Arthur D. Hellman, Restructuring Justice: The Innovations of the Ninth

Circuit and the Future of the Federal Courts (1990).

35. Compare the current language of the council’s statute, which calls for the

councils to provide for the “effective and expeditious administration of justice

within the circuit.” 28 U.S.C. § 332(d)(1).

36. Peter G. Fish, The Politics of Federal Judicial Administration 387 (1973).
Federal Court Governance

21

peditious administration of justice within its circuit.” The statute

further directs the judges and employees of the circuit to carry out

council orders expeditiously.37

The council shares some of the chief circuit judge’s responsibility for actions on complaints of judicial misconduct and disability.38

It has been observed that the councils tend to work informally

whenever possible and to tread lightly on all issues that might

interfere with the legitimate independence of the judges.39 At the

same time, the enhanced delegation of budgetary authority to individual courts, pressure from Congress to speed and regularize the

management of civil litigation,40 and enhanced capacity of circuit

executives to staff the councils have created more formal governance operations at the level of the judicial council. In any event,

the council and its administrative agent, the circuit executive, represent key elements of regional court governance.

Circuit judicial conference. The circuit judicial conference, another governance element established by the 1939 statute, was intended to provide an opportunity for judges to confer with one another and with lawyers practicing in the circuit about the administration of justice in the circuit. The conference must be held at

least biennially but may be convened annually. The statute directs

active circuit and district judges and the bankruptcy judges of the

circuit to attend. Participation by the bar is organized according to

rules made by each court of appeals.41 The conferences have not

uniformly fulfilled the expectation of fostering grass-roots input

and debate on major issues, although in the 1980s, most circuits

took steps to revitalize their conferences.

Chief district judge and district court. Like chief circuit judges,

chief district judges attain the position through seniority and age,

37. 28 U.S.C. §§ 332(d)(1), 332(d)(2).

38. These and other tasks of the council are noted in Appendix C.

39. Doris Marie Provine, Governing the Ungovernable: The Theory and Practice of

Governance in the Ninth Circuit, in Hellman, supra note 34, at 270; Jeffrey N. Barr &

Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial

Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L.

Rev. 25, 131–44, 173–77 (1993).

40. E.g., through the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 1, 471

(1991).

41. 28 U.S.C. § 333.
Federal Court Governance

22

and, like chief circuit judges, not all have served the seven-year

term contemplated by the statute. Although most district judges

recognize considerable authority in the office of chief judge, neither legislation nor Judicial Conference policy calls explicitly for

the chief district judge to assume plenary administrative authority

for the district court. There are nevertheless many more specific

statutory responsibilities and a substantial tradition, which together

make the office of the chief judge an important element in decentralized court governance.42

District courts are in several ways autonomous administrative

entities whose managers deal directly with the Administrative Office

on a wide range of matters affecting funding and human resources.

Each court selects its own clerk, who acts as the court’s administrative agent, particularly in regard to national policies and local

discretion regarding financial and personnel matters. Five courts

also have “district court executives,” and one has a “court administrator.” The positions are legacies of a pilot program begun

during the 1980s.

The bankruptcy court is a unit of the district court with its own

chief judge and, in almost all districts, a separate clerk’s office. The

Judicial Conference establishes recommendations to Congress for

the numbers of bankruptcy judgeships;43 the courts of appeals

appoint bankruptcy judges;44 the district court designates the chief

bankruptcy judge;45 and the chief bankruptcy judge is charged with

ensuring that the business of the court is handled effectively and

expeditiously.46 Although they are units of their district courts, most

bankruptcy courts operate with substantial autonomy.

Magistrate judges are also essential to the work of the district

court, and about a third of the courts recognize a position of “chief

magistrate judge” to exercise administrative and coordinating duties. Nevertheless, the magistrate judges and those who support

42. In particular, see the discussion in Chapter 1 of the Federal Judicial

Center’s Deskbook for Chief Judges of U.S. District Courts (2d ed. 1993)

[hereinafter Deskbook].

43. 28 U.S.C. § 152(b)(2)(3).

44. 28 U.S.C. § 152(a)(1).

45. 28 U.S.C. § 154(b).

46. Id.
Federal Court Governance

23

them do not constitute a separate governance unit similar to the

bankruptcy court.

25

Part IV: A Summary Account of the Status

Quo in Federal Court Governance

This part presents a summary of the current structure and operation of federal court governance. It summarizes the descriptive materials presented in Part III. It clarifies the assumptions that, if true,

justify the current structure and modes of operation. It establishes a

model against which alternative models can be measured; such alternatives are presented later in the paper, with arguments for and

against them. The summary is less and more than a description. It

is less than a description because it oversimplifies reality by ignoring everything but the skeleton of the relationships between the elements of governance. It is more than a description because it expresses how the designers of such a system would intend for it to

operate.

In the current federal court governance structure, central, regional, and local governance elements are presumed to operate in

equipoise, but always subject to congressional oversight and control

through appropriations and other legislative means. The Chief Justice is the general leader of the judicial branch and the head of

each of its key national governance elements. The Judicial Conference, advised by its committees, establishes national policy and

communicates the demands and preferences of the judiciary to the

legislative and executive branches. The director of the Administrative Office is the agent of the Judicial Conference; all the resources

of the office are at work to implement Conference policy. The Federal Judicial Center provides an education and research capacity

that is not bound to the exigencies of everyday administration or to

supervision by the Judicial Conference. The chief judges of the circuits, through their dual roles as members of the Judicial Conference and chairs of their respective judicial councils, communicate

and integrate national and regional policy positions. The circuit

judicial councils, composed entirely of life-tenured judges, have

sufficient explicit authority to improve the administration of justice

within the circuit. The circuit executives are the agents of the judicial councils and carry out the councils’ policies with a sufficient

professional staff. The circuit judicial conferences provide the
Federal Court Governance

26

councils with an opportunity to exchange information with other

judges, for all the judges to share their views with one another, and

for the judiciary to relate to the members of the bar who practice in

federal courts. The consultation at the circuit conferences

strengthens the legitimacy of council action at the regional level.

Chief district judges have substantial local responsibilities for leadership and administration; they are aided in their administrative

duties by the clerk of the court, who is a professional court administrator and manager. And their responsibility for the bankruptcy

courts, as units of the district court, is successfully delegated to the

chief bankruptcy judges.

The current governance structure, as described above, rests on

certain implicit assumptions. For purposes of long-range planning,

these assumptions should be made explicit and then reviewed with

the following questions in mind: Are the assumptions justified in

fact, that is, is the governance arrangement operating as this summary says it is? If so, do current governance elements and functions

have the legitimacy and vitality that they will require to guide the

courts’ policy making through a difficult future? Can they meet the

needs of today and tomorrow? Finally, if assumptions underlying

current governance arrangements are untenable, what should be

done to bring theory and practice into alignment?

An analysis of a governance system needs some criteria by

which to judge the system’s operation. For this effort, we turn, not

to our own suppositions about how federal court governance

should operate, but to criteria derived from the summary above—

that is, assumptions that are apparently built into the current system and accepted by the federal judiciary. We have identified seven

such assumptions:

• The Chief Justice is properly the head of the entire federal

judiciary.

• The current methods of selecting Conference, council, and

committee members properly ensure equal participation by

all circuits in national governance and sufficient consultation

with affected judges and employees at the national, regional,

and local levels.
Federal Court Governance

27

• Full-time judges should function as the policy makers at the

national, regional, and local levels of court governance, and

they are capable of doing so.

• Full-time judges should control the effective implementation

of policy by administrative staff, and they can do so without

constant oversight of that staff.

• Governance structures are properly linked to the hierarchy

of judicial decision making; that is, appellate judges should

have greater governance authority than trial judges.

• Governance authority properly resides in life-tenured judges.

• The governance arrangements should not and do not impair

legitimate judicial independence.

Throughout the remainder of the paper we explore the validity

of these assumptions by describing alternative governance arrangements and assessing arguments that can be made in support

of and in opposition to these alternatives. After analyzing the operation of the current system by comparing it with alternative arrangements, we return to these seven assumptions to assess their

continued validity.

29

Part V: Arguments for and Against

an Alternative Approach to

Federal Court Governance

We turn now to an analysis of the current federal court governance

arrangements and an alternative to those arrangements. As already

noted in the prefatory Note About Method, we set out the alternative arrangements discussed here, not because we endorse them or

believe no other alternatives merit analysis, but because they have

been offered for analysis by others or they otherwise provide an effective means of analyzing current arrangements.

Section A deals with national arrangements; section B deals

with circuit and district arrangements.

A. Federal Court Governance at the National Level

In this section, we first analyze three arguments for revising the

current arrangements of federal court governance at the national

level:

1. The demands on the office of Chief Justice are too great for

any incumbent.

2. The Judicial Conference and its committee system are unwieldy, and the structure of the Conference gives overrepresentation to small circuits, to appellate judges, and to lifetenured judges.

3. The Administrative Office and the Federal Judicial Center

are unresponsive to the judges who are authorized to establish their policies.

We then set forth an alternative arrangement based on a quasicorporate model. Under the alternative arrangement:

1. The Chief Justice would be specifically recognized as head

of the federal judiciary, but many current governance responsibilities of the Chief Justice would be met by the incumbent of a new position of executive judge for the federal courts, an appointee of the Chief Justice.
Federal Court Governance

30

2. The Judicial Conference and its committees would be replaced by a small judicial board, elected by judges or their

representatives and chaired by the executive judge.

3. The Administrative Office and the Federal Judicial Center

would be merged into a single national support office.

We offer this analysis in the form of specific arguments, for each of

which we offer a specific response.

1. Federal court governance is at risk because more demands are

placed on the office of Chief Justice than any incumbent can

reasonably fulfill.

The argument

The Chief Justice is expected to serve on, preside over, and

manage the Supreme Court, defend the Court from outside attack,

and occasionally serve the nation extrajudicially. In addition to all

that, the Chief Justice is expected to provide executive leadership

for federal court governance, mainly by presiding over the Judicial

Conference and the Federal Judicial Center Board and performing

the many other tasks that stem from those duties.47 Try as one

might, no individual can devote adequate time to all those duties.

Professor Daniel Meador pointed out fifteen years ago that the

Chief Justice’s work as an appellate judge “alone is more than

enough for the time and talents of any one individual.”48 The additional demands of Supreme Court leadership and the need to respond to “at least fifty-three statutes that assign duties to the Chief

Justice” create “a workload that can be carried only by one of nearly

superhuman energy.”49 Staff assistance, mainly from the administrative assistant and the Administrative Office, cannot help enough.

Chief Justice Burger warned ten years after his appointment “that if

the burdens of this office continue to increase it may be impossible

for its occupant to perform all the duties well and still survive.”50

Chief Justice Rehnquist, although not indicating that he is unable

47. Fish, supra note 36, at 135.

48. Meador, supra note 23, at 1042.

49. Id. at 1044.

50. Warren G. Burger, Address Before the American Enterprise Institute

Conference 8 (Dec. 14, 1978) (transcript on file with the Federal Judicial Center).
Federal Court Governance

31

to handle the work, has not discouraged consideration of alternative concepts.51 Some have argued that, apart from the pressure of

the work, the current role of the Chief Justice could damage the

Court, by interfering with judicial responsibilities or by creating

conflicts when cases dealing with judicial administration matters in

which the Chief Justice has been involved come before the Court.52

Moreover, a substantial commitment of time by the Chief Justice to

executive leadership duties might engender criticism that the Chief

Justice was insufficiently attentive to Supreme Court duties.

The response

Claims that the Chief Justice’s duties are beyond the capacity of

one individual would surprise the Secretary of Defense or the Secretary of Health and Human Services or the chief justices of our

larger states. The fifty-three statutory duties listed by Professor

Meador include many ministerial tasks, such as receiving the Administrative Office director’s waiver of civil service retirement coverage and providing the Library of Congress with lists of books for

its law library.53 The problem with these duties is that they clutter

up the statute books and should be assigned elsewhere.

The position is certainly a very demanding one, but there is little information on which to base the assumption that the job is beyond the capacity of a single individual. Especially, precious little

comparative information is available from which one could conclude that it is impossible for the Chief Justice to meet all the position’s constitutional duties and also attend adequately to needs of

federal court governance. It is true that Chief Justice Burger, and

some who wrote about the office during his tenure, feared that future Chief Justices would find it impossible to do the job as structured. We do not know, though, whether those fears were rooted in

conditions unique to the position when he held it (e.g., the law explosion that occurred during his tenure and the concomitant

growth of the judiciary and its institutions). We can draw some in51. FCSC Report, supra note 26, at 146.

52. Fish, supra note 36, at 133. See also Diarmuid F. O’Scannlain, On

Governance of the Federal Judiciary (1992) (unpublished LL.M. thesis, University

of Virginia).

53. Meador, supra note 23, at 1055–59.
Federal Court Governance

32

sight from the fact that the current Chief Justice has not promoted

the idea that the office needs restructuring.

Furthermore, there is little foundation to fears that the Chief

Justice’s off-the-bench governance activities could affect the

Supreme Court’s work. The Judicial Conference traditionally eschews comments on a proposed bill’s substantive merits (i.e., matters that might arise in litigation), although it typically notes the

workload impact of a proposed bill. It is eminently reasonable to

assume that the nation’s chief judicial officer will manage the position with sufficient skill and integrity to avoid conflicts.

2. The Judicial Conference’s procedures and composition threaten

the long-term legitimacy of federal court governance decisions.

a. Conference organization, size, and procedures are inconsistent

with effective policy making.

(1) A large, part-time, collegial body is incapable of providing the executive decision making that the judiciary will need in the future.

The argument

Federal court governance at the national level consists of exercising the responsibilities expressed or implied in the Judicial Conference statute and supervising the Administrative Office’s statutory

functions. “Judicial control over these functions,” as the report of

the Conference’s 1987 Committee to Study the Judicial Conference

said, “is vital to the maintenance of judicial autonomy and independence.”54 The question is, what governance arrangement will

ensure both judicial control and effective action?

The current arrangement, based on the 1939 governance assumptions, is this: Before each semiannual Conference meeting,

twenty-seven individuals, each occupying one of the most demanding positions in the public service, receive thick agenda books of

committee reports that intersperse vital policy proposals with arcane management recommendations, about sixty items per meeting.55 The Conference members individually determine the rec54. Report of the Committee to Study the Judicial Conference 3 (Aug. 20,

1987) (unpublished manuscript, on file with the Office of the Judicial Conference

Secretariat, Administrative Office of the U.S. Courts).

55. See supra text accompanying note 28.
Federal Court Governance

33

ommendations’ merits without formal consultation, then discuss

and vote on the most controversial items during a one-day Conference meeting.

In 1939, eleven judges, meeting once a year for two to five

days,56 could supervise an Administrative Office that served, in an

early official’s words, “as fiscal administrator, as budget officer and

as gatherer of statistics.”57 About 100 people58 performed duties

listed on one page in the Statutes at Large59 for a judicial system of

233 circuit and district judgeships60 and about 2,200 support

personnel.61 Whether the Conference was capable of much more

governance did not concern those who promoted the 1939 statute,

because they saw the circuit councils as the judiciary’s main governance element. Judge John Parker, one of the primary architects,

said that having the judiciary handle its “financial affairs” was “a

very small part of the bill.” To him, its major feature was the circuit

councils—“unifying the administration of justice in the hands of

the chief judicial officers of the courts, . . . [who] shall be furnished

with the facts with respect to the administration of justice in their

circuits . . . in quarterly reports by the administrative officer.”62

56. Henry P. Chandler, Some Major Advances in the Federal Judicial System,

1922–1947, 31 F.R.D. 307, 331 (1963). A review of the proceedings of the

Conference of Senior Circuit Judges (Report of the Attorney General, U.S.

Department of Justice) suggests that Conference meetings in the 1930s usually

lasted three days.

57. Will Shafroth, New Machinery for Effective Administration of Federal Courts, 25

A.B.A. J. 738 (1939).

58. Steven Flanders, Distributing Administrative Responsibility Within the Federal

Court System (1989), in Federal Courts Study Committee, 2 Working Papers and

Subcommittee Reports, July 1, 1990.

59. 53 Stat. 1223–24 (1939).

60. Administrative Office of the U.S. Courts, History of the Authorization of

Federal Judgeships, Including Procedures and Standards Used in Conducting

Judgeship Surveys, Table 7 (Number of Authorized Judgeships, 1789 to 1990) at

145 (no date).

61. See Table, Article III Judgeships, Judicial Personnel, and Staff per

Judgeship Since 1900, in Bermant et al., supra note 1, n.96, at 45.

62. Hearings on H.R. 2973, subsequently amended and reintroduced as H.R.

5999, a Bill to Provide for the Administration of the United States Courts, and for

Other Purposes, Before the House Comm. on the Judiciary, 76th Cong., 1st Sess.

20 (1939).
Federal Court Governance

34

Two developments have rendered the 1939 assumptions invalid.

First, most power has accumulated in Washington, D.C., not the

circuits. Power comes from the authority to allocate resources, and

Congress has assigned most resource allocation tasks to the Administrative Office, to be carried out under Conference supervision.

Second, to accommodate this congressional policy, the Administrative Office has necessarily become a multipurpose bureaucracy to

administer a complex spending plan and provide legal, management, and policy advice and support to the courts. The size of the

Washington, D.C., staff of the judiciary has gradually outgrown the

size of the life-tenured judiciary that is its chief client.63

The Conference is incapable of making the policy to direct this

new arrangement. It cannot create the rules for effective resource

allocation, oversee their administration, and plan and execute a

legislative agenda. The standard judicial administration view is that

if a jurisdiction’s supreme court does not make administrative policy, policy should be made by a twelve to fifteen judge council—“a

compact body . . . capable of meeting together regularly and conveniently . . . pursuing frank and searching discussion.”64 The

Conference is in session only two days a year and, with twenty-seven

63. District and Circuit Judges, AO and FJC Staff, All Other

Judicial Branch Personnel

Active Status

District and

Circuit Judges %

AO and

FJC Staff %

All Other

Judicial

Branch

Personnel %

1962 353 5.7 165 2.7 5,627 91.6

1972 479 5.9 258 3.2 7,386 91.0

1982 609 4.0 613 4.0 14,106 92.0

1992 715 2.6 1,104 4.0 25,612 93.3

Source: Personnel tables in the Administrative Office of the U.S. Courts,

Annual Report[s] of the Director, 1962, at 160; 1972, at 258–59; 1982, at 34; and

1992, at 98. Figures represent the persons in office (not positions or judgeships)

on the last day of the respective reporting year. Staff figures are staff members in

place on the last day of the reporting year. Figures for 1982 and 1992 include

Federal Judicial Center staff as well as Administrative Office staff. The 1962 and

1972 figures are for the Administrative Office only.

64. American Bar Association, Commission on Standards of Judicial

Administration, Standards Relating to Court Organization 78 (1974). The recommended council size is in Standard 1.32(a)(ii), at 76.
Federal Court Governance

35

members, is unwieldy. Moreover, the Conference will grow as more

circuits are added. But as the Conference grows large, effective

governance increasingly will demand a heightened capacity to act

quickly to take advantage of windows of opportunity as they arise,

especially with respect to legislation.

The inadequacy of the current governance structure is not apparent on a daily basis or after a superficial review. The courts function, their administrative needs get met, and the worst legislative

proposals are defeated. That the system has functioned adequately,

however, is not to say that it is up to the challenge of the twenty-first

century. To recall the Chief Justice’s warning, as workload increases

and fiscal austerity continues, “[b]oth lawyers and judges will be

subjected to additional rules and regulations designed to maximize

the efficient use of the federal and state court systems.”65 The result

will be a somewhat larger, more complex, and much more austere

judicial branch, for which the current governance mechanisms will

be inadequate.

The response

The Judicial Conference structure accords with the nature of

the judicial branch. In this regard, the judiciary is much like

Congress: a small institution with a high proportion of principals.

The main purpose of the governance structure is to ensure that

principals have the support they need to exercise their constitutional tasks. Unlike members of Congress, though, the constitutional officers of the judiciary do their work in sites across the

country. They thus need a body such as the Conference to represent them in governance decisions. If the federal courts face a future of more work and fewer resources, there will be greater need,

not less, for the governance system to be in touch with judges

throughout the country. A large representative Conference, supported by a broad committee structure, is the means of preserving

broad-based judicial control and involvement in difficult decisions

that implicate judicial independence.

The Conference’s participatory structure functions efficiently.

The Administrative Office, although large in comparison with its

65. Rehnquist, supra note 9, at 15, 16–17.
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36

size in 1939, is still a very small agency by Washington standards,

hardly beyond the Conference’s capacity to control. Moreover,

governance decisions need not wait until the Conference’s semiannual meetings. Specifically to avoid that kind of inefficiency, the

Conference in 1987 strengthened its Executive Committee, to

“provid[e] the judiciary with consistency and continuity of administration beyond what the Conference can provide at its meetings

and what the Chief Justice should be expected to provide.”66 The

Executive Committee meets almost monthly, in person and by

phone. Its jurisdiction includes acting on the Conference’s behalf

“on any matter requiring emergency action,” working with the Administrative Office director to “fashion spending plans for the federal judiciary’s . . . appropriations,” preparing the Judicial Conference agendas, monitoring the jurisdiction of Conference committees and assigning matters to the committees, and “[c]oordinat[ing] legislative liaison on behalf of the Conference” (but leaving

to each committee the responsibility to develop “substantive”

legislative positions for Conference consideration).67

Most matters move through the committee structure to Conference decision within six months. Important, complex, and controversial matters take longer. The current structure produces legislative and administrative results. The most important legislative result

has been an increase in appropriations of over 1,000% in the last

two decades (as compared with a 330% increase in the legislative

budget and a 430% increase in the executive branch budget).68

66. Report of the Committee to Study the Judicial Conference, supra note 54,

at 5.

67. Jurisdiction of Committees of the Judicial Conference of the United

States, May 1993.

68. The appropriations to support the federal judicial system (not including

the Supreme Court) grew from $183 million in fiscal 1973 to $2.4 billion in 1992,

an increase of 1,217%. In the same twenty-year period, the total appropriations for

the legislative branch grew to $2.035 billion, a 336% increase, and the executive

branch’s appropriations increased by 431%.

The 1973 figures on which these calculations are based come from “1973

Actual Column” of the 1975 U.S. Budget Summary, Table 3, at 45–47 (judiciary),

289 (legislative and executive). The 1992 figures are from the President’s January

1993 budget document, Budget Baselines, Historical Data, and Alternatives for the

Future, Table 5.2, at 336. Judiciary budget calculations do not include Supreme

Court budgets (for 1992 drawn from 1992 Actual Column of the judiciary’s fiscal
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37

That support has enabled the judiciary to manage a greatly increased caseload. Administratively, the current structure has

yielded a large decentralization program, delegating to the courts

many responsibilities regarding resource allocation that Congress

has assigned to the director of the Administrative Office. The Conference’s recent creation of an Economy Subcommittee of the

Budget Committee will invest the judiciary’s administration with a

stronger review and coordination capability.

Conditions that Conference critics do not like are not a result

of the governance structure. For example, the Conference and the

Administrative Office operate a network of legislative and executive

branch contacts that is far more extensive and effective than most

judges realize. No amount of judicial branch reorganization,

though, will change the fact that Congress simply sees things—

mandatory minimum sentences, for example—much differently

than the judiciary sees them. Clerks and some judges complain

about resource allocations, but it is impossible to please everyone,

especially in an era of scarce resources.

(2) The Conference committee system contributes to the lack of executive

leadership within the judiciary.

The argument

The Conference’s growing ineffectiveness has led to a large and

powerful committee system.69 Three-fourths of all substantive

Conference decisions for the last six years approved committee

recommendations without debate.70

1994 budget request document). Executive branch figures were reduced by

$117.111 billion in offsetting receipts noted for the entire federal budget in 1992

and $8.363 billion in undistributed intragovernmental transactions in 1973. The

1992 executive branch appropriation used for these calculations is $1.464 trillion.

69. The current committee structure is listed in Table 1, supra.

70. The Conference approved a consent and discussion calendar format at its

September 1987 meeting, to be implemented at the following meeting. JCUS

Report, Sept. 1987, at 57. Based on a count of 669 decisions (excluding testimonial

and memorial motions), 505 were approved from the consent calendar, and 164

were debated and acted upon from the discussion calendar. (The count encompasses ten meetings. Reports for September 1992 were not readily available.)
Federal Court Governance

38

The committee system compounds the problems created by the

Conference. Twenty-five active committees71 with over 260 members create miscoordination and overlap that will increase as the

courts grow in size and their need for governance increases. The

committee structure, paralleling the Administrative Office’s organization, nurtures a clientele mentality, protecting the sometimes

conflicting interests of life-tenured and term-appointed judges,

probation and pretrial services officers, clerks of court, automation

supporters, courthouse construction proponents, and advocates of

enhanced security. This environment encourages committee chairs

and members with firm policy preferences to advance particular

agendas regardless of whether those agendas comport with budget

realities or more pressing judicial branch needs. The Conference

itself is too large and meets too infrequently to coordinate the

committees’ work. Committee chairs, under the Conference’s

rules, usually do not attend Conference sessions unless a committee

item is on the discussion agenda.72 The danger that committee

chairs or members will inadvertently misrepresent Conference policy has led the Executive Committee to caution them to make clear

that they are speaking as individual judges when, in conversations

with legislators and executive branch officials, they voice opinions

that are contrary to Conference policy.73

The committees compromise the role of the Administrative Office, whose statute directs it to function under Conference supervision. The committees become active because the Conference is institutionally incapable of providing that supervision. Thus, the Executive Committee has had to stress that the committees should

only “study and make policy recommendations to the Conference,”

and “not [be] involved in making day-to-day management decisions

for the Judiciary or for the Administrative Office.”74 On the other

hand, the Administrative Office sometimes must step into policy

vacuums that occur because much of the committees’ business is

71. See Table 1, supra. Twenty-five includes the advisory committees to the

Standing Committee on Rules of Practice and Procedure.

72. Id.

73. Role of the Committees, supra note 31, at 3.

74. The admonition appears twice. See Role of the Committees, supra note 31,

at 1, 2.
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39

complex and unfamiliar to the members. Materials for the committees’ semiannual meetings are sometimes even thicker and more

detailed than those for Conference meetings, and members’ mastery of the material varies. Since they frequently meet away from

Washington, D.C., committees often must proceed without complete staff resources or incur the additional costs of adequate staff

presence. When committees cannot act effectively, there is a risk

that the Administrative Office, in order to keep the ship afloat, will

be forced into a policy-maker role, thus preserving only the illusion

of judicial control.

To a lesser degree, the committees compromise the work of the

Federal Judicial Center, which is directed by statute “to provide

staff, research, and planning assistance to the Judicial Conference

. . . and its committees.”75 The Center’s staff is sometimes faced

with conflicting committee requests for research and educational

services.

The response

The Conference committee system is not a response to recent

developments. It is as old as the Conference itself.76 As the 1987

Committee to Study the Judicial Conference said, “[a]n extensive

Conference committee system is important to allow the Conference

to complete its work in an efficient and effective manner. It is also

important because it involves many judges with different viewpoints

from across the nation and thus ameliorates the adverse impact of

the Conference’s national authority on the judiciary’s traditions of

regionalism and independence.”77

The Conference’s committee structure involves many judges in

governance and thus maintains close bonds between the Conference structure and the judiciary that it serves. Committees obviously require coordination and monitoring, but that is true in any

large organization. It is far better to have the committees and pro75. 28 U.S.C. §§ 623(a), 620(b)(4).

76. The Conference formed eight committees at its first meeting. Report of

the Judicial Conference, Memo of First Two Meetings, Dec. 28, 1922, and Sept. 26,

1923 (unpublished manuscript, on file with the Federal Judicial Center).

77. Report of the Committee to Study the Judicial Conference, supra note 54,

at 20.
Federal Court Governance

40

tect against occasional jurisdictional overlap than to do without

them. The Conference’s Executive Committee, assisted by the Office of the Judicial Conference Secretariat in the Administrative Office, provides the overall coordination the system needs by monitoring committee work to avoid duplication of effort and unintentional inconsistencies in policy recommendations. Although there

is naturally a close working relationship between the committees

and the Administrative Office, that does not mean that one controls the other. Rather, both work for the Judicial Conference, and

any Conference policy prevails in the event of a conflict. Energetic

committee members who are willing to shoulder special obligations

and carry the lead for the Conference in a particular policy arena

provide an important service to the judiciary.

The committees, moreover, are an efficient way to ensure that

the judicial perspective controls the many decisions necessary to

keep the courts operating effectively. The judges who serve on the

Conference committees master the subjects within their committees’ particular jurisdiction. It is in the nature of a judge’s job to

separate wheat from chaff, and judges bring this skill to their committee work. Committee material is extensive, but not all of it requires detailed review. Putting it before the committees, though,

ensures judicial control; a judge may always spot some seemingly

innocuous item that needs attention.

The federal courts derive an auxiliary benefit from a large

committee system. It enables judges to exchange ideas and information with colleagues from other circuits across the country. Most

federal judges work in relative isolation from colleagues outside of

their particular courts, certainly outside of their circuits. Committee work, along with Federal Judicial Center seminars, provides an

opportunity for cross-pollination as a valuable side benefit to the

primary task at hand.
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41

b. The Conference’s composition contradicts the suggestion that

“[d]emocratically adopted and endorsed conclusions and

proposals of the Judicial Conference represent the view of the

Judiciary branch on all matters.”78

(1) Smaller circuits are disproportionately represented.

The argument

Each circuit has two voting representatives on the Judicial Conference. Judges in smaller circuits thus have more influence

through their representatives than do judges in larger circuits.

Judges who represent 37% of the nation’s federal judges can cast a

majority of the twenty-seven votes on the Conference, while judges

representing 54% of the nation’s judges control only 38% of Conference votes (see Table 3, Appendix B). A member of the Ninth

Circuit’s court of appeals noted that his “interest in the governance

of the judiciary . . . is diminished by four and one-half times that of

my brother and sister judges on the [court of appeals for the] First

Circuit,” and with respect to district judges, the “problem is even

worse.”79 This malapportionment would not be objectionable if the

Conference were still what it was in 1922, a small advisory council

that developed temporary assignment plans and judicial improvement recommendations. Today, however, federal court governance consists of making rules and regulations about resource allocation, and resource allocation will be even more important in

the future. A judge’s influence on those allocation decisions—

which judicial branch elements and operations get more resources

and which get fewer—should not depend on the circuit in which

the judge serves.

78. Report of the Ad Hoc Committee to Study the Relationship Between the

Federal Judicial Center and the Administrative Office of the United States Courts,

September 24, 1991, at 15. The Judicial Conference and the Board of the Federal

Judicial Center approved the report in a joint, September 1991 meeting. JCUS

Report, Sept. 1991, at 72.

79. Diarmuid F. O’Scannlain, On Governance of the Federal Judiciary 61

(1992) (unpublished LL.M. thesis, University of Virginia).
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42

The response

In our federal republic, unequal population units sometimes

have the same number of votes. Each state—California and Rhode

Island alike—has equal votes in the Senate because each state is a

fundamental unit of the American polity. Each circuit—the Ninth

and First alike—has equal votes in the Conference because each

circuit is a fundamental unit of the federal judiciary. And, in fact,

there is much less disproportion in circuit size than there is in the

size of the states. As Table 2 in Appendix B shows, a few circuits are

considerably smaller and one or two considerably larger, but most

occupy a middle range in terms of percentage of all judgeships.

More important, Conference members vote as federal judges,

not circuit agents. Circuit representation merely promotes an appreciation of all perspectives. By analogy, when courts assess conflicts in law between circuits, they do not give larger circuits’ decisions more weight than smaller circuits’ decisions. Finally, as noted

earlier, much Conference business is actually done by Conference

committees. The Chief Justice determines committee membership,

subject only to Conference determinations that some committees

should have a representative from each circuit. In fact, larger circuits have greater representation on committees than do smaller

circuits (the correlation coefficient between the number of judgeships in each circuit and each circuit’s representation on Conference committees is .83); moreover, the largest circuit has the greatest number of committee chairs (see Figure 2 and Tables 2 and 3,

Appendix B).

(2) Appellate judges are disproportionately represented.

The argument

Nationally, for every circuit judge there are almost four district

judges. Yet, on the Judicial Conference, for every circuit judge,

there is only one district judge. The statute also favors circuit

judges in other ways. It allows both circuit and district judges to

help select the circuit’s district judge representative. Chief circuit

judges, as ex officio Conference members, have presumptive sevenyear Conference terms,80 during which they can establish effective

80. See discussion at text accompanying note 32 supra.
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43

working relationships with one another and Conference staff. The

district judge representatives serve three-year terms. Few have

served additional terms (although that pattern may be changing at

least slightly).

There is precedent for appellate judges’ governing the nonadjudicatory activities of trial courts, but there are no principles to

justify it other than the common observation that “[g]iven the judiciary’s traditional hierarchical arrangement, the notion that appellate judges might be outvoted by district judges would hardly be

appropriate.”81 If there were solid principles to justify having judges

govern judges on courts below theirs in the jurisdictional hierarchy,

those principles should override the long-standing institutional

resistance to involving the Supreme Court’s associate justices in the

governance of the courts of appeals and district courts. The Court’s

only significant involvement is in rule making, and many observers

question even that.82 Applying the same logic to the Conference

means, at the least, that circuit judges should not have more power

than district judges.

The response

To the degree they represent anyone, circuit judges serve on

the Conference ex officio as council chairs and represent all the

judges in their circuits. To the degree they serve as circuit judges,

they do so to bring a distinct perspective to governance matters affecting the district courts, which stems mainly from the fact that

they regularly observe the district courts’ operations but are not intimately involved in those operations. The purpose of appellate

judges’ predominance in governance is not to serve the appellate

judges. It is to serve the decision-making process. Appellate judges

exercise authority in federal court governance greater than the

simple ratio of their numbers for the same reason that they review

81. O’Scannlain, supra note 79, at 63.

82. See, e.g., Judge Jack B. Weinstein, Reform of Court Rule-Making

Procedures 102 (1977) and Justice White’s statement, quoting Justice Douglas, at

the time the Court considered the 1993 civil rules amendments, in Communication from the Chief Justice of the United States, Transmitting Amendments to

the Federal Rules of Civil Procedure and Forms, Pursuant to 28 U.S.C. § 2072,

H.R. Doc. No. 74, 103d Cong., 1st Sess. (1993).
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44

appeals from district court judicial decisions—because they have a

distinct perspective on the business under review. Similarly, the district judges on the Conference bring a distinct perspective to matters of appellate court governance. Furthermore, membership on

Conference committees, which exercise significant influence over

Conference actions, roughly reflects the proportion of circuit and

district judges in the system; of the twenty-four committee chairs,

fourteen are district judges, nine are circuit judges, and one is a

bankruptcy judge (see Table 3, Appendix B).

(3) Term-appointed judges are excluded from membership.

The argument

Since 1957, when district judges joined the Conference, Congress has created two new judicial positions: bankruptcy judge and

magistrate judge. Bankruptcy and magistrate judges now represent

over 40% of federal judgeships.83 Without them, the system would

need an increase in life-tenured judges that would fundamentally

change the character of the federal judiciary. Continuing to

deprive term-appointed judges of any formal role in the governance authority will eventually undermine the legitimacy of national governance policy. Decisions about how to administer the

courts should include participation of all those essential to the system’s operation. Among other things, Conference deliberations do

not include the particular perspectives of bankruptcy judges, whose

work is different from that of circuit and district judges. Because effective implementation of many Conference decisions requires the

support of and participation by term-appointed judges, those

judges should participate in making the decisions and thereby gain

a vested interest in them. Fully proportionate representation is not

necessary to achieve these goals.84

83. See text following note 6 supra.

84. For example, the Bankruptcy Reform Act of 1978 provided for a single

bankruptcy judge member of the Judicial Conference, but before it could take effect, that provision was repealed by legislation enacted in the wake of the 1982

Marathon Pipeline decision. One bankruptcy judge and one magistrate judge, or

perhaps two of each, would suffice to ensure representation of the perspective of

these term-appointed judges.
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The response

The overriding purpose of federal court governance is to support the judiciary’s ability to exercise the judicial power of the

United States. Essential to that ability is preserving judicial independence as created by Article III. Only judges with the protections

of Article III exercise the judicial power of the United States, and

thus they are the only appropriate persons to wield governance authority. Only they have the enlightened self-interest to exercise that

authority to ensure the survival and promotion of Article III’s institutional protections. Although term-appointed judges are fully

committed to the third branch and its institutional role, they simply

cannot have the same appreciation for judicial independence and

the need to preserve it as circuit and district judges have. The argument above for bankruptcy and magistrate judge membership on

the Conference, carried to its logical conclusion, would also put

staff members on the Conference; they too are “essential to the system’s operation,” and their absence would also require life-tenured

judges to do much more work. Moreover, token representation by

one or two term-appointed judges would be seen as just that, a token.

Bankruptcy judges and magistrate judges serve in significant

numbers on Conference committees—about 14% of all federal

judges serving on those committees,85 with higher proportions on

committees that directly affect their interests. Also, enough lifetenured judges have served previously as bankruptcy or magistrate

judges to be familiar with the needs and perspectives of these

judges.

3. The Administrative Office and the Federal Judicial Center are

under only the nominal control of the judges who are supposed

to determine their policies.

The argument

Congress has told the Administrative Office to exercise its functions under the “supervision and direction” of the Judicial Conference and has told the Federal Judicial Center to act under the

85. Term-appointed federal judges hold 33 of the 239 federal judge seats on

committees (see Table 3, Appendix B).
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46

“direction and supervision” of its Board,86 but neither the Conference nor the FJC’s Board is structured to provide such supervision and direction.

Conference members, including the Executive Committee, are

all busy judges. They do not have the time necessary to master all

the issues involved in effective supervision of the Administrative Office. The chairs and members of the individual committees are

usually much closer to the specific Administrative Office units

within their jurisdiction and provide those units with some direction, despite Executive Committee admonitions not to do so.87

Similarly, the judges on the FJC’s Board, like those on the Judicial

Conference, all have full-time judicial duties that prevent them

from exercising close policy supervision of the Center director and

staff. Finally, because the two agencies perform similar functions,

there is overlap and lack of coordination, which mitigates the ability of separate sets of judicial branch principals to exercise firm

chain-of-command control.

The response

Statutory directives for “supervision” and “direction” do not

mandate micromanagement. It is unrealistic and counterproductive for a policy-making body or individual to oversee the daily work

of professional staff members who were hired because of their mastery of complex subject matter and who operate under the guidance of capable agency management. This statement is as true for

the Administrative Office and the Center as it is for a large corporation or university. Inevitably, staff will make some policy decisions,

if for no other reason than that the barrier between policy making

and management execution is one of the most porous in organizations.

Successful operation of service agencies, such as the Administrative Office and the Center, consists in having the governing bodies set broad policies and then select highly qualified individuals to

direct the agencies so as to promote those broad policies. Both

86. See 28 U.S.C. §§ 604(a), 623(a).

87. Role of the Committees, supra note 31, at 1.
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agencies’ accomplishments in the last several years demonstrate

that the governing bodies are up to that challenge.

Furthermore, both agencies’ staffs work closely with judges

throughout the courts. Most executive branch bureaucrats rarely

see their ultimate bosses or the consumers of their services and

thus forget for whom they work. Senior staff of the Administrative

Office and the Center are in constant contact with judges, who are

both their bosses and the consumers of their services. Some judges

and senior court managers will always complain that the Administrative Office and the Center are not responsive, but that does not

make it so. Some judges and court managers make more demands

than either agency can honor, and some demands that the agencies

should not honor.

Finally, that the Center and the Administrative Office are separate, rather than a single agency, does not affect their responsiveness to their policy-making boards. In fact, if the Conference and

the Center’s Board have difficulty in monitoring agency performance, combining the two agencies would only result in a larger,

and thus less manageable, operation.

4. An Alternative Arrangement: Congress should pattern national

court governance on a quasi-corporate model that provides a

governance mandate to the Chief Justice and replaces the

current Conference structure with an executive judge and a

small judicial board, supported by a combined Administrative

Office and Federal Judicial Center.

a. The judiciary, at the national level, should adopt a quasicorporate model for its governance structure.

The argument

To achieve effective judicial branch governance, Congress

should mandate a national-level governance system adapted from

standard and well-accepted organizational models. The system proposed below responds to the unique needs of the judiciary, combining elements of corporate models found in private business and

other elements found in the governance of large organizations in

and out of government.
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• The Chief Justice should be statutorily acknowledged as the

head of the federal judicial system but relieved of day-to-day

responsibilities through appointment of an executive judge

and election of a judicial board.

• A nine-member, elected judicial board, chaired by a full-time

executive judge appointed by the Chief Justice, should serve

as a corporate board of directors and assume the work currently performed by the Conference and many of its committees. The executive judge should exercise overall responsibility for implementing the board’s policies, mainly by appointing and supervising the director of the judiciary’s support

agency, promoting system-wide administrative consistency

through the appointment of chief circuit and district judges,

and serving as the judiciary’s primary agent in its relations

with Congress, the executive branch, the state courts, the

press, and other groups.

• The director of a new Office of Court Support and Administration should be responsible for the effective day-to-day operation of the courts’ national support services, basically

those duties assigned now to the Administrative Office and

the Federal Judicial Center. The director would have the

benefit of a single line of supervision from the executive

judge, thus avoiding the conflicting demands made on both

agencies today by Conference committee chairs and other

judges in the system.

The essence of this plan is presented in the following revised

outline to Chapter 15 of Title 28. Its components are analyzed

more closely in sections b, c, and d.

CHAPTER 15 CONFERENCES AND COUNCILS OF JUDGES

Governance of the Courts of the United States

Sec

331 Judicial Conference of the United States Responsibilities of the

Chief Justice of the United States [see text, this section]

332 Judicial councils of circuits Judicial Board of the United States

Courts [see text, this section]

333 Judicial conferences of circuits Executive Judge of the United

States Courts [see text, this section]

334 Judicial Conference of the Court of International Trade Judicial councils of circuits [see text, section B]
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49

335 Circuit–district councils on judicial discipline [see explanation,

section B]

336 Conferences of circuits [see text, section B]

The response

The current statutory scheme has shown great capacity for evolution and adaptation, precisely because it does not create statutory

mandates for any more details than are necessary. Rather than

mandate one particular approach by statute, Congress should preserve the flexibility that the current statutes provide.

For example, if possible, Chief Justices should have the flexibility to delegate more or less responsibility, based on the needs of the

times and the leadership style with which they feel most comfortable. Some Chief Justices will be more active, whereas others will be

more inclined to delegate, but the prestige and moral authority of

the Chief Justice remains a vital element of the system. Giving statutory form to the approach described above would force a single

model, one of substantial delegation, and it would deprive the

courts permanently of the prestige and moral authority of the Chief

Justice. For example, Chief Justice Burger made limited use of the

Conference’s Executive Committee, whereas Chief Justice Rehnquist has delegated more extensively to it. The next Chief Justice

may prefer a different approach, and the times may demand it. It is

neither necessary nor wise to preclude flexibility through a statutory straightjacket.

The current statutes and Conference rules can accommodate

numerous variations. A Chief Justice, for example, could appoint a

judge as administrative assistant and delegate to that judge many of

the duties that an executive judge would perform. The legislative

history of the administrative assistant statute anticipated such an

appointment.88 Or, with effective lobbying, a Chief Justice could in

effect create an executive judge position and a judicial board by

88. Title 28 U.S.C. § 677 authorizes the Chief Justice to appoint an administrative assistant, and § 133(b) provides that if the administrative assistant or the director of the Federal Judicial Center or Administrative Office is an active judge,

the President may appoint another judge to the court on which the person serves.

Section 133(b), although enacted in 1990, was contemplated when the original

administrative assistant statute was proposed. See Testimony of Rowland F. Kirks, in

Hearings, supra note 22.
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50

appointing a judge as director of the Administrative Office and

chair of the Executive Committee, persuading the Federal Judicial

Center Board to appoint that same judge as director of the Center,89 and persuading the Judicial Conference to delegate more

authority to the Executive Committee, perhaps by assigning it the

functions now exercised by the Budget Committee, the Judicial Resources Committee, and other major line committees. And if new

conditions demanded a return to current arrangements, no statutory change would be necessary to effect it. As long as Congress and

the judiciary maintain effective communications, there is no reason

to believe that Congress will object to administrative adjustments in

the governance structure that respond to new conditions without

forcing the more permanent alterations that statutes create.

Some small statutory changes could be worth considering, such

as providing magistrate and bankruptcy judges with Judicial Conference membership. And some members of the Federal Courts

Study Committee suggested making the Executive Committee a

statutory body.90 But these minor adjustments are far different from

the rigid and revolutionary changes proposed above.

89. There is no constitutional or statutory bar to judges’ holding nonlegislative administrative offices, and, because there would be no issue of salary augmentation, it is difficult to see legal objections to the arrangement. Because the

Administrative Office director is an ex officio member of the Executive Committee, the judge would not have to be a Conference member. If the Chief Justice

decided that the judge should be a Conference member, however, the judge

would have to be, for practical purposes, a district judge. A circuit judge can be a

Conference member only if he or she is a chief circuit judge, and it is unlikely that

one could serve all the positions referenced above and be chief judge of a circuit.

The judge could serve full-time in Washington without depriving his or her

court of its full complement of judges, because 28 U.S.C. § 133(b) creates a temporary judgeship for the court of any active judge selected as either AO or FJC director.

90. FCSC Report, supra note 26, at 146.
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b. The Chief Justice should be statutorily recognized as the head of

the judicial system through the following amendment to Title

28.

§ 331. Responsibilities of the Chief Justice of the United States

In addition to the exercise of judicial duties as prescribed or authorized by

statute, the Chief Justice of the United States shall take care that the courts of

the United States are effectively administered.

The argument

As the Federal Courts Study Committee concluded, whatever

changes are made in the national governance structure, “it is essential that the Chief Justice continue to be the acknowledged head of

the entire federal judiciary.”91 But such an acknowledgment has, in

Professor Meador’s words, no “clear statutory mandate.”92 The

language above, based on the Constitution’s charge to the President,93 would provide the mandate, and it would clear away any

doubt that system maintenance is a responsibility of the office and

one criterion for selecting its incumbent.

The response

The nation does not need a statute stating what everyone already accepts: that the Chief Justice is the head of the third branch.

Activist Chief Justices have not been inhibited by the absence of a

statutory mandate. Moreover, such a codification could lead to

satellite arguments over whether some specific action was within

the Chief Justice’s statutory jurisdiction. It could also make the

Chief Justice responsible for actions beyond his or her control. For

that reason, Chief Justice Hughes argued against vesting governance authority in the Chief Justice and Supreme Court instead of

the Judicial Conference: A scandal in a clerk’s office, for example,

could bring disrepute on the Chief Justice “as the responsible officer who apparently had been neglectful in a matter which did not

seem important at the time . . . .”94

91. Id.

92. Meador, supra note 23, at 1044.

93. “[H]e shall take Care that the Laws be faithfully executed.” U.S. Const. art.

II, § 3.

94. Quoted in Fish, supra note 36, at 137.
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52

c. The Judicial Conference and its current committee structure

should be replaced with a small judicial board, chaired by a

full-time executive judge, and served by such committees and

ad hoc bodies as it wishes to establish.

(1) Congress should abolish the Judicial Conference and create a

judicial board and executive judge through the following

amendments to Title 28.

§ 332 Judicial Board of the United States Courts

(a) There is established in the judicial branch of government a Judicial

Board of the United States Courts, which shall develop and promulgate such

policies as are necessary to ensure the effective administration of the courts of

the United States.

(b) The Judicial Board shall be composed of the Executive Judge, who

shall serve as chairperson; two judges of the courts of appeals of the United

States; four judges of the district courts of the United States; one bankruptcy

judge; and one magistrate judge. Each judge shall serve a term of five years

and shall be eligible to serve another term. [provision for staggered terms upon

Board’s creation] No more than two members may be from any single circuit.

Judges in active service and retired judges certified pursuant to § 371(f) of

this title are eligible to serve on the Judicial Board.

(c) When there is a vacancy on the Judicial Board, other than the Executive Judge, the Chief Justice shall nominate judges to be considered for election

to the Board. The courts of appeals members of the Judicial Board shall be

elected by majority vote of all the circuit judges in active service and retired

circuit judges certified pursuant to § 371(f) of this title. The district judge

members of the Judicial Board shall be elected by majority vote of the district

judge members of the circuit councils serving at the time of the election, except

that the votes of the members of the various councils shall be weighted, according to procedures announced by the Chief Justice, to reflect the ratio of district

judges in each circuit to all district judges in the country. [bankruptcy and

magistrate judges to be selected similarly from bankruptcy and magistrate

judges on the councils]

(d) The members of the Judicial Board in active status, except the Executive Judge, shall be assigned, by their respective courts, a judicial workload, as

determined by the respective court, no greater than one-half the workload typically carried by a judge of that court. The Judicial Board shall make provision

for the temporary assignment of judges as necessary to allow the courts to dispose of judicial business.

(e) The Judicial Board shall meet at least quarterly and shall conduct its

meetings electronically or in Washington, D.C.

(f) A majority of the Judicial Board may, at any time, recommend to the

Chief Justice that the Executive Judge be dismissed for such reasons as it may

determine.
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53

(g) The Judicial Board shall:

(1) Submit to the Office of Management and Budget, for incorporation into the President’s budget without change, annual estimates of the

expenditures and appropriations necessary for the maintenance and operation of the courts, including support agencies created within the judicial branch of government, and prepare an annual fiscal plan for the

appropriations so provided. [implementing provisions as necessary]

(2) Submit to Congress quarterly reports on the business of the courts

of the United States and, as necessary, recommendations for legislation

to improve the operation of the courts. Copies of such reports shall also be

submitted for information to the Attorney General.

(3) Develop and revise as necessary a long-range plan for the courts

of the United States.

(4) Continuously survey the condition of business in the courts of the

United States and prepare plans for the assignment of judges to or from

circuits or districts where necessary.

(5) Exercise the authority provided in § 372(c)(1) of this title

[regarding recommendations for grounds for impeachment].

(6) Exercise the authority provided in §§ 2071 through 2075 of this

title [assuming Judicial Conference and Supreme Court duties in promulgating rules amendments].

§ 333 Executive Judge of the United States Courts

(a) The Chief Justice of the United States, after consultation with the Judicial Board of the United States Courts, shall appoint from among the circuit

and district judges an Executive Judge, who shall serve at the pleasure of the

Chief Justice, except that no person may serve as Executive Judge for more

than ten years.

(b) The Executive Judge shall be relieved of all judicial duties while serving as Executive Judge. If the Executive Judge is on active status when chosen,

the President shall appoint, with the advice and consent of the Senate,

another judge to the court on which the Executive Judge serves. If the Executive Judge resumes the duties of an active judge of that court, the President

shall not appoint a judge to the first vacancy that occurs thereafter on that

court.

(c) The Executive Judge shall be the chairperson of the Judicial Board of

the United States Courts.

(d) The Executive Judge shall, with the concurrence of a majority of the

Judicial Board of the United States Courts:

(1) Appoint the director of the Office of Court Support and Administration.

(2) Appoint, from among the judges of a court of appeals or district

court in which there is a vacancy in the office of chief judge, the chief

judge of such court, after consultation with those judges pursuant to

§ 45(a) or 136(a) of this title [see text § B.3.a infra].
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54

(3) Appoint the members of such committees of the judicial branch as

are mandated by law or that the Executive Judge, in consultation with

the Judicial Board, deems necessary.

(e) The Executive Judge shall also:

(1) Present to Congress matters needing legislative attention, including deficiencies in proposed legislation, respond promptly to requests from

Congress for comment on proposed legislation, and keep the Committees

on Appropriations, Committees on the Judiciary, and other members of

Congress, as appropriate, fully informed about the administration of the

courts and the judiciary’s views on legislative proposals that implicate

the administration of justice in the federal courts.

(2) Consult regularly with the Attorney General of the United States

on matters of common interest.

(3) Supervise the activities of the Director of the Office of Court Support and Administration.

(4) Cooperate to the fullest extent possible with the judges of the state

courts in assessing the administration of justice in the United States and

seeking means of cooperation between the two systems.

(5) Take other actions as he or she deems necessary to secure the effective administration of the courts of the United States, provided that he

or she shall keep the Judicial Board fully advised of all such actions.

(6) Submit to the Chief Justice and to the Judicial Board a quarterly

report on the judge’s activities and plans.

The argument

The judicial board. The statutes would replace the current twentyseven-member Conference structure with a nine-member judicial

board, chaired by a full-time executive judge. The board would exercise the three basic functions of federal court governance necessary to meet the challenges of the future: assigning responsibility,

preserving representation, and enhancing efficiency.

These statutes provide a clear assignment of policy responsibility for federal court governance; they replace the current arrangement under which the Judicial Conference gets its power indirectly

from the statutory authority of the Administrative Office. Resource

allocation, management of interbranch relations, and planning are

lodged unequivocally in the judicial board, and clear executive responsibility is lodged in its chair.

The arrangement also provides for direct representation of the

various elements of the judiciary, freeing the governing body from

the current condition whereby each circuit, regardless of size, has

the same number of votes on the Judicial Conference.
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Replacing the current Judicial Conference with a judicial board

and executive judge would provide the judiciary with an improved

mechanism for making hard choices among the many needs and

wants of federal judges and court managers. A nine-member body

is a traditional size within the judiciary, one judge larger than the

current Executive Committee. Such a group is small enough to

work efficiently, either in person or in telephone meetings. Unlike

the Executive Committee, however, the judicial board would have

plenary power to act. And, because each member by statute would

carry only a half caseload, members would have more time to devote to governance than the members of the current Executive

Committee. Most judges might not want to serve more than one

term, but such service should not be precluded.

Another proposal to reduce the size of the national policy-making body would also establish a nine-member body. Judge O’Scannlain has suggested that the Conference be reformulated, with three

members of the Supreme Court (including the Chief Justice), three

circuit judges, and three district judges, to meet once a month

rather than twice a year.95 Although this proposal would solve most

of the problems of the current arrangement, it would perpetuate

the overrepresentation of appellate judges. Furthermore, as Judge

O’Scannlain also noted, the members of the Supreme Court would

probably not be eager to take on these system-wide governance

tasks.96

The executive judge. A full-time executive judge serving as chair of

the board would correct a serious court governance defect that is a

legacy of the 1939 statute. By directing the Conference of Senior

Circuit Judges to supervise the Administrative Office, that statute

failed to provide the judiciary with what President Roosevelt’s

Committee on Administrative Management was providing to the

executive branch: “a responsible and effective chief executive as the

center of energy, direction, and administrative management.”97

95. O’Scannlain, supra note 79, at 84–85.

96. Id. at 82–83.

97. Louis Brownlow, Charles Merriam & Luther Gulick, Report of the

President’s Committee on Administrative Management, with Studies on

Administrative Management in the Federal Government 3 (Washington, D.C.,

1937).
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56

Judges in the 1930s opposed the idea of an executive for the courts.

The Conference rejected a district judge’s proposal that “the formal organization of the Judicial Branch . . . be presided over by a

‘Chancellor of the United States’ to be appointed by the Supreme

Court.”98 President Roosevelt’s 1937 court reorganization bill would

have created a Supreme Court-appointed “proctor” of the federal

courts to analyze docket statistics, propose intercircuit transfers,

and recommend means of speeding case flow. The proposal

provoked strong criticism from the judiciary.99 Although the need

for such an official was apparent to some, the Conference itself was

still an innovation in the 1930s, and the judiciary was suspicious of

any threat of central authority.

Recommendations for such a position, however, have continued to surface, attesting to its merits. Calls similar to those rejected

in the 1930s reemerged in the 1960s, from Chief Justice Burger

early in his tenure100 and again in 1985,101 from Professor Meador

98. U.S. District Judge Louis Fitz (S.D. Ill.) to Senior Circuit Judge Samuel

Alschuler (7th Cir.), September 2, 1931, quoted in Chandler, supra note 56, at 368.

The idea goes back much further, as seen in early twentieth century calls for a

high-level “judicial manager.” See State-Wide Judicature Act, 1 J. Am. Judicature Soc’y

101, 102 (1917). In the wake of Benjamin Cardozo’s call for a “Ministry of Justice,”

the Journal of the American Judicature Society carried an article praising the capacity of the English Lord Chancellor to play that role, Kenneth M. Johnson, The

Lord Chancellor as a Minister of Justice, 13 J. Am. Judicature Soc’y 52 (1929).

99. See Fish, supra note 36, at 116–19. The judge who proposed the proctor

idea was William Denman of the U.S. Court of Appeals for the Ninth Circuit.

100. “When I came to my present post I thought I saw an important function

that needed to be performed in the federal court system, and it was one that could

be performed only by a very distinguished judge then in senior status, as [Third

Circuit Judge William Hastie] became soon after I came to my present office.

It had to be a man, a judge who had the complete confidence and respect of

all the other judges in the United States. Judge Hastie ideally fitted this position,

and I proposed it to him. . . .

When he declined [“because it would have severely limited, if not perhaps entirely foreclosed” his sitting on cases] I ultimately abandoned the idea because I

could find no other judge available with the unique combination of talents and

experience that he possessed.” Remarks of Chief Justice Burger at the Memorial

Service for Judge Hastie, June 18, 1976, 535 F.2d 8 (1976).

101. Richard Wiley & Laurence Bodine, Q & A with the Chief Justice, 71 A.B.A.

J. 91, 93 (January 1985).
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57

in 1979,102 and from the ABA in 1986.103 In 1990, the Federal

Courts Study Committee urged consideration of the idea.104 The

need for such a position is by now clear. At 27,000 persons, the

federal judicial system has more employees than five of the

fourteen Cabinet departments.105 Working with a small but

representative board of judges, and with the courts’ national administrative agency serving as staff to the executive judge through a

clear chain of command, the third branch would have the governance mechanisms to enable it to make and implement the correct

choices.

The executive, furthermore, must be a judge. A judge in such a

position can command more respect from other judges and from

other high officials of the government than even the most competent non-judge. The executive judge would be the counterpart to a

member of the congressional leadership or to a high-level presidential appointee. Furthermore, one who has exercised the judicial

power of the United States can best shape administrative policies

that meet judges’ needs. The executive judge would still be able to

consult with, and receive complaints from, judges and key administrators. Finally, a judge is in the best position to reject other judges’

requests that are incompatible with the needs of the system. Nonjudges sometimes accede to unreasonable requests from judges because doing otherwise is impolitic, and they are in a quandary when

a judge presents a reasonable request that must nevertheless be rejected because other needs are more compelling.

102. Meador, supra note 23, at 1041.

103. American Bar Association, Standing Comm. on Federal Judicial

Improvements, Report to the House of Delegates, February 1986, approved by

voice vote.

104. FCSC Report, supra note 26, at 145–46. The 1987 Committee to Study the

Judicial Conference deferred action on such a proposal, but the Executive

Committee subsequently determined that “it was unnecessary to seek legislation to

establish the position of ‘administrative judge.’” Executive Committee of the

Judicial Conference, Memorandum of Action, Feb. 17, 1988 (unpublished, on file

with the Office of the Judicial Conference Secretariat, Administrative Office of the

U.S. Courts). See also O’Scannlain, supra note 79, at 81, 86–91, and Report of the

Committee to Study the Judicial Conference, August 1987, at 13 (proposing creation of an “administrative judge”).

105. Office of Management and Budget, The Budget for Fiscal Year 1994, at

38.
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The response

The judicial board. A nine-judge judicial board is too small to

provide the consultative governance appropriate for a geographically dispersed federal court system. Today, judges across the country know little of the details of federal court governance, but they

do know that their chief circuit judge and district court representative participate in the Conference. The board could not represent

all the circuits, and the legitimacy of its decisions would suffer accordingly. National elections would not provide the bond that now

exists between a circuit’s Conference representatives and its judges.

Rather, they would involve federal court governance in national

electoral campaigns and cabals and provoke the need for regulations about such details as the use of official mail to promote one’s

candidacy.

A small board would make it especially difficult for the courts to

deal with the revenue crunch they face. Judges throughout the system will accept resource allocations if they believe that colleagues

on the Conference helped make them. With the board, they would

fear parochialism: policy set according to the views of a handful of

judges.

Although the major reordering suggested above would be inconsistent with the broad-based approach to governance that best

suits the judiciary, some incremental changes in Conference structure and procedures may be advisable. The Conference has been

resilient in adapting to new needs and conditions, as shown by the

1987 reorganization of its committees, which resulted in greater authority for the Executive Committee and a new agenda format.

More recently, the Economy Subcommittee was conceived and

made operational in remarkably short order. Additional changes

that could further enhance Conference members’ ability to make

informed policy decisions would be greater opportunities for premeeting briefings and longer Conference sessions, as long as the

additional time was used productively. Some have also suggested

continuing the trend begun in 1987 of enhancing the authority of

the Executive Committee. The growing complexity of federal judicial governance and the fast pace of legislative developments may

suggest that there is some value in the Conference’s delegating

more administrative and implementation duties to the Executive
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Committee, thus freeing the Conference to focus more on policy

issues. Such a division of labor could build on current arrangements. Today, for example, the Conference approves the judiciary’s

appropriations request, but the Executive Committee adopts the

specific spending plan once that appropriation becomes law.

The executive judge. Similarly, the executive judge proposal is inconsistent with the needs and character of the judicial branch. The

judicial branch does not need such power to be placed in the

hands of one individual. Federal court governance serves only to

enable judges to accomplish their constitutional and statutory tasks

independently and effectively. Unlike the executive branch, the

courts do not need strong executives to administer complex programs for national security, public health and safety, fiscal and financial management, and income redistribution.

Centralizing federal court governance in a single position, even

with a small board for oversight, places too much power in the

hands of one individual, whose actions could impinge on judicial

independence and autonomy. For example, an executive judge so

minded could use the court’s administrative apparatus to mount a

campaign of intimidation by investigating a particular judge on

charges of minor voucher irregularities. Withholding resources

from a particular judge or court could also be part of such a campaign.

A separate danger would be the executive judge’s relationship

with the Chief Justice. Regardless of how much better suited a

judge than a non-judge may be to represent the judicial branch, no

judge can do so as well as the Chief Justice. But under the proposal,

the Chief Justice would inevitably fade from the governance scene.

Also, the executive judge would be tempted or impelled to seek a

reputation independent of that of the Chief Justice or the judicial

board. Some ambitious judges would see the position as a way to establish their visibility for appointment to the Court. It is not

enough to say that the executive judge will be appointed by, and

serve at the pleasure of, the Chief Justice as advised by the judicial

board. A common Washington phenomenon is for high-level appointees to go into business for themselves. Top aides in Congress

become junior legislators. Presidents Reagan and Bush each fired

his chief of staff after the chief had caused him considerable em-
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60

barrassment. An ambitious judge, with the constitutional protections of life tenure and secure salary, would be even less worried

than a chief of staff might be about offending the official nominally

in charge.

Finally, the proposal could frustrate one of the fundamental

goals of modern judicial administration: to bring high-level management expertise to the courts. Creating a full-time executive

judge position could place authority in the hands of an individual

who does not have the kind of experience necessary to manage a

large and multifaceted organization like the federal judicial system,

which contains numerous internal power centers and has multiple

ties to other branches of government. Good preparation for the

federal courts’ chief executive officer would be service as a governor, corporate executive, or university president, not service as a

chief judge or a managing partner of a law firm. The position of director of the Office of Court Support and Administration would

become a secondary post, unable to attract the kind of first-rate executive talent necessary to promote effective federal judicial administration.

(2) The executive judge and judicial board should rely on a smaller

group of committees than currently exists and make greater use of

ad hoc advisory groups and other means of learning the views and

preferences of judges and senior court managers.

The argument

The executive judge and judicial board would not need the extensive committee structure that supports the Judicial Conference.

A full-time executive judge and half-time judicial board, meeting

often, could do most of the work that current committees perform

during the three to four days they meet each year. As a side benefit,

having the board take over the committee functions would reduce

the number of committee members and chairs who pursue their

own personal policy agendas or attempt to manage units of the national support staff. A reduction in the number of committees

would also reduce uncoordinated contacts with legislators by committee chairs and result in a more systematic liaison effort managed

by the executive judge. And the statutory requirement that the

board meet in Washington, the seat of the Office of Court Support
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61

and Administration, would remove the satellite controversies with

Congress over the location of Judicial Conference committee meetings106 and ensure that all necessary support staff can be available to

assist the board as it exercises its governance responsibilities.

Some governance functions, however, require specialization

beyond what the judicial board can provide. The judicial board

would probably maintain the statutorily authorized committee on

rules, and those on financial disclosure, codes of conduct, and disability orders. Beyond that, the executive judge, consulting as necessary with the judicial board and director of the Office of Court

Support and Administration, would appoint ad hoc advisory groups

of judges (and, when appropriate, senior managers) to ensure that

judicial and staff perspectives are known and considered as the

board develops policy and as the office implements it in such areas

as automation, education, efficiency and economy, probation and

pretrial functions, and space and facilities and security. The advisory groups would serve as long as the need exists, could be chaired

by judicial board members when necessary, and would report directly to the executive judge and judicial board.

A large number of Conference committees are no longer necessary to broaden participation in federal court governance. Modern technology can provide a national discussion forum to complement the greater efficiency that a nine-member judicial board

will achieve. The courts could develop “electronic town meetings”

that would allow the entire judiciary to hear arguments on matters

of fundamental importance, particularly with respect to legislation,

and to vote on referenda to guide the executive judge and judicial

board.

The response

The proposal assumes that a full-time executive judge and a judicial board, assisted by a few standing committees and some other

ad hoc groups, could do the work that over 200 judges now perform during and between the meetings of the Conference committees. The effect of abolishing the committees would be precisely the

106. Senate Comm. on Appropriations, Report to Accompany S. 3026, S. Rep.

No. 331, 102d Cong., 2d Sess. 81 (1993).
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opposite of what the proponents of the revised structure want to

achieve. With fewer points of judicial oversight, the judiciary’s administrative apparatus would be forced into unchecked policy making.

Periodic national referenda among the entire federal judiciary,

however, would promote too much democracy. Although federal

judges across the country do not want to be ruled by a small group

meeting regularly in Washington, they do not have the time to enmesh themselves in the arcana of legislative proposals and administrative details. That is one of the major values of the Judicial Conference and its committees—groups of judges, broadly representative of their colleagues, who voluntarily assume the responsibility to

become familiar with administrative issues and vote on them intelligently. Putting legislative ideas up to a referendum of more than

1,000 judges is a perversion of democratic government, and it

would encourage politicking by judges on a grand scale. Plebiscites

are anathema to the traditions and functioning of the judicial

branch.

This is not to deny that some changes in the committee structure might be desirable, but the Conference has shown itself quite

capable of revising that structure as necessary. The last major

change was in 1987, but additional adjustments have been made as

conditions demanded.107 Some have suggested reducing the

number of committees as a general matter, but that could be pursued without the radical changes proposed above. Finally, it is not

necessary to meet only in Washington to ensure necessary staff participation. Although electronic conferencing is not a good idea for

judicial plebiscites, Washington staffers could participate electronically in relevant meeting segments, now that technology is becoming available for such purposes. Moreover, having the committee

members meet at self-contained sites away from Washington fosters

camaraderie, communication, and concentration on committee

business.

107. Most recently, two committees were combined into a single Committee

on Security, Space, and Facilities, and a new Committee on International Judicial

Relations was created.
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d. The Administrative Office and the Federal Judicial Center should

be combined into a single Office of Court Support and

Administration.

The argument

There is no need at this time to maintain two national agencies

in the third branch to support the judges and their personnel. Separate agencies foster interagency rivalry, result in redundant functions, and needlessly complicate lines of authority. It is illogical to

separate a system’s administrative apparatus from its research and

education apparatus. The judicial board and the administrative

program divisions that staff it should be able to design research and

undertake educational programs without having to turn to a separate agency. A single agency would be fully capable of providing

those services. Furthermore, the Federal Judicial Center occasionally offers policy suggestions and recommendations at odds with

those of the Judicial Conference, thus impeding a successful legislative strategy. For example, the Conference has twice disapproved

legislative proposals to let each district court decide for itself

whether it wants to implement a mandatory court-annexed arbitration program; the Center, however, charged by Congress to study

arbitration and make legislative recommendations about it, has endorsed these proposals.108

The response

Principle, not expediency, led the judiciary to ask Congress to

create a separate judicial research and education agency,109 and the

judiciary remains true to the principle. In 1987, the Judicial

Conference asserted “that both agencies provide complementary

types of support to the Conference,”110 and the 1991 ad hoc

108. JCUS Report, Sept. 20, 1993. See also Statement of Hon. William W

Schwarzer to the Subcomm. on Courts and Administrative Practice, Senate Comm.

on the Judiciary, October 29, 1993 (unpublished, on file with the Federal Judicial

Center).

109. Russell R. Wheeler, Empirical Research and the Politics of Federal Judicial

Administration: Creating the Federal Judicial Center, 53 Law & Contemp. Probs. 31, 51

(1988).

110. JCUS Report, Sept. 1987, at 60.
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committee that the Chief Justice appointed to study the relationship between the two agencies referred to the “unique support capabilities available from both the FJC and the AO.”111 The Federal

Courts Study Committee, despite proposals that it do so,112

declined to recommend that the agencies be combined.113

Having separate but mutually supportive agencies for administration and for education and research will be important as the

federal courts deal with the resource allocation demands of the

next decades. The Administrative Office will face major challenges

in providing administrative support and management assistance to

the courts as they cope with resource shortages of the future. If it

were to assume responsibilities for educational and research programs, that would limit its ability to provide administrative and

management support. Moreover, research and education functions

are more effectively performed by an agency not encumbered by

day-to-day operational responsibilities. Demands for creating specialized education programs for judges and court personnel—including programs for judicial education and effective court management—risk being subjugated to more immediate administrative

needs. Furthermore, separate agencies can help the judiciary weigh

policy options better than can a single agency. The independence

of the Center from direct control by the Conference, its committees, and the Administrative Office enhances the credibility of the

Center’s research reports and conclusions. Chief Justice Rehnquist

recently described the Administrative Office and the Center as “two

separate but mutually reinforcing support agencies, . . . provid[ing]

the courts and the Judicial Conference complementary services

111. Report of the Ad Hoc Committee to Study the Relationship Between the

Federal Judicial Center and the Administrative Office of the United States Courts,

supra note 78, at 6.

112. Judge John Godbold, then director of the Federal Judicial Center, in a

May 30, 1989, letter to Chief Judge Levin Campbell, chairman of the Federal

Courts Study Committee’s Structures Subcommittee, noted the suggestions of “two

circuit executives . . . that your subcommittee consider whether the FJC should be

merged with the AO” and explained why he believed they should not. Federal

Courts Study Committee, 2 Working Papers and Subcommittee Reports, July 1,

1990.

113. The recommendations are described in Federal Courts Study Committee,

supra note 112.
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and, on occasional matters of policy, diverse perspectives that benefit the decision-making process.”114

B. Federal Court Governance at the Regional and District Levels

This part of the paper presents the arguments for and against

certain changes in the governance arrangement at the circuit and

district levels, specifically:

1. Limiting council membership to trial judges, inasmuch as

the object of circuit council governance is almost exclusively

the trial court.

2. Substantially revising the circuit judicial conference.

3. Vesting the selection of chief judges in a national official

(the executive judge) and providing greater specificity in

the chief judge’s statutory authority and duties.

Except for having the executive judge appoint the chief circuit and

district judges, the alternative arrangement considered here would

not reallocate authority between the national level and the circuit

and district levels. (We take up that topic briefly in the Conclusion.) The alternatives that follow, however, would markedly alter

relations between circuit and district judges in regard to governance. As we did in section A, we analyze the strengths and weaknesses of these alternatives in order to promote assessment of the

current governance arrangements.

1. Congress should relieve circuit judges of governance

responsibility for district courts, through the following

amendment to Title 28.

§ 332 334 Judicial councils of circuits

(a)(1) The chief judge of each judicial circuit shall call, at least

twice in each year and at such places as he or she may designate, a

meeting of the judicial council of the circuit, consisting of the chief

judge of the circuit, who shall preside, and an equal number of circuit judges and There is established, in each judicial circuit, a council consisting of district judges of the circuit in as such number is as determined by majority vote of all such judges of the circuit in regular active service and in retired service as certified pursuant to § 371(f) of this

title, and one bankruptcy judge and one full-time magistrate judge if the

114. Chief Justice William H. Rehnquist, 1992 Year-End Report on the Federal

Judiciary, at 10.
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66

number of district judges is ten or fewer. If the number of district judges is

greater than ten, additional equal numbers of bankruptcy judges and fulltime magistrate judges shall be members of the council, but the total number of

such judges shall not exceed twenty-five percent of the district judges.

(2) The council shall adopt procedures for the selection of members from

among the district judges, bankruptcy judges, and magistrate judges in regular active service and in retired service as certified pursuant to § 371(f) of this

title.

(3) The council shall meet at least twice in each year.

(4) The council shall elect a chairperson from among its members, who

shall serve as chair for a term equal to the length of the term of a council

member. If the chairperson’s regular term as council member expires before his

or her term as chairperson expires, the council shall stay the selection of a replacement member until the chairperson’s term as chairperson expires.

(b) The council shall be known as the Judicial Council of the circuit.

(c) The chief judge chairperson shall submit to the council the

semiannual reports of the Director of the Administrative Office of

the United States Courts Court Support and Administration. The council shall take such action thereon as may be necessary.

(d)(1) Each judicial council shall make all necessary and appropriate orders for the effective and expeditious administration of justice in the district and bankruptcy courts within its circuit, except that no

council may issue orders to an individual judge, either sua sponte or based on

a complaint, arising from an allegation of judicial unfitness on the part of

any judge. [rest of section unchanged, except subpoenas issued by

clerk of district court or council chair rather than clerk of court of

appeals]

(2) All judicial officers and employees of the district and bankruptcy

courts of the circuit shall promptly carry into effect all the orders of

the judicial council.

(3) Unless an impediment to the administration of justice is involved, regular business of the courts need not be referred to the

council.

(4) [Review of local rules; no change]

(e) The judicial council of each circuit may appoint a circuit executive. [no changes in current § (e) or (f) except to substitute

“chairperson” for “chief judge” and eliminate duties relating to court

of appeals]

§ 335 Circuit–district councils on judicial discipline [Establish in each

circuit, a seven member council, chaired by the chief judge of the

court of appeals, and including three circuit judges elected by the

court of appeals and three district judges elected by the judicial

council to handle allegations of judicial discipline and unfitness. The

new council will exercise the authority of the previous circuit judicial
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council under 28 U.S.C. § 372(c), and have all appropriate order,

hearing, and subpoena authority.]

The argument

The composition and mission of today’s judicial councils reflect

the limited objectives of the 1939 statute: in order “that the work of

the district courts shall be effectively and expeditiously transacted”

circuit judges should take “such action as may be necessary,” and

“the district judges [should] promptly . . . carry out the directions

of the council as to the administration of the business of their respective courts.”115 Despite numerous changes in the council

statute, a predominantly circuit judge governance body is still overseeing a predominantly trial judge activity. The circuit judges’

slight membership majority does not accord with the roughly 7 to 1

ratio of trial judges to circuit judges nation-wide. Congress has

broadened the council’s goal, changing it from the language above,

solely about district courts, to a goal of “effective and expeditious

administration of justice within [the] circuit.” That, however, does

not change the fact that most council business is district and

bankruptcy court business. In fact, in one way, this statutory broadening of the council’s mission simply worsens matters, by involving

district judges in administering appellate courts, albeit in a minor

way.

Chief Justice Hughes described the 1939 statute’s rationale in

these terms: “The Circuit judges know the work of the district

judges by their records that they are constantly examining [and]

know the judges personally in their districts.”116 Today, as noted by

the Conference committee responsible for court administration

matters, “the administrative issues and needs of the two courts are

distinctive and not readily perceived or addressed by judges with

limited or no experience in the other forum.”117 A 1992 Federal

Judicial Center survey found almost 60% of the district judges to be

115. An Act to Provide for the Administration of the United States Courts, and

for Other Purposes, 53 Stat. 1223, 1224 (1939).

116. Quoted in Fish, supra note 36, at 153.

117. Report of the Judicial Conference Committee on Court Administration

and Case Management to the Judicial Conference Committee on Long Range

Planning, Feb. 16, 1993, at 9 (unpublished manuscript, on file with the Office of

the Judicial Conference Secretariat, Administrative Office of the U.S. Courts).
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68

moderately or strongly in favor of “eliminat[ing] appellate court

administrative supervision of district courts,” and only 16% moderately or strongly opposed. Circuit judges responded at roughly inverse levels.118 Moreover, although Congress traditionally directed

the councils to review district court rules and plans,119 the 1990

Civil Justice Reform Act vested review authority for district courts’

civil justice cost and delay reduction plans in committees of the

circuit’s chief district judges (and the single chief circuit judge).120

Congress should continue this trend by revising the circuit

council statute to limit its membership and jurisdiction to the district and bankruptcy courts.121 This change would preserve the

courts’ current authority to handle their “regular business” without

intervention but would provide a separate review body if a trial

court’s administrative activities became “an impediment to the administration of justice.” The difference between the proposal and

the status quo is that the review of a trial court or trial judge would

be conducted by a body of judges who are familiar with the problems and operations of trial courts. That same body would constitute the separate review body to which individual courts would

submit such plans as Congress wanted reviewed. The statute would

118. Federal Judicial Center, Planning for the Future: First Report of Results

from a Survey of United States Judges, Dec. 1992 (unpublished manuscript, on file

at the Federal Judicial Center).

119. Local rules (28 U.S.C. § 2071(c)(1)). See also the council review duty

codified at 28 U.S.C. § 332(d)(4); 1964 Criminal Justice Act (18 U.S.C. § 3006A(a)

(1968)); Jury Selection and Service Act (28 U.S.C. § 1863(a)); 1975 Speedy Trial

Act (18 U.S.C. § 3165(c)).

120. 28 U.S.C. § 474(a). Although the statute directed the Judicial Conference

to review the plans further and authorized it to request changes (28 U.S.C.

§ 474(b)), the Conference’s Executive Committee delegated this authority to its

district judge-dominated Committee on Court Administration and Case

Management. JCUS Report, March 1992, at 12.

121. This proposal draws on the Report of the Judicial Conference Committee

on Court Administration and Case Management, supra note 117, at 10–11. The

committee’s recommendation was in the context of its parallel proposal to create a

single district in each circuit, and thus a circuit-wide district council for

administrative matters. The committee also recommended that Congress create an

appellate council in each circuit, to consist of the courts of appeals sitting as a

committee of the whole for administrative matters. Id. at 9. The proposal offered

above assumes that each court of appeals can govern itself without such a statutory

arrangement.
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also give an appropriate governance role to the bankruptcy and

magistrate judges. Bankruptcy and magistrate judges should have

some representation on the council for the same reason they

should have some representation on the national governing body:

to bring their perspective to bear on matters of court governance

and to give them a vested interest in the work of, and policies

adopted by, the council.

Congress, though, should retain a joint circuit–district review

body to consider disciplinary matters, including complaints filed

under 28 U.S.C. § 372(c). Such a procedure, according to the 1993

Report of the Judicial Conference Committee on Court Administration and Case Management, “should continue to provide assurance to the public that complaints are reviewed and acted on without undue influence arising from close working relationships

among the participants.”122

The response

The circuit is the basic building block of the federal judiciary.

Its parts are all the courts in the circuit, but it is an entity greater

than the sum of its parts. To dismember circuit governance would

be counterproductive. The resource allocation challenges facing

the federal courts over the next several decades require collective

decision making, not the confusion that would arise from dividing

governance responsibility between the circuit and district courts.

Diminished appropriations over the next several decades will require painful choices by the courts to ensure that they remain capable of doing those things essential to the exercise of the judicial

power.123 One limitation on effective resource allocation is the

situation currently possible whereby one court enjoys surplus resources while an adjacent court struggles with inadequate resources. Eliminating courts of appeals from the purview of the circuit-wide council would require trial courts to spread the pain of

122. Report of the Judicial Conference Committee on Court Administration

and Case Management, supra note 117, at 11–12.

123. For useful perspectives on long-range planning in judicial councils, see

the papers by Chief Judge J. Clifford Wallace, Judge Otto R. Skopil, Jr., Judge

William W Schwarzer, Charles W. Nihan, and Russell R. Wheeler in Long-Range

Planning for Circuit Councils (Federal Judicial Center 1992).
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70

limited resources solely among themselves. Rather than restrict the

council’s purview, Congress should assign the current councils

more authority, particularly authority to determine the best allocation of resources among the courts of the circuit. Circuit councils

with increased authority to assign priorities for in-circuit spending

projects for both appellate and district courts, and to promote the

temporary reassignment of judges within the circuit, can play a vital

role in the efficient allocation of resources.

As a matter of fact, today’s councils are a substantial improvement over the councils as created in 1939. Today, district judges

have, for practical purposes, half the voting strength on the councils, whose mandate now covers all phases of judicial administration

within the circuit. All judges and employees must carry out council

orders. The current composition of the councils fosters objective

problem solving by creating a distance between the source of the

problem in an individual court and the body authorized to decide

on a solution.

The beneficiary of circuit judges’ participation in circuit governance is not the appellate judiciary. It is the decision-making process. Precisely because most of the business before the council is

trial court business, it is important to have significant participation

by circuit judges and the perspective they bring. Chief Justice

Hughes’s justification for circuit judges’ prominence on the councils still rings true: Judicial review of how district judges do their

work provides circuit judges with an overview of the capacities of

the district judges, particularly when considering administrative orders in the area of case assignments. Circuit judges provide an antidote to the understandable tendency among trial judges to accommodate one another. And circuit judge service dilutes inappropriate contact between appointing officers and those they will

work with on a daily basis. That is why, for example, the courts of

appeals appoint bankruptcy judges with the assistance of the councils124 and why the courts of appeals appoint federal defenders.125

Furthermore, maintaining the councils does not preclude

Congress’s delegating to chief district judge committees such sec124. 28 U.S.C. § 152.

125. 18 U.S.C. § 3006A(g)(2)(A).
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71

ondary functions as it wishes (e.g., approval of delay reduction

plans).

Finally, while a rotating chairperson for the council is the only

feasible approach within the context of the proposal, it would have

the unintended effect of promoting the power of the circuit executive. The circuit executive would be the permanent fixture in the

council machinery, with a greater institutional memory, probably

greater contacts among the many district judges of the circuit, and

greater mastery of the administrative details. (Such a phenomenon

is well known in the state courts that provide for frequent rotation

of chief judges.)

2. Congress should amend the circuit judicial conference statute to

broaden its purpose, through the following amendment to Title

28.

Congress should renumber old § 333 (“Judicial conferences of

circuits”) as § 336 (see § A.4.a, supra) and revise it as follows.

§ 336 Judicial c Conferences of circuits

The chief judge of each circuit court of appeals and the chairperson of

each circuit judicial council shall summon biennially, and may jointly

summon from time to time, but not more than annually, the circuit, district, and bankruptcy, magistrate, and territorial judges of the circuit, in

active service and in retired service as certified pursuant to § 371(f) of this

title, and such other employees of the circuit as they may select, to a conference of the circuit, to be held at or near a major metropolitan area within the

circuit and at a time and a place that he they designates, for the purpose of considering the business of the courts and advising the Judicial Board of the United States of the conference’s recommendations for

means of improving the administration of justice within such circuit

and the courts of the United States. He The chief judge of the court of appeals

and the chairperson of the Judicial Council of the Circuit shall preside at

such conference in alternate years., which shall be known as the Judicial Conference of the circuit. The judges of the District Court of

Guam . . . their respective circuits.

The court of appeals and the judicial council shall provide by its

rules for develop plans to ensure representation and active participation

at such conferences by members of the Congress and the Executive Branch;

judges of the state courts; the Executive Judge, Judicial Board, and Office of

Court Support and Administration officials; members of the bar of such

circuit (including representatives of all significant segments of the bar), the

news media, and other persons who have an interest in improving the operation of the judicial branch of government. Any registration or participation
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72

fee charged for attendance at such conference shall not exceed the direct costs

of the attendee’s participation.

The argument

Circuit conferences have a future in the judiciary, but not in the

form mandated by the 1939 statute. That statute brought judges

and lawyers together when most judges functioned in physical isolation and judicial improvement activities were sporadic. These conditions have changed. Multijudge court meetings and telephone,

fax, and electronic mail technologies readily bring judges together,

as do educational programs offered by the Federal Judicial Center

and other groups, bench–bar advisory committees and public hearings for rule making, statutorily required bar committees to advise

on appellate rules and internal operating procedures,126 and civil

and criminal justice planning groups.127 Conferences present

modest substantive programs, often at resort settings at which the

bar overwhelms the bench, leading the appropriations committees

to call for “holding them biennially at the most economical location convenient to judges in the circuit.”128 Some circuits charge

lawyers’ registration fees or receive other financial contributions to

ensure the kind of conference they want. Most firms are happy to

subsidize the conferences in return for a chance for their lawyers to

rub elbows with the judges, but the arrangements create an obvious

risk of favoritism.

To be worthwhile, conferences must be user-oriented. Circuits

so inclined should hold no-frills conferences at which the judges

can converse with the various constituencies whose support will become increasingly vital to the courts’ survival. As courts face choices

about how best to serve their clients, and which clients most need

service, the conferences can be a valuable source of information.

126. 28 U.S.C. § 2077.

127. 18 U.S.C. § 3168 (mandating Speedy Trial Act planning groups); 28

U.S.C. § 478 (mandating civil justice delay and cost reduction advisory groups).

128. Senate Comm. on Appropriations, Report to Accompany S. 3026, S. Rep.

No. 331, 102d Cong., 2d Sess. 81 (1993).
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The response

Despite developments since 1939, only the circuit conference

statute obligates federal judges to meet together, and with the

lawyers who practice before them, expressly to consider the immediate and long-term problems affecting the administration of federal justice. Without the statutory mandate, judges would not have

the benefit of periodic contact with all their circuit, district,

bankruptcy, and magistrate colleagues, or the contact with lawyers

that the conference uniquely provides. Allowing circuit conferences

only if they follow the “close-to-the-customer” orientation described

above is to sacrifice a simple and effective device on the altar of

faddism. Nothing stops a circuit from including in its conference

any of the individuals whose attendance the proposed statute would

mandate. Many circuits have revamped their conference rules and

procedures to increase participation by various types of lawyers

within the circuit.

As to site and finances, the private sector and other branches of

government know well that occasional retreats in alternative settings provide a necessary format for considering long-term issues.

And there is no public policy reason why the bar should not have

the option of bearing some of the conference costs beyond the direct costs of lawyer participation. No judge would decide an issue

differently because the organized bar had a disproportionate role

in supporting a bench–bar conference.

Finally, the statute provides flexibility for those who want to

meet less often. And, in fact, if a circuit’s judges determined, in

their own best judgment, that they did not want to hold a conference, it is hard to see who would force them to meet. But it is important to keep the statutory obligation on the books, because it

prompts the kind of interaction and consultation described above.

3. Chief judges should be selected according to administrative

ability, and their duties should be clearly specified by statute.

a. Congress should revise 28 U.S.C. §§ 45(a) and 136(a) (selection

of chief circuit and district judges) with the following substitute

language.

(a)(1) The chief judge of the circuit shall be the circuit judge

in regular active service who is senior in commission of those judges
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74

who Whenever a chief judge of a court of appeals [a district court] notifies the

Executive Judge that he or she wishes to remain in active status but no longer

serve as chief judge, or whenever such judge leaves active status by reason of

death, retirement, or resignation of his or her judicial commission, or

disability under § 372(b) of this title, the Executive Judge shall nominate

and, with the consent of a majority of the Judicial Board, designate another

judge of the court to be chief judge. Before designating a chief judge, the Executive Judge shall consider a list that the active judges of the court shall recommend, such list to include the names of at least two judges of the court who

meet the criteria described elsewhere in this section.

(A) are The chief judge so designated shall be sixty-four years of age

or younger, unless no active judge of the court meets this requirement. No

judge shall serve as chief judge after attaining the age of seventy years unless

no other circuit judge is qualified to act as chief judge.

(B) have served for one year or more as a circuit judge; and

(C) have not previously served as chief judge.

(2) [Delete existing language] Each chief judge so designated shall

serve a term of seven years and may be reappointed to additional terms, subject to the provisions of paragraph (1).

(3) [Delete existing language] Whenever no judge of the court has

been designated chief judge pursuant to subparagraph (a)(1), the active judge

senior in status shall serve as acting chief judge until a chief judge has been

designated.

The argument

The seniority system’s chief virtue is that it offends no one.

Judges become chiefs according to the confluence of age and appointment date, rather than administrative ability or aptitude. Not

all chief judges have served the full seven-year term that the

statute’s drafters hoped would ensure continuity. Judges averse to

administration nevertheless assume the job when it falls to them

rather than shirk a statutory responsibility or risk the job’s passing

to another judge with even less aptitude.

Federal courts will grow larger as judgeships increase, making

the management task of each chief judge more demanding. The

time has come to adopt a selection system that picks chief judges

with management skills and aptitude. Of the district judges responding to the Center’s 1992 survey of federal judges, almost 60%

supported strongly or moderately the idea of “select[ing] chief
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judges for their administrative ability rather than by seniority.”129

The American Bar Association’s Court Organization Standards recommend two options for selecting chief judges for appellate and

trial courts: appointment by the chief justice (the executive judge

in the scheme proposed above) or election by the court over which

the chief judge presides.130

Appointment by the executive judge after consultation with the

court in question combines the advantages of both methods. The

executive judge would be able to use the selection process to inject

into federal court governance some community of purpose and alleviate the centrifugal tendencies that frustrate effective policy making and execution. However, the executive judge would realize the

short-sightedness of appointing a chief judge solely for reasons of

policy compatibility, without giving serious consideration to the

wishes of the other judges on the court. Thus, the search, made in

consultation with the court in question, would be for judges who

were capable administrators and had the respect of their colleagues. Among the criteria that could enter the calculus of both

the executive judge and the court would be demographic diversity,

thus resulting in the selection of more women and minority chief

judges.

The response

The seniority system recalls Churchill’s assessment of democracy: “the worst form of government except all those other forms

that have been tried from time to time.”131 The Federal Courts

Study Committee recognized that the current method “is not faultless,” but it concluded that the method “operates well in practice

and is preferable to any other method.”132 Among other things, the

129. Fourteen percent of the district judges had mixed feelings on the

proposition, and 17% were moderately or strongly opposed to it. Circuit judges

did not respond positively: 62% were strongly or moderately opposed to the

proposition, 11% had mixed feelings, and 14% moderately or strongly supported

the proposition. (In both groups, small percentages either had no opinion or did

not answer the question.) Federal Judicial Center, supra note 118, at 21.

130. American Bar Association, Commission on Standards of Judicial

Administration, supra note 64, Standard 1.33(b), at 82.

131. From Political Quotations 28 (Daniel B. Baker ed., 1990).

132. FCSC Report, supra note 26, ch. 8, esp. at 152.
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seniority system ensures that the chief judge will be one who has

observed the court and its administration as an active participant.

Many of the district judges in the Center survey who favored the

abstract concept of “selection based on administrative ability”

would have responded differently had they been offered the specific proposal above: selection by a judge in Washington who was

unfamiliar with the court’s needs and character but eager to pull

the court into line with national policy goals. Even if such a system

might work in state courts, as recommended by the American Bar

Association, it would not work in the much larger federal court system, which operates on the assumption that the government that

works best is the government closest to home. Removing seniority

as the selection criterion would also prompt divisive campaigning

by would-be chiefs, who would try to curry favor with the executive

judge and encourage support from colleagues. These actions would

have a depressing effect on judges’ morale. Such considerations are

what led the Commission on Revision of the Federal Court Appellate System to withdraw its draft proposal for selection of chief

judges by the appellate court and propose something similar to the

statute as finally enacted.133

Meddling with the method of chief judge selection also poses a

risk to the judiciary’s efforts to broaden demographic diversity

within its leadership. Women judges and racial and ethnic minority

judges are now coming into chief judge positions through the same

rules that their predecessors followed. To change the rules now

could deprive some of them of the leadership positions that they

are now scheduled to enter through the operation of the statute;

specifically, it would deprive those who might not enjoy the favor of

whoever is selected as executive judge.

Should the judiciary conclude that chief judges need more administrative ability, there are ways to reach that goal without the

drastic alternative of national selection. One way is to provide chief

judges—when they assume the position and throughout their

tenure—with even more education in management than they cur133. Compare the Commission on Revision of the Federal Court Appellate

System, Structure and Internal Procedures: Recommendations for Change 68

(June 1975) with its Structure and Internal Procedures: Recommendations for

Change, A Preliminary Report 108 (April 1975).
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77

rently receive. As a protection against the occasional administratively incompetent chief judge, Congress might consider authorizing the judges of any court to certify to the circuit council that the

current chief judge should be replaced, whereupon the circuit

council could authorize the next judge in line of eligibility to assume the position.

b. The authority of chief judges should be clearly established by

the following amendment to Title 28 (the amendment is to the

chief district judge statute; a similar amendment should be

enacted in the chief circuit judge statute).

§ 136 Chief judges; precedence of district judges

(b) The chief judge shall, in consultation with the other judges of the

court have precedence and preside at any session which he attends.

(1) ensure that the rules of the court are observed and that the business

of the court is handled effectively and expeditiously;134

(2) make special assignments of cases among the judges of the court insofar as rules of court do not prescribe the assignment of business or cases among

the judges, or when cases present exceptional circumstances not provided for in the

rules of the court;135

(3) appoint the chief bankruptcy judge from among the judges of the

district’s bankruptcy court;

(4) appoint, remove, and supervise the work of the clerk of court, the

chief probation officer, and the chief pretrial services officer;

(5) appoint divisional presiding judges in divisions of the court having

more than one judge permanently assigned;

(6) appoint such committees of the court as the court may by majority

vote establish or that the chief judge believes are necessary for the effective administration of the court.

The argument

Title 28 contains elaborate provisions on chief judge selection,136 and numerous ministerial and quasi-ministerial duties of

134. Drawn from 28 U.S.C. § 154(b), concerning the chief judge of the

bankruptcy court.

135. Cf. 28 U.S.C. § 137, ¶ 2: “The chief judge of the district court shall be

responsible for the observance of such rules and orders [as the court may adopt],

and shall divide the business and assign the cases so far as such rules and orders do

not otherwise prescribe.”

136. 28 U.S.C. §§ 45(d), 136(d).
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chief judges, courts, and subordinate officials,137 but it provides no

clear statutory directive that the chief judge serve as the chief

executive officer of the appellate or district court. The closest

things to an assignment of plenary authority are the provisions of

sections 45 and 136 that the chief circuit and district judges have

precedence at sessions they may attend and section 137’s directive

that the chief district judge see to it that the other judges observe

any rules they may have adopted for case assignment. One commentator suggests that these provisions grant ministerial authority

rather than decision-making authority.138 Some chief judges have

tried unsuccessfully to direct a judge to clean up a backlog of pending motions, withdraw an administrative order creating confusion

in the clerk’s office, or cease behaving tyrannically in the courtroom. Such judges often tell the chief judge, in effect, “you and I

received the same commission, and I have no intention of changing

my behavior.” The chief judge can either try to mobilize the entire

court to confront the judge, which may not be effective, or seek

help from the circuit council, which may not be well equipped to

provide it.

Subsections (b)(1) and (b)(2) of the proposed statute assign

the chief district judge specific responsibility to try to resolve difficult situations with recalcitrant judges. While they would not impair

judicial independence, the provisions should serve to make judges

more responsive to the court’s administrative needs. The chief

judge could seek the support of the circuit council where necessary.

The response

The requisites of leadership vary by the type of organization being led. Leadership in any professionally dominated institution

rests not on orders and mandates, but on consultation and counseling. This is especially true among federal judges, who fiercely but

appropriately guard their independence against any action that

threatens to allow nonjudicial considerations to affect how they

should decide and manage cases. Federal appellate and district

courts have been guided by some very effective chief judges, who

137. See Appendix C, infra, and Nationally Prescribed Duties of Chief District

Judges, in Deskbook, supra note 42, app. at 111.

138. Batchelder, supra note 17, at 50.
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have led their courts well without the benefit of a statute as proposed here. The federal judiciary has also had its share of weak

chief judges, but few of them would have been made any stronger

by the authority in the contemplated statute. As the Federal Judicial

Center’s Deskbook for Chief Judges of U.S. District Courts observed,

“[d]espite the paucity of specific authority . . . chief district judges

have—and are perceived as having—a sizable reservoir of authority.”139 Judge Batchelder’s 1987 survey of thirty-six large district

courts revealed strong opposition among chief judges to

“legislation by which Congress would establish any further regulation of district court administration.”140 It is instructive that the

Federal Courts Study Committee, in a lengthy chapter on federal

court administration, including recommendations with respect to

chief judge selection and training,141 made no recommendation of

the type offered above. Furthermore, in specifying the duties of the

chief judge, there is the risk of satellite controversy over whether an

action of a chief judge falls within the statutory authority. Silence

has its virtues.

The proposed statute is deficient in another way: It assumes

that the chief judge is better equipped to manage the court than is

the court as a whole equipped to manage itself. Although it may be

true that most courts cede to the chief judge the authority to manage the court, it is not wise to mandate such an arrangement by

statute. The management literature stresses the value of participatory management, especially among professionals, and Congress

should not restrict the use of such approaches. It would be particularly dangerous to authorize the chief judge to appoint court officers without specific approval of the other judges. For one thing,

after the chief judgeship changed hands, the court would be saddled with the former chief’s staff, in whom the court may have little

confidence.

139. Deskbook, supra note 42, at 7.

140. Batchelder, supra note 17, at 55.

141. FCSC Report, supra note 26, at 152–53.

81

Part VI: Conclusion

Segments of the federal judiciary are debating the proper forms of

its governance. The debate is older than, but has been spurred by,

the current long-range planning process. We prepared this paper

to inform that debate and that process. We are not advocating a

new governance arrangement. We have presented an alternative

against which to weigh the strengths and weaknesses of the current

arrangement. In analyzing the current structure, readers should

step back from the detailed dialectic presentation in Part V. They

should ask whether, taken in its entirety, governance is operating as

it should, both for today and to meet the challenges of the future.

They should also ask whether the judiciary is capable of accommodating over any brief period of time any major change in its governance structure. The judiciary is an evolutionary organization, not

a revolutionary one, but changes sometimes occur rather quickly.

The federal judiciary moved from no governance system at all before 1922 to having the essential components in place seventeen

years later, in 1939.

Our concluding comments are organized around three central

questions:

• Why is the analysis of structure important?

• What has the analysis revealed about the rationale for the

current governance arrangement?

• What should be the fundamental purpose of court governance?

A coda to this concluding part rosters with brief comment a number of somewhat smaller proposed adjustments to current governance arrangements that emerged during our preparation of this

paper or that others called to our attention when they reviewed it.

A. Why is the analysis of structure important?

The paper’s specific topic—governance structures—is not the

only aspect of court governance currently under discussion within

the judiciary. There is also interest in the proper allocation of governance authority among the three levels. Should sizable amounts

of authority now vested in national-level structures be reallocated to
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circuit-wide bodies, or to individual districts? Conversely, should

the national-level bodies be vested with more authority than they

now possess?

We put our attention where we did for two reasons. First, there

is considerable interest in the structures per se and whether they

should be altered, or preserved, to meet the demands of the long

term. Second, whether Congress should reallocate authority, and if

so, the best way to do so, turns in part on the structures that would

exercise that reallocated authority. For example, the alternative arrangement analyzed in this paper has implications for the reallocation of national, regional, and local authority: The chief judges

would become appointees of the executive judge, and the circuit

councils would consist of trial judges only. In general, any structural

change that is not trivial is likely to have some effect on the

distribution of power. Similarly, if it is deemed desirable to reallocate authority between national, regional, and local levels of governance, that reallocation may require some structural reorganization. All this is to say little more than that the structure and function of organizations are, or should be, closely attuned to each

other.

There is a related point not addressed in the earlier analysis,

which is that some changes in court structures would require modifications in governance arrangements. For example, if, as has been

proposed,142 the number of district courts were reduced to one per

circuit, the distribution of governance authority at the regional and

local levels would have to be modified. Or, if the regional circuits

were eliminated, as some have proposed,143 that would require

changes in the governance institutions based on the circuit

concept.

142. Report of the Judicial Conference Committee on Court Administration

and Case Management to the Judicial Conference Committee on Long Range

Planning, Feb. 16, 1993, supra note 117, at 11.

143. See the various proposals described in Judith A. McKenna, Structural and

Other Alternatives for the Federal Courts of Appeals, ch. 6 (Federal Judicial

Center 1993).
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B. What has the analysis revealed about the rationale for the

current governance arrangement?

What does this analysis say about how current forms of governance operate, and thus about their potential for serving the judiciary’s future needs? After describing the current governance arrangement in Part III, we presented in Part IV a set of assumptions

that, if true, tend to support and justify the current arrangement.

What does the analysis of arguments for and against the alternative

arrangement in Part V teach us about those seven assumptions presented in Part IV?

1. The Chief Justice is properly the head of the entire federal

judiciary.

No one disputes that the Chief Justice is, in the Federal Courts

Study Committee’s words, “the acknowledged head of the entire

federal judiciary”;144 but that fact does not end the relevant inquiry.

For one thing, the phrase could mean anything, from being a

hands-on executive in the style of activist Presidents, constantly

monitoring the performance of the bureaucracy, to a much more

reserved role, in which the incumbent delegates heavily but,

through selected interventions, provides direction on crucial issues.

As we noted earlier, the lack of experience with different Chief Justice “styles” and the dearth of published comparative analysis

(particularly any accounts of the incumbent Chief Justice’s administration) make it difficult to assess how much any Chief Justice can

accomplish.

The lack of agreement on the Chief Justice’s role compounds

the difficulty of assessing the various proposals judges and others

have offered for a “chancellor” or “executive judge.” Proponents

argue that another national governance position should be created

for a life-tenured judge within or beside the office of the Chief Justice—a position whose incumbent, unlike any Chief Justice, could

devote his or her full time to governance responsibilities. They also

argue that the incumbent could bring coordination and consistency to the judiciary’s internal management and promote the judiciary’s positions on policy matters to the executive and legislative

144. FCSC Report, supra note 26, at 146.
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84

branches. Were such a position to be created, to work either with

the Judicial Conference or with a much smaller policy body, a great

deal of power would gravitate to this new officer. This is power that

now resides in the Chief Justice, in the Conference and its many

committees, and in the Administrative Office as the Conference’s

agent. The matter presents two trade-offs that the judiciary must

weigh. First, to what degree would the federal courts lose the institutional and moral authority that only a Chief Justice can provide,

in return for a full-time executive presence that no Chief Justice

can provide? Second, to what degree should the federal courts expand authority at the apex of the governance pyramid, even assuming it would increase efficiency and reduce confusion throughout

the governance system?

2. The current methods of selecting Conference, council, and

committee members properly ensure equal participation by all

circuits in national governance and sufficient consultation with

affected judges and employees at the national, regional, and

local levels.

Defenders of the current governance structure regard it as a

largely democratic institution because the life-tenured judges,

whose judicial work is the raison d’être of governance, govern

themselves through Conference and council membership, committee work, and governance in their own courts. The most problematic aspect of adequate participation appears at the national level,

where it is assumed that equal representation of each circuit ensures equal and equitable participation by all judges through their

representatives. Equal circuit participation, however, is not necessarily the same as equal representation for judges from each of the

circuits. If this is a problem, it is primarily a problem of the Conference itself, with its “one-member, one-vote” rule. Circuit representation on Conference committees, in contrast, correlates closely

with circuit size. We are not aware of any charge that, within the

Conference, small circuits use their governance dominance to the

detriment of large circuits. If, however, as many predict, the governance decisions over the next decades will be primarily about resource allocation, the potential for such a result will grow.
Federal Court Governance

85

Methods of selection for participation in regional governance,

housed in the judicial council, are controlled generally by a statutory framework that specifies how the chief judge shall be selected

and sets certain limits on the council’s membership. The statute

provides that the number of judges on the council be determined

by majority vote of the circuit and district judges of the circuit, but

it is silent as to the method to be used for selection. Selection

methods may reflect important values for a circuit’s judges. In the

Ninth Circuit, for example, the nonelective methods used to select

both circuit and district judges are explicitly justified on the

grounds of avoiding “excessive politicization” of the process.145 This

exemplifies the concern that, in judicial governance, frank

electioneering for an office would be at least unseemly.

There is very little prescribed structure for the governance of

individual appellate or district courts. The statutes dictate who will

be chief judge and nothing else. Courts have in fact created many

different kinds of governance mechanisms, most built around

committees and individual assignments. It appears that there are

considerable infusions of democratic elements into these local governance arrangements.

3. Full-time judges should function as the policy makers at the

national, regional, and local levels of court governance, and

they are capable of doing so.

Participating in court governance has always been a supplementary responsibility for federal judges. Participation has required

rather large numbers of judges to devote relatively small amounts

of time, and a smaller number of judges to devote considerably

more. Except for some chief judges, governance participants do

not take reduced caseloads and thus must manage full judicial calendars while attending to the demands of their governance responsibilities. As noted earlier, these demands may include mastering

large amounts of arcane administrative information and working

with colleagues, in very brief periods of time together, to fashion

sensible policy and oversee the work of the Administrative Office

145. Order Governing the Judicial Council of the Ninth Circuit, as amended

January 22, 1992 (on file with the Circuit Executive, U.S. Court of Appeals for the

Ninth Circuit).
Federal Court Governance

86

staff assigned to work for them. If, as some currently claim, many

federal judges already carry overwhelming workloads, the ability of

hundreds of judges to do both of their jobs effectively could be put

into question. At some point, this seeming paradox may get public

attention, because it seems plausible that a much smaller number

of judges, including a chancellor or executive judge, all working

full-time or half-time on governance matters, could do much of the

work currently done by most of the committees.

Again, the issue presents trade-offs. If, as developed in Part V,

the chief purpose of federal court governance is to ensure support

for those who exercise Article III’s judicial power, judicial branch

governors should be drawn broadly from those who have been

commissioned to exercise that power and who stay close enough to

it not to lose touch with the reality of judicial life in a federal

courthouse. Surely a corps of judges who serve only as administrators, far removed from the daily work of the court, would sooner or

later lose credibility in the eyes of their judicial colleagues. Furthermore, Congress might balk at the costs of creating more active

judgeships in order to let the executive judge and judicial board

devote substantial time to governance matters. However, how effectively can any $3 billion, 27,000-person enterprise be governed entirely by part-timers?

4. Full-time judges should control the effective implementation of

policy by administrative staff, and they can do so without

constant oversight.

It is unrealistic to expect that part-time governors can maintain

close oversight of hundreds of administrators with senior positions

at the national, regional, and local governance levels. It is futile to

attempt to maintain a bright line between policy making and administration. Staff will inevitably make policy; this can be a source

of relief rather than of worry to the judges both in and out of the

governance structure. The challenge for governance is to make

sure that staff policy making is merely interstitial, fashioned within

the larger policy framework established by judges.

But today’s apparently comfortable governance–staff relationship may not be sustainable. The judiciary and its administrative

support staff will continue to grow in size, budget, and complexity
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87

to meet the needs and wants of the population as reflected in jurisdictional changes and litigation behavior. Whatever problems may

now exist in the oversight function will not be solved by inaction. In

1962, there was one staff member at the judiciary’s Washington,

D.C., headquarters for every two life-tenured judges in the country.

In 1992, there were three Washington, D.C., staff members for every two judges.146 This trend is very likely to continue.

5. Governance structures are properly linked to the hierarchy of

judicial decision making; that is, appellate judges should have

greater governance authority than trial judges.

What principle justifies a greater role in governance for appellate judges than for trial judges? There are several possibilities. One

is that appellate judges are as knowledgeable about the administration of trial courts as are trial judges. A point against this principle

is that there is little evidence that it is true, at least as to much of

what constitutes the administration of the district courts. Circuit

judges do, however, have a familiarity with trial judge performance,

based on a review of appeals from their decisions, a familiarity that

other trial judges do not have. Also, circuit judges are sometimes

drawn from the ranks of the trial courts—but not because they are

outstanding administrators.

Another principle is that the traditional hierarchy of the judiciary’s decision-making and review processes must be reflected in

its governance arrangements because it would undermine the judiciary’s case decision-making and review procedures if judges with

judicial superiority suffered governance inferiority. A point against

this principle is that there is no reason to believe that circuit judges

will lose their judicial superiority over trial judges if they cannot review administratively how the trial judges govern their courts, plan

for juror utilization, and assign cases.

A third principle is that any exercise of power, especially public

power, needs review, to minimize the occurrence of error and

abuse of power. Checks and balances are essential; some argue that

trial judges are not particularly well suited to check one another

and that only circuit judges are well situated to perform that function for the trial courts. A point against this principle is that, by a

146. See data at supra note 63.
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88

contrary assessment, alternative governance arrangements like the

one described above, in which trial judges oversee trial courts on a

circuit-wide basis, may offer a superior way to provide an external

check on the trial courts.

We do not judge the persuasiveness, or lack of it, of any of these

principles, but we note that there appears to have been almost no

contemporary attention paid within the judiciary to articulating the

rationale for this central ingredient of current governance arrangements.147 The assumptions justifying this aspect of the governance arrangements emerged from the 1891 creation of a separate appellate court for each circuit. Those assumptions have been

subjected, as best we can tell, to almost no contemporary analysis.

6. Governance authority properly resides in life-tenured judges.

The federal courts are currently served by 837 life-tenured

judges and approximately 700 full-time term-appointed judges. Although term-appointed judges make a vital contribution to the system, they have almost no role in its governance. There are several

practical reasons to consider their inclusion—the perspective they

can provide, the legitimacy their participation will lend to decisions

reached, and the risk of their alienation if they are continually excluded.

On the other hand, term-appointed judges, by definition, do

not have the protections of Article III and may have less incentive

to nurture those protections than do judges who enjoy them.

Moreover, giving term-appointed judges meaningful representation

would result in a Judicial Conference or other governance body

unwieldy in size. The judiciary should also consider, however,

whether the courts can sustain a situation in which almost half of

the nation’s federal judges have no representation on the national

governing body, less than 15% representation on the committees

that support that body, and no official representation on the regional governing bodies.

147. The Report of the Judicial Conference Committee on Court Administration and Case Management, supra note 117, at 13, stated, without more,

that the “administrative and operational problems and opportunities in the trial

and appellate courts are sufficiently different to warrant separate governance

structures.”
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7. The governance arrangements should not and do not impair

legitimate judicial independence.

There are two ways in which the governance structure might

impair judicial independence. First, authority and power might be

so located within the governance arrangement that some lifetenured judges could intervene improperly in the exercise of Article III’s judicial power by other judges. This has seldom arisen as a

practical problem, though it has been litigated, most notably to a

nondefinitive result in the case of Chandler v. The Judicial Council of

the Tenth Circuit.

148 It is probably true that any system of governance

will, in the future, further restrict the individual autonomy of

judges, in order to solve difficult problems of allocating increasingly scarce resources. The question is whether the additional rules

and regulations that seem inevitable can accomplish their legitimate purposes without compromising any judge’s legitimate exercise of the federal judicial power. At the outset of this paper, we recalled Judge Schwarzer’s caution that the line between legitimate

judicial independence and a judge’s operational autonomy is not a

bright one, and decisions about space, facilities, and staffing could

influence a judge’s morale and how the judge exercises the judicial

power. However, he also noted that protections of operational autonomy may make a judge’s life more comfortable without any effect on the judge’s independence. Can the governance system provide tighter resource management and demand greater accountability without sacrificing the core value of judicial independence?

The second way in which the governance structure might impair judicial independence is if the communication between the

judicial branch and the other branches, especially Congress, is ineffective because of insufficient concentration of authority in the

courts’ governance apparatus.

C. What should be the fundamental purpose of court governance?

It is worth emphasizing—because it tends to be forgotten—that

in the final analysis courts do not exist to govern themselves effectively. The appropriate standard by which to judge court governance arrangements is not whether they produce impressive bud148. 394 U.S. 74 (1970).
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90

geting systems or extensive legislative contact. The correct standard

is whether governance helps judges “to secure the just, speedy, and

inexpensive determination of every action”149— weighing the costs

of federal adjudication to both parties and taxpayers. Federal court

governors might ponder the significance of a joint project on “trial

court performance standards” of the National Center for State

Courts and the Justice Department’s Bureau of Justice Assistance.

The project assesses the links that join court structure and

governance with service to the public. The project report observes

that “court reform has focused on the structures and machinery of

the courts, not their performance (what courts actually accomplish

with the means at their disposal), and on the needs of judges and

court personnel, rather than directly on the needs of those served

by the courts.”150

This conclusion from the project suggests a set of questions

about federal court governance that are, admittedly, much easier to

ask than to answer. For example, does court performance in a circuit vary depending on the composition and operating procedures

of its circuit council? Do district courts with strong chief judges perform more effectively than those with weak chief judges? Have federal courts nationally performed better or worse when led by activist chief justices? Do differences between districts or circuits in

their modes of governance contribute at all to differences in the

fairness of decisions, the expedition of dispositions, or the costs of

litigation? Answering these questions will stretch the methods and

interpretive capacities of researchers and policy makers to the limit,

and it may be beyond them. The questions are, nevertheless, important ones. A long-range plan for the governance of the courts

that does not address these questions is unlikely to produce lasting

benefits.

Coda: Other Suggestions

The judiciary’s current round of long-range planning and analysis has stimulated numerous suggestions for adjustments of the

149. Fed. R. Civ. P. 1.

150. Commission on Trial Court Performance Standards, Trial Court

Performance Standards, with Commentary 1 (National Center for State Courts

1990).
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91

current arrangements. As we developed this paper, we also kept

track of these other suggestions as we learned of them. Most of the

suggestions have been directed at individual governance elements

rather than at the overall arrangement; thus, they have been less

far-reaching than the alterations analyzed in Part V. We present the

suggestions in this concluding part, along with brief commentary

about some of them. Some of the suggestions also appear in Part V;

we do not mean to suggest that any item listed here would be generally regarded as merely technical or uncontroversial. They seem,

however, to be of a different order of magnitude than the major

changes dissected above. Perhaps for that reason, they may strike

some readers as worthy of consideration for implementation in the

short term.

1. Changes at the national level

Conference procedures—If there is a strong sense within the Conference and beyond it that its current modus operandi provides insufficient time for debate and discussion, the Conference could

meet more often than twice a year, or extend the duration of their

meetings, or both. It might also consider premeeting briefings for

Conference members. Conference members could arrive a day or

two early, at which time issues on the discussion calendar could be

presented (perhaps in the form of debate between advocates, including but not limited to members of the originating committee).

Such a change could provide more comprehensive information

without compromising the Conference’s need to honor rules of

parliamentary debate. Conference members are the best judges of

whether these changes would be worth the extra time they would

require. Because Conference procedures are not statutory, they

could be tried out on an experimental basis.

In regard to the imbalance in representation on the Conference arising from variability in circuit size, the Conference could

experiment with weighted voting procedures. Such an experiment,

even if made permanent, would seem not to require statutory revision. This innovation would have serious implications for redistribution of voting power in the Conference. The attractiveness of the

idea depends on whether the current voting scheme is considered

to create a serious problem. To gauge its seriousness, one would
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92

need to know whether and how often bloc voting on the Conference has allowed representatives from smaller circuits to outvote

representatives from larger circuits. Also, most of the circuits fall

within a middle range in terms of proportion of total judges; the

variance among those circuits is probably not enough to justify a

weighted voting scheme. There are, however, some outliers on either end of the spectrum, which some may believe present a

greater difficulty. Of course, in the whole scheme of things, this

particular problem, if it is one, is merely a side issue to the question

of circuit size and circuit splitting.

Conference composition—Conference membership for bankruptcy

and magistrate judges has often been discussed and may be less

controversial now than it has been in the past. Bringing term-appointed judges into the Conference as members would require

statutory change; allowing their participation as nonvoting observers, as is currently the practice on some circuit councils, would

not.

Many reviewers of an earlier draft of this paper were surprised

to learn that the Judicial Conference statute authorizes circuit

judges to participate in the selection of the circuit’s district judge

representative, noting that the statutory requirement is not honored in many circuits. Changing the requirement would, of course,

require a change in the statute, but the current mandate is probably in the category of statutory nuisances that are easier to accommodate than to change, especially because the statute tells the

judges to “choose” a district judge, a broader concept than “elect”

or “vote for.”

Delegations of authority—Some items that now go on the Conference consent calendar could be disposed of by the Executive

Committee, sparing Conference members unnecessary work. The

Conference may want to make additional delegations to the Executive Committee, based on an effort to emphasize the Conference’s

policy-making role and the Executive Committee’s role as an executive manager. Labeling decisions as “policy” as opposed to

“execution” is, of course, much more difficult than merely stating

the distinction.
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93

Some have suggested that the Director of the Administrative

Office should have more authority to deal with matters that are

clearly administrative.

Finally, judges and others are often surprised to learn that the

Conference gets much of its authority indirectly through statutory

assignments to the Administrative Office. There appears to be little,

if any, sentiment, however, that this statutory arrangement is a

problem or that it needs a cure.

Conference committees—There have been suggestions that the

Conference reduce the number of its committees. The committee

system was last realigned in 1987, and that change brought with it a

procedure to assess periodically whether each committee should

continue or be terminated. The Executive Committee is probably

the best judge of whether a more far-reaching examination and

overhaul is necessary or desirable.

In regard to the procedures for Conference committees, there

is an undercurrent, much stronger at some times than at others,

that staff presence at and participation in committee meetings are

not optimally managed. On the one hand, committee members

sometimes complain that too many staff attend as passive “back

benchers.” On the other hand, inadequate staff support for committee meetings, especially those held away from Washington, D.C.,

can contribute to a sense of inefficiency. One possible innovative

solution to the problem of staff support at committee meetings

might be to utilize new forms of teleconferencing, especially videoconferencing, by expanding the communications facilities available

in the Thurgood Marshall Federal Judiciary Building.

See also an alternative arrangement for national governance

(section 4, below).

2. Circuit governance

Council composition—District judges have expressed a continuing

interest in further adjustments of council membership following

the lines sketched out in section B of Part V. There appears to be

no statutory bar to weighted voting within a council, which would

provide district judges with more influence than does the onejudge, one-vote principle. Any actual proposal to effect this change

would be controversial.
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94

Statutory change would also be necessary to provide council

membership for bankruptcy and magistrate judges. Like Conference membership, however, this issue may be less controversial

than it has been in the past.

Circuit conferences—Some judges appear to favor consideration

of a statutory change to make circuit conferences optional, either

the events themselves or individual participation.

3. Chief judges

There is clearly a sentiment among some judges that seniority is

not the best method of selecting chief judges because it does not

account for differences in administrative ability. There seems to be

an equally strong concern, however, that any other method of selection could create more problems than it solves. One way to resolve this conflict is to ask for a statutory change that would allow

the districts to devise their own selection methods, or to choose

from among a small list of methods. This approach is not without

its own serious questions, such as how often could a district change

its selection process? One possible way to resolve dissatisfaction

with the current method would be to authorize the judges of a district to certify to the Chief Justice, the Judicial Conference, and the

circuit council that a current chief judge should be relieved of his

or her duties and replaced by the next judge in the seniority queue.

Such a procedure would be used rarely, but there may be a few instances in which it would solve a problem. A relatively modest

change would be for the Conference or councils to encourage eligible judges who agree to be chief to serve the full seven-year term.

This policy would be in line with the intent of the 1982 statute’s

drafters that chief judges should serve long enough to establish

some continuity and stability in the office.

4. An alternative arrangement for national governance

One of the reviewers of an earlier draft of this paper used governance recommendations made or raised by the Federal Courts

Study Committee to constitute an alternative national governance

arrangement. With permission, we present that arrangement here,

with only technical editorial changes. The similarities and differ-
Federal Court Governance

95

ences between this arrangement and the arrangement analyzed in

Part V will be clear.

Another Alternative Governance Arrangement

(Derived from Federal Courts Study Committee Report, p. 146)

a. Judicial Conference. Preserve the Judicial Conference as a broadbased policy-making body that meets once a year.

b. Executive Committee. Recognize the seven-member Executive

Committee as the principal body for day-to-day policy making

and resource allocation (fulfill role now filled by the Executive

Committee and Budget Committee).

1. Make its authority clear by statutory change.

2. Committee meets bimonthly in D.C. or electronically.

3. The FJC Director and AO Director are ex officio nonvoting

members.

4. Appointed by the Chief Justice from members of the Judicial Conference.

5. Approves chairman of the Executive Committee selected by

the Chief Justice.

6. Oversees the work of the Administrative Office.

7. Continues to act as traffic cop and overseer for committee

system.

c. Chairman of Executive Committee is full-time executive for federal

courts.151

1. Day-to-day administrative/executive authority for operation

of the third branch except for the Supreme Court and the

FJC.

2. Article III judge appointed by the Chief Justice with approval of the Executive Committee.

3. Offices are at the Supreme Court chambers in the Thurgood Marshall Federal Judiciary Building.

4. Presides over the Judicial Conference and the FJC Board

during absence of the Chief Justice.

5. Recommends committee appointments to the Chief Justice.

151. The AO Director or administrative assistant to the Chief Justice could fill

this position if an Article III judge is appointed to either position.
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96

6. Supervises and evaluates the AO Director.

7. Other duties as delegated by the Chief Justice.
97

Appendix A

Letter from Judge Otto Skopil, December 21, 1993

99

COMMITTEE ON LONG RANGE PLANNING

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

232 PIONEER COURTHOUSE

555 S.W. YAMHILL STREET

PORTLAND, OREGON 97204

JUDGE OTTO R. SKOPIL, JR. TELEPHONE

CHAIRMAN (503) 326-3543

FAX: (503) 326-4900

JUDGE SARAH EVANS BARKER

JUDGE EDWARD R. BECKER

JUDGE WILFRED FEINBERG CHARLES W. NIHAN

JUDGE ELMO B. HUNTER LONG RANGE PLANNING OFFICE

JUDGE JAMES LAWRENCE KING (202) 273-1810

JUDGE VIRGINIA M. MORGAN FAX: (202) 273-1826

JUDGE A. THOMAS SMALL

JUDGE HARLINGTON WOOD, JR.

December 21, 1993

Dear Judge:

I write to invite you to attend a one and one-half

day meeting of the Committee on Long Range Planning in

Washington, D.C., on Thursday, March 3, and Friday

morning, March 4, 1994. The purpose of this meeting

is to assist our Committee in developing recommendations on judicial governance for inclusion in the judiciary's first long range plan. You are one of a

small number of judges, judicial administrators, and

academics who are being invited to participate.
Federal Court Governance

100

2

The Long Range Planning Committee intends to submit a

proposed long range plan to the Judicial Conference in

March of 1995. We expect to complete a draft plan and

circulate it for public comment by August 1994. Among

the subjects selected for treatment in that first plan

is the internal governance of the federal courts. To

that end, the Committee is studying the current state

of judicial governance in order to identify possible

long-term problems, needs, and concerns. We have directed inquiries on this subject to other Conference

committees, and the meeting described above should

provide an excellent opportunity for frank and open

discussion with individuals like yourself who are

knowledgeable and experienced in governance matters.

The specific agenda will be distributed in advance

of the meeting. Some of the basic issues that will be

addressed include the following:

1. How should national leadership in the judiciary

be constituted and exercised? Specifically--

a. Should the authority and responsibility currently held by the Judicial Conference of the

United States and agencies of national judicial

administration (i.e., Administrative Office of

the United States Courts and Federal Judicial

Center) be modified or reallocated?

b. Should the composition, functions, or operational methods of the Judicial Conference be reexamined?

c. Should the Federal Judicial Center retain its

structure of internal governance and relative

autonomy within the judicial branch?
Federal Court Governance

101

3

d. Is there a need for a full-time chief executive officer in the governance of the federal

judiciary? If so, what powers and duties should

be assigned to that officer, and what method of

selection, tenure, and qualifications would be

appropriate? And what should be that officer's

relationship to other key figures in the governance scheme (i.e., Chief Justice, Judicial Conference, Director of the Administrative Office,

etc.)?

2. What is the appropriate distribution of governance functions between and among central, regional, and local authorities in the federal judiciary? Specifically--

a. Should there be greater centralization or decentralization of governance and administrative

authority? In this context, should a distinction

be drawn between the authority to make policy

and responsibility for its implementation?

b. Should circuit judicial councils continue to

exist? If so, are changes needed in their composition, functions, or operational methods?

c. Should district courts be governed separately

from the court of appeals in each circuit? If

so, what governance structure would be appropriate for those courts?

d. Should the authority of chief judges or the

method of their selection be altered?

3. What is an appropriate balance between effective

governance authority in the federal courts and the

constitutionally guaranteed independence of federal

judges?
Federal Court Governance

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4

This meeting is only a preliminary step in the Committee's planning process. After we develop all of our

recommendations, there will be a series of public

hearings to obtain input on the plan as a whole. However, given the critical and sensitive nature of these

issues, we hope that the views communicated in the

March meeting will enable the Committee to circulate

tentative recommendations on governance that are especially well informed and focused.

You will receive, in due course, additional information on the meeting location and available lodging

and, by the middle of February, an agenda and set of

background readings from the Federal Judicial Center.

Since this is an official meeting of a Judicial Conference committee, you will be entitled to reimbursement of travel expenses from court funds.

To facilitate preparations, we would appreciate a

response to this invitation by Friday, January 21,

1994. Would you please communicate your decision by

faxing the enclosed response form to Mr. Jeffrey Hennemuth of our Committee staff? If you are unable to

attend but would still like to share your views on

governance with the Committee, please feel free to do

so in writing addressed to me.

Any questions about this invitation can be answered

by Mr. Hennemuth at 202/273-1810.

Sincerely,

Otto R. Skopil, Jr.

Enclosure
103

Appendix B

Tables and Figures

(Data are as of December 1993)

The tables and figures in this appendix demonstrate some relationships between number of judgeships and magistrate judge positions

in the circuits and the circuits’ relative representation on the Judicial Conference and Conference committees. Tables 2 and 3 list

the circuits (counting the Court of International Trade as a

“circuit” for present analytical purposes) in ascending order of total

judgeships. Figure 2 is a scatterplot diagram that plots the relationship between Conference members per circuit and judgeships per

circuit.

Table 2

Judicial Conference Representation and Life-Tenured Judgeships,

by Circuit

Circuit

Total Circuit

and District

Judgeships

 Percentage of

 Total Circuit &

District Judgeships

Percentage of Conference

Membership

(excluding Chief Justice)

Int’l Trade 9 1.0 3.8

Federal 12 1.5 3.8

D.C. 27 3.2 7.7

First 35 4.2 7.7

Tenth 49 5.8 7.7

Eighth 54 6.5 7.7

Seventh 57 6.8 7.7

Fourth 67 8.0 7.7

Second 75 8.9 7.7

Eleventh 75 8.9 7.7

Third 76 9.1 7.7

Sixth 79 9.4 7.7

Fifth 95 11.4 7.7

Ninth 127 15.2 7.7

All 837 99.9 100.0
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Table 3

Composition of Judicial Conference Committeesa by Circuit and

Personnel Type

Circuit

Percentage

of all

Cir./Dist.

Judgeships Cir. Dist.

BankruptcyMagistrateAll

Judges Others

Comm.

Chair

Cir.

Comm.

Chair

Trialc

Int’l Trade 1.0 1 1

Federalb 1.5 4 0 0 1 5 0 0 0

D.C. 3.2 5 5 0 1 11 9 2

First 4.2 2 10 0 2 14 3 1 1

Tenth 5.8 6 7 1 1 15 2 2 0

Eighth 6.5 5 14 2 3 24 0 2 1

Seventh 6.8 4 16 1 0 21 3 0 1

Fourth 8.0 2 13 4 2 21 3 0 1

Second 8.9 4 11 2 0 17 6 1

Eleventh 8.9 1 13 0 0 14 3 1 1

Third 9.1 5 13 0 0 18 2 0 3

Sixth 9.4 10 8 2 1 21 4 0 0

Fifth 11.4 5 13 2 3 23 6 1 0

Ninth 15.2 12 16 3 3 34 0 1 5

Total 99.9 65 141 17 16 239 41 9 15

aIncludes the five advisory rules committees, but not the soon-to-be-appointed Committee

on International Judicial Relations.

bFor purposes of this table, the one Court of Federal Claims judge committee member is

listed under the “magistrate judge” heading for the Federal Circuit. We recognize that there

are differences in the appointment process and jurisdiction of magistrate judges and Court

of Federal Claims judges. We have not included Court of Federal Claims judges in the total

number of circuit, district, bankruptcy, and magistrate judges reflected in the percentages in

the second column.

cIncludes 14 district judge chairs and one bankruptcy judge chair (a Fourth Circuit

bankruptcy judge chairs the advisory committee on bankruptcy rules).
Federal Court Governance

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Figure 2

Federal Judge Judicial Conference Committee Members per Circuit

Versus Total Federal Judgeships per Circuit

Circuit Total

Committee Members

0

5

10

15

20

25

30

35

0 50 100 150 200 250 300

D.C.

1st 10th 11th

2d

3d

9th

8th

7th 4th 6th

5th

Note: Figure does not include Federal Circuit and Court of International Trade judges

or part-time magistrate judges or recalled bankruptcy judges. As noted in text, the

correlation coefficient (.83) is quite high, suggesting that the larger the circuit, the more of

the circuit’s judges are on Conference committees.

107

Appendix C

Statutory Authority for Court Governance

Thomas E. Willging

Federal Judicial Center

(Originally prepared for the Subcommittee on Court Governance of the

Judicial Conference Committee on Court Administration and Case

Management and subsequently revised, June 1992)

This document lists the entities152 responsible for court governance

and sets forth a detailed breakdown of the statutory authority and

obligations of each entity. The following judicial offices and

collective entities are assigned explicit responsibility for governance.153

The Chief Justice of the United States

Judicial Conference of the United States

Administrative Office of the U.S. Courts

Federal Judicial Center

Judicial Council of the Circuit

Judicial Conferences of the Circuits

Chief Judge of the Circuit

Court of Appeals

Circuit Executive

Clerk, Court of Appeals

District Court

Chief Judge of the District

Clerk, District Court

District Court Executive

Bankruptcy Court

152. We have not included several agencies or courts within the judicial

branch, such as the United States Sentencing Commission and the Court of

International Trade, and have not included any courts created under Article I of

the U.S. Constitution.

153. We have not attempted to define or limit the term “governance” and

have included all of the administrative assignments of responsibility that we could

identify.
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Chief Judge of the Bankruptcy Court

Clerk, Bankruptcy Court

Judicial Panel on Multidistrict Litigation

Looking simultaneously at the functions and the entities entrusted with responsibility for them reveals a host of patterns or

models of governance. The relationships among the entities vary

with the issue to be addressed. An entity may have authority to approve or disapprove some actions of another entity and only have

authority to make suggestions as to other actions of the same entity

on a different issue. The resulting mosaic of court governance is

more complex than an outline can document. For example, one

model, used to implement the Speedy Trial Act and the Jury Selection and Service Act, has the district courts adopt a plan that must

be approved by the circuit council. In the Civil Justice Reform Act

(CJRA), however, Congress created a variation: A committee, composed of the chief district judges and the chief judge of the circuit,

is authorized to review plans and suggest changes. The possible

variations are numerous, if not endless.

What follows is a list of authorities and obligations as found in

statutes enacted by Congress. We have not examined how any entity

responds to any of these statutes. This listing should not be read to

denote that entities proceed in a particular manner or that they act

with any particular frequency. Whether the entity delegates its

statutory powers and duties to other entities or individuals is also

beyond the scope of this listing.

In relation to courts other than the Supreme Court, the Chief

Justice of the United States has statutory governance authority or a

statutory obligation to:

Appointing

• appoint an administrative assistant to perform whatever duties the Chief Justice may assign and to appoint other

“necessary employees” with the approval of the Chief Justice

[28 U.S.C. § 677];

• appoint or remove the Director and Deputy Director of the

Administrative Office of the United States Courts, “after consulting with the Judicial Conference” [28 U.S.C. § 601];
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• appoint members of various committees and commissions,

such as the Federal Courts Study Committee [§ 103 of Public

Law 100-702](all 15 members), and the National Commission on Judicial Discipline and Removal (3 members) [§ 411

of Public Law 101-650];

• designate seven judges to serve on the Judicial Panel for Multidistrict Litigation [28 U.S.C. § 1407(d)]; and

• appoint the chairman and two members of the Federal Judicial Center Foundation Board [28 U.S.C. § 629(b)].

Assigning Judges

• based on a certification by the chief judge or the circuit justice of the circuit that a need exists, the Chief Justice may

designate or assign temporarily (1) a circuit judge to serve as

a circuit judge in another circuit [28 U.S.C. § 291(a)]; (2) a

district judge to serve in another circuit, either in a district

court or a court of appeals [28 U.S.C. § 292(d)]; (3) a district

or circuit judge to sit in another district as a transferee judge

in multidistrict proceedings [28 U.S.C. § 1407(b)]; (4) a

judge of the Court of International Trade to serve in any district court or court of appeals [28 U.S.C. § 293(a)]; (5) a retired Supreme Court Justice “to perform such judicial duties

in any circuit . . . as he is willing to undertake” [28 U.S.C.

§ 294(a)]; or (6) a retired judge to serve outside his court or

circuit to perform “such judicial duties as he is willing and

able to undertake” [28 U.S.C. § 294(d)]. The Chief Justice

may also revoke any of the above assignments [28 U.S.C.

§ 295].

Presiding and Convening

• summon the Judicial Conference of the United States for

annual and special meetings and preside at those meetings

[28 U.S.C. § 331] and

• serve as the “permanent Chairman of the Board” of the Federal Judicial Center [28 U.S.C. § 621(a)(1)].

Reporting and Receiving Reports

• request that the Attorney General report to the Judicial Conference of the United States on matters relating to the busi-
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110

ness of the federal courts and the cases in which the United

States is a party [28 U.S.C. § 331] and

• submit an annual report to Congress “of the proceedings of

the Judicial Conference and its recommendations for legislation” [28 U.S.C. § 331].

The Judicial Conference of the United States has statutory authority or a statutory obligation to:

Appointing

• recommend judges to serve on the United States Sentencing

Commission [28 U.S.C. § 991(a)].

Assigning Judges

• “make a comprehensive survey of the condition of business

in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary” [28 U.S.C. § 331];

• determine “the number of full-time . . . and part-time United

States magistrates, the locations at which they shall serve, and

their respective salaries” [28 U.S.C. § 633(b)]; and

• promulgate regulations to implement the statute permitting

recall of retired bankruptcy, Claims Court, and magistrate

judges “for a period of five years” [28 U.S.C. § 375(h)].

Automation

• review annual long-range plans “for meeting the automatic

data processing equipment needs of the judicial branch” [28

U.S.C. § 612(b)(1)] and supervise the Director of the Administrative Office in reprogramming certain deposits from the

Judiciary Automation Fund [28 U.S.C. § 612(i)].

Civil Justice Reform Act (CJRA)

• “develop one or more model civil justice expense and delay

reduction plans” [28 U.S.C. § 477(a)(1)];

• “prepare a comprehensive report on all [CJRA] plans” [28

U.S.C. § 479(a)];
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• study, “on a continuing basis,” ways to improve litigation

management and dispute resolution services in the district

courts [28 U.S.C. § 479(b)(1)]; and

• “prepare, periodically revise, and transmit . . . a Manual for

Litigation Management and Cost and Delay Reduction” [28

U.S.C. § 479(c)(1)].

Counsel in Criminal Cases

• approve or disapprove applications for grants from Community Defender Organizations [18 U.S.C. § 3006A(g)(2)(B)].

Court and Case Management Procedures

• “submit suggestions and recommendations to the various

courts to promote uniformity of management procedures

and the expeditious conduct of court business” [28 U.S.C.

§ 331].

Court Reporting, Recording, and Interpreting

• request or approve a circuit council’s request for certified interpreters in a given language [28 U.S.C. § 1827(b)(1)];

• determine the number and qualifications of court reporters,

rates they may charge, records they must keep, and reports

they must file [28 U.S.C. § 753(a),(c),(d)]; and

• establish by regulations the types of electronic sound recordings or other means that may be used to create a verbatim

record of court proceedings [28 U.S.C. § 753(b)].

Court Sessions

• grant or withhold consent to a proposal of a court of appeals

to pretermit a regular session of the court at any place [28

U.S.C. § 48(c)].

Fees, Fines, and Costs

• prescribe reasonable and uniform fees and costs in the courts

of appeals [28 U.S.C. § 1913] and

• prescribe fees other than the filing fee in the district courts

[28 U.S.C. § 1914(b)].
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General Administration

• supervise and direct the Director of the Administrative Office

[28 U.S.C. § 604(a)] and

• approve budget estimates for the courts and the Administrative Office before presentation to the Office of Management

and Budget [28 U.S.C. § 605].

Judicial Conduct and Status

• prescribe rules for the conduct of proceedings regarding judicial conduct and disability, conduct proceedings, issue

“necessary and appropriate orders,” review complaints

(based on referrals from judicial councils or records of

felony convictions of judges), determine whether “consideration of impeachment may be warranted,” and transmit

determinations and related records to the House of Representatives. On these matters, the Conference may act

through a standing committee or as a whole [28 U.S.C. § 331

and § 372(c)(8)] and

• promulgate rules regarding the judicial duties and administrative work of a judge who has retired on senior status to determine whether the judge qualifies to receive the salary of

the office [28 U.S.C. § 371(f)(2)].

Jury Procedures

• “develop and conduct an experiment” in combining juror

summoning and qualifying procedures [28 U.S.C.

§ 1878(a)].

Legislation

• make “recommendations for legislation” [28 U.S.C. § 331].

Pretrial Services

• direct and supervise the Director of the Administrative Office

in the creation of pretrial services in the district courts [18

U.S.C. § 3152(a)].

Rule Making

• “carry on a continuous study of the operation and effect of

the general rules of practice and procedure” and recommend to the Supreme Court changes “to promote simplicity
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in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay” [28 U.S.C. § 331] and

• review rules issued by courts (except the Supreme Court and

the district courts) for “consistency with Federal law.” The

Conference may modify or nullify any rule found to be inconsistent with federal law [28 U.S.C. § 331].

Sentencing

• “submit to the [Sentencing] Commission any observations,

comments, or questions . . . whenever they believe such

communication would be useful, and shall, at least annually,

submit to the Commission a written report commenting on

the operation of the Commission’s guidelines, suggesting

changes in the guidelines . . . , and otherwise assessing the

Commission’s work” [28 U.S.C. § 994(o)].

Supervision

• supervise and direct the Director of the Administrative Office

[28 U.S.C. § 604(a)].

The Administrative Office of the United States Courts is supervised by a Director, who is supervised and directed by the Judicial

Conference. The Director is “the administrative officer of the

courts” [28 U.S.C. § 604(a)] and has extensive and detailed statutory authority and obligations. The following partial listing of the

Director’s authority comes primarily from 28 U.S.C. § 604(a).

Other authority is in specific statutes that affect the judicial branch,

such as the Civil Justice Reform Act. The Director has a statutory

authorization or a statutory obligation to:

Court Reporting, Recording, and Interpreting

• establish programs for certification, utilization, and employment of interpreters and a program for “special interpretation services” in the courts [28 U.S.C. § 604(a)(14)–(16)].

Fees, Fines, and Costs

• “establish procedures and mechanisms within the judicial

branch for processing fines, restitution, forfeitures of bail
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bonds or collateral, and assessments” [28 U.S.C.

§ 604(a)(18)].

General Administration

• submit to the Office of Management and Budget estimates of

the expenditures and appropriations necessary for the maintenance and operation of the courts and the Administrative

Office and the judicial survivors annuity fund [28 U.S.C.

§ 605];

• fix compensation for clerks, librarians, law clerks, secretaries,

and various other employees of the courts [28 U.S.C.

§ 604(a)(5)];

• “determine and pay necessary office expenses of courts,

judges,” and other court officials [28 U.S.C. § 604(a)(6)];

• regulate and pay annuities to widows and dependent children of various judges and officials [28 U.S.C. § 604(a)(7)];

• regulate and pay necessary travel and subsistence expenses

incurred by judges and other judicial branch employees [28

U.S.C. § 604(a)(7)];

• purchase, exchange, transfer, distribute, and assign

“lawbooks, equipment, supplies, and other personal property

for the judicial branch” [28 U.S.C. § 604(a)(10)(A)];

• audit vouchers and accounts of the courts and other judicial

branch offices [28 U.S.C. § 604(a)(11)];

• provide accommodations to the courts and other judicial

branch offices [28 U.S.C. § 604(a)(12)];

• receive and expend funds for court security equipment and

protective services [28 U.S.C. § 604(a)(22)];

• “supervise all administrative matters relating to the offices of

the United States magistrates” [28 U.S.C. § 604(a)(d)(1)];

and

• provide facilities and pay necessary expenses of judicial

councils and the Judicial Conference arising out of the administration of the Judicial Conduct and Disability Act, 28

U.S.C. § 372 [28 U.S.C. § 604(h)(1)].
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Judicial Conduct and Status

• “periodically compile the orders that are required to be publicly available under” the Judicial Conduct and Disability Act,

28 U.S.C. § 372(c)(15) [28 U.S.C. § 604(a)(20)(C)] and

• include in the annual report filed with Congress a summary

of complaints filed with each judicial council under the Judicial Conduct and Disability Act, 28 U.S.C. § 372(c) [28 U.S.C.

§ 604(h)(2)].

Reporting and Receiving Reports

• submit a report to the annual meeting of the Judicial Conference and to Congress of the activities of the Administrative

Office and the state of business of the courts, with statistical

data and recommendations [28 U.S.C. § 604(a)(3)(4)] and

• report to Congress annual statistics regarding the business of

magistrate judges, appeals from their decisions, and their

professional backgrounds and qualifications [28 U.S.C.

§ 604(d)(3)].

Research and Statistics

• examine the state of the dockets of the courts, secure information about the needs of the courts, and transmit semiannual reports on the business of the courts to the chief judges

of the circuits [28 U.S.C. § 604(a)(2)];

• report to Congress annually statistical tables that will accurately reflect the business of the bankruptcy courts [28 U.S.C.

§ 604(a)(13)];

• report to Congress annually “statistical tables that will accurately reflect the business imposed on the federal courts by

the savings and loan crisis” [28 U.S.C. § 604(a)(24)]; and

• gather, compile, and evaluate statistical and other information relating to magistrate judges [28 U.S.C. § 604(d)(2)].

Rule Making

• periodically compile the rules adopted pursuant to the rule

making power of courts [28 U.S.C. § 604(a)(20)(A)];

• promulgate all necessary rules and regulations, which may be

published in the Federal Register [28 U.S.C. § 604(f)]; and
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• issue rules and regulations regarding the administration of

the magistrate judges’ offices [28 U.S.C. § 604(e)].

Supervision

• “supervise all administrative matters relating to the offices of

clerks and other clerical and administrative personnel of the

courts” [28 U.S.C. § 604(a)(1)].

The Federal Judicial Center is supervised by a Board composed

of the Chief Justice, six judges elected by the Judicial Conference,

and the director of the Administrative Office [28 U.S.C. § 621(a)].

The following partial listing of the authority and obligations of the

Center and its Board comes primarily from 28 U.S.C. §§ 620–624.

Other authority may be found in specific statutes that affect the judicial branch, such as the Civil Justice Reform Act. The Center, under the supervision of its Board, or the Board itself, has statutory

authority or a statutory obligation to:

Appointing

• appoint and fix the duties of the director and deputy director, who serve at the pleasure of the Board [28 U.S.C.

§ 624(1)].

Automation

• “study and determine ways in which automatic data processing and systems procedures may be applied to the administration of the courts” [28 U.S.C. § 623(a)(5)].

Court and Case Management Procedures

• develop and present to the Judicial Conference “recommendations for improvement of the administration and

management of the courts” [28 U.S.C. § 620(b)(2); 28 U.S.C.

§ 623(a)(2) contains similar language in relation to the

Center’s Board].

Education and Training

• stimulate, create, develop, and conduct programs of continuing education and training for personnel of the judicial

branch and others whose participation would improve the

programs of the judicial branch [28 U.S.C. § 620(b)(3)] and
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“formulate recommendations for improvements . . . in the

training of the personnel of [the federal] courts, and in the

management of their resources” [28 U.S.C. § 623(a)(2)].

History

• “conduct, coordinate, and encourage programs relating to

the history of the judicial branch” [28 U.S.C. § 623(a)(7)].

Research and Statistics

• conduct research and study the operation of the courts and

stimulate and coordinate such research on the part of others

[28 U.S.C. § 620(b)(3)];

• provide “staff, research, and planning assistance” to the Judicial Conference and its committees [28 U.S.C. § 620(b)(4)];

and

• recommend to public and private agencies aspects of the operations of the federal courts deemed worthy of special study

[28 U.S.C. § 623(a)(6)].

Foreign Judicial Assistance

• provide information and advice on judicial administration to

personnel of “the courts of foreign countries” and acquire information from them [28 U.S.C. § 620(b)(6)].

Federalism

• cooperate with the State Justice Institute in the establishment

and coordination of research and programs [28 U.S.C.

§ 620(b)(5)]; generally, consider state–federal relations in

research and education efforts.

Reporting and Receiving Reports

• submit to the Judicial Conference at least one month before

the annual meeting a report of the activities of the Center

and any recommendations to the Conference [28 U.S.C.

§ 623(a)(3)] and

• present to other agencies whose programs relate to the administration of justice recommendations for improvement of

that agency’s programs or activities [28 U.S.C. § 623(a)(4)].
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The Judicial Council of the Circuit (“Circuit Council”) has

statutory authority or a statutory obligation to:

Appointing

• appoint a circuit executive and decide whether to delegate

one or more of a host of administrative duties, such as administrative control of all nonjudicial activities of the court of

appeals and other duties not specified in the statute [28

U.S.C. § 332(e)];

• approve continuation of the authority of a bankruptcy judge

to sit for up to 180 days after expiration of the term of appointment [28 U.S.C. § 152(a)(1)];

• approve continuation in office of a magistrate judge for up to

180 days after expiration of a term of appointment [28

U.S.C. § 631(f)]; and

• certify that “substantial service is expected to be performed”

by a retired bankruptcy or magistrate judge if recalled for a

five-year period [28 U.S.C. § 375(a)(1)].

Assigning Judges

• approve the temporary transfer of a bankruptcy judge to or

from any district within any circuit [28 U.S.C. § 155(a)];

• consult with the Administrative Office to set places of holding court and duty stations for bankruptcy judges [28 U.S.C.

§ 152(b)(1)]; and

• consent to the designation or assignment of a judge to another court [28 U.S.C. § 295].

Counsel in Criminal Cases

• review and modify district court plans for providing counsel

to indigents in criminal cases and supplement such plans

with a plan for providing counsel in criminal law appeals [18

U.S.C. § 3006A(a)].

Court and Case Management Procedures

• issue “all necessary and appropriate orders for the effective

and expeditious administration of justice within its circuit”

[28 U.S.C. § 332(d)(1)];
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• take such action on the semiannual reports from the Director of the Administrative Office “as may be necessary” [28

U.S.C. § 332(c)];

• deal with the regular business of a court, but only if “an impediment to the administration of justice is involved” [28

U.S.C. § 332(d)(3)];

• resolve deadlocks at the district court level regarding the division of the business of the court among the judges [28

U.S.C. § 137];

• set limits and conditions on the use of facilities and services

to provide administrative information in bankruptcy cases in

which the costs of such facilities and services are paid by the

assets of the estate [28 U.S.C. § 156(c)];

• establish a bankruptcy appellate panel (BAP) and, with another circuit council, recommend a joint BAP panel to the

Judicial Conference [28 U.S.C. § 158(b)];

• adopt rules for disposing of obsolete court records [28 U.S.C.

§ 457]; and

• order records of courts to be held at a location other than

that selected by the court [28 U.S.C. § 457].

Court Reporting, Recording, and Interpreting

• determine whether the number of authorized court reporters

is insufficient and whether additional reporters should be

provided on a contract basis [28 U.S.C. § 753(g)].

Court Sessions

• decide whether to consent to district court decisions to

pretermit a regular court session [28 U.S.C. § 140(a)].

Judicial Conduct and Status

• prescribe rules for the conduct of proceedings relating to judicial misconduct and disability and act on investigative

committee reports, for example, by certifying disability, suspending case assignments, censuring or reprimanding, or

dismissing the complaint [28 U.S.C. § 372(c)(6),(11)];

• certify that senior judges are performing substantial judicial

duties and are entitled to retain chambers and staff [JCUS
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resolution; note that the chief judge of the circuit now has to

make a similar certification if the senior judge is to retain the

salary of the office under 28 U.S.C. § 371(f)(1)];

• resolve deadlocks at the district court level regarding the residence of judges at or near a place of holding court [28

U.S.C. § 134(c)];

• approve accommodations, including chambers and courtrooms, for courts and judges [28 U.S.C. § 462(b)];

• remove a bankruptcy judge for cause during a term of office

[28 U.S.C. § 152(e)]; and

• remove a magistrate judge from office for misconduct during

a term [28 U.S.C. § 631(i) (authority contingent on a tie vote

by the district court)].

Jury Procedures

• review and approve or direct the creation of an alternative

plan for the random selection of jurors [circuit council plus

chief judge of the district whose plan is under review; 28 U.S.C.

§ 1863].

Pretrial Services

• jointly recommend, with a district court, the creation of pretrial services in that district [18 U.S.C. § 3152].

Rule Making

• review local rules of court for consistency with national rules

and modify or nullify any inconsistent rules [28 U.S.C.

§ 332(d)(4)].

Speedy Trial Act

• review and approve or modify Speedy Trial Act plans [circuit

council plus chief judge of the district whose plan is under review; 18

U.S.C. § 3165] and promulgate guidelines for use by all district courts to implement the act [18 U.S.C. § 3166(f)].

Judicial conferences of the circuits (“circuit judicial conferences”) are obligatory meetings of each circuit’s active life-tenured

and bankruptcy judges; senior judges attend at their discretion and

magistrate judges attend if invited. 28 U.S.C. § 333 directs each
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court of appeals to “provide by its rules for representation and active participation at such conference[s] by members of the bar of

such circuit.” The chief circuit judge must convene a conference at

least once every two years but no more often than annually. The

conference has two statutory functions:

Judicial Improvement

• “considering the business of the courts and advising means of

improving the administration of justice within such circuit”

[28 U.S.C. § 333].

U.S. Judicial Conference Member Selection

• providing the forum where the circuit and district judges of

each judicial circuit may choose that circuit’s district judge

representative to the Judicial Conference [28 U.S.C. § 331].

A Chief Judge of the Circuit is selected according to criteria set

forth in 28 U.S.C § 45 and has statutory authority or a statutory

obligation to:

Appointing

• appoint a bankruptcy judge if a majority of the judges on the

court of appeals cannot agree [28 U.S.C. § 152(a)(3)].

Assigning Judges

• designate or assign a district judge to sit on the court of appeals [28 U.S.C. § 292(a)];

• designate or assign a circuit judge within the circuit to “hold

a district court in any district within the circuit” [28 U.S.C.

§ 291(b)];

• designate or assign temporarily a district judge to sit on another district court in the circuit [28 U.S.C. § 292(b)] or as a

transferee judge in a multidistrict proceeding [28 U.S.C.

§ 1407(b)];

• certify the need for a temporary assignment of a judge from

another circuit to serve on a district court or the court of appeals [28 U.S.C. § 292(d)]; and

• consent to the assignment of an active district judge to another court [28 U.S.C. § 295].
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Civil Justice Reform Act (CJRA)

• serve with chief district judges of the circuit on a committee

to review the civil justice expense and delay reduction plans

pursuant to the Civil Justice Reform Act of 1990 [28 U.S.C.

§ 474(a)].

Judicial Conduct and Status

• review complaints of misconduct and disability and dismiss

them or appoint an investigating committee, which shall include “himself and equal numbers of circuit and district

judges of the circuit” [28 U.S.C. § 372(c)(3),(4)].

Presiding and Convening

• call meetings of the circuit council at least twice a year [28

U.S.C. § 332(a)(1)];

• preside over any session of the court and have “precedence”

[28 U.S.C. § 45(b)]; and

• summon all the judges of the circuit at least biennially to a

circuit judicial conference and excuse judges who cannot

remain for the entire conference [28 U.S.C. § 333].

Supervision (general)

• supervise the circuit executive’s performance of the duties

delegated to him by the circuit council [28 U.S.C. § 332(e)].

A Court of Appeals has statutory authority to:

Appointing

• appoint bankruptcy judges [28 U.S.C. § 152(a)(1)] and

• approve the hiring of personnel in the clerk’s office [28

U.S.C. § 711(b)].

Counsel in Criminal Cases

• appoint a Federal Public Defender [18 U.S.C.

§ 3006A(g)(2)(A)].

Court and Case Management Procedures

• direct the order and timing of panels, authorize the hearing

and determination of cases by separate panels, and, in large

courts, establish en banc rules [28 U.S.C. § 46].
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Court Sessions

• pretermit any regular session of court at any place for insufficient business or other good cause, with the consent of the

Judicial Conference [28 U.S.C. § 48(c)].

Rule Making

• issue local rules to prescribe the conduct of its business [28

U.S.C. § 2071(a)] and

• provide in its rules for representation and active participation

by members of the bar at the circuit judicial conference [28

U.S.C. § 333].

The Circuit Executive has the administrative authority that the

circuit council chooses to delegate pursuant to 28 U.S.C. § 332(e),

including the authority or obligation to:

General Administration

• exercise administrative control of all nonjudicial activities of

the court of appeals and administer the personnel system

and budget of the court of appeals [28 U.S.C. § 332(e)(1)–

(3)] and

• maintain a modern accounting system, establish property

control records, and undertake a space management program [28 U.S.C. § 332(e)(4)–(5)].

Presiding and Convening

• arrange meetings of the judges of the circuit and the circuit

council, prepare the agenda, and serve as secretary [28

U.S.C. § 332(e)(9)].

Reporting and Receiving Reports

• prepare an annual report to the circuit and the Administrative Office, “including recommendations for more expeditious disposition of the business of the circuit” [28 U.S.C.

§ 332(e)(10)].

Research and Statistics

• conduct “studies relating to the business and administration

of the courts within the circuit” and prepare appropriate

recommendations and reports to the chief judge, the circuit
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council, and the Judicial Conference [28 U.S.C. § 332(e)(6)]

and

• collect, compile, and analyze statistical data to prepare reports to the chief judge, the circuit council, and the Administrative Office [28 U.S.C. § 332(e)(7)].

Representation Outside the Courts

• represent the circuit to various entities, including the states

in the circuit and other public and private groups [28 U.S.C.

§ 332(e)(8)].

The Clerk of the Court of Appeals has statutory authority or a

statutory obligation to:

Appointing

• “appoint necessary deputies, clerical assistants and employees

in such number as may be approved by the Director of the

Administrative Office” [28 U.S.C. § 711(b) (approval of the

court needed)].

Fees, Fines, and Costs

• pay into the Treasury “all fees, costs and other moneys collected by him” [28 U.S.C. § 711(c)].

A District Court has statutory authority or a statutory obligation

to:

Appointing

• designate a bankruptcy judge to serve as chief bankruptcy

judge [28 U.S.C. § 154(b)];

• appoint magistrate judges, decide whether to concur in a Judicial Conference designation of a magistrate judge to serve

adjoining districts, and approve the continuation of magistrate judges in office for up to 180 days after the expiration

of their terms [28 U.S.C. § 631(a),(f)]; and

• appoint a clerk of the district court and one or more court

reporters [28 U.S.C. §§ 751(a), 753].
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Assigning Judges

• determine which of the judges shall maintain a residence at

or near a particular place for holding court [28 U.S.C.

§ 134(c)];

• establish rules to guide magistrate judges in the discharge of

their duties [28 U.S.C. § 636(c)]; and

• consent or not to the assignment of cases to the district as a

transferee court by the Judicial Panel on Multidistrict Litigation [28 U.S.C. § 1407(b)].

Civil Justice Reform Act (CJRA)

• adopt and implement a civil justice expense and delay reduction plan [28 U.S.C. § 471] and

• assess annually the condition of the court’s civil and criminal

dockets, in consultation with the court’s CJRA advisory group

[28 U.S.C. § 475].

Counsel in Criminal Cases

• formulate a plan for providing counsel to indigents in criminal cases [18 U.S.C. § 3006A(a)].

Court and Case Management Procedures

• divide the business of the district court among its judges [28

U.S.C. § 137];

• refer Chapter 11 cases and related matters to the bankruptcy

court [28 U.S.C. § 157(a)]; and

• establish arbitration programs by local rule [28 U.S.C.

§ 651(a) (designated courts only)].

Court Reporting, Recording, and Interpreting

• appoint one or more court reporters [28 U.S.C. § 753(a)].

Court Sessions

• establish times and places for conducting the business of the

court [28 U.S.C. § 139], adjourn or pretermit any regular

court sessions [28 U.S.C. § 140], and order special sessions of

court [28 U.S.C. § 141].
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126

Judicial Conduct and Status

• remove a magistrate judge from office for cause [28 U.S.C.

§ 631(i)].

Jury Procedures

• formulate a plan for the random selection of jurors [28

U.S.C. § 1863].

Pretrial Services

• jointly recommend, with the circuit council, the creation of

pretrial services in the district [18 U.S.C. § 3152(b)].

Rule Making

• issue local rules to prescribe the conduct of the court’s business [28 U.S.C. § 2071]; such rules may affect the division of

business of the bankruptcy court [28 U.S.C. § 154(a)].

Speedy Trial Act

• formulate a Speedy Trial Act plan [18 U.S.C. § 3165].

The Chief Judge of the District is selected according to criteria

set forth at 28 U.S.C. § 136 and has statutory authority or a statutory

obligation to:

Appointing

• appoint a magistrate judge if a majority of district judges

cannot agree [28 U.S.C. § 631(a)] and

• appoint any officer of the district court (e.g., the clerk) if a

majority of district judges cannot agree [28 U.S.C. § 756].

Assigning Judges

• enforce rules and orders for the division of business among

the judges of the court and divide the business of the court

and assign cases unless the rules of the court otherwise prescribe [28 U.S.C. § 137] and

• designate the duties of magistrate judges in the district if the

majority of the district judges are unable to agree [28 U.S.C.

§ 636(c)].
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127

Civil Justice Reform Act (CJRA)

• appoint members of an advisory group to recommend a civil

justice cost and delay reduction plan [28 U.S.C. § 478(a)

(after consulting with the other judges of the court)] and

• serve on a committee to review the plans [28 U.S.C.

§ 474(a)].

Court Reporting, Recording, and Interpreting

• advise the circuit council whenever the number of authorized court reporters is insufficient and whenever additional

reporters should be provided on a contract basis [28 U.S.C.

§ 753(g)].

Presiding and Convening

• preside over and “have precedence” at any session of the

court [28 U.S.C. § 136(b)].

The Clerk of a District Court has statutory authority or a statutory obligation to:

Appointing

• “appoint . . . necessary deputies, clerical assistants and employees in such number as may be approved by the Director

of the Administrative Office” [28 U.S.C. § 751(a) (with the

approval of the court)].

Fees, Fines, and Costs

• pay into the Treasury “all fees, costs and other moneys collected by him” [28 U.S.C. § 751(e)].

A District Court Executive has no statutory duties. A pilot program was created in 1981 by the Judicial Conference, which enumerated a list of duties. They are published in W. Eldridge, The

District Court Executive Pilot Program 10–12 (Federal Judicial

Center 1984).

The Bankruptcy Court has statutory authority or a statutory

obligation to:
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128

Appointing

• appoint a bankruptcy clerk after certifying to the circuit

council and the Director of the Administrative Office that

the number of pending cases and proceedings warrants the

appointment [28 U.S.C. § 156(b) (refers to “bankruptcy

judges” as the entity authorized to appoint)].

Rule Making

• promulgate rules for the division of business among the

bankruptcy judges to the extent that the rules of the district

court do not so provide [28 U.S.C. § 154(a)].

The Chief Judge of the Bankruptcy Court has statutory authority or a statutory obligation to:

Court and Case Management Procedures

• “ensure that the rules of the bankruptcy court and of the district court are observed and that the business of the

bankruptcy court is handled effectively and expeditiously”

[28 U.S.C. § 154(b)].

The Clerk of a Bankruptcy Court has statutory authority or a

statutory obligation to:

Appointing

• appoint and remove deputies [28 U.S.C. § 156(b) (with the

approval of the bankruptcy judges)].

The Judicial Panel on Multidistrict Litigation has statutory authority or a statutory obligation to:

Assigning Judges

• assign cases to a judge or judges of a district court for coordinated or consolidated pretrial proceedings, with the consent of the transferee district court [28 U.S.C. § 1407(b)].

Rule Making

• prescribe rules for the conduct of its business not inconsistent with the Acts of Congress and the Federal Rules of Civil

Procedure [28 U.S.C. § 1407(f)].