The federal judiciary, often the forgotten branch of govern

load that is at an all-time high and morale that is at an all-time low.

The problems, according to William H. Rehnquist, chief justice of the United States, and others, range from inadequate pay to overflowing dock. ets, from new litigation burdens to onerous proposed ethics requirements.

"I have to report that over nearly a quarter of a century of judicial service, I have never seen so many judges at all levels in all courts and in all parts of the country so disheartened as I do today." Judge Frank M. Coffin told the House Judiciary Subcommittee on Courts, Intellectual Property and the Administration of Justice at an April 27 hearing. Coffin, who serves on the 1st U.S. Circuit Court of Appeals and is a former Democratic House member from Maine (1957-61), is chairman of the Judicial Conference Committee on the Judicial Branch.

As a consequence, the judiciary led by Rehnquist - is beseeching Congress for help.

"I will concede that the problem facing the federal courts does not have the graphic impact of an Alaskan oil spill or the high visibility of potentially poisoned fruit at the corner store," Rehnquist told the House Post Office and Civil Service Committee May 3. "For just this reason, this issue has aptly been termed a 'quiet crisis." "

Congress last year passed two important measures affecting the judicial branch. But the legislation left many of the judges' complaints untouched.

"So far, Congress has just been nibbling at the edges," says Abner J. Mikva, a judge on the U.S. Court of Appeals for the District of Columbia and a former Democratic House member from Illinois (1969-73, 1975-79).

Third U.S. Circuit Judge Joseph F.

By Joan Biskupic

R MICHAEL JENKINS

Chief Justice William H. Rehnquist says the judiciary faces "a quiet crisis."

Weis Jr. adds, "It will take a combination of things to solve the problems of the federal courts," possibly including a restructuring of the courts and a shifting of some federal cases to state jurisdiction.

Weis, of Pittsburgh, is chairman of a 15-member Federal Courts Study Committee, which Congress set up last year to explore alternative methods of handling disputes. A final report to Congress and the president is due April 1, 1990.

The judiciary's problems, say law. makers and judges, are just the kind that Congress hates to face.

They are complex, long-term and involve an institution that has little direct interaction with lawmakers. Judges do not lobby. Judges do not make campaign contributions. Judges do not perform favors for members. Judges cannot award contracts to a member's constituents, nor funnel federal funding to a particular district.

In fact, about the only time the judiciary directly affects Congress is when a court strikes down all or part of a law Congress has enacted - not an activity designed to win friends on Capitol Hill.

Nonetheless, while lawmakers on the House and Senate Judiciary committees say the federal bench generally is in good health, they have begun to fear it could face problems in the 1990s and beyond.

They are ready to take a look at some of the proposals being pushed by Rehnquist and the Judicial Conference of the United States, the policymaking arm of the federal judiciary.

The 1988 Legislation

The 100th Congress cleared two court bills that were the culmination of almost a decade of work by House and Senate Judiciary committees and had long been sought by the Judicial Conference.

In the first, Congress gave the Supreme Court much greater discretion to determine what cases it hears. More than 4,500 appeals are filed annually with the Supreme Court, which grants full review to 150 to 180 cases.

The law (PL 100-352) eliminated mandatory review in several areas: direct appeals from decisions invalidating acts of Congress; appeals from courts of appeals finding state statutes unconstitutional; final judgments of the highest courts in the states that question the validity of a federal treaty or statute; and final judgments of the Supreme Court of the Commonwealth of Puerto Rico that question the validity of a federal treaty or statute. Robert W. Kastenmeier, D-Wis., chairman of the House Judiciary Subcommittee on Courts, Intellectual Property and the Administration of Justice, called the bill "the most significant jurisdictional reform affecting the high court in over 60 years." (1988 Weekly Report p. 1596)

The second law (PL 100-702) created the courts study committee, removed from federal court jurisdiction certain cases involving state law, and authorized 19 federal judicial districts to experiment with arbitration pro

SOURCE Administrative Office of the US Courts

grams as an alternative to civil trials. Previously, litigants from different states could demand that their cases be heard in a federal court, rather than in a state court, under what is known as "diversity" jurisdiction. These cases have increased over the years to a total of 68,224 in 1988, or about one-third of the 239,634 civil district court cases.

In an effort to reduce federal court filings, the new law required that the amount in controversy between litigants from different states be at least $50,000 before a case can be heard in federal court. The old law set the threshold at $10,000. (1988 Weekly Report pp. 3173, 2567)

What the judiciary sought and did not get last year was more judges and even greater limits on diversity jurisdiction.

Are More Judges Needed?

The Judicial Conference intends to

ask Congress for 59 more district judges and 11 appeals court judges, according to a spokesman for the Administrative Office of the U.S. Courts.

When lawmakers approved 24 additional appeals court judges and 61 more district judges in 1984, it brought the new totals to 168 and 575 judges, respectively. (1984 Almanac p. 263)

But roughly 6 percent of those judgeships - -32 district court seats and 10 appeals court positions - are currently vacant. President Bush has submitted only five judicial nominations to the Senate so far, and all of those were holdover Reagan selections (Story, p. 1327)

Since 1986 lawmakers have turned down the judiciary's demand for more judges. The Judicial Conference asked for 40 district and 13 appeals court judges in 1986. In 1988, after re-polling chief judges about their needs, the conference sought 38 district and 14 appeals court judges.

Those requests were never formally introduced. Among other things, they were submitted at a time when Democrats were hoping that a Democrat would be elected president in 1988. Few were eager to create new lifetime appointments for a lame-duck Republican president to fill.

Then, too, many judges and members of Congress question whether it makes sense to keep enlarging the bench.

"There's a limit to the number of appellate judges you should have, because of the disparity of judgments [among the circuits] you could get," says Mikva.

And Rehnquist, speaking at an American Bar Association (ABA) meeting in February, said he was concerned about the workload the district courts would create for the higher courts if new judges continually were added. "Even if additional district and circuit judges could accommodate ad

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ditions to the federal caseload. the Supreme Court cannot accommodate it.

"We are a court of nine justices, and not since Franklin Delano Roosevelt has anyone proposed that our number be increased," Rehnquist said. "We are having great difficulty now discharging our respon. sibility to maintain a uniform body of federal law, and that difficulty would be increased beyond the breaking point by new federal causes of action."

Kastenmeier believes a larger judiciary would threaten the quality of the bench. He says that judges would find themselves specializing in certain areas, and, as a result, could become more sympathetic to a particular point of view and a target for lobbyists.

A Swelling Caseload

40%

20%

0%

20%

17%

Engineers

With or without new judgeships, caseload is burgeoning.

Total civil and criminal filings in district courts have more than doubled since 1969, from 110,778 filings to 283,137 in 1988. Over the same period, the average caseload increased from 339 per judge to 520, a 53 percent increase.

Over the past eight years, two types of cases those involving Social Security benefits and suits seeking recovery of overpayments and enforcement of judgments, mostly on defaulted student loans and veterans' benefits- have accounted for more than 20 percent of all civil filings in the district courts.

On the criminal side, cases involving drug-related offenses are on the rise, by 16 percent in 1988, to 10,291.

In the courts of appeals, filings grew from 10,709 in 1969 to 38,820 in 1988. The average caseload more than doubled, from 123 per judge in 1969 to 249 in 1988.

Criminal appeals cases showed the greatest recent growth, up 14 percent in 1988 over 1987.

Rehnquist said at the ABA meeting. "There is virtually no unused capacity in the system as it presently exists. We are in a position where we must think not about creating new federal causes of action, but of remitting

SOURCE Judicial Conference of the United States

to state courts some of the business now handled by the federal courts."

According to several judges, the soaring caseload stems from a number of factors beyond the sheer growth of the U.S. population: the increasingly litigious nature of society; new federal laws; and changing priorities among law officials, such as a push by the attorney general and U.S. attorneys to crack down on drug crimes.

Congress continually clears legislation that increases federal regulation of individual lives and, as a byproduct, puts new loads on the judiciary. Among the laws that have increased the burdens on the courts in the 1980s were sweeping anti-crime and anti-drugabuse measures in 1984, 1986 and 1988; bankruptcy acts of 1984 and 1986; and the tax-overhaul law of 1986.

Justice Delayed

For the public, the increased filings have meant long delays in the resolution of cases.

In the overcrowded Southern District of California, the median time between the filing of a civil case and the date the trial begins is about two years, and 14 percent of the civil cases are more than three years old.

The picture is not much brighter at the appellate level. In the 10th Circuit, the median time between a party's notice of an appeal and disposition of the

cas. is a year and a third, ac rding to statistics from the Administrative Office of the U.S. Courts.

The 10th Circuit, which hears appeals from Kansas, Oklahoma, Colorado, New Mexico, Wyoming and Utah, ranks 12th among the 12 regional appellate courts in median time for completing a case.

Taking almost as long to dispose of matters is the 9th Circuit, which includes two territories, California and eight other Western states. In that circuit, the median time between an appeal filing and case disposition is a year and three months.

"Complexity has gone out of sight," Judge Coffin told the Courts Subcommittee.

"Questions of standing, class actions, abstention, exhaustion, private causes of action, statutes of limitation, choice of remedy, and attorneys' fees infuse every case," he testified.

Charles E. Grassley, R-Iowa, ranking minority member on the Senate Judiciary Subcommittee on Courts and Administrative Practice, said the key to heading off a crisis in the judiciary is "to keep people out of court."

"Americans have to stop suing people whenever anything goes wrong," the Iowa Republican said. "And we need alternatives for dispute resolution, more administrative processes, less adversarial reactions."

The Pay Issue

It was against this backdrop of increased pressures and frustrations that judges watched in dismay as their proposed 51 percent pay raise went down in flames earlier this year.

The across-the-board salary hikes for federal judges, members of Congress and top executive branch officials had been recommended by President Reagan on the basis of a report by the Quadrennial Commission, which is supposed to meet every four years to make recommendations to the president about appropriate pay for top government officials. But Congress, panicked by a storm of public opposition to the huge pay increases, voted Feb. 7 to reject them. (Weekly Report p. 261)

SOCIAL POLICY

For judges, Coffin said, that vote was "traumatic."

District judges now make $89,500; appellate judges, $95,000; associate Supreme Court justices. $110,000; and the chief justice. $115,000.

Today, judges are single-mindedly focused on pay and have begun meeting with congressmen to urge a separate vote on judges' salary.

In a rare lobbying effort, Rehnquist met privately over lunch May 10 with members of the House and Senate Judiciary committees. On May 3, he broke precedent and became the first sitting chief justice to testify before Congress, appearing before the House Post Office and Civil Service Committee on the pay issue.

He termed the pay problem "the most serious threat to the future of the judiciary, and its continued operations, that I have observed in my 17 years of judicial service."

"Simply stated, judicial salaries have over time been allowed to decline in real value to the point that federal judges are now among the lowest paid of all attorneys of similar age and experience in the legal profession," the chief justice told the House committee. (Pay comparison, p. 1324)

Like many of his fellow jurists, Judge Weis, who is leading the federal courts study committee, refers almost immediately to pay when asked about the health of the judiciary.

He concedes that public opinion is an obstacle to a raise for judges. "The public says, 'Why don't they struggle like the rest of us?' And that's pretty hard to answer," Weis said. "But members of the judiciary don't come from the specific group that that public comes from. They're lawyers. They earn more than the average person."

Still, Rep. Don Edwards, D-Calif., a member of the House Judiciary Committee, said $89,500 is plenty of money for most lawyers.

"They complain too much," Edwards said of the judges. Responding to warnings that unless pay is raised and caseloads eased, there will be an exodus from the bench, the California Democrat said, "Every lawyer in the country wants to be a federal judge. They are great whiners."

Judges may be unhappy with their lot, but they are not leaving the bench in droves. In 1988, three judges resigned. Seven resigned in 1987 and four in 1986. (Graph, p. 1326)

In a Judicial Conference survey of 26 judges who have resigned in the past 10 years, 20 respondents said fi

Sen. Herb Kohl, D-Wis., has introduced legislation (S 740) to separate judicial salaries from those of top executives and members of Congress. His bill would allow a president's recommendation for a judicial pay raise to take effect within 30 days unless expressly rejected by Congress.

And Bush has proposed a 25 percent pay increase for federal judges, although he has not submitted the necessary legislation to Congress. (Bush proposal, Weekly Report p. 817)

Yet, most lawmakers say it is unlikely that Congress would agree to separate judicial pay from the salary scales for its own members and for

executive branch officials.

They bristle at the notion of singling out one group, and even supporters of judiciary raises say removing judges would lessen the chance of passage of a pay hike for congressmen themselves.

Judicial Discipline

While the judges are preoccupied with the salary issue, some in Congress are worried about matters of judicial discipline.

When U.S. District Judge Harry E. Claiborne of Nevada was impeached and removed from the bench in 1986, it marked the first time in 50 years that a federal judge had been impeached. Since then, two other district judges. Alcee L. Hastings of Florida and Walter L. Nixon Jr. of Mississippi, have been impeached by the House and are awaiting trial in the Senate. (Weekly Report p. 1263)

Another Kastenmeier bill (HR 1620) would set up a 13-member commission on judicial impeachment to investigate the problems related to appointing judges for life.

Kastenmeier, like many other members, is concerned about the amount of work impeachment proceedings require, saying they usurp time needed for the legislative agenda.

But Edwards, who as chairman of the House Judiciary Subcommittee on Civil and Constitutional Rights led the inquiry into Judge Nixon, says he would fight any proposed change in the impeachment process. He says that it should be difficult and timeconsuming to remove a federal judge, to safeguard the independence of the judiciary.

Under the Constitution, the House has sole power to impeach, and if the House votes articles of impeachment, the case is brought before the Senate for trial.

The impeachment study committee would consider alternatives to congressional proceedings, which in the case of Hastings and Nixon have taken more than a year.

Kastenmeier's bill also would modify a 1980 law (PL 96-458) that created procedures for disciplining federal judges short of removing them from the bench through impeachment. It gave the chief judges and the governing councils of each circuit the authority to investigate complaints against judges and impose sanctions short of impeachment. (Background, 1980 Almanac p. 391)

The proposed changes are largely

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a

technical, giving chief judges wider discretion to initiate complaint against a judge and clarifying that no time limit exists to filing a complaint.

Although other bills address judicial conduct or restrict judges' tenure on the bench, lawmakers who oversee the judiciary generally praise judicial performance.

And the judges' own discipline procedure, set up in the 1980 act, has found few judges warranting sanctions. Statistics show that a great majority of the complaints filed against judges have been dismissed by chief judges. With few exceptions, the complaints routed to judicial councils also have been dismissed.

In 1988, of some 203 complaints handled by the

"Overall, the quality of judges has probably improved through the years," said Kastenmeier.

But he said that the public may well feel that judges, whose numbers have doubled since the 1960s, are less accountable.

When there were fewer federal judges, Kastenmeier said, they tended to be well-known in their jurisdictions. "Now, it's much more of a faceless bureaucracy," he said.

Pay for Senior Judges

A final Kastenmeier measure, HR 1930, calls for senior judges, who are semi-retired but still available to hear cases on a voluntary basis, to be eligi ble for salary increases only when the chief judge of the circuit certifies that the senior judge has performed the equivalent of at least three months' work.

There are 306 senior judges nationwide. They currently receive the same pay and salary increases as full-time judges.

In his 1988 year-end report on the judiciary, Rehnquist said senior judges handle about 10 percent of the

78

SOURCE Judicial Conference of the United States

federal caseload.

"During the recent controversy over federal pay raises, the question was whether these individuals should receive the same pay raise as full-time judges not in senior status," Kastenmeier said. "My bill expresses the sentiment that pay raises should be reserved for those who work."

The Judicial Conference has not taken a position on the bill, but individual judges have said it is unnecessary and insulting.

"In practice, virtually all senior judges perform substantial duties until age or ill health make it inadvisable for them to continue," Judge Coffin said in his April 27 appearance before the House Subcommittee on Courts. Other Bills

Another pending proposal (S 93) calls for a new appellate court that would help ease the Supreme Court's caseload by resolving some of the conflicts in rulings that arise among the existing circuit courts of appeal. The bill is patterned after suggestions by Rehnquist and former Chief Justice Warren E. Burger.

The tribunal, established for a five-year trial period, would serve as a court of limited jurisdiction and review only those cases referred to it by the Supreme Court.

But S 93, introduced by Sen. Strom Thurmond, R-S.C., has been

offered in various forms since at least 1983 and has never made it to the floor of either chamber. Although the chief justices have strongly backed the idea, many judges on the existing appeals courts worry that their authority would be diluted by a new tribunal. (1985 Almanac p. 244; 1984 Almanac p. 260; 1983 Almanac p. 311)

Several other measures that would affect the judiciary also are pending, including a proposed constitutional amendment (S J Res 11) by Thurmond to require the removal of any judge who was convicted of a felony, and a proposed amendment (H J Res 15) by Rep. Andrew Jacobs Jr., D-Ind., that would limit the terms of federal judges, who are now ap pointed by the president for life. (The bill also would set limits on the terms of members of Congress.)

88

One Bush plan that has been introduced is an ethics package (HR 2337) that would for the first time bring all three branches under uniform stan. dards.

The proposal would impose a 15 percent cap on the amount of outside income a judge could earn, ban honoraria and bar judges who leave the bench from lobbying or representing a client on any judicial matter in which the U.S. government has a direct and substantial interest. (Background, Weekly Report p. 1186)

Bush's plan has drawn fire from judges, who are already bound by the ethical requirements of the Code of Judicial Conduct and believe their separate treatment should be preserved.

The Judicial Conference has told lawmakers that the present system works well, and that Bush's proposal would have a "deleterious impact" on the judiciary.

Mikva said the limit on outside income could prevent a judge from teaching law-school classes. "There is something natural about judges, whose opinions are the meat and potatoes of law-school texts, teaching," he said.

Added Judge Weis, "The functions of the three branches are so different I don't think you can apply an acrossthe-board ethics standard and make it fit all."