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What authority do Judge Bates’s letters have?

District Judge John Bates is the head of the Administrative Office of the U.S. Courts, which oversees various matters related to the federal judiciary. But lately there has been some controversy about the extent to which that post gives him authority to speak for a broader group of judges.

On Aug. 5, Judge Bates sent a letter to Congress strongly opposing various reforms to the FISA Court “on behalf of the judiciary.” Steve Vladeck questioned whether Bates really did speak on the judiciary’s behalf. Now Chief Judge Alex Kozinski of the Ninth Circuit has sent out his own letter disclaiming Judge Bates’s views:

… having had no opportunity to deliberate with the other members of the Judicial Conference, I have serious doubts about the views expressed by Judge Bates. Insofar as Judge Bates’s August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.

The exchange reminded me of something I had seen earlier this week, which raises a different, but not unrelated issue. The executive branch is launching a new pardon initiative and has asked for assistance from defense attorneys, as have various inmates seeking to be represented. In a letter, Judge Bates released an opinion written by the general counsel of the Administrative Office which argues that “there is no authority under the [Criminal Justice Act] or any other provision of law for courts to appoint federal defenders or CJA panel attorneys to represent non-capital clemency applicants under the new Executive Branch initiative.” The opinion also concludes that federal defenders can be detailed to the Office of the Pardon Attorney itself, but only if the office fully reimburses the defenders’ office for their salaries.

I don’t have any reason to believe that this letter has the same problem as the one Chief Judge Kozinski complained about, but there is a different authority issue here. The individual appointments are made by federal courts around the country, and so far as I know they are not obligated to follow the AO’s view of the law. (The letter describes the opinion as being “provided for your information in considering appointments.”) The opinion’s interpretation of the governing federal law seems plausible, but not entirely obvious, and so it makes me wonder whether it would be good to have some other organization or respected person write a counter-opinion so that judges considering appointments do not assume they have no alternative.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).



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