Practical impediments to structural reform and the promise of third branch analytic methods: A reply to professors baum and Legomsky

Duke Law Journal

Volumn 59, Issue 8, 2010, Pages 1847-1882

  Wheeler, Russell R ^a  

^a BROOKINGS INSTITUTION   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77955158736     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Letter

References (112)

1. Rotimi v. Holder, 577 F.3d 133, 139 (2d Cir. 2009) (Newman, J., concurring).
2. See Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635 (2010).
3. See Lawrence Baum, Judicial Specialization and the Adjudication of Immigration Cases, 59 DUKE L.J. 1501 (2010).
4. See EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK, at E1 fig.6, E2 tbl.5, J1 fig.15, J2 tbl.7 (2009) [hereinafter EOIR], available at http://www.justice.gov/eoir/statspub/fy08syb.pdf.
5. 8 C.F.R. § 1003.1(a)(1) (2009).
6. Dana Leigh Marks, An Urgent Priority: Why Congress Should Establish an Article I Immigration Court, 13 BENDER'S IMMIGR. BULL. 3, 10 (2008).
7. "[I]t is a... long-established principle that administrative law judges must be exempt from... agency administered performance evaluations... to ensure their independence in decision-making. Despite this well-established benchmark in administrative adjudications, the first item on the Attorney General's 22-point plan is to subject Immigration Judges to... performance evaluations." (footnote omitted)).
8. see also 5 U.S.C. § 554(d)(2) (2006) (stating that an agency adjudicator "may not be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency").
9. VANESSA K. BURROWS, CONG. RESEARCH SERV., ADMINISTRATIVE LAW JUDGES: AN OVERVIEW 8 (2008) (noting that section 554(d) of the APA expressly prohibits the supervision of ALJs by agency employees who perform investigative or prosecutorial functions).
10. 8 C.F.R. § 1003.1(d)(ii).
11. see also Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 375-77 (2006) (recounting that the attorney general's reduction of BIA positions in 2002 fell most heavily upon BIA members most sympathetic to immigrant claims).
12. U.S. GOV'T ACCOUNTABILITY OFFICE, NO. GAO-08-940, U.S. ASYLUM SYSTEM: SIGNIFICANT VARIATION EXISTED IN ASYLUM OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES 7-8 (2008) (reporting a considerable variation in asylum decisions across immigration courts and judges).
13. See, e.g., TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, LATEST DATA FROM IMMIGRATION COURTS SHOW DECLINE IN ASYLUM DISPARITY (2009), http://www.trac.syr.edu/immigration/reports/209 (documenting reduced, though still significant, disparities in asylum decisions).
14. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette, in REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM 9, 34-52, 77-86 (2009). Ramji-Nogales and her colleagues initially identified these disparities in an earlier version of Refugee Roulette.
15. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 328-49 (2007).
16. Discussing the DOJ's BIA member and IJ hiring practices.
17. Discussing the DOJ's response to the politicized hiring allegations.
18. See OFFICE OF PROF'L RESPONSIBILITY & OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY GENERAL 117-18, 121-22 (2008), available at http://www.justice.gov/oig/special/s0807/final.pdf (analyzing Goodling and Sampson's conduct in the selection of IJ and BIA candidates).
19. See, e.g., Charlie Savage, Vetted Judges More Likely to Reject Asylum Bids, N.Y. TIMES, Aug. 24, 2008, at A17 (describing an analysis of DOJ data that showed several of the politically selected judges to be among the least likely IJs to grant asylum).
20. "[T]hough Article I judges might enjoy greater job security than immigration judges currently do, they might actually have less job security than they would under an ALJ model.".
21. These calculations, Russell R. Wheeler, IJ Receipt Data (Jan. 13, 2010) (unpublished spreadsheet, on file with the Duke Law Journal), are based on the 224 judges listed on the EOIR website and receipt and other data reported in the EOIR 2008 Statistical Year Book. See EOIR, U.S. Dep't of Justice, EOIR Immigration Court Listing, http://www.justice.gov/eoir/sibpages/ICadr.htm (last visited Mar. 20, 2010) (listing all IJs).
22. Listing total immigration court receipts and total immigration court proceedings.
23. Letter from Dana Leigh Marks, President, Nat'l Ass'n of Immigration Judges, to Senator Edward Kennedy (Mar. 26, 2008) (on file with the Duke Law Journal).
24. COMM. ON DEFENDER SERVS., JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE COMMITTEE ON DEFENDER SERVICES TO THE INTERIM REPORT OF THE CRIMINAL JUSTICE ACT REVIEW COMMITTEE 14, 15 (1993) (on file with the Duke Law Journal).
25. JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 24 (1993), available at http://www.uscourts.gov/judconf/93-Mar.pdf.
26. COMM. ON DEFENDER SERVS.
27. Offering the example that executive branch officials often staff specialized courts based on patronage considerations, rather than policy interests.
28. Noting that judicial decisionmaking is more effectively influenced through ex ante selection than through ex post mechanisms.
29. Explaining that concentration of a type of case is likely to produce increased uniformity in legal interpretation and greater susceptibility to external influence.
30. See, e.g., Robert A. Katzmann, Deepening the Legal Profession's Pro Bono Commitment to the Immigrant Poor, 78 FORDHAM L. REV. 453, 453-59 (2009) (discussing efforts to increase and improve representation of immigrants in New York City).
31. For the reports of three task forces that Judge Katzmann has assembled to enhance pro bono and paid representation of aliens in immigration adjudication in New York City, see Jennifer L. Colyer et al., The Representational and Counseling Needs of the Immigrant Poor, 78 FORDHAM L. REV. 461 (2009).
32. Claudia Slovinsky, Introduction, 78 FORDHAM L. REV. 515 (2009).
33. Jojo Annobil, The Immigration Representation Project: Meeting the Critical Needs of Low-Wage and Indigent New Yorkers Facing Removal, 78 FORDHAM L. REV. 517 (2009).
34. Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 FORDHAM L. REV. 541 (2009).
35. Careen Shannon, Regulating Immigrant Legal Service Providers: Inadequate Representation and Notario Fraud, 78 FORDHAM L. REV. 577 (2009). Other pro bono representation projects are active around the country.
36. For example, there are projects in Houston, see ABA, South Texas Pro Bono Asylum Representation Project (ProBAR), http://www.abanet.org/publicserv/immigration/probar.shtml (last visited Mar. 20, 2010).
37. San Diego, see ABA, Immigration Justice Project of San Diego, http://new.abanet.org/Immigration/Pages/ImmigrationJusticeProject.aspx (last visited Mar. 20, 2010).
38. Florida, see Fla. Immigrant Advocacy Ctr., Mission Statement, http://www.fiacfla.org/mission.php (last visited Mar. 20, 2010).
39. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2008 ANNUAL REPORT OF THE DIRECTOR 84 tbl.B-1 (2008), available at http://www.uscourts.gov/judbus2008/JudicialBusinespdfversion.pdf (showing that 2,327 cases were disposed of by consolidation and that a handful of procedural terminations involved cross appeals).
40. Characterizing easy cases as those with "one obvious outcome under the law".
41. See ADMIN. OFFICE OF THE U.S. COURTS,. Original proceedings are principally petitions for various writs that originate in the courts of appeals and petitions to file second or successive habeas corpus petitions under 28 U.S.C. § 2244(b)(3)(A).
42. Describing specialized courts' substantive and procedural rules as a mechanism of ex ante congressional control.
43. Explaining that single-member decisions increase the probability of errors, subjective biases, and inconsistency.
44. This figure is calculated based on data in ADMIN. OFFICE OF THE U.S. COURTS.
45. A Second Circuit judge estimated that between 15 and 20 percent of BIA appeals receive oral argument. Robert A. Katzmann, J., U.S. Court of Appeals for the Second Circuit, Remarks at the Brookings Institution's Judicial Issues Forum: Immigration and the Courts 56 (Feb. 20, 2009), available at http://www.brookings.edu/~/media/Files/events/2009/0220_immigration/20080220_immigration.pdf.
46. One Ninth Circuit judge said there is oral argument in "less than 20%" of BIA appeals, Immigration Litigation Reduction: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 182 (2006) (letter of Sidney R. Thomas, J., U.S. Court of Appeals for the Ninth Circuit), available at http://www.access.gpo.gov/congress/senate/pdf/109hrg/28339.pdf, and another said approximately 10 percent "proceeded to merits panels of three judges" in 2005, id.at 51 (statement of Carlos T. Bea, J., U.S. Court of Appeals for the Ninth Circuit).
47. See ADMIN. OFFICE OF THE U.S. COURTS, (citing 8,983 cases terminated after oral hearing, out of 29,608 total cases terminated on the merits).
48. U.S. Courts, Judicial Vacancies, http://www.uscourts.gov/judicialvac.cfm (last visited Mar. 20, 2010).
49. U.S. Courts, Work of Senior Judges Provides Much Help, http://www.uscourts.gov/newsroom/2010/SeniorJudges.cfm (last visited Mar. 20, 2010).
50. ADMIN. OFFICE OF THE U.S. COURTS.
51. See PATRICIA LOMBARD & CAROL KRAFKA, FED. JUDICIAL CTR., 2003-2004 DISTRICT COURT CASE-WEIGHTING STUDY: FINAL REPORT TO THE SUBCOMMITTEE ON JUDICIAL STATISTICS OF THE COMMITTEE ON JUDICIAL RESOURCES OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 9-21 (2005) (discussing the goals and limitations of a method for calculating district case weights to replace the outdated set then in use).
52. But see WILLIAM O. JENKINS, U.S. GOV'T ACCOUNTABILITY OFFICE, NO. GAO-09-1050T, FEDERAL JUDGESHIPS: THE GENERAL ACCURACY OF DISTRICT AND APPELLATE JUDGESHIP CASE-RELATED WORKLOAD MEASURES 3-4 (2009) (arguing that the methodology used to estimate judicial case weights was inadequate).
53. Federal Judgeship Act of 2008: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 427 (2008) (statement of George Z. Singal, C.J., U.S. District Court for the District of Maine).
54. See Civil Justice Expense and Delay Reduction Plans, Pub. L. No. 101-650, 104 Stat. 5089 (1990) (codified in scattered sections of the U.S.C.).
55. E.g., 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 312, 116 Stat. 1758, 1786-88 (2002) (codified as amended at 28 U.S.C. § 133 (2006)) (adding additional permanent district judgeships for, among other districts, the Western District of Texas, as well as additional temporary district judgeships for, among other districts, the District of Arizona, the District of New Mexico, and the Eastern District of Texas).
56. Federal Funding, Fiscal Year 2001, Pub. L. No. 106-553, § 305, 114 Stat. 2762, 2762A-84 to -85 (2000) (codified as amended at 28 U.S.C. § 133 (2006)) (adding additional district judgeships for, among other districts, the District of Arizona, the District of New Mexico, and the Western District of Texas).
57. See Federal Judgeship Act of 2009, S. 1653, 111th Cong. (2009).
58. Federal Judgeship Act of 2009, H.R. 3662, 111th Cong. (2009).
59. For the most recent enactment, see Statutory Pay-As-You-Go Act of 2010, Pub. L. No. 111-139, tit. I, 124 Stat. 8 (codified in scattered sections of 2 U.S.C.).
60. The Justice Department data I used are available at http://www.justice.gov/jmd/2011justification/, under the heading Administrative Review and Appeals, which embraces EOIR and the Office of the Pardon Attorney. The pardon attorney budget, however, is so small- around two million dollars of a roughly three-hundred-million-dollar budget-as to have no discernable impact on my estimates, and I eliminated pardon attorney costs whenever they were specified. The Word document ("fy11-ara justification.doc") provides some structural information. The Excel spreadsheet ("fy11-ara justification-exhibits.xls") provides, at Exhibit I, "Detail of Permanent Positions by Category," information on the number of attorneys, paralegals, and other employees within the EOIR. Exhibit L, "Summary of Requirements by Object Class," identifies how much the EOIR planned to spend in 2010 in various expense categories, such as rent payments to the General Services Administration, "[o]ther services" (that is, contractors, such as, I assume, translators), and equipment maintenance.
61. My Excel spreadsheets with these cost estimates are on file with the Duke Law Journal. Russell R. Wheeler, EOIR CAI Budget Estimate (Jan. 13, 2010) (unpublished spreadsheet, on file with the Duke Law Journal). Thanks to Norman Baker of the Federal Judicial Center for calling my attention to sources used in these cost estimates.
62. Telephone Interview with Penny Fleming, Chief, Financial Liaison & Analysis Office, Admin. Office of the U.S. Courts (Jan. 14, 2010). To be precise, the estimates are $980,000 for a circuit judgeship and $981,000 for a district judgeship.
63. This document, on file with the Duke Law Journal, presents backup information to support the judicial branch's annual appropriations request. I used information at page 10 of the "Summary" ("Comparative Summary of Obligations by Object Classification"), and at page 5.9 ("Summary of Personal Compensation and Benefits by Activity").
64. Stephen H. Legomsky, Second Draft of Proposed Bill for Restructuring Immigration Adjudication § 3(a) (Jan. 14, 2010) (unpublished manuscript, on file with the Duke Law Journal) (proposing amendments to section 242 of the INA).
65. See 28 U.S.C. § 332(a)(1) (2006) (creating judicial councils "consisting of the chief judge of the circuit, who shall preside, and an equal number of circuit judges and district judges").
66. Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48, 59 (1955) (Frankfurter, J., concurring).
67. See Responding to the Growing Need for Federal Judgeships: The Federal Judgeship Act of 2008: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 90, 92 (2008) (statement of William O. Jenkins, Director, Homeland Security and Justice, U.S. Government Accountability Office) (stating that "there is no empirical bases or [sic] assessing the potential accuracy of adjusted case filings as a measure of case-related judge workload"-the measure upon which the Judicial Conference based its recommendation).
68. Discussing Senator Specter's proposal.
69. U.S. Courts.
70. "Only a relatively small percentage of immigration judge decisions are appealed to the BIA.".
71. "No matter how much trust a given attorney general might inspire among subordinates, the genie is now out of the bottle.... [A]ny action the DOJ takes to restore the adjudicators' job security can be undone at any time by a successor administration or a successor attorney general.".
72. Stacy Caplow, ReNorming Immigration Court, 13 NEXUS 85, 87 (2008).
73. Fed. Admin. Law Judges Conference, What Is FALJC?, http://005754d.netsolhost.com/faljc1.html (last visited Mar. 20, 2010). Thanks to Governance Institute research fellows Jerry Richman and Dominic Nardi for information on administrative judges.
74. Michael Asimow, The Spreading Umbrella: Extending the APA's Adjudication Provisions to All Evidentiary Hearings Required by Statute, 56 ADMIN. L. REV. 1003, 1008 (2004).
75. Veterans Law judges averaged 729 cases per judge; Social Security Administration ALJs averaged 544 cases per judge. COMM'N ON IMMIGRATION, ABA, REFORMING THE IMMIGRATION SYSTEM: EXECUTIVE SUMMARY, at ES-28 (2010), available at http://new.abanetorg/Immigration/Documents/ReformingtheImmigrationSystemExecutiveSummary.pdf.
76. examining forms of specialization within the judicial branch.
77. Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469 (2007).
78. Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 DUKE L.J. 1563 (2010).
79. NAT'L CONFERENCE OF JUDICIAL COUNCILS, MINIMUM STANDARDS OF JUDICIAL ADMINISTRATION: A SURVEY OF THE EXTENT TO WHICH THE STANDARDS OF THE AMERICAN BAR ASSOCIATION FOR IMPROVING THE ADMINISTRATION OF JUSTICE HAVE BEEN ACCEPTED THROUGHOUT THE COUNTRY, at xxi (Arthur T. Vanderbilt ed., 1949).
80. See COMM'N ON STANDARDS OF JUDICIAL ADMIN., ABA, STANDARDS RELATING TO COURT ORGANIZATION (1974).
81. See 1 JUDICIAL ADMIN. DIV., ABA, STANDARDS OF JUDICIAL ADMINISTRATION: STANDARDS RELATING TO COURT ORGANIZATION (1990).
82. See 2 JUDICIAL ADMIN. DIV., ABA, STANDARDS OF JUDICIAL ADMINISTRATION: STANDARDS RELATING TO TRIAL COURTS (1992).
83. 1 JUDICIAL ADMIN. DIV.
84. "All judges throughout the system should have a voice in policymaking.... ".
85. COMM'N ON IMMIGRATION.
86. NAT'L CTR. FOR STATE COURTS, TRIAL COURT PERFORMANCE STANDARDS (2010), http://www.ncsconline.org/D_Research/TCPS/index.html.
87. See Richard Y. Schauffler, Judicial Accountability in the US State Courts: Measuring Court Performance, 3 UTRECHT L. REV. 112, 113, 118-19 (2007) (explaining the political context surrounding the push toward performance measurement in state courts).
88. NAT'L CTR. FOR STATE COURTS.
89. Courts' constituencies include "the vast majority of citizens and taxpayers who seldom experience the courts directly," "opinion leaders," "citizens who appear before the court," judges and court employees, and lawyers "who may have an 'inside' perspective on how well the court is performing.".
90. The remaining two measures-"Collection of Monetary Penalties" and "Effective Use of Jurors"-have no applicability to immigration courts. See Nat'l Ctr. for State Courts, CourTools, http://courtools.org (last visited Mar. 28, 2010).
91. For evidence of the use of CourTools, see the site links for "State/County Specific," Nat'l Ctr. for State Courts, Performance Measurement Resource Guide, http://www.ncsconline.org/WC/CourTopics/ResourceGuide.asp?topic=CtPerS#639 (last visited Mar. 20, 2010), and see also, for example, Utah State Courts, Utah Court Performance Measures, http://www.utcourts.gov/courtools/ (last visited Mar. 20, 2010).
92. BRIAN J. OSTROM ET AL., TRIAL COURTS AS ORGANIZATIONS (2007).
93. For a graphical summary of the attributes that Ostrom and his colleagues associate with these archetypes.
94. INT'L CONSORTIUM FOR COURT EXCELLENCE, INTERNATIONAL FRAMEWORK FOR COURT EXCELLENCE 2, 4, 26 (2008), available at http://www.courtexcellence.com/pdf/IFCEFramework-v12.pdf.
95. See U.S. Dep't of Justice, ACIJ Assignments: Dec. 2009, http://www.justice.gov/eoir/sibpages/ACIJAssignments.htm#ACIJ (last visited Mar. 20, 2010) (listing the ACIJs and their court assignments).
96. Listing ACIJ assignments with EOIR, (listing immigration judges by court).
97. COMM'N ON IMMIGRATION
98. COMM'N ON IMMIGRATION.
99. See TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, IMMIGRATION COURTS: STILL A TROUBLED INSTITUTION (2009), http://trac.syr.edu/immigration/reports/210/(detailing Government Accountability Office criticism of the attorney general's ACIJ "[p]ilot [p]rogram [t]o [d]eploy [s]upervisors to [r]egional [o]ffices").
100. STEVEN FLANDERS, FED. JUDICIAL CTR., NO. FJC-R-77-6-1, CASE MANAGEMENT AND COURT MANAGEMENT IN UNITED STATES DISTRICT COURTS 78 (1977).
101. 2 JUDICIAL ADMIN. DIV.
102. Noel Brennan, A View from the Immigration Bench, 78 FORDHAM L. REV. 623, 627 (2009). Judge Brennan is an IJ at the main immigration court in New York City.
103. INT'L CONSORTIUM FOR COURT EXCELLENCE.
104. Rebecca Kourlis & Jordan Singer, A Performance Evaluation Program for the Federal Judiciary, 86 DENV. U. L. REV. 7, 10 n.9 (2008).
105. See SPECIAL COMM. ON EVALUATION OF JUDICIAL PERFORMANCE, ABA, GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE (1985). The Guidelines were reaffirmed in 2005. See ABA, BLACK LETTER GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE (2005), available at http://www.abanet.org/jd/lawyersconf/pdf/jpec_final.pdf.
106. "Guideline 2-3. The uses of judicial performance evaluation do not include judicial discipline. The information developed in a judicial evaluation program should not be disseminated to authorities charged with disciplinary responsibility, unless required by law or by rules of professional conduct.".
107. Discussing the BIA's emphasis on productivity.
108. Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002) (striking down, as violating the First Amendment, an ethics code that prohibited judicial candidates from announcing their views on disputed issues).
109. See, e.g., Terry Carter, The Big Bopper: This Terre Haute Lawyer Is Exploding the Canons of Judicial Campaign Ethics, A.B.A.J., Nov. 2006, at 30, 34 (2006) (discussing "the use of interest-group questionnaires being sent to judges up for retention or re-election and to their challengers").
110. COMM'N ON IMMIGRATION.
111. These calculations are based on the 224 judges listed on the EOIR website under Immigration Courts Nationwide and on receipt and other data reported in the EOIR 2008 Statistical Year Book.
112. REINHOLD NIEBUHR, THE CHILDREN OF LIGHT AND THE CHILDREN OF DARKNESS 118 (1944).