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Judicial appointments a hot topic at 7th Circuit conference

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Anytime there’s a judicial conference, you can expect judges to trade in their black robes and court dockets and attorneys to similarly trade in their legal pads and client meetings to confer with colleagues about the legal issues of the day.

But the 59th joint meeting of the 7th Circuit Bar Association and Judicial Conference for the 7th Circuit May 2-4 brought more than just the usual review of the past year’s business and outlook for the coming year. More than 600 jurists and attorneys converged on downtown Chicago, a year after coming to Indianapolis.

This year’s conference featured a more historic tone because of the high-profile roster of legal community leaders who attended, as well as offering tidbits about how the Indianapolis federal courthouse will soon be going green, how the state’s Southern District is hoping for a new full-time magistrate, and a call to action for Hoosier judges and attorneys to get more involved in a new e-discovery program under way.

Justice Stevens

A highlight of the annual event is the first night’s dinner reception, which Justice John Paul Stevens of the Supreme Court of the United States usually attends. Though he unexpectedly canceled an appearance last year in Indianapolis, he returned for the event in his hometown of Chicago; he’s attended more than 50 such events through the years. This year’s was more historic, though, as the man who’s only the second sitting justice to ever hit the age of 90 announced last month he’s retiring this summer after 35 years on the high court.

The bow-tie wearing justice didn’t address his legal career, the court’s ideology, or the expected confirmation battle over his successor even though three of the potential nominees at the time were in the same room listening to his comments: keynote speaker and past Harvard Law School dean U.S. Solicitor General Elena Kagan, 7th Circuit Court of Appeals Judge Diane Wood, and 7th Circuit Court of Appeals Judge Ann C. Williams.

Judge Wood had moderated a panel discussion panel earlier that day about a controversial 2009 ruling in Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009), which involved pleadings standards and the Constitution. Her panel didn’t address nominations or Justice Stevens, but she was later able to walk into the dinner reception arm-in-arm with Justice Stevens. He mentioned her by first name in his address, before introducing Kagan and saying he “pulled rank on her” in not wanting to be the main speaker of the evening.

During her speech, Kagan talked about her times arguing before the high court and praised Justice Stevens as a truth seeker who always continued learning. She said the country was “fortunate beyond all measure” for his service on the court.

Kagan, as it turns out, was nominated May 10 by President Barack Obama to succeed Justice Stevens.

Justice Stevens kept a sense of humor and offered two modest historical anecdotes during his dinner speech, and audience members said that was a charming valedictory and even more in character for the man who didn’t want all the attention.

Justice Stevens entertained the sold-out dinner crowd with memories of attending the 1932 World Series game between the Cubs and New York Yankees, and seeing Babe Ruth point to the center-field spot where he planned and eventually hit a home run. That love for his hometown team came back at the end of his speech, when Chief Judge Frank Easterbrook presented the retiring justice with a Cubs jacket.

Justice Stevens also wanted to correct what he said was a misconception that retired Justice Sandra Day O’Connor ended the practice of referring to Supreme Court justices as “Mister Justice.” A few years before she came to the high court, a woman judge complained to Justice Stevens that she didn’t like a woman being called “Madame Justice,” so the court dropped the titles “Mister” and “Madame” and recommended just calling all justices “Justice.”

“A lot of people assumed that she was responsible for the change,” he said about former Justice O’Connor. “I thought I would straighten out the record on that.”

While Justice Stevens sidestepped successor talk, the Senate nomination and confirmation process came up repeatedly during the business sessions and side talks during the conference.

Vacancies plague courts

Chief Judge Easterbrook said the biggest challenge facing the Circuit in 2010 is the vacancy rate on the District courts and the U.S. Senate’s slow confirmation process. A quarter of the Circuit’s District bench spots are vacant after 16 months of President Barack Obama’s term, he said. In all, 10 vacancies currently exist: three on Indiana’s benches – and two more judges circuit-wide are leaving this summer. That will put more of a burden on the courts to keep up the speed and efficiency that’s a hallmark of the 7th Circuit, the chief judge said.

“Nominations have been slow, and confirmations even slower,” Chief Judge Easterbrook said during his annual State of the Circuit address. “The courts of this circuit benefited from bipartisan cooperation for several decades. … That cooperation needs to be restored.”

At a later District Court breakout session, Chief Judge Richard Young in the Southern District of Indiana said his district has two Article III nominations pending – Magistrate Judge Jane Magnus-Stinson and Marion Superior Judge Tanya Walton Pratt – and they are awaiting a full vote by the Senate. In the meantime, the current judges are keeping up the workload and utilizing best practices and magistrate assistance.

“The Senate doesn’t have a concern about litigants, and we know they don’t think much about judges from what we’ve seen,” he said.

Until more judicial resources are offered, the Circuit continues pushing to be a leader nationally in speed and efficiency in how it handles cases, the judges said.

2009 review, looking ahead

Overall, the 7th Circuit has seen a decline in case filings in the past decade, and 2009 brought in nearly 5 percent fewer appeals last year than the year before, Chief Judge Easterbrook said. Yet the Circuit remained one of the busiest and has one of the highest levels of oral arguments and published opinions nationally, he said. Filings increased at the District level by about 7 percent on average and cases lasted about 7 months on average. He also noted bankruptcy courts have begun rebounding from the drastic law changes in 2005.

The Southern District had 330 appeals filed last year, which was the lowest number in at least five years, Clerk Gino Agnello said. The Northern District of Indiana saw 246 appeals or proceedings initiated last year, down from the 283 the year before and about equal with the figures in 2007.

A full report of the past year’s activity is available on the 7th Circuit’s website at www.ca7.uscourts.gov.

Chief Judge Young, who took the leadership role after Judge David F. Hamilton was elevated to the 7th Circuit last year, is taking the oldest cause numbers first and reassigning the rest as needed. He said it makes sense for attorneys to consider consent for magistrates to hear cases in order to allow efficiency, and the chief judge also said the Southern District is asking for a new full-time magistrate position. He expects to hear in June whether Indiana will receive one of the six magistrate spots allowed in the federal budget.

Aside from managing the Southern District caseloads, judges will also be navigating a renovation process that’s starting at the historic federal courthouse. The courthouse was awarded $56.6 million last year for renovations through stimulus money, and the renovations are expected to last through 2013, according to Chief Judge Young. Part of that means judges and magistrates will need to adjust their assignments and possibly move courtrooms, and Judge William T. Lawrence will be the first judge impacted. But all attorneys will get notice of any changes, he said. Part of the project also includes creating a green roof for the Indianapolis courthouse, which means plants and trees will help keep the building cool and reduce heating and air conditioning costs, Chief Judge Young said.

The judges from all parts of the Circuit used their breakout sessions and larger seminars to address a key topic for the year, which came out after discussion during the 2009 meeting: e-discovery. The first phase of a pilot program began last year and ran through May 1, though leaders say the participation has been largely Illinois and Chicago-focused. Now, the Circuit wants more Indiana and Wisconsin judges and attorneys to get involved.•

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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