Current Challenges to the Federal Judiciary

• Author: Carolyn Dineen King
• Position: Circuit Judge, United States Court of Appeals for the Fifth Circuit
• Pages: 661-680

Page 661

Circuit Judge, United States Court of Appeals for the Fifth Circuit. Judge King was Chief Judge of the Fifth Circuit and a member of the Judicial Conference of the United States from 1999 to 2006. She was appointed by Chief Justice William H. Rehnquist to be a member of the Executive Committee of the Judicial Conference from 2000 to 2005 and to chair the Committee from 2002 to 2005. Judge King was appointed to the Fifth Circuit by President Carter in 1979.

-Remarks at the Judge Alvin B. and Janice Rubin 2005 Lectures, October 25, 2005, Paul M. Hebert Law Center, Louisiana State University.

Introduction

In the United States, an independent judicial system enjoying the confidence of the citizenry is central to preserving the rule of law. The rule of law, in turn, is the bedrock of both our federal and state judicial systems. I will mention several challenges to the independence of the Judiciary that are operative today and seem, to me at least, to be particularly troubling. I will also talk about some fundamental changes that are occurring in the federal district and appellate courts.

During the nearly seven years that I have been Chief Judge of the Fifth Circuit and a member of the Judicial Conference of the United States, I have been privileged to have a ring side seat on the relations among the three branches of government and particularly on the effects of the political branches on the federal judiciary. I would like to talk about that, beginning with money and moving on to even more important aspects of judicial independence.

I Political Challenges

A Governance and Financing of the Judiciary

First, for background information, let me tell you how the federal judiciary is governed and financed. The federal judiciary is governed by the Judicial Conference of the United States, which is chaired by the Chief Justice of the United States and composed of Page 662 the chief judge from every judicial circuit, a district judge representative from every circuit, and the chief judges of the Federal Circuit and the Court of International Trade-twenty- seven members in all. It meets twice a year, in September and March. Its function is to set the policies by which the Judiciary is governed. Those policies are developed in the first instance by committees of the Judicial Conference composed of circuit, district, magistrate, and bankruptcy judges. Each committee has a specific area of responsibility, for example, the budget, criminal law, information technology, judicial resources, security, space and facilities, and the rules of practice and procedure. The committees meet twice a year and forward to the Judicial Conference recommendations on policies to be adopted by the Conference. The Executive Committee, which I chaired, helps develop the agenda for the Judicial Conference sessions, acts on behalf of the Conference on emergency matters, and adopts the spending plan for the Judiciary shortly before the beginning of each fiscal year.

The Constitution mandates that the powers of the federal government be separated among three independent branches: executive, legislative and judicial.¹ But the Judiciary is financed, like all other parts of the federal government, through appropriations bills passed by Congress and signed by the President. You have heard that the Judiciary does not have the power of the purse. Indeed, it does not; it is dependent for its financial livelihood on Congress and the President. So our independence must always be understood as qualified by our dependence on the other branches for our money. Each year we receive four separate appropriations, which in fiscal 2005 totaled approximately $5.42 billion.² Our principal appropriation is for our Salaries and Expenses account, from which most of our bills are paid.

For many years, our appropriations were adequate to cover not only our existing levels of operations but also the additional manpower, space, and equipment that the ever increasing caseloads required. But beginning about the time of the disappearance of the Page 663 federal budget surplus and the advent of soaring federal budget deficits, the size of the increase in our appropriations over the amounts we received in the prior year began to diminish sharply. Specifically, in the year 2000, when times were good, we received a 9.9% increase in our Salaries and Expenses appropriation over the corresponding 1999 appropriation.³ That percentage increase over the prior year diminished to 7.6% in 2001, 7.2% in 2002, 4.8% in 2003, 4.7% in 2004, and 4.3% in 2005, not a good trend, to say the least.⁴ For fiscal 2004, in which we received the 4.7% increase over the preceding year, we actually needed an increase of over 6% simply to maintain current staff and services, and an increase of 11% to fully fund our increased workload.⁵ The result of the shortfall was that we lost 1,350 staff positions, or 6% of our court staff.⁶

The Judiciary's financial problems are based not only on the declining level of our appropriations but also on the fact that 84% of our expenses consist of two items over which we have little control in the near term. The first of these is the rent which, under federal law, we must pay to the General Services Administration (GSA) for our courthouses and other buildings. In fiscal 2005 that rent, which is a first charge against our appropriation, totaled 22% of our Salaries and Expenses appropriation.⁷ Our personnel costs, which are the other item over which we have little control in the near term, totaled 62% of our Salaries and Expenses appropriation in fiscal 2005.⁸ Our rent has been increasing at the rate of 7% to 7.5% per year, partly as a result of escalation clauses in our leases with the GSA and partly as a result of the addition of new space. Our personnel costs have been increasing at a rate slightly in excess of 6% per year as a result of generous cost-of-living adjustments and pay policies that are government-wide. So, to Page 664 sum up the problem, when your appropriation is increasing at the rate of approximately 4.5% per year but 84% of your expenses are increasing at rates between 6% and 7.5% per year, you have a terrible financial problem.

In September 2004, recognizing that the federal judiciary faces unprecedented funding challenges in the coming years because of the fiscal constraints that Congress faces, the Judicial Conference adopted a major cost containment strategy. We looked at every major component of our expenses, and devised a plan that over the next few years will, if implemented faithfully, substantially reduce the gap between our appropriations and our expenses. But a couple of major components of that plan, including a new compensation policy, remain to be fully developed, and it will take sustained discipline to fully implement the plan over the next few years. Even if we are faithful to the plan, however, there will still be shortfalls, smaller ones to be sure, unless our appropriations improve. Those shortfalls have to come principally out of staffing levels because that is the only major component of our expenses that is flexible. Any threat to our staffing levels is serious; we cannot absorb further staff cuts of any size without real damage to our operations.

It is not only the Third Branch that faces the possibility of substantial budget cuts in the years ahead; all government agencies face the same possibility. But the Judiciary is in a somewhat different position than the ordinary government agency. Most government agencies manage a large number of programs. In such a case, if the budget is cut, the agency can trim back or sometimes even eliminate some of its programs. The Judiciary does not have programs. It has only two lines of work, both reactive. We take in cases filed by others under jurisdictional grants established by Congress, work on those cases, finish them up, and send them out the door. If the cases we take in happen to be criminal cases and the defendants are indigent, we appoint and pay counsel as the Constitution requires. And at the other end of the system, we supervise felons released from the federal prison system. We do not have the option of trimming back our work.

Our appropriations committees in both the Senate and the House understand our unique plight and have been uncommonly sympathetic. Do not forget that we did receive increases in our Page 665 appropriations, albeit not as large as we needed, when some other government agencies received cuts. But, in the end, understanding and sympathy will not be enough to carry the day; it comes down to how many dollars our appropriators have to appropriate. The size of the federal deficit is the core problem. As long as it continues, our situation will be at the least very difficult, and if we are forced to make more layoffs, it could be disastrous.

B Attacks on the Judiciary

Thus far, I have addressed the challenge to judicial independence that comes from how we are financed. This particular challenge is, at least, one provided for in the Constitution. I will move now to other challenges to our independence that run counter to what the Constitution contemplates. Justice Stephen Breyer has framed the issue. He said: the "question of judicial independence revolves around the theme of how to assure that judges decide according to law, rather than according to their own whims or to the will of the political branches of government."⁹ As Professor Dennis Hutchinson of the University of Chicago has pointed out, Breyer's succinct formula contains at least two premises. "First, the judicial independence is not an end in itself but is an instrument in service of the rule of law...