Keep the Federal Judiciary Out of the Budget Battle

The shutdowns could have broken the third branch

By

THE historic budget conflict between the two political branches of the government has exposed a systemic flaw in the appropriations process for the nonpolitical third branch. The federal judiciary's funding for fiscal year 1996 was entangled with executive branch allocations in HR 2076, the Commerce, Justice, State, and Judiciary Appropriations Bill. The independent judicial branch was treated as simply one more federal agency in the bill passed by Congress and vetoed by the president last December.

The US Judicial Conference, lead by Chief Justice William Rehnquist and administrative office director Ralph Mecham, managed to keep federal courts functioning during the government shutdowns by tapping reserve funds and furloughing most administrative staff. In early January, however, the conference's executive committee publicly warned that the judiciary would run out of money on or about Jan. 21. Although judges whose positions are established by Article III of the Constitution would have stayed on the job during a federal court shutdown, and essential judicial employees would have been required to stay on the job with the promise of future pay, contract court security officers and court reporters could not have been forced to serve without pay.

And unless judges had forced citizen jurors to serve without pay under penalty of punishment, the Judicial Conference cautioned, judges would not have been able to conduct jury trials. Moreover, injunctive orders against violations of the law (including constitutional violations) might have gone unenforced. The conference feared a "breakdown in our system of constitutional order and law enforcement."

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In a letter to top congressional leaders dated Jan. 5, the conference further detailed the severe costs of the "potential shutdown of the Federal Court system." The conference warned that public safety would be seriously impaired if funds ran out to support the activities of the judiciary's probation offices, which supervise the 114,000 convicted criminals who are on release. The conference reminded Congress that each month an average of 4,500 individuals are charged with federal felonies, and that if speedy criminal trials are not conducted, felony defendants must be released into the community.

The conference also expressed concerns about "undetected guns, explosives, or other weapons getting into the courthouses." It stated emphatically that "judges, especially those in high-risk areas, will not jeopardize the safety of court personnel, jurors, witnesses, and the public by holding trials in the absence of proper security."

In a separate communique to courthouses across the nation, the judicial leaders encouraged US judges individually to contact and lobby their representatives in Congress for funding. Our national judges thus were encouraged to participate in a separation-of-powers phone-a-thon to raise money for their branch of government. The lobbying was immediately successful: President Clinton signed a potpourri appropriations bill "targeting" a variety of essential services for funding. The national courts are now funded through Sept. 30, along with passport offices, national parks, and other noncontroversial programs.

That Congress and the president ever would have allowed the co-equal judicial branch to be held hostage to budget negotiations is astonishing. Congress should extricate the judiciary from all future political budget controversies by instituting a separate judiciary appropriations process, beginning with the imminent 1997 budgeting cycle.

For the political branches to have involved the federal courts in the budget battle is curious considering that our federal judiciary is an absolute bargain. The federal court system consumes only two-tenths of 1 percent of the entire annual federal budget - less than the cost of building and maintaining one stealth bomber.

The aborted federal judicial shutdown occurs at a time when America's national court system has problems aplenty. For the past several years, our 846-member federal judiciary has struggled to serve a nation of 264 million people while enduring chronically high judicial vacancy rates and substantial increases in civil and criminal case loads. Civil litigants are left in queues for years, even as a shadow judiciary of law clerks, staff attorneys, and magistrates usurps Article III judicial authority. Gridlock is certain to worsen for civil litigants as criminal prosecutions increase.

An ongoing debate over the future of the federal court system has many judicial leaders, such as Second Circuit Chief Judge Jon O. Newman and the Judicial Conference's long-range planning committee, advocating a sharp curtailment of federal court jurisdiction as a way of avoiding a significant increase in the membership of their judicial lodge. In contrast, I have argued for a top-to-bottom remodeling of our national houses of justice, including a substantial expansion in the number of federal judges and the formal specialization of our federal courts, beginning with the creation of a separate federal criminal court system.

Reasonable people may disagree about the future jurisdictional scope and organizational structure of the federal judiciary, just as politicians may honorably disagree about the appropriate way to spend $12 trillion tax dollars over the next seven years. The orderly functioning of the nonpolitical third branch, however, should not be held hostage to future political disputes over spending.

A free-standing judiciary appropriation process should be implemented by Congress for 1997 and all future fiscal years. Especially in times of political revolution and economic prioritization, the political branches must guarantee the historic promise made by King John in our antecedent constitutional charter, the Magna Carta: "To no one will we deny or delay right or justice."

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