House Judiciary and Appropriations hearings, plus a SCOTUS argument, offer insight into shortcomings of the third branch

THE INTERNET — Three simultaneously livestreamed hearings – on increasing the number of federal judgeships, on the judiciary’s budget and on “exigent circumstances” searches – gave the public unique insight into the inner workings of the federal courts today and demonstrated the need for reform across several distinct policy areas, from caseloads to conduct to capital.

Democrats and Republicans on House Judiciary’s Courts Subcommittee homed in on the three-decade lag in a comprehensive judgeship bill this morning and the need for new positions to alleviate runaway caseloads and increase access to justice. Predictably, the question that split the Committee concerned the timeframe, with Democrats preferring to move ahead more quickly, given their control of the presidency and the Senate, and Republicans asserting that judicial “emergencies” should remain vacant until after the next presidential election.

The last comprehensive judgeships to pass the full Committee, written by Rep. Darrell Issa in 2018 (H.R. 6755), would have added 52 new district judges beginning in 2021. The bill stalled as Republicans sought to pay for the new judges via diversity jurisdiction fees, where litigants could move class actions from states to federal courts, which was a nonstarter for Democrats. Last session’s JUDGES Act (S. 4779) – Sen. Todd Young’s bill to add 65 new district judgeships between 2021 and 2025 – seems likely to be the starting point on the Senate side this year, though no funding mechanism was identified upon introduction.

“Fix the Court supports increasing the number of district judgeships per the Judicial Conference’s recommendations and believes that full implementation can be delayed or split up, though not beyond 2025,” FTC’s Gabe Roth said. “In addition, circuit judgeships are too political these days and should not stand as an obstacle to a bipartisan effort to add district judgeships.”

Elsewhere online this morning, the House Appropriations Subcommittee in charge of the judiciary’s budget, FSGG, gave Judge Roz Mauskopf of E.D.N.Y. (right), now director of the  Administrative Office of the U.S. Courts, her first opportunity to speak publicly since taking the job. (Supreme Court justices were not invited to testify this year, and the Court has provided no updates on a potential SCOTUS Code of Conduct since Justice Kagan told FSGG in 2019 that Chief Justice Roberts was “studying the question of whether to have a code.”)

Chairman Mike Quigley, as he does annually, began his questioning today by asking about live audio and video access to court proceedings. He pressed Director Mauskopf to ensure that the livestreaming advances seen at the appellate and district level necessitated by COVID would continue beyond the pandemic.

“Transparency and openness is one of the hallmarks of our democracy and of our federal courts,” Mauskopf responded, adding that “we need to really explore how we can continue to use technology to [offer] public access and transparency.”

Livestreaming technology has existed for more than two decades, and the judiciary has not once requested funding for equipment to facilitate live audio or live video broadcasts.

Mauskopf added that 11 of 13 federal circuits have hired directors of workplace relations (all but the Second and Seventh Circuits) and that 80 percent of districts have adopted the new model employment dispute resolution plan. The Supreme Court has done neither, to FTC’s knowledge, and it is unclear why there are still holdouts to either measure.

Mauskopf was later pressed by Rep. Norma Torres on the Office of Judicial Integrity, whose previous director/sole employee Jill Langley tendered her resignation in July, though, as FTC recently learned, she stayed another six months on the job until the new head, Michael Henry, was hired. Though the judiciary received funding for two new OJI employees in the FY21 budget, as of last month no new hires, save Henry, had been made.

Torres concluded her questioning by highlighting the lack of statutory protections for judiciary employees, who unlike employees in other branches are not covered by federal anti-harassment, anti-retaliation or Title VII anti-discrimination laws. Mauskopf stated that the Judicial Conference has adopted similar rules that protect employees, but even so, it is expected that a push to codify these protections by statute will occur during this Congress.

Two other bits of news: the AO is undergoing a much needed audit, though Mauskopf did not commit to making the findings public; and the judiciary plans to host a nationwide summit focusing on increasing diversity across the third branch.

Finally, the Supreme Court heard arguments in Lange v. California this morning on whether the Fourth Amendment permits a home search to occur when police are in hot pursuit of someone who’s committed a misdemeanor offense. After six sittings with live audio, comprising dozens of arguments, with nary a technical glitch, it was difficult at times this morning to hear the attorneys presenting and the justices asking questions.

With the FY22 appropriations process open, FTC will ask that $1 million be authorized to improve the judiciary’s livestreaming capabilities: $25,000 for each of the 13 circuit courts to continue streaming; $50,000 for the Supreme Court; and the remaining $625,000 for audio and video equipment upgrades available for use in federal trial courts as needed. FTC has previously reported that when the D.C. Circuit upgraded to live argument audio in 2018, it spent $25,000 to outfit a courtroom with better equipment. Also today, the Supreme Court announced that the March sitting will be remote with live audio.

Also today, the Supreme Court announced that its March sitting will again be remote with live audio.