process. >> unless someone else wants to weigh in on this, i want to get back to something that judge tatel and then we've got some questions and we need to save time for questions. but your question about the deficiency of advocacy in the labor and employment area i found quite interesting. and i wonder -- i know that the immigration-heavy circuits feel this in terms of immigration advocacy very keenly. i wonder if there's anything that the circuits can do, ought to do, outreach, education, working with the bar, what can be done to ameliorate that? >> the trigger largely by the immigration cases in which the advocacy on both sides is extremely poor. or has been at times. it began generating ourselves a series of training programs and advocacy and attempted to get

immigration practitioners in particular to come. and the problem is that it somewhat petered out because the amount of judge time was very heavy. they were good and people liked them but trying to get seven or eight judges to do this a couple times a year has proven different and how many people are you really influencing? i would -- i was sort of hesitant to mention the advocacy problem but it's fairly extreme in our court and not limited to -- certainly not to employment law. it's true certainly in immigration law but it's true over a wide range of cases. and it includes government lawyers of federal -- >> our circuit is really

demographically in every other way a very diverse circuit. and part of what it leads to so-called deficiencies in advocacy is sometimes you're getting somebody who has a reasonably difficult case and that person is a solo practitioner or something and he or she may not be familiar at all with a very complicated field and i think you find lawyers sometimes taking a case and as they get into it, they realize quickly or they may not realize but they get -- [laughter] >> they get over their heads but they don't want to give the case up because of personal pride and because it's a client, a paying client.

and by the time the court -- the case reaches appeal, you may have somebody who doesn't have the resources of their opponents and when the case started out for them, they had no idea that these issues that they didn't anticipate would suddenly surface at the appellate level and they said, oh, my goodness, you know, what do i have here? that's the -- we've been talking about deficient advocacy forever and we haven't actually been able to do that much about it. i remember members of the supreme court were complaining during the 1970s about the fact that the advocacy from state attorneys generals office before the supreme court was just not what it should be. and as long as i've known

judges, they've complained about the deficiency of the advocacy before them. but it's a very hard problem to make any headway at all. >> of course, the supreme court -- and i'll let you weigh in at the supreme court level, of course, there's a structural fix for the deficiency of state advocacy that i think actually worked to a great extent which was the creation of the state and local legal center that would work with these state lawyers and move them and give them a lot of resources -- >> and that gets back to a very interesting question because, you know, the court of appeals -- and we talk about the deficiency of advocacy. the court of appeals level we may have, you know, two private parties arguing the case, and then you may have -- and increasingly we do have maybe an amicus brief and then we render a decision.

it's more a matter of amusement than it is anything else. but we render a decision and immediately a supreme court clinic gets ahold of it and somebody is scouring the landscape for court of appeals decisions that are cert-worthy and the things goes up and on certiorari the amicus briefs start pouring in. >> yep. >> and i said, you know, if you knew sometimes how little we have to work with vis-a-vis how much the supreme court has to work with -- and as i say, i get a chuckle out of it but somebody says well, the court of appeals missed this and the court of appeals missed that and the court of appeals missed that. we have 1-50th of the materials to work with if what the supreme court has to work with. >> that's a very interesting point because there's eight law schools that now have supreme court advocacy clinics and i've

heard it said -- i've heard the observation that it's really at the circuit level that this kind of, you know, weighing in from the outside could be most useful. >> the obligation of the judge is to make up for the inadequacy of the lawyer. there's some judges who say well, this is what they gave us. this is what i'm going to decide. others will say, this is an important issue where they had an inadequate lawyer so we're going to go and look at that case and see what the right answer is to a constitutional question. or a statutory question. we're not going to interpret a statute incorrectly because we had incompetent lawyers. it's not that simple. i've stated it in very gross terms. but there is a real difference among judges about what role they play, how much the job of a

lawyer they do when a lawyer doesn't do it competently. i might add one other thing to what judge wilkinson said. i think he's right. this is one of the arguments that goes on -- one of the endless problems that judges think there is a certain level of incompetency in the bar and they're correct. [laughter] >> and i should also add that lawyers always feel there's a certain degree of inadequacy in the judges. [laughter] >> right. >> and they're correct also. [laughter] >> judge tatel, why don't you give us the final add -- >> i was just going to add one additional factor that hasn't come up if i could quickly, linda, in terms of judging and how these courts work and actually marsha mentioned it to me yesterday at dinner. you know, i agree with judge wilkinson about the importance of the size of the court, at least from my court. the fact that there's only nine of us, i think, makes a big

difference in terms of our ability to produce quality work. that said, i'm not prepared because i haven't served in a large court to say it couldn't be judge just as well in a large court. but judge berzon mentioned to me something last night which i think is pretty important. and that is on the dc circuit we have no visiting judges at all. and i know on the ninth and probably on the sixth and i don't know, jay, about the fourth, but we don't -- i assume that the large number of visiting judges, whether they're district court judges or appellate judges does adversely affect the ability of a court to do collegial decision-making because these are people who don't have an investment in the institution and who you really don't know. >> that's very interesting. >> and i've not sat on a court with visiting judges so i can't say for myself but as i listen to my colleagues on other circuits, it could be a big

problem. >> we just started on 7th. there was a period where visiting judges on the seventh and there were 14 years where there were no outsiders, period. and this year we have started with district judges who are less than five years on the bench inviting them to sit partly because of the exchange that we can so that they can experience being on the court of appeals on some of the issues we grapple with and us having more interaction with district court judges so i think that's important. i just wanted to make one point on what we do about this incompetency. i really think we should encourage laws and law firms to take on these cases at the appellate level. there is -- now we have students that argue in the seventh circuit because laws under 711,

under those local rules, because that has improved the quality, the quality of the brief, the pro bono appointments at the law firms, typically those at a higher caliber. >> we have started to appoint lawyers in the habeas cases that are going on our oral argument document otherwise they would have been submitted on the briefs. and we found that it has massively helped to have pro bono lawyers doing work on those cases and there are a whole series of other areas where the help of pro bono lawyers would be extremely useful. one interesting thing especially for the younger members of the audience is that a lot of these appointments, whether they're pro-bono or cja or relatively easily available for young lawyers to get experience and so sometimes we've had arguing a case, a young associate at a major law firm who's just done a

splendid job and really represented his or her client excellently so i would encourage the younger lawyers to seek out those opportunities and the other lawyers in the audience, the partners and so forth to consider this as a wonderful way for their staff to get experience, but the basic problem that we have is there's a variety of capabilities among the practicing bar and it is so distrusting to get briefs in the case where the only case that's cited in the entire brief is for a standard of review and it's a wrong standard of review. [laughter] >> and you'd think how can this happen but it does happen again and again. and even cases where the u.s. government is involved -- i had a case recently construing a statutory provision and there was no effort in the brief to go into the meaning behind this particular statutory provision in any sophisticated way. and when disappointed in the result, the petition for

rehearing comes which does new research -- well, it's sort of like going to the supreme court court and presented in a wholly new case. it's now presented in a wholly new case and it is frustrating because we'd like to decide every case correctly and not make mistakes and we do need the help of lawyers in doing that. >> yeah. >> in connection with this point about the inadequacy of advocacy, it brings up something that i'm constantly aware of and that is all the limitations on our perspective, we are at the mercy of the quality of counsel that we get and there are limitations on our perspective as well. and one of them is so basic that we don't ever stop to think about it. we never actually see the parties to a case. we never actually at the appellate level hear a single witness. all we do is hear lawyers talk.

which, you know, may be fine but we never see a single live human being. [laughter] >> i meant to finish the sentence. [laughter] >> who is actually involved in the case. [laughter] >> i'm going to be impeached. [laughter] >> we'll developed you. -- we'll defend you. >> to follow up on the thing. even though we are on the bench, we're all lawyers and we're drawn from a narrow substrata of the legal profession itself and so the question -- you know, i asked myself when asked to this and that, i say well, where are the chemists on this bench and where are the plumbers? and where are the school teachers and where are the service workers and where are

the doctors and where are the nurses? and where are the underwriters? they're nowhere to be found. the only people on that bench are lawyers. and a narrow substratum of the legal profession at that. >> and getting narrower all the time as we're discussing. >> and getting narrower. you combine the problems with advocacy on top of the fact that we don't see witnesses and parties on top of the fact that our experience is limited to the confines and parameters of one profession only and you begin at a certain point to say that, wait a minute, wisdom in this craft really does lie in knowing everything we really do not know. and i guess that's why i'm cautious about steve's phrase of doing justice because you have to understand the limitations of

your own perspective and how -- if you just sally forth under the banner of doing justice, you can make serious and grave mistakes. >> linda, if i could -- >> even more serious mistakes if you don't look for justice. [laughter] >> justice is another person's injustice. >> i want to just get in on this. [laughter] >> this whole clients present and take it to a different level. this whole inadequacy issue. sometimes it's very clear during the oral argument that counsel is ill-prepared, can't answer the questions, doesn't know the record. when we're writing these decisions, you know, in criminal cases, we deal with the issue of competence of counsel. in these opinions we do refer to place where is counsel dropped

the ball, where there have been things missing and why wasn't it asked. and they don't know about the adequacy of their counsel and often the courts take the brunt of it. and so it is in the district court at least the clients are there. they say what's going on. they can get a sense of the judge's view of the lawyer. they can see the objections that are sustained or overruled. they can hear the interaction with the court and the lawyer but at the appellate level, no one knows. our opinion is there and sometimes i wonder in these cases especially in the immigration cases, and i totally agree the immigration and the employment cases, where we know it's an inadequate performance and you wonder, you know, if the clients really know what's going on. >> one thing that worries me and it worries me in the immigration cases particularly with regard to advocacy is that there's obviously an economic problem underlying this. you're dealing with the -- the

clients who are at the core of the whole thing are don't have money and don't speak english and have no way to make judgments who are adequate lawyers and can't afford to pay them and that's why you get lawyers who are to some degree bottom-trollers and are not representing their clients. but then the question is, what do we do about that. >> in fact, we have an extremely active pro-bono program and we could probably supply lawyers to just about all the immigration cases that are worth having argument in on a pro bono basis but they have lawyers and there was -- there was a time a few years ago when a really top appellate lawyer was assigned as a pro bono lawyer in an immigration case and he was briefing the case and clients said we've gotten some more money we're going back to our original lawyer who was quite

awful. because they tend to think that the lawyers you pay are better than the ones you don't pay which is not true. there's a conundrum in the sense where we have tried to improve the immigration bar by disbarring several lawyers who are not allowing them to operate in our court anymore but i wonder what the fallout of that is. and that increasingly we are getting supposedly pro se briefs which are not pro se briefs which are, in fact, being filed by these same lawyers who are not putting their name on it and we know -- >> but are still charging the clients. >> and are still filing the papers. >> wow, wow. >> so it's a very complicated problem and one that simply moaning and groaning -- >> let me wrap this up with one observation and go to questions with the time that we have. i would just suggest at your

annual judicial conferences you, in fact, deans of the law schools of your circuit and make a pitch to them to take on, you know -- 'cause the laws are desperate clinics. they love clinics and get them to think about having circuit court clinics and not supreme court clinics and i think you might find a receptive audience. okay. i got a pile of questions and not too much time so let me just throw some of these good questions out and whoever wants to answer. here's one, to the extent that solution of these problems in general requires congressional action, what can and should judges do to highlight the issues for the policymakers? >> linda, i think we're very nervous about congressional action. [laughter] >> watch out what you wish for? >> yeah. you talk with members of the administrative office and say, you know, maybe this should be fixed or maybe that should be fixed. but i'm really nervous about

having congress open up this subject of the federal courts 'cause once they get into something, they're going to be punitive things slapped on us and we've been talking about judicial independence and congress has a problem with the fact that judges don't have to run for office, and they think we ought to be, you know, duly made to pay penance for the fact that we don't seek reelection. so it's not only the friendliest forum for the judiciary to have congress looking at this or that. and we saw this with the pay restoration act which was submitted to congress and lo and behold, there were four or five provisions that were introduced that were very restrictive on judges and guess what? the pay didn't pass but the restrictions, many of them, did.

[laughter] >> and so you say -- you know, take it to congress, no. [laughter] >> i'm leery of that. >> and i should adjudge wilkinson speaks as one who actually ran for congress. right? >> and i should say that the various judicial conference committees of the u.s. judicial conference do deal with legislation and so there is a mechanism in our administrative office and we have someone in the office of legislative affairs that monitors -- that monitors legislation that's going through the federal courts. and in these various committees certainly judges discuss things that they would like to see improved but we're very judicious in terms of trying to get legislation introduced -- >> judge tatel? >> i think -- i agree with everything that's been said but i think there's one issue in

which judges can be playing a constructive role and that is, you know -- and that's the problem of the adequacy of legal services for the poor generally. [applause] >> you know, the legal services corporation has been woefully underfunded for years. the economic crisis in the country has affected not just poor but middle class who do not have access to the legal system and i think judges are in a unique position to speak to that question. it's not a substantive issue. it doesn't affect us personally but we can talk effectively about the affect of our judicial system generally for the fact that it's so difficult for people who need access to the legal system to get it because it's so expensive and because the -- i mean, i just read the other day, the iolta funds which are so important in so many states have taken an enormous

hit. i think i saw in california it's dropped from 30 million to 3 and new jersey from 40 million to 5. congress needs to act in this area, and we can speak for that, i think. >> for people don't know, the iolta which funds a great deal of legal services is funded by the escrow accounts largely from real estate transactions and to the extent there are no real estate transactions, iolta programs in every state have taken -- no interest, that's right. so it's a terrible problem. >> one problem that we have on the federal courts of appeals is the standard of review that we have in certain areas. so in the immigration area, for instance, the immigration judges' decision on factual matters is overturnable only if the opposite result would be compelled. and in habeas the standard of

review is a very stringent standard of review. so the effectiveness of counsel is critical at the beginning stages where we have no input, you know, in the haubus area it's the state situation in terms of the habeas cases beginning there generally and that affects a lot of different areas including, for instance, the death penalty practice but also in states that don't have the death penalty, the habeas at the federal court level. so this is a systemic problem most definitely. >> we are out of time, unfortunately. we could spend the rest of the weekend on this, i think. i want to thank our panel, and i have a closing announcement i've been handed. i'm very sorry we didn't get to more questions but i made a judgment that the conversation up here was worth continuing. closing announcement, quote, the breakout sessions immediately following this program are immigration detention and

criminal enforcement, very relevant in the stateroom. the net effect, net neutrality and other access to technology issues in the chinese room. [laughter] >> the constitution -- [laughter] >> the constitution in 2020 in the colonial room and employment discrimination and the future of federal courts in the east room. at 1:00 it's now at quarter to 12:00. please join us for lunch with elizabeth warren in the grand ballroom. it's a quarter to 11:00, sorry. join us for a luncheon with elizabeth warren in the grand ballroom whose role in the country has even exceeded what it was when she was invited. volunteers will be onsite to address you to your appropriate locations. please remember to return cle evaluations to the table. thank you to the sponsor of this plenary session, and the

american federation of civil employees. thank you all very much. [applause] [inaudible conversations]

>> president obama heads to russia next week for talks on nuclear disarmament and other issues. today in washington, a group called global zero commission looked at the future of u.s. and russian weapons reductions. this is just over an hour. >> thanks very much. i think we're still rounding up certain members of our commission but i assume these seats will be filled in the course of our press conference today. my name is richard burt and i'm a member of the global zero commission. the commission held its first meeting here in washington, d.c. today. global zero is an international movement focused on nuclear arms

control but specifically dedicated to the total elimination of nuclear weapons worldwide. an idea that has gained significant traction from the time early this year when we held a large meeting in paris, an international meeting in paris, to begin the process of outlining a realistic plan to get to zero. as you all know, president obama and president medvedev endorsed strongly the idea of global zero and the total elimination of nuclear weapons when -- in their first meeting in london in april. they jointly enunciated this goal. since that time in separate speeches, president obama has fleshed out his vision. president medvedev and prime minister putin have also

endorsed this goal and again, as you all know, president obama and president medvedev will be meeting again soon in moscow. our group, as other groups, is focusing on the importance of nuclear arms reductions. perhaps what makes us somewhat different is we're not only focused on the near term, that is the negotiations which are now underway between the united states and russia on further strategic arms reductions, but we are in the process of putting together what we call an end to end plan of how actually to get to zero. that means not only another phase of u.s./russia reductions but a multilateral negotiation which would include all nuclear powers to reduce and then go down to