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September 01, 2011

From the Bench: Lessons Learned as a New Chief Judge

The chief judge is looked to as the leader of the court, which means that colleagues and staff bring problems, both individual and systemic.

Catherine D. Perry

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Should we evacuate the building after two anonymous calls saying there is a bomb? That was the question I received during my first week on the job as chief judge, asked by the deputy U.S. marshal who was in his first week as the supervisor in charge of building security. My reaction: “Oh, no! Surely it isn’t my job to make this decision?” It turns out that while technically it’s not my job, the practice is to consult the chief judge in situations like this if possible.

The duties of the chief judge are many and varied, and they include not only the official duties set out by statutes, but also others that have developed through custom. Even though I had been a part of our court for almost 20 years when I became chief, I was clueless about many aspects of the job, and I am still learning.

Becoming a Chief Judge

Unlike many of our state counterparts, federal chief district judges are not selected on the basis of our qualifications as managers or our popularity with fellow judges, or even our desire for the title. Instead, we get our positions in the time-honored way of many bureaucrats—longevity. I have the distinction of being the chief judge because I am the judge who has been here the longest without having already been chief or reached the age of 65.

The statute establishing the position doesn’t use many words to describe our duties: We “shall have precedence and preside” at “sessions” (28 U.S.C. § 136(b)), and we are responsible “for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe” (28 U.S.C. § 137). Local practice and custom usually give the chief judge more duties than those set by the statute, and so those duties are as varied as are the 94 judicial districts in the United States.


The varying duties are not surprising given that federal courts run themselves, reflecting the judiciary’s status as an independent branch of government. Our centralized management structure comes from the Judicial Conference of the United States (28 U.S.C. § 331) and the Administrative Office of the U.S. Courts (28 U.S.C. § 601). The chief justice heads the conference, and it consists of the chief judge of each circuit court of appeals and one district judge from each circuit (elected by the other district judges of that circuit). One bankruptcy judge and one magistrate judge sit as ex officio members. Although the conference is equivalent to a board of directors, the courts do not actually have to follow Judicial Conference policy.

But courts do have to follow orders issued by the Circuit Judicial Councils. These councils are created by statute for each circuit (28 U.S.C. § 332) and consist of the chief circuit judge, an equal number of circuit and district judges, and one bankruptcy and one magistrate judge. The statute gives Circuit Councils the authority to “make all necessary and appropriate orders for the effective and expeditious administration of justice.” 28 U.S.C. § 332(d)(1). And the statute says that “[a]ll judicial officers and employees of the circuit shall promptly carry into effect all orders of the judicial council.” 28 U.S.C. § 332(d)(2). The council’s approval is required for expenditures of funds beyond normal budgetary limits and for things such as seeking changes in divisional boundaries within a district. But within the framework of Circuit Councils and Judicial Conference policy, local courts have broad control of their own systems for assigning and managing cases and for administrative and budget issues.

All chief judges work extensively with the court unit executives—the clerk of court and the chief probation and pretrial services officers. Fortunately, it is these executives who actually do the work of running the courts, but the chief judge has day-to-day supervision of the executives. Some of this involves relatively routine administrative issues such as approving the executives’ travel requests, expense vouchers, time records, and requests for leave. More complicated issues arise, however, if emergencies occur or if the operations of the units are not working as they should. The chief judge may find herself dealing with complaints from the public or from within the court family about any of these offices.

Each court unit head will routinely meet with the chief judge to go over issues and to inform the chief of any significant events, including any serious employee issues such as discipline, demotions, or discharge. Regular budget and performance audits are performed on all court operations, and the results are shared with the chief judge, as are any plans for improving or addressing any deficiencies found by the audits.

One of the first things I received when I became chief was a workbook and a multidisk tutorial on the judiciary budget. I felt like I’d gone back to my introductory accounting classes in college. In fact, I probably knew more about budgeting and accounting in college than I did when I became chief judge, and understanding the financial issues facing the court is an ongoing learning process. A significant portion of the judiciary’s budget is consumed by salaries and rent (paid to our landlord, General Services Administration), and we must carefully plan how to spend the rest, within comprehensive—and sometimes confusing—procurement regulations.

Although the judiciary’s budget is only 0.2 percent of the federal budget, we must be very cautious about how we spend the discretionary funding we do have. Because our budget varies depending on our caseloads and the financial situation of the government in general, we must take care not to start expensive projects such as courtroom technology upgrades if we aren’t sure we will have funds to complete them. In the past, we have run out of funding for drug treatment programs and even for attorneys appointed under the Criminal Justice Act before the end of the fiscal year. We must also take care not to expand the workforce in a way that could later lead to layoffs. Recently, we have often begun the fiscal year without a budget, and operating for several months on a continuing resolution poses its own set of problems. In today’s difficult budgetary climate—which may require layoffs of court personnel in the next fiscal year—most chief judges are very involved in all facets of court spending.


Individual and Systemic Issues

The chief judge is looked to as the leader of the court, which is wonderful in many ways, but it also means that our colleagues and staff bring us problems, both individual and systemic. Topics raised by judges might include problems about case assignment or management, such as: I’m drawing more than my share of temporary restraining orders; I have an eight-week trial coming up and need help with other cases; several cases that the lawyers said were related really aren’t and so shouldn’t all be assigned to one judge. Employee issues arise, for example: My law clerk just told me her brother was indicted in our court for a meth conspiracy; what should I do? Or my judicial assistant is having major surgery; can we hire a temporary replacement? Space and facilities issues are ever present, such as: One of my staff needs a stand-up computer desk because of back problems; my chambers still smells like cigars from the previous judge’s smoking; my courtroom sound system isn’t working. Other issues from staff are similarly diverse: Probation or automation needs more space or more people; the financial unit is having difficulty getting information from lawyers about restitution or interpleaded funds; how should we implement national programs regarding case management systems or probation supervision? or What should we plan if there is a snow emergency?

Systemic issues can be vexing: Attorneys are complaining that compliance with some of our local rules adds unnecessary expense to their cases; detention facilities for criminal defendants are so far away that lawyers aren’t able to meet with their clients sufficiently; an attorney appears to be impaired and may need to be reported to the state bar authorities; one of the half-way houses used by our pretrial and probation offices is having drug and violence problems.

Many problems are routine, but still take time: Should we revise our standard juror orientation speech? Can the local bar serve alcohol at a function it is holding at the courthouse? Should we agree to host the high school mock trial tournament on a weekend and, if so, what kind of courthouse staff needs to be here? Will you authorize the probation office’s destruction of guns seized 15 years ago in a search of a probationer?

Some issues would be comical if they weren’t so serious. Court security metal detectors reveal a gun in the briefcase of a lawyer hurrying to court for a sanctions hearing. (His response: He was so disorganized that he didn’t realize the gun was there. As it turns out, this was actually credible, as his lack of organization was why he was facing sanctions already). Others raise philosophical as well as practical questions: The Probation Office wants to hire an ex-offender to work in its prisoner reentry programs, but the Marshal’s Service objects to giving him the same building pass that other employees have.

Of course, other Article III judges do not actually have to pay any attention to what I decide. One old joke says that the chief judge is like the caretaker at a cemetery—there are a lot of people under you, but none of them are responding. I learned early on that I was too decisive—a colleague or staff member would make a suggestion and I would agree, only to learn later that others had differing views I should have considered. So, now I am much more likely to tell the person that it sounds like a good idea but we need to consult with others.


Building Issues

New chief judges spend a lot of time learning about courthouse space issues. During my first year, I considered myself lucky because our district had two new buildings. My predecessors spent their terms as chief dealing with construction and moving issues, and I felt satisfied with my lack of building problems.

That changed recently, and I am now becoming an expert on water damage remediation in high-rise buildings. A pipe on the 17th floor broke in the night and sent thousands of gallons of water pouring through our courtrooms and jury rooms before morning staff discovered the disaster. As I write this, our court has lost 7 of our 15 courtrooms. Fortunately, our clerk of court handles the day-to-day supervision of the repairs being made by the General Services Administration, but I have new appreciation for courts that have suffered other types of disasters.

And federal courts have had too much recent experience with disasters, from Hurricane Katrina to the river flooding in Iowa to the Las Vegas shootings. If the entire courthouse is rendered unusable, the chief judge may spend more time managing relocations and renovations than she does on her cases. In districts where the courts are out of space and desperately need a new building, chief judges find themselves managing courtroom and chambers sharing (or renting trailers) as well as seeking help from Congress.

We are all responsible for our districts’ contingency plans. After September 11, all courts were directed to develop plans that would allow the courts to operate in the event of an emergency that renders the courthouse inaccessible. As chief judge, I am much more involved in these plans than I was before. Recently, the clerk delivered an orange box containing a satellite telephone. My first reaction was to laugh, thinking of Jurassic Park or Anaconda or other far-fetched disaster movies my kids have made me watch over the years. But, of course, cell phone towers have been affected in previous actual disasters, and satellite phones are just one more tool to help in case of an emergency.


Greater Responsibility

The chief judge is often the public face of the court. I dress up more often—gone are the casual-dress days of slacks and sweaters—and now I need to wear go-to-court suits on many days when I am not in trial or meeting with lawyers. And the reporters for the local news outlets now call me when they want information about everything from courthouse floods to media access for high-profile cases.

Chief judges don’t get any more money, but if their court has five or more active judgeships, they can get an additional law clerk. They have the option of taking a reduced caseload, but many do not do so. I initially reduced my criminal draw, but because our criminal caseload is very heavy and we have judicial vacancies, that caused an undue burden on my colleagues, so I went back up to a full criminal draw. Although I am not on the rotation for cases that begin as motions for temporary restraining orders or for the Title III wiretap duty, I end up covering those duties if other judges are not available.

There are times when being chief definitely interferes with judging. An important meeting or ceremonial duty such as a memorial service may require me to recess a jury trial. Dealing with administrative emergencies can also interfere with how quickly I can rule on motions or deal with cases. We have annual national and circuit meetings with other chief judges, and the opportunity to compare notes with others in similar circumstances is invaluable. I have made many new friends at those meetings and frequently seek advice from them.


Bomb Scare

So what happened with that bomb scare my first week?

I did what any wise Article III judge with years of experience on the bench would do: I tried to call the former chief judge to ask her what I should do. When I couldn’t reach her, I agreed we should evacuate, even though the marshals did not think the threats were credible. Several hours later, after 450 courthouse employees, several dozen lawyers, and many jurors and other citizens had stood outside on a scorching summer morning, and after the search and bomb-sniffing dogs revealed nothing, many hot, unhappy people went back to work.

Another lesson learned in a routine day of a chief judge.


Catherine D. Perry

The author is chief judge of the U.S. District Court  of the Eastern District of Missouri.