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The story that had been told yesterday was that the Hon. John Roll, Chief Judge of the Federal District of Arizona, died because he just happened to choose to make a social visit a friend and colleague in government, Rep. Gabrielle Giffords, when she stopped by near his neighborhood to meet constituents.

We now know that that story was incorrect, or at least highly incomplete.

Judge Roll was friendly with Rep. Giffords, it is true, and was there to express his appreciation, but fundamentally he was there on business.  The excellent liveblog of the day's developments in the New York Times links to the criminal complaint brought against Jared Loughner, which describes how Judge Roll was there to discuss the problem of docket congestion -- that there are too few federal judges for the volume of federal cases now being brought.

The PDF of the complaint sets forth the basics:

Judge Roll "had worked with Congresswoman Giffords within the last several months to resolve issues related to the volume of cases filed in the District of Arizona.  Judge Roll was notified about Congresswoman Giffords' event telephonically on or about January 7, 2011. ... Judge Roll attended the event and ... expressed his appreciation to [staff person Ron] Barber for the help and support that Congresswoman Giffords had given.  ... [In] a digital surveillance video depicting the events at the Safeway, ... judge Roll is seen speaking for several minutes with Mr. Barber."

The backstory was presented yesterday to the New York Times by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, the appellate court above the District of Arizona:

On Dec. 21, Judge Roll sent an e-mail to Judge Kozinski with an attached letter from Ms. Giffords and another member of Congress from Arizona, Ed Pastor, a Democrat. The two members of Congress encouraged the Ninth Circuit to "declare a judicial emergency" to help cope with the increased workload by extending deadlines under the Speedy Trial Act. In the e-mail, Judge Roll wrote that the Congressional letter was "unsolicited but very much appreciated."

Judge Kozinski speculated — "just a guess," he said — that Judge Roll might have gone to the event on Saturday to thank Ms. Giffords for the letter. "And he gets killed for it."

I'm not happy about the vitiation of the Speedy Trial Act, the statute that is supposed to ensure the "the right to a speedy and public trial" found in the Sixth Amendment of the Constitution.  It is, however, one of the solutions that reasonable people come up with when placed in a bad situation where something has to give.  Either you're going to let dangerous people go because you can't try them in time -- something that primarily hurts those in the communities around them -- or you're going to let constitutional rights slide, or you're going to solve the problem.  Congress would not solve the problem; the other two choices are both bad.

Docket congestion is caused by too many cases and too few judicial resources.  The former may be a function of factors including too many laws, too harsh enforcement of those, and too many civil cases being filed.  As to the latter, a major judicial resource is judges.  And, as most people who follow the issue know, the shortage of federal judges on the bench these days in partly a function of one controllable factor: the Congress has approved a lower rate of Obama's nominees than for any other recent President.

From the Brookings Institute PDF above:

President Obama, in the 111th Congress (2009-10), had a 60-40 Democratic Senate  majority for about half the term, then 59-41 (counting, as Democrats, Independents who caucused with the Democrats). President Clinton, in the 103rd Congress (1993-94) had a 57-43 Senate Democratic majority. President Bush faced a 51-49 Democratic  Senate majority for most of the 107th Congress (2001-02).

As to outcomes:

Obama essentially matched Bush, but not Clinton, on court of appeals (or
“circuit” or “appellate”) confirmations, but had less success than either
Clinton or Bush on district judge confirmations, both as to confirmation
rates and time from nomination to confirmation

This is not a partisan issue: even Chief Justice Roberts chimed in a week ago to note the "urgent need" for speedier confirmations in the face of an "acute crisis" in several judicial districts.  Arizona, with it's high load of immigration cases, is among them.

John Roll did not die because Congress wasn't approving Obama's judges -- let's be very clear that I am not saying that.  He could have gone to see Rep. Giffords purely for social reasons.  But, in fact, he did die trying to solve a problem that derived from a lack of judicial resources -- to which the blockade of Obama appointments contributed.

As Congress considers its reaction to the attempted  assassination of Rep. Giffords last week, it may also want to give some thought to Judge Roll, who died in the course of trying to solve with clever deployment of resources a problem that it could -- and should -- solve simply by voting on qualified nominees to judicial positions it has already funded.

That would be cold comfort to the federal judiciary, no doubt -- but still a fitting tribute to Judge Roll.

Originally posted to Doane Spills on Sun Jan 09, 2011 at 05:21 PM PST.

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