A bench slap portends trouble in paradise

This post is about politics within the federal judiciary. It also about pecking order within the hierarchy of the federal judiciary. While I don’t care a bit about the substantive issue, the dispute I am about describe is fascinating because it has the potential of setting up a battle of judicial titans and I am a voyeur. While not in so many words, one power within the federal judiciary has publicly called out another power within the federal judiciary by essentially asking, “Who in the hell do you think you are?”

Judge John Bates is a district judge who sat in the District of Columbia. Judge Bates is highly respected by Chief Justice Roberts. The Chief put Judge Bates on the foreign surveillance court (FISA) and later selected him as the Director of the Administrative Office of the United States Courts. Judge Alex Kozinski is the Chief Judge of the Ninth Circuit, which has far more judges than any other Circuit, and as such is a member of the Judicial Conference of the United States. Under the direction of the Chief Justice, the Judicial Conference of the United States is the policy making arm of the judiciary. A district judge and the chief judge from each Circuit comprise the voting membership of the Judicial Conference. Judge Bates is the secretary to the Judicial Conference. “The Judicial Conference also supervises the Director of the Administrative Office of the U.S. Courts in the performance of his duties as the administrative officer of the courts of the United States under 28 U.S.C. § 604.” Id.

Thanks to Howard Bashman, my source for everything, I learned yesterday that:

“Chief Judge Kozinski’s ‘Serious Doubts’ About Judge Bates’s FISA Reform Letters”: Steve Vladeck has this post today at the “Just Security” blog. You can view the letter from the Ninth Circuit‘s chief judge at this link.
Posted at 09:33 AM by Howard Bashman

Here’s a brief summary of the dispute:

  • Bates sent the Chairman of the Senate Judiciary committee a letter about the USA FREEDOM Act–the surveillance reform proposal that, among other things, would create a more adversarial process within the FISA Court.  A fair reading of the letter indicates that Bates was speaking for the federal judiciary.
  • Kozinski sent the Chairman of the Senate Judiciary Committee a letter. A fair reading of the letter indicates that Kozinski does not think that Bates can speak for the federal judiciary and Kozinski makes absolutely clear that Bates does not speak for him. According to Kozinski, the Judicial Conference of the United States had not considered the issues addressed in Bates’ letter. Kozinski notes that Bates did not provide Kozinski (and presumably other members of the Judicial Conference) with copies of correspondence on this issue.
  • Bates had earlier written to Senator Diane Feinstein, Chair of the Select Committee on Intelligence, the following explaining why the Judicial Conference had not been consulted:

Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).

One thing is clear. Bates has been “bench slapped” by Kozinski, and there is “trouble in paradise.”  Of course, feel free to select and mix your own metaphors. No matter how one expresses it, this dispute is extraordinary (and perhaps unsettling) for those who “are inside baseball.”


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