On this day 230 years ago, President George Washington signed into law the Judiciary Act of 1789, which created our system of lower federal courts. The U.S. Constitution, ratified just a week earlier, limited its discussion of the judiciary to the Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.” Yet Congress wasted no time creating thirteen new federal district courts (each populated by a single district judge), and three federal circuit courts, whose judges would “ride circuit” and hear cases across multiple states.
It was not a given that lower federal courts would in fact come into existence, at least not right away. In the early days of the Republic, state courts were expected to handle most cases, and a placement on the state court bench, not the federal bench, would have been the object of desire for most judicial aspirants. But the growth of federal law after the Civil War, and especially in the twentieth century, expanded the size and importance of the federal docket and helped transform the federal courts into key players in American law, politics, and society. Last year, the federal district courts began processing almost 283,000 new cases.
Congress did not have to create the federal court system. But having done so, it has an ongoing obligation to provide the courts with the resources necessary to ensure the proper administration of justice. That means adequate funding, adequate staffing, and adequate institutional support. Lately, however, Congress has fallen short on all three counts.
The federal courts’ budget request for Fiscal Year 2020 is $7.6 billion. That’s a lot of money to you and me, but it is less than 0.2 percent of the $4.75 trillion budget proposed by the Trump Administration in March. Indeed, for years the courts have tried to operate in a fiscally conservative manner, a trait which allowed them to stay open longer than expected during the federal government shutdown last winter — even without additional funds coming from Congress. But the shutdown eventually caught up with the courts, and took a significant toll. As Russell Wheeler has recently described, the government shutdown (and the prospect of more in the future) had has cascade effects on recruiting and retaining judges and staff adequate to handle the courts’ workload.
Staffing is not just a budgetary issue. The intense political bitterness on Capitol Hill has slowed down even the most uncontroversial judicial appointments. As recently as the George W. Bush and Obama administrations, nominees for the federal district court typically sailed through Congress, often without a single objection. But the partisan wrangling that has infected our Supreme Court confirmation process for thirty years has trickled down to lower court nominees with a vengeance. Democrats on the Senate Judiciary Committee — all of whom seem to be running for President — have turned straightforward nominations of qualified lawyers into embarrassing spectacles. As I wrote in The Hill last March:
The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.
Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?
It has not helped, of course, that a surprising number of President Trump’s nominees are plainly unqualified for judicial office. But scoring political points in the hearing room seems to be much more important to some in the Senate than resolving real disputes in the courtroom.
Even worse, the top echelon of federal politicians seems intent on disparaging the federal courts each and every time they disagree with a case outcome. The President is the most obvious offender, recklessly tweeting about individual judges who rule against his policies or trying to engage the Chief Justice in a war of words. But he is hardly alone. Senator Mitch McConnell’s decision not to even hold a hearing of the nomination of Judge Merrick Garland to the Supreme Court in 2016 was politically unsound and left the Court without a ninth justice for more than a year. Senator Kamala Harris recently announced that she would preemptively oppose any Trump nominee for the federal circuit courts. And Senator Sheldon Whitehouse disastrously led a group of Democratic lawmakers to file an amicus brief with the Supreme Court that contained a not-so-veiled threat to pack the Court if it did not return the result they wanted. Each of these political stunts erodes long-term public confidence in the court system. And as I have written before, legitimacy is the lifeblood of the courts.
The federal courts have always operated in the shadow of partisan politics. Marbury v. Madison, the 1803 case which established the principle of judicial review, arose out of a factional dispute between the Federalists and the Jeffersonian Republicans. Progressives of the early twentieth century sought to disempower or overhaul the courts in reaction to decisions they disliked. The courts’ role in the civil rights movement elicited vocal fury and physical attacks by pro-segregation partisans. Today’s bitter political fights over the courts are in many ways just a continuation of those ugly battles.
But it doesn’t have to be that way. Rather than pandering to the basest instincts of their supporters, our elected officials might — for once — try to rise above the fray and indicate that the Third Branch of government is worthy of continued respect. Enough court-packing talk. Enough “Obama judges” and “Trump judges.” Enough undermining the courts’ legitimacy for short-term partisan gain. Consider it a birthday present that our politicians can give to the federal courts and to the American people.
The Interdependent Third Branch 