The State of the Judiciary: Federal Court Fiscal Problems

EDITORIAL NOTE: What follows is the testimony of Judge Norma Shapiro, Senior District Judge for the Eastern District of Pennsylvania, given to the ABA Task Force on Preserving Justice, which was held at the University of New Hampshire School of Law on May 26, 2011.  It is republished here with the permission of Judge Shapiro.

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Good afternoon Lady Olson and panel members. Thank you for allowing me, as Chair of the ABA Standing Committee on Federal Judicial Improvements, to testify about federal court fiscal problems. Our problems pale in comparison with the threats to the state judiciaries. But the Task Force mission statement includes the federal courts as an object of concern so I am honored to express my personal views with the hope they will help you in your extremely timely and important task.

In recent years, the federal judiciary has not fared as badly as the state judiciaries in terms of the funding it has received but the current budget situation is unlike any other the judiciary has faced. When there was a budgetary impasse earlier this year and fear of a federal government shut-down, the administration thought the courts could function for only 2 to 3 weeks. Fortunately, when the 2011 fiscal budget was adopted, the judiciary received almost a 1% increase above fiscal year 2010 appropriations. While not nearly the growth the judiciary has enjoyed in the past, it was far better than the steep funding cuts made to other federal programs and agencies, perhaps because of the cost control measures instituted in the last few years under the initial leadership of the late Chief Justice Rehnquist.

The Congressional emphasis on deficit reduction suggests even a modest 1% increase may not be obtainable in the future. The judiciary is expected to receive less money in 2012 than it has in 2011, at a time when the workload continues to grow.

With no increase in 2012 funding levels, court staff may have to be reduced below the number of people working in our probation and pretrial services offices and clerks offices in circuit, district, and bankruptcy courts. Criminal trials will be delayed for lack of funds to pay defense counsel.

Our biggest problems (apart from judicial salaries and the consequent effect on morale and tenure of judges) are judicial vacancies and the politicization of the confirmation process. There has not been an omnibus judge bill for years; the Administrative Office has requested Congress to establish 88 new judgeships based on workload statistics. A bipartisan group of senators has introduced the Emergency Relief Act of 2011 (S.1014) to address some of the greatest judgeship needs. It provides for 10 additional judgeships in California, Texas, and Arizona, and would make permanent two additional temporary judgeships but, as of May 23, 2011, there were 86 vacancies; of 53 pending nominations, 40 are pending in Committee; only 13 are pending on the Senate floor. While there has been some welcome movement on confirmation votes recently, especially for the district courts, there are still 33 judicial emergencies. I am grateful to Denise Cardman of the ABA Washington office for following this situation so competently and providing me with these statistics.

Our Constitution established federal courts of limited jurisdiction. The Federalist Papers make clear that our founding fathers contemplated well-functioning state judiciaries.

In the December, 1995 Long Range Plan for the Federal Courts, Chapter 4 on Judicial Federalism, Judge Edward R. Becker wrote:

“Judicial federalism relies on the principle that the state and federal courts together comprise an integrated system for the delivery of justice in the United States.

. . . It follows from this fundamental view of the nature of our federal system of government that the jurisdiction of the federal courts should complement, not supplant, that of the state courts.”

The great majority of litigation occurs in state courts as is shown by the charts prepared by Professor Judith Resnik and Yale law students with the help of the National Center for State Courts: three I call to your attention now and the full set of 14 are attached to my written remarks to be part of your official record.

In 2001, there were 37 million filings in state courts. In contrast, the number of filings in federal court totaled only 1.49 million bankruptcy cases, and 317,996 civil and criminal cases. The number of federal judgeships at both the district and circuit level was 853 in 2001. State courts employ a large number of limited jurisdiction judges (including small claims judges in many states), as well as general jurisdiction trial level judges but from 1975 to 2008, the years for which statistics are available, the number of general jurisdiction judgeships alone has nearly doubled from 6,504 to 11,769.

Even when the federal courts have subject matter jurisdiction, it is usually concurrent, e.g., diversity cases, Title VII, product liability, mass torts, etc. We require exhaustion of state court remedies in habeas cases and complaints by prisoners about conditions of confinement.

If access to state courts is reduced by their inability to function, federal courts will be overburdened by those able to gain alternative access and our funding problems become much more serious; as our case loads increase, so do the delays in having a trial. ADR or private judging and settlement, whether or not justified, will become more and more necessary. The loss of access to state court is usually the loss of a lower cost alternative affecting the middle class as well as the poorest of our citizens. Court underfunding in the United States may compromise this country’s efforts to promote the Rule of Law abroad. U.S. statements that access to neutral tribunals for the enforcement of contracts is essential to a well-functioning economy, sound hollow if we don’t lead by example.

You have heard of the adverse effects of loss of court funding on the economy, the loss of jobs, the detrimental effect on commerce, both intrastate and interstate. But to me those effects are secondary: the real issue is loss of liberty. The late Chief Justice Rehnquist said our courts are jewels in the crown of the Constitution. Without courts adequately funded, our right to liberty is a hollow phrase. Most of our citizens form a view of their rights from the functioning of our state courts, if not our TV courts. We the people are fascinated by the courts and the ABA representing 400,000 lawyers, law professors, bar executives, administrators and judges, can’t let them starve to death.

I have been a federal judge for 32 years. I am an activist judge and proud of it, because I devote the time not required for my work, to trying to preserve, protect and defend not just the Constitution, but the judicial system so essential to a government under law with liberty and justice for all. For years, first as an active judge and now as a senior judge, I have worked as a member of the ABA for judicial education, judicial Independence (fair and impartial courts) and judicial outreach. After reading the transcript of your hearing in Atlanta, it is obvious more time and energy must be devoted to funding our state courts. Like judicial accountability, judicial independence depends on adequate financing.

The effort has already begun with Ned Madeira’s directing our attention to state courts as the Least Understood Branch and the Justice is the Business of Government Conference last year, when legislators and Chief Justices, lawyers and administrators were convened by Ned Madeira and Justice Mark Martin to a national conference co-sponsored by the ABA and the National Center for State Courts. Many worthwhile recommendations resulted from that conference but the problem which you hope to address is the implementation. Because the preservation of our branch of government is so essential to a free society, I have the temerity to make a few personal suggestions summarized by: 1) Education; 2) Advocacy; 3) Cooperation and Coordination; 4) Media utilization; and 5) Continuity.

The ABA has done wonders in the field of education, especially with civics education for children. As important as this is as a long-term solution, the current crisis requires adult education as well. Just as the ABA has focused on judicial independence and funding for the Legal Services Corporation on ABA Day in Washington, judicial funding must be the theme of Law Day all over the country.

Judges have to feel free of ethical restraints in explaining the importance of court funding to the administration of justice. A Judicial Division book by Judge Richard Fruin, Judicial Outreach on a Shoestring, describes many means of judicial outreach costing little or nothing. But to utilize the vast national resources of the ABA, there has to be a coordinator, a staff person or persons whose job description is to make this happen. Judges and lawyers, while usually effective advocates, need materials supplied to them for these non-traditional activities; we need scripts, Power Points, a Speaker’s Bureau, etc.

One would assume lawyers were terrific at advocacy but we need some contact with organizations which have perfected methods of communicating, or lobbying with the public, especially with voters, with legislators, the business community, etc. Marketers, political consultants, and lobbyists, have a lot to teach us.

Working with other national groups that share our concerns is essential; you have heard from some of their representatives already so I need not review their value.

Access to newsprint, radio and TV are important but use of the social media has become essential. Ability to understand the internet and utilize all the modern devices of communication may be most important. Bloggers are increasingly influential.

I mention litigation, but when lawyers resort to courts for what are generally deemed political questions, they are rarely successful. That should not preclude the ABA from assisting litigants in key cases or filing amicus briefs if justified under ABA policy.

Finally, this battle cannot be won in a day. Citizens we have convinced grow older; legislators come and go as often as every two years. The economy changes. Procedures must be established to remind those responsible of the importance of court funding. Our efforts are only beginning and must be coordinated for sustainability.

Time does not permit me to elaborate on my suggestions or discuss them with you but the task is not for the summer soldier or part-time patriot and, like most worthwhile tasks, it takes time and money. We must strive to solve this problem, not for ourselves or for lawyers, or judges, but for the citizens of our country whom we are privileged to serve.

Thank you for the opportunity to express some thoughts on the importance of Preserving the Justice System. I would be pleased to try to answer any questions now or later.