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Easterbrook: 7th Circuit 'nation's leader' in productivity

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Chief Judge Frank Easterbrook of the 7th Circuit Court of Appeals presented his final State of the Circuit address during the Circuit conference this month in Indianapolis, describing the federal appellate court for Indiana, Illinois and Wisconsin as perhaps the nation’s most industrious.

“In a world where the failings of government make headlines, it is well to emphasize the successes,” Easterbrook told the 7th Circuit Bar Association and Judicial Conference on May 6. Circuit Judge Diane Wood will succeed Easterbrook as chief judge on Oct. 1.

IL_Richard_Lugar02-15col.jpg 7th Circuit Court of Appeals Chief Judge Frank Easterbrook, left, and former Indiana Sen. Richard G. Lugar talk with members of the judiciary during a luncheon of the 7th Circuit Bar and Judicial Conference on May 6 in Indianapolis.(IL Photo/ Perry Reichanadter)

“Last year the 7th Circuit issued 534 published opinions, more than any other (federal) court of appeals – even though we are a relatively small circuit. We issued fully reasoned, precedential opinions in more than 40 percent of all cases; the national average is 19 percent and several courts are down around 10 percent,” he said. “The 7th Circuit hears oral argument in 36 percent of all appeals, essentially every case that has lawyers on both sides. No other Circuit hears more than 30 percent, and one Circuit hears oral argument in only 11 percent of appeals.”

“That the Circuit remains the nation’s leader in both hearing arguments and publishing opinions has been made possible by the fact that for many years we have operated at or close to full strength.” The court has had one vacancy since January 2010 when Judge Terence Evans took senior status. Evans died Aug. 11, 2011.

“And every year about 10 District judges within the Circuit hear one or two days of appellate arguments. I think that judges of both the Circuit and the District courts gain from serving side-by-side as colleagues. We get to know each other, and know our shared business, better,” Easterbrook said.

After consulting with Wood, Easterbrook said the decision was made to make another round of invitations this summer for District judges to sit by designation on Circuit Court panels, starting with newly confirmed judges. After that, judges who received initial invitations four years ago will receive a second invitation.

Easterbrook delivered his address in advance of the introduction of former Sen. Richard G. Lugar. Like Lugar, Easterbrook addressed the escalating politicization of the judicial nomination process by senators of both parties. He joined President Barack Obama and United States Chief Justice John Roberts in calling for a return to historical practices and deference to qualifications over political litmus tests.

Whereas federal court nominees as recently as a decade ago could expect swift confirmation, Easterbrook said, “Senators are playing tit-for-tat, with each Congress determined to replicate delays and perceived injustices done by the other party in a preceding period. … Delay also makes it hard to attract top-quality people to the bench. No practicing lawyer wants to dangle in public while his or her practice dwindles.”

7thcircuit_facts.jpgAgainst such a backdrop, Easterbrook said he was concerned about the rate of confirmations and nominations. He noted the 7th Circuit Court of Appeals has had a vacancy for 40 months and no nomination is pending. In the District courts, he said the Western District of Wisconsin has had a 50 percent vacancy rate for the past 38 months with no pending nominations. He said there are three vacancies in the Northern District of Illinois and one in the Eastern District of Wisconsin. Meanwhile, federal courts have experienced a decline in filing, and thus revenue, in recent years.

On top of that, sequestration will hit the federal judiciary in areas where fixed costs are not set by law. Judges’ salaries and rent paid to the Government Services Administration for court space, for instance, are constant obligations. “Once the must-pay items are accounted for, a 4 percent reduction works out to a 10 percent or more cut in the money available to pay the people in the clerk’s offices who make the court function, and the federal-protection staff who keep the courthouses open and safe,” Easterbrook said. “The (7th Circuit) Court of Appeals has not found it necessary to lay off or furlough anyone; some District courts may need to do this. If the budget standoff continues, things will become worse for all components of the judiciary.

Funds to pay jurors and criminal-defense lawyers are separate line items. If these are depleted, trials may need to be halted toward the end of the fiscal year until these funds are replenished.” Easterbrook declined a request for interview, deferring to his remarks in which he modestly summed up his six-year tenure leading the court. “My hope when I became chief judge was that I would not spoil the features that have made this Circuit work well and earn the respect of the Supreme Court and our colleagues elsewhere,” he said. “That reputation is a tribute to all of my colleagues, and I think that they have survived my tenure admirably. I’m sure that Judge Wood will just add to the luster.”•

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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