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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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