The Courts and Congress – Annual Report 2020
Communication with Congress about Judicial Conference goals, policies, and positions forms the foundation of the Judiciary’s relationship with Congress and its committees and enhances the Judiciary’s role as a coequal branch of government.
Pandemic: CARES ACT and Electronic Court Proceedings
In response to the COVID-19 pandemic, Congress passed, and the President signed, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which contained provisions allowing chief judges to authorize the use of video or telephone conferencing in certain criminal proceedings during the pandemic with the consent of defendants. The Judiciary also ensured the media and public had access to virtual civil proceedings to keep the work of the courts transparent during the pandemic. Courts had taken emergency steps to protect the health and safety of judges, court staff, litigants, attorneys, and the public by closing or severely restricting entry to courthouses and courtrooms.
The CARES Act and the Judiciary’s guidance expanding virtual access applied only to proceedings held via videoconference and teleconference. Federal Rule of Criminal Procedure 53 continued to prohibit broadcasting of court proceedings generally, such as through livestreaming on the internet.
The remote access authority granted by the CARES Act was set to expire 30 days after the date on which the national COVID-19 emergency ended, or on the date the Judicial Conference (the Conference) determined that the federal courts were no longer materially affected by COVID-19, whichever occurred first. The pandemic continued into late 2020, and virtual access to proceedings remained in place.
Other provisions of the CARES Act that affected the Judiciary:
- Provided $7.5 million to address immediate needs, including costs related to systemwide telework and drug testing as well as mental health services for people under supervision by the courts.
- Authorized the director of the Bureau of Prisons to expand eligibility for compassionate release to home confinement for people detained in federal facilities during the COVID-19 crisis.
- Amended for one year various bankruptcy provisions to provide relief for small businesses and consumers in response to the COVID-19 crisis. The act increased the debt limit for a small business seeking to reorganize under Chapter 11, from $2.7 million to $7.5 million. Additionally, it allowed consumers to exclude coronavirus-related payments they received from the government from the definition of “current monthly income” in Chapter 7 and 13 bankruptcies. And it permitted Chapter 13 debtors to extend payments under a reorganization plan for up to seven years if they experienced financial hardships because of the pandemic.
- Directed the Supreme Court and the Conference to consider adopting rules to allow federal courts to handle proceedings differently during emergencies. The Judiciary subsequently began the months-long process of adopting new rules.
Pandemic-Related Legislative Proposals
In addition to requesting $37 million in supplemental funding, the Judiciary in April asked Congress to pass several reforms to help federal courts respond effectively to the pandemic and to ensure that the courts continued to meet constitutional obligations while protecting the health and safety of court personnel, litigants, and the public.
The 17 legislative items requested by the Judiciary included proposals to expedite compassionate release procedures under the First Step Act, reduce pretrial detention of certain low-risk defendants, and allow probation officers to focus on higher-risk offenders.
Bankruptcy courts temporarily would be able to extend certain statutory deadlines and time periods for the duration of the COVID-19 emergency. And, to meet anticipated caseload increases, four temporary bankruptcy judgeships would be converted to permanent status, in addition to the 10 that the Conference recommended be converted in March 2019.
None of these had been passed by the House or Senate by the end of 2020.
Pandemic-Related Bankruptcy Legislation
When Congress passed catchall appropriations legislation in late December 2020, the pandemic relief portions of the bill contained temporary provisions to help people filing for bankruptcy. Among them were amendments to the bankruptcy code (1) to ensure that federal coronavirus relief payments received by a debtor are not treated as property of the estate subject to the claims of creditors, (2) to provide that debtors filing under Chapter 13 who have defaulted on fewer than three monthly residential mortgage payments may be granted a discharge from liability if the financial hardship was caused by the pandemic, and (3) to specify that people may not be denied certain forms of relief under the CARES Act because they are debtors.
Oversight Hearing on COVID-19
Judge David G. Campbell testified in June before the House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet at a hearing on the impact of the COVID-19 pandemic on the federal court system.
The District of Arizona judge, testifying on behalf of the Conference, told the subcommittee that courts have continued to operate through the crisis through careful planning and execution of new protocols to minimize health and safety risks. The Judiciary created a task force to provide courts with vital information and guidance, he said, and also greatly expanded its use of technology to conduct virtual proceedings.
Campbell, chairman of the Conference’s Standing Committee on Rules, also provided the lawmakers with a comprehensive list of the measures taken by the Administrative Office of the U.S. Courts (AO) and the courts since the pandemic hit the United States in early 2020.
An intergovernmental Federal Judiciary COVID-19 Task Force, created in February, greatly facilitated the Judiciary’s rapid response to the pandemic and monitored the impact of the virus on court operations nationally. The AO and the task force developed guidance for the courts on a wide range of pandemic-related issues in the areas of budgets, finance, and internal controls; court interpreting and reporting; facilities and security; financial disclosure; human resources; juries; naturalization ceremonies; probation and pretrial services; and widespread telework.
The Judiciary temporarily authorized the use of video and teleconferencing technologies, increasing capacity to handle bandwidth strains, obtaining the necessary equipment and licenses for certain platforms, providing the public and the media access to proceedings, and strengthening IT infrastructure to address the greater use of telework.
Judicial Security Proposals
The Judiciary in 2020 asked Congress to enact a set of security measures after a federal judge’s family and officers at two federal courthouses came under violent attack. The Judiciary also asked Congress to appropriate funds to the U.S. Marshals Service and the Federal Protective Service for the new protections.
Judge Esther Salas discusses the need for legislation providing security protections for judges after a gunman killed her son.
The Daniel Anderl Judicial Security and Privacy Act of 2020 was introduced in the Senate on Sept. 24, 2020, and a companion bill was introduced in the House. On Dec. 16, a unanimous consent request in the Senate to approve the bill nearly passed, but was objected to by one senator, who wanted to expand the bill to cover members of Congress. The objection effectively defeated the bill for the legislative session. There was substantial bipartisan support for the bill, and the Judiciary was committed to seeking passage in the next Congress.
On July 19, a gunman posing as a delivery courier rang the doorbell at the home of Judge Esther Salas, of the U.S. District Court for New Jersey. He fatally shot her 20-year-old son, Daniel Anderl, who had opened the door, and seriously wounded her husband. Judge Salas was in another part of the house and was not hurt. Earlier in the year, on May 29, a Federal Protective Service officer was fatally shot outside a federal courthouse in Oakland, California.
Four federal judges have been murdered since 1979: District Judge John Wood (1979), District Judge Richard Daronco (1988), Circuit Judge Robert Vance (1989), and District Judge John Roll (2011). Northern Illinois District Judge Joan Lefkow found her mother and husband murdered in their Chicago home in 2005.
The Judiciary asked Congress to enact a set of safety measures that would better protect judges’ personal information and improve security at judges’ homes and at federal courthouses.
“Threats against federal judges are increasing and it is imperative that the judicial branch and legislative branch work together to take action to prevent another tragedy involving judges and their families,” Judge David W. McKeague, chair of the Conference’s Committee on Judicial Security, wrote in a letter to Congress.
The legislation would permit federal judges to secure the redaction of their personal information on federal government internet sites and prevent the transfer or publication of their personal information by data brokers or by other businesses and individuals where there is no legitimate news media interest or no matter of public concern. It also would require a study by the comptroller general on approaches by state and local governments to protect personal information, ways to improve the ability of the Judiciary to monitor and remove a judge’s personal information from the internet; and ways to improve the ability of the U.S. Marshals Service to identify internet-based threats.
In addition, the Judiciary asked House and Senate appropriators to provide the following:
- A one-time appropriation of $7.2 million for the U.S. Marshals Service to install modern home intrusion security systems in judges’ homes. The funding was included in the Consolidated Appropriations Act of 2021.
- An additional $10 million to expand U.S. Marshals Service capabilities to monitor online and social media-based threats against federal judges. The Consolidated Appropriations Act of 2021 included an unspecified level of funding for this effort.
- Increased appropriations for the U.S. Marshals to hire 1,000 additional deputy marshals, at a cost of $250 million.
- A one-time appropriation to the Federal Protective Service of $267 million to replace and upgrade exterior perimeter security cameras at 650 U.S. courthouses and federal buildings that house judicial activities.
Testimony on New Judgeships
Judge Brian S. Miller testifies remotely at a Senate hearing about the need for additional federal judgeships. He chaired the Judicial Conference Subcommittee on Judicial Statistics.
In June, District Judge Brian S. Miller told Congress that the creation of new judgeships had not kept pace with the growth in case filings over three decades, producing “profound” negative effects for many courts across the country.
Miller testified before the Senate Judiciary Committee at a hearing on the Judiciary’s request for additional judgeships. He appeared on behalf of the Judicial Conference. Miller also chaired the Subcommittee on Judicial Statistics for the Conference’s Committee on Judicial Resources.
The Conference had recommended that Congress establish 70 new judgeships, including five new judgeships in the Ninth Circuit Court of Appeals and 65 new judgeships in 24 district courts across the country. The conference also recommended that eight existing temporary district court judgeships be converted to permanent status.
Since 1990, when the last comprehensive judgeship bill was passed by Congress, case filings in the courts of appeals had grown by 15 percent by the end of 2018, while district court case filings had risen by 39 percent in the same period.
“The effects of caseload increases without increasing the number of judges are profound,” Miller said. “Increasing caseloads lead to significant delays in the consideration of cases, especially civil cases which may take years to get to trial. … Delays increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the Judiciary and the judicial process.”
Electronic Court Records Legislation
In December 2020, the House approved a bill that would require the Judiciary to overhaul its Case Management/Electronic Case Files system (CM/ECF) and establish a single, consolidated system for court records. A companion bill was introduced in the Senate, but there was no further action on either bill by the end of the legislative session.
The bills require that the current Public Access to Court Electronic Records (PACER) system be made free for most users. To compensate for the elimination of PACER user fees, the Judiciary would be authorized to charge additional fees to parties filing cases in the courts to pay for operating and maintaining the system. The Judiciary’s position is that the bills are inadequately funded and there are significant differences in cost estimates for the required work. The cost of the legislation would create mission-threatening shortfalls in the Judiciary’s future budgets.
AO Director James C. Duff wrote to House leaders and to House Judiciary Committee Chairman Jerrold Nadler expressing the Judiciary’s strong objections to the Open Courts Act of 2020. Duff said it would “result in massive filing fee increases for litigants, severely impairing their access to justice – the core tenet of our judicial system – while providing a commercial windfall to large commercial users” of PACER.
Because of the Judiciary’s fee waivers and exemptions, the majority of users do not pay anything to access documents on the PACER system. About 87 percent of the costs of operating PACER are paid by companies that collect and analyze data from the PACER system and sell the information at a profit.