The constitutional design of our federal government requires an independent judicial branch to serve as a check on the executive and legislative branches.  That constitutional design, embodied in the separation of powers and dependent upon an independent federal judiciary is now being threatened by the automatic budget cuts to the judicial branch mandated by the Budget Control Act of 2011.  The framers of the Constitution did not contemplate that our three branches of government would operate completely independent of one another.  However, implicit in the constitutional design of the federal government is the obligation to adequately fund the judicial branch to fulfill its constitutional role.  Unfortunately, however, we are nearing the point where additional funding cuts to the judicial branch will hamper its ability to carry out its constitutionally-assigned functions.  

In his 2012 year-end report, Chief Justice John Roberts explained the federal judicial branch stands in a markedly different position from the other branches of government when it comes to mandated funding cuts:

Virtually all of the Judiciary’s core functions are constitutionally and statutorily mandated.  Unlike executive branch agencies, the courts do not have discretionary programs they can eliminate or projects they can postpone.  The courts must resolve all criminal and civil cases that fall within their jurisdiction, often under tight time constraints.  A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.  

The sequester will require the federal judiciary to cut $332 million dollars, or approximately 5% from its operating budget for the current fiscal year.  Complicating the problem is that current fiscal year ends on September 30th, and the federal government was already five months into its fiscal year when the sequester went into effect.  

The Administrative Office of the United States Courts recently imposed emergency cost-cutting measures throughout the federal court system as a result of the sequester.  Those measures include a possible suspension of civil jury trials in September, a 30% cut in funding for court security systems and equipment, as well as a reduction in the hours worked by court security officers.  Additionally, up to 2,000 employees could be either laid off or face mandatory furloughs during the remainder of this fiscal year.  These staffing cuts would be in addition to the loss of 1,800 court staff over the last 18 months.  

The federal judiciary was already severely underfunded before sequestration’s mandated budget cuts went into effect.  For 2012, the federal judicial branch’s fiscal appropriation amounted to two-tenths of one percent of the total federal budget.  That means for every dollar of tax revenue received by the federal government, less than two-tenths of a penny was spent on our judicial branch.  

Under its decentralized management system, each federal court has some discretion over how the required funding cuts will be implemented.  So, for instance, several months ago the Chief Judge of the United States District Court for the Northern District of Illinois announced that if the sequester went into effect he would be forced to close the federal courts in Chicago and Rockford one day a week until the end of September.  In the Southern District of New York, the Chief Deputy Clerk recently explained that the District’s Bankruptcy Courts have started to re-use the blank sides of legal briefs as copier paper so that money normally spent on office supplies can be used for wages and salaries of court staff.  This is just the start of the sequester’s impact on the operations of the federal court system.

We may not feel the full squeeze of the budget sequester immediately, but the longer it remains in place, the greater will be its impact on those who seek access to justice.  The size of the automatic cuts mandated by the sequester increases in future years.  Sequestration threatens the protection of fundamental constitutional rights by hampering the ability of federal courts to protect those rights and deliver justice in a timely manner.  Backlogs and delays are now inevitable.  Federal speedy-trial requirements in criminal cases means those matters will be given priority over civil lawsuits.  Citizens seeking to vindicate their constitutional rights and businesses hoping for a timely resolution of complicated disputes will be put on hold.  

Access to justice, an independent federal judiciary, and the separation of powers may seem like abstract concepts. However they are the bulwarks on which our federal court system was built.  In a democracy, justice simply cannot be treated as an expendable luxury in tough economic times.  As one court explained:

[T]he availability of constitutional rights does not vary with the rise and fall of account balances in the Treasury.  Our basic liberties cannot be offered and withdrawn as “budget crunches” come and go, nor may they be made contingent on transitory political judgments regarding the advisability of raising or lowering taxes, or pragmatic or tactical decisions about how to deal with the perennial problem of the national debt.  In short, constitutional rights do not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. Rather, our constitutional rights are fixed and immutable …. The constitutional mandate that federal courts provide civil litigants with a system of civil jury trials is clear.  There is no price tag on the continued existence of that system, or on any other constitutionally-provided right. (Armster v. U.S. Dist. Court for the Cent. Dist. of Cal. 792 F.2d 1423, 1429 9th Cir. 1986.)

Under our democratic system of government, the federal courts stand as the guardian of the rights of all citizens.  Because the sequester threatens the ability of our federal courts to protect the rights of citizens, and to serve as an effective check on the legislative and executive branches of federal government, we are seeing the first signs of a constitutional crisis looming on the horizon.  Critical to the ordered liberty of American democracy is an independent judiciary.  That independence is now challenged by mandatory budget cuts.  If the legislative and executive branches of the federal government refuse to fund the federal judiciary to a level needed to adequately fulfill its constitutional function, then the separation of powers mandated by our Constitution will be fractured.

Steven Puiszis is a member DRI’s Board of Directors and Chair of the DRI Judicial Task Force.  He is a partner in the Chicago office of Hinshaw & Culbertson LLP.  He was Editor of DRI’s latest publication on judicial independence, Without Fear or Favor in 2011, available at:
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Merit Selection Under Attack

Posted on March 10, 2011 08:42 by Steven Puiszis

Many states around the country select judges through a merit selection process.  While the process can vary between states, typically a nominating commission comprised of both attorneys and non-attorneys screen judicial candidates and make a recommendation to the governor, or in some instances the legislature, concerning the judicial candidates.  While no judicial selection system is perfect, merit selection eliminates the need for judicial candidates to initially run for election, which in turn eliminates the need to campaign and fundraise.  At some point merit selection judges may have to for retention, but historically retention elections have drawn less attention and partisanship than contested judicial elections.

Since 1913, the American Judicature Society (“AJS”) has promoted sound merit selection systems throughout the country.  Recently they issued an “action alert” because merit selection systems are under a “sustained and coordinated attack across the country.”  In their action alert, they note that bills are pending in Arizona, Florida, Hawaii, Missouri, Kansas, New York, Oklahoma and Tennessee to significantly modify or eliminate merit selection plans entirely.  A copy of the AJS action alert can be found at: ActionAlert.pdf.  The alert includes links to all of the pending bills in each state which challenge the state’s merit selection process. 

Later this month, DRI’s Judicial Task Force will be publishing a report entitled Without Fear of Favor in 2011, A New Decade of Challenges to Judicial Independence and Accountability, which details the various challenges to judicial independence caused by partisan judicial elections,  As the Task Force notes in that report:

Any good trial attorney knows that in a courtroom, perception becomes reality and that maxim holds true for our legal system.  The public’s perception of the fairness of our courts is a direct correlation to its confidence in the American justice system and its respect for our rule of law.  If the public’s perception of the fairness of our courts is ever lost, immeasurable damage will result to our legal system and the rule of law in our country.

Harsh attack ads and major fundraising efforts that have become the norm in partisan judicial elections are harming the public’s perception of the fairness of our judicial system.  The organized defense bar, long a champion of level playing fields and fair court systems must concern itself with these issues.  If you practice in one of the states where merit selection is under attack, there are certain things that you can do.  Make your views known to your legislators.  As the AJS action alert aptly notes, it is of vital importance to keep money, partisan politics, and the influence of special interests out of the judicial selection process.  Also consider writing an op-ed piece or a letter to the editor defending merit selection in your home state.
Members of the defense bar are in an ideal position to protect the system of justice and the independence of the judiciary.  We must begin to do so before the concept of judicial independence is mortally wounded.

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Categories: Judges | Judicial Selection

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