As a member of the Senate Judiciary Committee, Senator Mike DeWine is aware that no new federal appeal positions have been created since 1990, but there has been a 34% increase in caseload. As caseloads increase the time to read the volumes of briefs becomes scarce and federal judges rely on the law clerks to summarize the documents for them. BUT that simple transfer of power has grave ramifications. The federal court system is relying on the ability of entry level attorneys, to properly comprehend, evaluate, and summarize mountains of citations to case law, codes of legal procedures, and the importance of the material facts of the case. Given the weight of a decision coming out of our federal judiciary, which is a very tall order for any first or second year attorney to fill.
Now add the fact that there are currently 55 vacancies listed on the federal bench and there can be little doubt that our system of justice is suffering. Congress does not understand that point, or simply doesn’t care as long as political mileage can be made over the inherent haggling in the confirmation process.
The culpability of the Congress continues with the budget process:
It appears Congress will approve a 4.7 percent increase over the $4.88 billion appropriation received in FY 2003. Due to fixed mandatory expenses such as judicial salaries and rents paid for federal courthouses, it would require a 7.3 percent increase just to stay even. The Judicial Branch may have to release employees and make other spending cuts as a result. (Link
Please remember that the Judiciary's budget represents about 2 tenths of 1% percent of the overall federal expenditures. The difference between the Judiciary’s requested 7.3% and the expected Congressional approval of 4.7% is approximately $125 million dollars. Now compare the number with the identified “pork barrel” spending of our Congress in the same year:
This year's total reveals that Congress porked out at record levels. The cost of these projects in fiscal 2003 was $22.5 billion. (Link)
Congress does not find the need to fully fund our Judiciary or create the needed judgeships to handle the burgeoning caseload, but certainly can find the moneys necessary to send the pork home in an effort to buy votes. The “pork barrel” funding for FY2003 was more than 187 times the amount Congress denied our Federal Judiciary.
The shortfall represents a loss not for a single government agency BUT one complete branch of government established by our Constitution. A complete branch of government charged with being the guardians of the Constitution because their rulings protect individual rights and liberties guaranteed by that important document. The federal courts are to interpret and apply the law to resolve disputes, but can’t do so properly if the workload must be pushed down to un-appointed and relatively inexperienced law clerks.
Since our legal structure is based upon the logic of the English common law system, a basic feature is the doctrine of precedent under which judges use the legal principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. If law clerks are summarizing for our appointed federal judges and insert their own bias into the summary, established case law becomes flawed and future rulings are based upon the judgment originated by non-appointed, non-confirmed law clerks. The impact on our daily lives by Federal case law requires that “we the people …” demand a better judiciary.
Congress is demonstrating contempt for our legal system. Not only do they fail to fill vacancies on a timely basis and fail to increase the judgeships to match the increasing caseload, but they fail to provide the necessary funding so Congress can promote their own individual “pet” projects. Justice is not being served, and as a result justice is not being delivered – Mike DeWine knows it, yet fails to speak out.
William G. Pierce, P.E.
