>> i was part of the federal judges association which represents 900 federal district and appellate court judges so -- >> and we appreciate that. >> oh, thank you. [laughter] >> having heard perspectives from five different circuits you just wonder if anybody is looking at establishing some notion of best practices or, you know, really trying to draw in the wisdom of you people in the field. my sense the judicial conference is kind of way up here and not necessarily sort of down on the ground looking at some of these issues. some of you have some very good and interesting ideas. let me turn to judge reinhart who has an interesting perspective and will say something different. >> i think judge berzon save you

an accurate picture of the problems on the 9th circuit so let me turn to some more general problems. i believe that one of the most significant problems, if not the most these days, is the effort of the federal courts recently to close access to the courts. i agree with judge williams but it's a broader problem as far as i'm concerned. we've had a lot of technicians in the federal courts recently. who rely on technical rules to close access. the great contribution the warren court made to our system was to open courts that used to be open only to corporate interests, to big business and make them available to people who had problems. since then we've gone in the opposite direction. it's much harder for people who

need the courts to get help, to get into court. we have standing rulings, mootness -- a whole series of technical rulings designed to shut off access to those who need it. in the criminal field we've adopted a statute that now says for state prisoners who've lost their constitutional rights, that it doesn't matter whether you're constitutional rights were violated. all that matters is whether the state court judge made an unreasonable decision when he made a wrong decision. this renders the federal courts almost unavailable to prisoners who were tried unfairly, convicted unfairly, given death sentences unfairly. this is all consistent with the idea that federal courts should just stay out of everything. that to me is the greatest

problem and we have to reverse that and i hope we will reverse that and return to the era when we're concerned about all the people and not just those who could as judge williams said afford to go to federal courts. that's the first problem. the second problem i see is the difference in the circuits and whether our job is to arrive at unanimity within a panel and everybody agree on something that's really not very good but it's a wonderful compromise. or whether we should have decisions where those who disagree can say strongly this is wrong so that another circuit won't say, well, look, two circuits have said it, it must be right. instead of that, i think judges should really express their views and not go along with decisions they don't agree with. there, i think there's a difference in the culture of the

circuits. certainly, nobody would accuse our circuit of doing that. [laughter] >> and i think we're right. the third thing, i think, real solution is getting different judges in the courts. i think we should understand and so many of the judges don't that the end of law is justice. law is a tool. you barely hear the word "justice" ever mentioned in the federal courts. as i said earlier, we're a group of technicians too much. too much emphasis on rules, too little emphasis on fairness. that can change but it will only change when we change the type of person who was appointed to the federal court. now, if the president really means what he says, that he's looking for judges with empathy, then we'll have a substantial improvement. we'll solve -- we won't need a

panel on how do we improve the federal courts. that would be the greatest improvement we could make. [applause] >> whether the president will really do that or not is something we'll have to see in the future. one final comment about what judge will -- wilkinson. if congress is going to run for reelection and they can run on the basis, boy, was i tough on crime. i passed a law that said we're going to put everybody in jail for life if they cross the street against the light. if that's going to get them elected, they'll pass the law. they won't say, are there enough federal judges to do it. [laughter] >> they will say, do we have enough prosecutors to do it?

[laughter] >> and they'll increase the number of prosecutors. they won't increase the number of public defenders and they won't increase the number of judges. i do agree we shouldn't have as much criminal jurisdiction in the federal courts since we do but i don't think there's anything we can do about it, and i don't think it has any relationship to the number of federal judges that we have. >> i want to give judge wilkinson a chance to respond but before i do, i want to make a comment and here we've heard from six judges in terms of the challenges facing the courts, not a single one of you have mentioned judicial pay. h-which is an issue that's out there in the country framed by chief justice roberts as a major threat, a threat of constitutional dimension to the independence of the federal courts. are you all, you know, just too abashed here on c-span to say, you feel federal judges ought to be paid more.

i'm not -- i think federal judges ought to be paid a good deal more, but -- >> everybody knows we ought to be paid more. >> do you not perceive as a dimension as the organized judiciary has put out to the country? >> well, i didn't address that focused because we've been able to fill some of our judgeships but i do have some of the statistics on that. since 1990, 119 judges have left the bench. 89 retired. 30 of that 119 left before senior status. what that means is normally if you've served 15 years and you're 65 years you can retire from your bench on your full salary, if you don't make it you're eligible for social security benefits but you get no portion of your salary. so 30 judges left before that time. 71 entered private practice, which includes private dispute

resolution. 24 others did other employment to the government, academic, not-for-profit, so 87% left went to other positions. that is a loss of wisdom in the courts. we've had more people retire during this time period than ever before in the history of the court. and when you use specific examples, if you look at new jersey, seven judges have retired since 2000. they all entered private practice. in the central district of california, six retired and two of that -- four of that group went to private mediation organizations and two went on to the state court because the salaries in the state court in california are higher than the salaries for federal judges. and, of course, we all recognize how fortunate we are to have had the careers that we've had and how lucky we are to have been able to go to law school to get

good jobs within the legal profession and to be appointed to the federal bench. it is really a blessing in my view and we recognize that as we look at the rest of the american public that we'd been quite privileged and that our pay is at the highest level, but it's the issue of experience and when judges -- most judges come to the bench in their, say, mid-40s, mid-50s, and children going to college and wanting to provide those kinds of opportunities and so i think it is an issue for the judiciary, this issue of pay. and judges are -- i mean, there have been five years where we've missed our cost our living and all the other workers in the federal system have received their cost of living except members of congress and the judiciary. so i do think that's an issue, the issue of pay. >> uh-huh. thank you.

>> i think one reason none of us mentioned this is because in the current economic climate, it ain't going to happen. [laughter] >> and it's a little awkward 'cause, you know, those of us who believe that a pay raise is important for the system, every time a federal judge addresses the issue, it looks like we have a little tin cup out and that's -- you know, that's not the case. ann mentioned the amount of retirements and the problem is equally as serious on the front end, particularly, with respect to attracting the best private practitioners. we're cutting off many people in private practice from judicial service with these levels of pay

because they are asked to take dramatic drops in salaries in their mid to late 50s at a time when their kids are just starting college. and in addition to that, they're asked to put their practice on hold during the 18 months that their reputation is attacked and potentially sullied. now, if you want a judiciary where primarily circuit judgeships, for example, are filled by magistrat or district judges or you want it filled primary academics whom i have to say given my own background, don't do a terrible job. [laughter] >> and if you want to have that mix and if you want to attract the private practitioner and not

cut off some of the really superb leaders of the bar, you have to have a comparability or a 300, 400% drop in pay and when conditions were relatively better than they are you now, sometimes it was a tough sell. >> yeah, i think -- i think i'm right that president obama has made four or five court of appeals nominations now and i think all of them, correct me if i'm wrong, have been sitting federal district judges. >> actually, my understanding in terms of academics they're little taking a large pay cut. >> yes. >> and my law clerks -- the day they walk out if they go with big firms, most don't, they make more than i do the day they walk out. >> it's gotten to the point where academics have to take a huge cut in pay.

>> that's what i just said. but i have a hard -- i think it has negative effects in that it does to some degree skew who's going to be in the courts of appeal. i don't think there's a reason president obama has been appointed district judges to the courts of appeals, is that reason. there are other reasons. >> there is other political reasons. >> there's political reasons that is much easier to do. but there does tend to be a skew in terms of people state or federal positions, which largely means prosecutors, often means prosecutors, or state judges. and that's unlimited pool and one that doesn't necessarily give you the most creative and courageous people. >> and this leads into the question about what kind of a pool of judges do you want to have. and i think in my opinion, you

want to have a diverse array of judges. you want to have judges with all sorts of different backgrounds. you want to have people who have had a prosecutorial background but you also want to have people who have been publisheds and corporate lawyers in big firms but small firms. and you definitely as a former academic you definitely want to have a strong academic cadre in the courts of appeals. [laughter] >> there are all sorts of different factors that are important in terms of who is staffing the federal courts of appeal and for that matter, the district court. >> judge tatel, you came directly from practice, which is not -- you had government service. >> no, i did come from practice and i took a huge pay cut. [laughter] >> can i -- i agree with judge wilkinson. i actually think that federal judges are the last group of people to -- who are in the best interest to be making the case for a pay raise. i think that case needs to be made by the aba, by the business

community who depends so much on a high quality judiciary and so, you know, i mean, i think we can make the point about what the consequences are, but if there's going to be one, it needs to come from the force of other elements, not from us. i think we're the wrong people to do it. can i just say something, though, about -- let me just respond quickly to something judge reinhardt said. is it okay to change the subject? >> go ahead. >> i completely agree that judges should not go along to go along. i think that's bad. i think i agree that the sentence plays a very important role in the development of the law. and maybe my comment comes from the fact -- that perhaps things are different on the dc circuits

than on the ninth circuit. but i don't have a sense on my court that that's happening. our dissent rate is about 5%, which i think that's -- i think that may be slightly low. although, i don't think it's out of whack with the rest of the circuits. on my court, there's a strong belief that in order to provide guidance to the district courts and administrative agencies, that we perform that role the best when we write clear unanimous opinions. that, you know, our job is not just to decide the cases that come to us, but to provide clear

rules for the district courts and the federal agencies who are subject to our jurisdiction. and we all think we do that best with clear, unanimous opinions. and so maybe because we have more time than some of the busier circuits, maybe because we're smaller although i'm not convinced that's necessarily the case, although, i agree with judge wilkinson that being small helps, but for whatever reason, we have time not just to decide our cases but to work out our disagreements and i don't mean to have one judge compromise his or her principles. what i mean is by working at these cases even though we may before or after oral argument see the case very differently by talking about the case, by

exchanging memos about the issues, we're actually able -- either to convince a colleague or to be convinced by a colleague or to find a way to decide a case on the narrower ground that avoids dissent. now that said we do have, as i said a 5% dissent rate and my sense on our court is that the dissents have fundamental differences in how one views the law and that -- and that -- otherwise, we're able to reach agreement. now, there is a category of cases where i do find myself going along in a case i might otherwise have decided differently but that isn't necessarily because -- or it isn't because i'm giving up a

position of principle. for example, in a case where -- say, for example, you've got a case where the question is the adequacy of the record before the district court, whether or not the district court's findings were clearly released. three judges, it's not unusual -- i wouldn't say unusual. from time to time when we get in conference two judges findings are not ereasonus and the over is. you debate it and you argue about it and when you done you still have that disagreement but often that's not a case i would dissent. there's no principle of law. a dissent isn't going to change the outcome for the plaintiff or the defendant. the case is resolved. there's really no reason to dissent so those are the kinds of cases -- and there are other examples like that. for example, take an agency case

where you're trying to decide whether or not -- it's not a question where the statutes are clear one way or the other but it's ambiguous and we defer to agency policy and, obviously, judges from different perspectives may disagree from time to time about whether the agency's interpretation of the statute is reasonable or not. now, that's the kind of case if we ultimately can't reach agreement, the dissenting judge or the disagreeing judge might well not choose to dissent because as i said, there's no -- sure, that's case is at stake but a dissent isn't going to change anything. the agency or the plaintiff, whoever wins -- whoever loses, is still going to lose. it isn't unbank worthy, and it isn't cert worthy. i think on our court i think we do a fairly good job of referring the dissents for the cases where you really need a dissent. and if you look at our dissents, i don't think you'll find people

shy about stating their views. they play a very useful role in the development of the law. >> and i'd agree with that in the seventh circuit i think when you look at our dissents 'cause nobody is shy on our court in terms of, you know, filing dissents, and if it's a principled reason and a basis for the dissent, we do that and we write those dissents not only for the parties but looking forward to enbanc and for the supreme court taking the case. i think you weigh -- i mean, there's a lot that goes on and i'm glad judge tatel mentioned that behind closed doors because once that initial vote is taken after oral argument, at least that's the process we follow in our circuit, someone may indicate they're going to dissent. whoever is presiding is going to write the opinion and you would really be amazed how much gets

dropped because you have some issue with something that's going on and the issue of narrowing it and or trying to focus it and focus on a principled way and i don't think there's a hesitancy at least i don't have that sense among my colleagues to dissent. i just wanted to -- >> i don't really disagree with judge tatel at all. what he really said is cases that aren't terribly important, you don't have a dissent. and as he said, most of their cases are administrative law cases, which don't generally have any great principles involved. [laughter] >> i'm not as familiar with the seventh circuit but i do know -- i've read judge tatel's opinions and dissents, on important issues, when they have to do with national security, when they have to do with guantanamo. you know, the important issues i

don't have any question. that you can see the differences on the dc circuit from their opinions. when i talked about the culture, the extreme -- the example of the other side is really the second circuit. it always has been. the second circuit never goes en banc. maybe once a year in a bad year. we go en banc frequently. there's a much greater desire and i understand judge wilkinson's view about view of stability in the law. i think it is important. in certain kinds of cases, when you're giving guidance to businesses about antitrust actions, what is a contract, how should they conduct themselves when they are engaged in business. it is important that they know what the courts think. there's other kinds of cases where you're not looking for stability, you're really looking at the right answer. and in some of the circuits

there's a much greater desire to come up with an answer that they'll all agree on rather than an answer that some judges think is really right. i don't think that's true of the dc circuit and i did not intend to suggest -- i enjoy reading the dissents from the dc sector. >> i've read some very strategic david tatel dissents. >> there's just not time to dissent in every case and you lose credibility if you dissent at the drop of the hat. oh, there's somebody popping off again and everything. but if you reserve it for the really important cases and when you do dissent, there's a greater chance that your colleagues may take note. >> one thing that happens and i think judge williams is referring to this to some extent is that often a judge will be uncomfortable with what the proposed majority opinion is and

the judge will either be uncomfortable because of the method of analysis or because of the result. and writing letters to the other members of the panel or writing a draft dissent or a draft concurrence and explaining alternate way of thinking about it can be productive and on a collegial court, often the judges will work together to come up with a resolution that will be satisfactory to everyone, whether it's coming up with a narrower opinion, for instance, saying we don't need to decide a standard of review issue that's particularly thorny because under either standard of review, the result is foreordained. otherwise, coming to some kind of consensus, saving for another day another kind of substantive issue. but i think that the -- there is a value to dissenting when there's a principled reason and when the analytical basis is questionable in the mind of the dissenting judge, not only to

tell the parties that they did -- the losing side did have a good argument and maybe should proceed with seeking further review, whether it's en banc or supreme court cert review but also setting forth a precedent in terms of a disecretary view that perhaps other circuits would find to be affirmative. to know that it's not three judges on each panel going one way but to see there's opposing ways of thinking about it. so the key, of course, is to be strategic in terms of how you spend your scarce resources and how you are communicating your disagreement or your other way of thinking about an issue. and i think that the, you know, the goal of consensus is an important goal but judges do you have to stand up for principle when they feel that the method of analysis is an incorrect

method of analysis that the majority is using. >> it's interesting to hear you discuss to various audiences that you keep in mind of all times, your parties, your panel colleagues, colleagues on the full court, other circuits out there and ultimately the supreme court. it's very interesting, sort of multitasking that goes on. [inaudible] >> and the future. >> and the public. and the public. i mean, we have to remember -- i mean, when we're writing these opinions, writing tore clarity as somebody mentioned earlier so that people can understand the issues that we're revolving, i think is important. very important. >> just to comment from my point of view about the issue of dissents, in fact, on our court, there are relatively few dissents on any given calendar. even if the judges are quite

diverse in their views, there's still i don't know, one, two, three out of 35 cases in which there are dissents ordinarily. and the reason is partly the kinds of considerations that have been discussed. that it's often possible to narrow the opinion or -- in order to get consensus and also in many cases are really aren't disputes because there are fact cases or there are cases where the legal issues are really quite clear. there isn't going to be a disagreement. the problems i think on our circuit arise more in the en banc process. the enormous disagreement comes about because we do as judge reinhardt does do a fair amount of en banc work because of our size and our need to conform the

circuit law through that process. >> and, of course, a ninth circuit en banc is not the whole circuit. there are petitions for certiorari. >> which often work. >> which often work. and which create an appearance of complete idiocy on the part of the original panel, which is usually not merited or often not merited. but it's just the style that's developed and that, i think, is unfortunate. >> unless someone -- >> there's the dilemma for the panel whether to write a response from the dissent of the denial -- >> so we're generating paper around this and i had for a long time taken a principled position against doing dissents from denial on en banc but it's