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Underfunding of Judicial System Threatens Basic Nature of American Government

December 15, 2011

The international weekly newspaper “The Economist” published an article in its September 29, 2011 issue about the judicial branch of the government, calling it “the feeblest branch,” due to the lack of funding and public and media attention it receives relative to legislators and executives. This is a serious threat to the average person’s ability to file suit (whether medical malpractice, personal injury, product liability, or even for divorce).

Rather than trying to restate the nameless author’s arguments (the newspaper has a policy of not including by-lines with its articles), we’ll let these excerpts do the talking:

“A report by the American Bar Association found that in the last three years, most states have cut court funding by around 10-15%. In the past two years, 26 have stopped filling judicial vacancies, 34 have stopped replacing clerks, 31 have frozen or cut the salaries of judges or staff, 16 have furloughed clerical staff, and nine have furloughed judges. Courts in 14 states have reduced their opening hours, and are closed on some workdays. Even the buildings are not immune; around the country 3,200 courthouses are “physically eroded” and “functionally deficient,” says the National Centre for State Courts.

This affects courts’ functioning in many ways. One municipal court in Ohio stopped accepting new cases because it could not afford to buy paper. New York judges’ pay has been frozen for a dozen years, even as their caseload has increased by 30%. The state’s 1,300 judges have sued the legislative and executive branches. Trial court judges make $136,700, less than the $160,000 (before bonuses) a stammering associate in a top-shelf New York City law firm expects in his first year on the job. Some clerks who have received automatic annual pay raises make more than the judges they serve. The rate of attrition among New York judges has spiked.

This means that the courts are limiting access just when Americans need more adjudication. The recession left a vast legacy of foreclosures, personal and business bankruptcies, debt-collection and credit card disputes. In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year, a staggering achievement for a court system that costs just $1.2 billion in its entirety. To make up the funding shortfall, courts are imposing higher filing fees on litigants. This threatens the idea of the equal right to justice, says Rebecca Love Kourlis of the Institute for the Advancement of the American Legal System.

At the federal level, things are better–but only a bit. Politics, more than funding, has kept judgeships empty. Filibustering of judicial nominations increased under George Bush, and even more sharply under Barack Obama, causing federal cases to pile up. But here too, pay is an issue. Even as the caseload has grown, federal judges’ salaries have risen by only 39% since 1991 while the cost of living has gone up 50%. Many good judges have simply returned to private practice.

To many judges, as the American Bar Association puts it, “the underfunding of our judicial system threatens the fundamental nature of our tripartite system of government.”

As one revered judge, Learned Hand, said in 1951, “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”

Read the whole article on “The Economist’s” site.

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