Federal Court Crisis

Posted in: Trial Practice by Daniel O. Jamison on

President Trump, Congress must fill critical vacancies for judges in federal courts

The following op-ed with headline below was originally published online by The Fresno Bee on August 3, 2018:

Enamored of the Declaration of Independence and acting against the orders of the French king, the 20-year old Marquis de Lafayette in 1777 left France and his pregnant wife for America to join Washington’s army. He wrote to his wife on the boat to America, “The happiness of America is intimately connected with the happiness of all mankind; she is destined to become the safe and venerable asylum of virtue, of honesty, of tolerance and of peaceful liberty.” America’s revolutionary ideals of individual liberty and equality some 11 years later were sheltered in the Constitution’s three co-equal branches of the national government.

The three branches – legislative, executive and judicial – counter-balance each other so that no one branch or person can become a tyrant. Through the power of the purse, Congress counterbalances the executive and judicial branches; through the power to execute or not execute Congress’s laws and the executive’s control of the military, the executive counterbalances Congress and the courts; through its power to decide disputes and whether a law is constitutional, the judiciary counterbalances both Congress and the executive.

Faith in American ideals and values underpins this system. This faith rests on knowledge of how and why the system was created this way, how it has evolved, and the history of the people who have sacrificed for it. What would happen if the president refused to comply with a court order? The marshals of the judiciary are no match for the executive’s army. What happens if Congress decides not to create and fund new federal courts and decides not to fund the existing courts?

Today the system is in danger of collapsing, starting with the judiciary. There are 677 federal district court judgeships, overseen by 11 federal Courts of Appeals, with the Supreme Court on top. As of this past week, there were 131 vacancies in the district courts, with 76 nominees pending. Over half of the vacancies are judicial emergencies due to the number of cases per judge and the need for more judges.

The district courts are the workhorses of the system. Federal criminal trials occur here; trials of major noncriminal cases, such as civil rights violations, water disputes, and antitrust, occur here. These courts cannot function without an adequate number of judges and funding. Faith in the system requires that legislators and the executive put partisanship aside and exercise their constitutional responsibility to make sure the courts are there and open. Imagine the crisis were the courts to order that 18 Senators of the 100-member Senate not be seated or 75 of the 435-member House of Representatives not be seated.

As a glaring example affecting Sacramento, Stockton, Modesto, Fresno and Bakersfield, among others, on June 19, 2018, the judges of the District Courts for the Eastern District of California by letter notified senators and congressional representatives of the “current crisis and an upcoming exacerbation of that crisis that will have…catastrophic consequences if left unaddressed.” This huge district covers 55 percent of the land mass of California and serves a population of more than 8 million. It currently has six district judges and three senior district judges. Each district judge handles an average caseload of 900, more than double the nationwide average. Two of the six will retire in the next 19 months; one of the three senior judges will also retire. One senior judge is 80 years old and the other is no longer taking criminal cases and maintains a 50 percent civil case load.

The last new judgeship for this district was created in 1978 when the district’s population was 2.5 million. The remaining four district judges will be overwhelmed. Access to the courts for noncriminal business and citizen disputes will cease. These judges beg for an emergency bill in Congress to create additional judgeships.

They are not alone. Congress must act. The president, who nominates federal judges, and the Senate, which approves nominations, must act.

This is not how the system was intended to function. Improved history and civics education for citizens in general and members of government in particular is crucial. We owe at least that much to the memory of Lafayette.

To see June 19, 2018 Letter from the Judges to Legislators, click here.

Citizens are urged to write, e-mail, call or visit their Representatives and our Senators.  For possible contents of a form of communication with Legislators and for contact information, click here.

For contact information for Senate Judiciary Committee, click here.

For contact information for House Judiciary Committee, click here.

For Congressional member contacts, click here.

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