Last week I attended the First Circuit Judicial Conference, held in Boston. These conferences are authorized by a statute enacted in 1911 and revised in 1948. The idea is for the bench and bar to get together and talk about concerns, ideas etc. The last one of these was held in in the First Circuit in 2010. This time there was a line up of heavy hitting speakers, like Justice Breyer, as well as attendees (e.g, Justice Souter). So here begins a full report.
First, this was the marking of the transfer of Chief Judgeship from Judge Lynch to Judge Howard. As with most anything Judge Lynch touches, she did a whiz bang job, and this is a rather thankless role (trying to herd many judge-cats, all with life tenure. I clerked for a chief judge and while he liked being a judge, he hated every minute of his chiefness.). Judge Lynch had to do this, moreover, during the time the economy hit the cellar and court budgets were being slashed. Judge Howard has pretty big shoes to fill.
First up as a speaker was Professor Geyh from Indiana University. His subject was the changing landscape of the American judiciary. Some people say the judiciary is under fire, with talk about judicial activism, election and campaign funding problems for elected state judges, etc. Others say nothing has changed over time, so everyone should calm down, eat a bran muffin, take a Xanax and stop whining. Prof. Geyh says that the truth is somewhere in between.
On one level, judges have always been under attack, as early as Marbury v. Madison, and President Jackson ignoring court decisions. On the other hand, Prof. Geyh said, some factors are qualitatively different today and affecting how the judiciary is perceived, post-Bork, with social media and judicial elections patently attempting to be based on ideology and awash in money.
The judiciary has generally operated under what he referred to as "acceptable hypocrisy" -- the concept that judges aren't influenced by politics, while sub silentio we know those influences are out there. In this new world, Geyh argues, judges need to be more candid about all the influences trying to affect them, and explain and educate the public as to how they deal with these pressures to maintain impartiality, noting all the checks on their conduct, to ensure accountability.
Speaking of judicial transparency and accountability (or lack thereof), the next speaker was Prof. Richard Lazarus, who has written a law review article that everyone should read on Supreme Court "errata" (128 Harv. L. Rev. 1 (2015). I've blogged on this before - the Supreme Court can re-write its decisions years after they are issued -- and does. Someone can just write an ex parte letter to the court saying, "hey, take out sentence X" -- and they sometimes do it. Or they fix their mistakes sua sponte themselves.
Aside from the merits of whether this sort of middle of the night action is or isn't a good thing, it can create a lot of confusion. Until there is a "U.S" cite for that Supreme Court decision - which these days takes about 5 years -- you don't know whether the version you are citing from Westlaw or Lexis is any good. Lower courts have cited language from decisions that was later excised from the decision by Court.
In short, this is the sort of thing that Prof. Geyh would probably say does not lead to warm fuzzy feelings about the majesty of the law and judges.
Coincidentally, last night I was flipping channels and saw Justices Kennedy and Breyer testifying before a congressional committee on the judicial budget. The legislators were asking questions like "are you ever going to allow cameras in the court room?" and "why is the code of judicial conduct only advisory for the Supreme Court?" The responses were basically (1) not in our lifetimes; and (2) because we like it that way. .
More to come in Part II.