The NLJ's ABA Annual Meeting Blog

An independent judiciary if we can keep it: Souter issues warning

Retired Justice David Souter implored lawyers attending the ABA annual meeting to revive effective civics education or face the “danger” of a nation that doesn’t value judicial independence because it doesn’t understand it.

In one of his first speeches since leaving the Supreme Court this year, Souter told those gathered in downtown Chicago this evening that he and his schoolmates understood the three branches of government by the time they were in the ninth grade and lamented that survey results today suggest that two-thirds of Americans can’t even name those three branches.

“I’m here to speak this evening because civic education in the United States is not good enough, and we have to do something about it,” Souter said in a somber tone. “I want to speak about the risk to constitutional government when a substantial portion of the American populace simply fails to gain that understanding. In particular, I’ll ask you to consider the danger to judicial independence when people have no conception of how the judiciary fits within the constitutional scheme.”

Souter recalled how he came to learn the structure of government, including some sense of the different functions of legislative, judicial and executive authorities, as a New Hampshire youngster sitting through annual town meetings. He also learned the difference between the town’s power and the state’s power, and observed how the moderator of the meeting allowed anyone in town to have his or her say.

It was three years ago at a Georgetown University Law Center conference on the state of the judiciary that he and some judicial colleagues saw the need for increased civic education. He recalled early on in that conference hearing the two-thirds static.

“Without some idea of separations of powers, limitations of power and the need to enforce those limits, the idea of judicial independence must be practically meaningless,” Souter said.

“If anyone is in doubt about what is at stake for the American judiciary,” Souter said he could only invoke Benjamin Franklin’s warning that Americans have a republic only "if you can keep it.”

Souter asked the lawyers gathered to do their part to ensure that basic civic knowledge is improved. He noted that a judicial project sponsored by fellow former Justice Sandra Day O'Connor is working on the problem already. The ABA has to chip in too, he said.

“I ask you to make this effort a powerful one, to take part in it, every one of you in every way that you can,” he said.

After a standing ovation for the retired justice, a group of (maybe junior high) students took the stage before Souter and other ABA officials to conclude the program by singing, “Oh Happy Day.”

The reality of threats: Lefkow urges her fellow judges to add security

U.S. District Judge Joan Lefkow, whose husband and mother were murdered in 2005 by a disgruntled plaintiff whose case she had dismissed, urged other judges at an ABA panel on judicial security to consider adding to their home security--an option she and her husband considered and decided against due to the cost.

“I’ve gone over in my mind so many times how things could have been done differently,” said Lefkow, who now lives in a high-rise building that has 24-hour security and valet service. She said she couldn’t continue living in the three-story house on Chicago’s northside where her family members were killed.

The ABA panel this afternoon began with a video produced by the U.S. Marshals Service, which protects federal judges nationwide. Lefkow sat quietly as the video showed TV news clips reporting the murders in her family. Both the video and advocacy by judges, including Lefkow, have helped the Marshals Service persuade more judges to get security, said panelist Mike Prout, assistant director for judicial security in the Marshals Service.

While the number of incidents against judges hasn’t necessarily increased in recent years, the intensity of the violence has, warned Gary Schenkel, director of the Federal Protective Service at the Department of Homeland Security.

Lefkow denounced the rise of “hate-mongering” by people who now have Web sites to spread their violent views, saying she believes it has fueled some of the threats against judges. She described the case of Internet talk show host Hal Turner, who was pleaded not guilty last month to making threats against three of Lefkow’s fellow federal judges who sit on the U.S. Court of Appeals for the 7th Circuit. Turner was unhappy with a decision by the appeals court that allowed a Chicago handgun ban to stand.

Lefkow read from the federal complaint against Turner, giving his description of the “slaughter” of her family that he said apparently wasn’t enough of a message to federal judges in Chicago.

“We’re probably all saying to ourselves, ‘Well, is that enough to constitute a threat under the law?’ and I honestly don’t know,” she said just before reading the relevant statute out loud. “I don’t know if that’s a threat or not.”

Fitzgerald and Libby judge talk about shielding reporters

Four summers ago then-New York Times reporter Judith Miller went to jail for refusing to testify in the Valerie Plame case. Today U.S. District Judge Reggie Walton of Washington told an ABA panel that he backs creation of a federal shield law that would protect journalists in some cases from being forced to divulge sources.

Let's pause for a quick recap of the relevant history: Walton presided over the trial of vice presidential aide I. Lewis “Scooter” Libby, which arose out of the grand jury investigation into the leak of CIA agent Plame’s classified identity. During that investigation, reporters who refused to testify were threatened with contempt, and Miller went to jail for almost three months. And the investigation was led by special prosecutor (and U.S. attorney for Chicago) Patrick Fitzgerald, who also spoke on today's panel.

“I do believe reporters should have some level of protection,” Walton told the audience. “I don’t think that parties in courts should be able to just willy-nilly extract information from reporters because I think the free flow of information to the American public, frankly, is very important.”

The panel--which also included Chicago Sun-Times reporter Abdon Pallasch and First Amendment attorney Guylyn Cummins of Sheppard Mullin Richter & Hampton in San Diego--discussed legislation in Congress that would give reporters more protection. Pallasch emphasized that a federal shield law is at least as important in civil cases and may actually get less use in criminal cases.

Fitzgerald noted that a federal shield law wouldn’t have kept Miller from going to jail in 2005 because she was defying a judge’s order in a case that related to classified information, which is unlikely to be covered by a federal shield law.

Fitzgerald, who noted he wasn’t speaking for the Obama administration, wouldn’t opine on whether there should or should not be a federal shield law, but hinted that he might find a limited law palatable. Still, he suggested journalists could avoid some problems by being more conservative in granting sources confidential status. He stressed that not even FBI agents searching for Osama bin Laden can guarantee sources that their identities won't be revealed in court.

“If there was a journalism law that treated everyone who wrote for a blog as a journalist, you couldn’t take hundreds of thousands of people and give them the power that no FBI agent trying to catch bin Laden can have,” Fitzgerald said. “It doesn’t mean we feel we can’t protect journalists, it just means we have to do it in balance. There has to be exceptions.”

Idiotic or not: judges debate letting jurors asking questions

Chief Judge James Holderman of the Northern District of Illinois is so sold on new jury techniques, including allowing jurors to pose questions through the judge, that he’s considering using them later this year for the first time in a major criminal drug case. Lawyers in the case will hear about that soon.

“The 7th Circuit may say, ‘Holderman, you’re an idiot,’ if there’s an appeal and reversal,” Holderman said during an ABA panel on advocacy techniques this morning. But he’s willing to take that chance. While the techniques have been used in criminal trials in other federal courts, they haven’t been tried in his district.

Holderman is such a convert, he told the room of lawyers, that he’ll never again have a civil trial without using the new jury techniques. These methods, including giving jurors instructions before the trial begins and letting lawyers make interim statements over the course of the trial, keep jurors more tuned in, Holderman said. They also give lawyers a window on jurors’ thinking, he said.

But two other judges on the panel weren’t so convinced. Chief Judge Irma Gonzalez of the Southern District of California started shaking her head with disbelief, asking how Holderman had time to put together jury instructions to be presented at the outset of a trial. She also thought letting jurors ask questions might take too much time. She noted that she once suggested the procedure to some lawyers and they did not like the idea.

“I just think it’s time-consuming,” Gonzalez said.

Gonzalez and Judge Sue Robinson of the District of Delaware, who was also on the panel, pelted Holderman with as many questions about the techniques as the audience did. Despite her apparent resistance, Robinson was taking down notes. All of the judges agreed that time limits are a must for trials.

The new ideas Holderman propounds were developed in a three-year 7th Circuit pilot project, detailed in a 213-page report released in September 2008. Holderman told the lawyers that if anyone is trying to persuade a judge to give the new methods a try, have the judge call him.