Appropriating for Justice:
An examination of the relationship between
federal jurisdiction and the sufficiency of judiciary appropriations
Michael Arthur Correll
Southern Methodist University
In Fulfillment of the Requirements for
Course Number GOVT-412-002T: Washington Semester Research Project
Perhaps one of the greatest remaining under-funded mandates in the American system of government, the relationship between jurisdictional expansion and appropriations has gone generally unnoticed by Congress since the 1789 creation of the federal court system. Beginning with President Lyndon Johnson’s Great Society initiative and continuing with the spikes in drug crime in the 1980’s, gun violence in the 1990’s, and terrorism concerns in the wake of September 11th, Congress has regularly increased the jurisdiction of the federal courts without mandating accompanying spending. This paper examines the relationship between jurisdictional expansion, caseload growth, and resource appropriation in an effort to determine the impact of Congress’s ongoing Wars on Crime, Drugs, and Terror on the ability of the federal courts to meet their constitutional duties and congressionally mandated responsibilities.
Table of Contents
Introduction and Overview……………………....…………………………............1
The Evolution of the Judicial Branch…………………………………………........6
The Constitutional Birth of the Courts………………………………………........6
Chief Justice as Leader of the Federal Courts…………………………….............11
Establishing Judicial Autonomy Amidst
The Explosive Growth of Federal Jurisdiction……………………….................16
Examining the Judiciary after 206 Years:
The courts face a new millennium……………………………………......23
The Judiciary in a New Millennium…………………………………………........25
Making-Do: The Court’s Struggle to
Survive Under Increasingly Tight Budgets………………………………..26
Political Strife Comes to Dominate Judicial Policymaking………………………...28
The Successes of Judicial Conference
Lobbying in the Wake of September 11th…………………………….……32
Court Prospects After
The 2004 Presidential Election………………………………………......37
The Status of America’s Federal Courts………………………………………....38
Determining the Sufficiency of Federal Court Funding……………………...........39
Housing the Growing Caseload:
The Sufficiency of Judicial Real-estate…………………………………...40
Judges and their Staff:
The Sufficiency of Judicial Human Resources……………………………..43
Disposition Time and the Court’s 6th Amendment Duty…………………………...47
Appropriations Insufficiency or Application Inefficiency:
The Verdict on a Congressional Mandate…………………………………….49
The Magistrate Judge Solution to Insuring a Speedy Trial………………………....51
Pruning the United States Code: A Methodology
For Rolling Back Federal Jurisdiction………………………………….....55
Creating A Better Court
System Through Judicial Science………………………………………...58
Overcoming Insufficiency with Efficiency:
Weathering Budget Austerity…………………………………………....61
Conclusion: The Perseverance of the Court………………………………………63
Appendix I: Methodology………………………………………………………....66
Introduction: A Fundamental Relationship
In setting about the business of constructing a new government in the wake of the American Revolution, the issue of creating an insulated judiciary took center stage both in the development of the Constitution and in the published defense of the new document through the Federalist Papers. Fearing a return to the biased, and often coerced, colonial courts of the Crown, Alexander Hamilton, writing as Publius, argued that the judicial branch of the new federal government must take up the defense of the will of the people by ensuring “that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former” (Avalon 2004, “Federalist 78”). Building upon this principal, Hamilton argues that the courts must remain insulated from the other two branches of government, in so far as their decisions are concerned, to ensure the security of the Constitution. The only way this could be accomplished, then, was by establishing “the courts of justice…as the bulwarks of a limited Constitution against legislative encroachments” (Avalon 2004, “Federalist 78”).
That said, the Founders incorporated a number of legal “encroachments” into the judicial branch’s sphere of authority. Perhaps the most powerful of these, though, was not intended as a so-called “check” on the judiciary at all. Declaring that the “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made,” the Constitution grants Congress the ability to endlessly expand the jurisdiction of the federal courts so long as it stays within the limitations of the 10th Amendment. Judging from trends in legislative action over the past 25 years, Congress has apparently embraced this authority. According to the American Bar Association’s Report on the Federalization of Criminal Law, more than “40% of the federal criminal provisions enacted since the Civil War had been enacted since 1970” (ABA Report 1998, 7). Between 1982 and 1998 when the Senate Governmental Affairs Committee began hearings into Congress’s encroachment into state jurisdiction, the federal criminal code ballooned from 3,000 criminal offenses to 4,500 offenses. Testifying before the committee, Professor John S. Baker warned the senators that “federal criminal cases are delaying or crowding out important civil cases, which rightly belong in federal court” (Baker 2003, “Governmental Affairs Testimony”).
Professor Baker’s concern for Federal civil suits raises a critical question: with this exponentially expanding jurisdiction are the federal courts prepared to handle the enormous influx of new cases? While Congress has always granted the Supreme Court the full value of its appropriations requests, the issue of funding the lesser courts has increasingly become a contentious issue (Arnold 1996, 21). Considered discretionary spending, the judiciary’s budget must compete with the Department of State, Department of Commerce, Department of Justice, United Nations Peacekeeping, the National Oceanic and Atmospheric Administration, Drug Enforcement Agency, Federal Bureau of Investigation, Immigration and Naturalization Service, and every foreign aid initiative of Congress for their share of $40.37 billion dollars (Arnold 1996, 26;AOC Report 2003, 10). In recent years, the judicial budget also became subject to two new means of congressional oversight—direct limits on application of funding and intensified supervision (Peterson 1998, 995f.). The combined effect of competition for funding and increased oversight has spawned conflicts between legislators and jurists to the point that the very ability of the courts to continue functioning has come down to emergency spending bills (Reske 1993, 27).
The purpose of this paper, then, will be to examine the relationship between congressional power to expand the jurisdiction of the federal courts and the need to match each successive expansion with appropriate funding. In order to determine if sufficient funding is, in fact, being applied towards an expanded federal judiciary, this paper will examine the following three criteria:
Beginning in 1996, the federal judiciary embarked on a number of construction projects to replace, renovate, and expand existing courthouses as well as construct new courthouses for the first time in nearly sixty years (Arnold 1996, 30). The projects, paid for out of the General Services Administration’s budget, drew the ire of Congress as constituents complained that the new facilities were too luxurious (Arnold 1996, 31). Considering the expanding caseload and the lack of courthouse construction for such a long period, this examination will seek to determine if recent spending on courthouse construction has been excessive and whether or not the court maintains a sufficient number of courtrooms to sustain the average number of cases per courthouse.
As of the end of 2003, there were 63 federal judgeships sitting vacant (AOC 2004, “Judicial Facts and Figures”). The reason is that vacancies are frequently allowed to go unfilled in order to help the Judicial Conference stay below the limit of what they can reasonably request from Congress. Similarly, positions for court staffing and public defenders are limited in number to help keep costs down. In order to meet the Constitutional requirements for jury trials, the courts must also fund a statutorily required $40 per day stipend to more and more jurors as the number of jury trials required by federal law continues to expand (Longan 1996, 26). The examination of this factor will seek to determine if there are enough employees being hired and appointed to positions in the federal judiciary to meet growing caseloads and whether Congress has appropriated sufficient funding to provide compensation and benefits to these additional employees while still paying jurors their daily stipend.
Nothing is more indicative of the sufficiency of funding than disposition time. With the increase in federal crimes to well over 10,000 possible charges, the judiciary is still required to ensure protection of the right to “a speedy and public trial” per the Sixth Amendment to the Constitution (Longan 1996, 26ff.). The purpose of this assay will be to determine if the courts have seen an increase in disposition time and, if so, are they merely reacting to an unfunded mandate or is inefficiency to be blamed. In a broader sense, this exploration will also attempt to ascertain whether or not increases in overall disposition time impinge upon the individual right to “a speedy and public trial.”
Considering these three criteria in conjunction with jurisdictional expansion and congressional appropriations, this paper will attempt to determine the ability of the federal judiciary to fulfill its responsibility to adjudicate cases with celerity and due process despite being left with no influence over either the sword or the purse (Avalon 2004, “Federalist 78”).
Plan of the Paper
In subsequent chapters, this paper will examine the evolution of the judicial-legislative funding relationship. Chapter Two will examine the history of the relationship between Congress and the Judiciary from the inception of the federal government. Chapter Three will examine the current state of the judiciary in the wake of the fiscal crises of the 1990’s and any ongoing changes to the judicial-legislative relationship. Chapters Four will examine each of the three factors previously introduced on its own merits compared with the number of cases added to federal jurisdiction since the 1970’s. The goal of this evaluation will be to conclusively prove the sufficiency or insufficiency of funding for the courts and the potential future impact of such a finding. Additionally, this chapter will conclude with suggestions for remedying or at least preventing further exacerbation of the funding problems of the past fifteen years. Chapter Five will conclude with a brief discussion of probable outcomes of current proposals and the future of congressional-judicial relations.
The Evolution of the Judicial Branch
From its inception, the story of the federal judiciary has been that of a governmental third wheel. Neither the executive nor the legislative branch ever fully embraced their implied responsibility to impartially buttress the burgeoning American justice system. Phrased bluntly in his defense of Article III in the Federalist Papers, Publius foresaw such a problem when he admitted that the judiciary would have to depend upon these fiercely independent and self-interested branches not only to enforce its rulings but also to fund its day-to-day operations (Avalon 2004, “Federalist 78”). Combined with the judiciary’s unique need for insulation, this constitutional predicament has served as the continual source of friction and revision in American justice.
The development of the modern federal judiciary as dictated by this paradoxical situation can be broken down into a series of three distinct historical periods. Each period is defined by an impetus for change, enactment of said changes, and the repercussions of those changes—both seen and unforeseen. Beginning with the Judiciary Act of 1789 and concluding with the 2003 Report of the Federal Judicial Center, this chapter will sequentially examine each era in order to construct a complete picture of how the federal court system evolved into its present state.
The Constitutional Birth of the Courts
Despite unanimous calls for a federal judiciary to replace the failed National Court of the Articles of Confederation, the role of and responsibility for the judiciary has been disputed since the ratification of the Constitution (Chemerinsky 1999, 3). More concerned with the appointment process than jurisdictional or funding matters, the delegations participating in the convention only briefly addressed the basic functional needs of even the Supreme Court (Surrency 2002, 20). Little did they realize the power they had invested both in Congress and the new third branch by including the simple phrase “in such inferior courts Congress may from time to time ordain and establish” in the introduction to Article III. This first era, spanning from the inception of the lower federal courts under the Judiciary Act of 1789 through the creation of the Circuit Court of Appeals via the Evarts Act of 1891, can most aptly be called the “Formative Court” for its continual transformation of the abstract judiciary into a substantive, functioning branch of the federal government.
Similar to many other areas of the new federal government, the judiciary immediately found itself in competition with the states’ equivalent systems. The very idea of any courts existing below the Supreme Court was seen by many of the state delegations drafting Article III as a threat to state sovereignty—so much so that 19 of 103 amendments proposed in the wake of ratification addressed the judiciary (Wheeler 1994, 2). According to constitutional scholar Max Farrand:
“[Inferior courts] were regarded as an encroachment on the rights of the individual states. It was claimed that the state courts were perfectly competent for the work required, and that it would be quite sufficient to grant an appeal from them to the national supreme court” (Chemerinsky 1999, 3).
Author Erwin Chemerinsky even goes so far as to suggest that the actual constitutional language permitting the establishment of the lower courts may have been the product of a drafter’s revision rather than the framers actual intent (Chemerinsky 1999, 4). Nonetheless, the newly founded Congress exercised its right to establish the lower courts in its first judiciary bill—the Judiciary Act of 1789. Drafted by jurist and future Chief Justice of the United States Supreme Court Oliver Ellsworth, the bill instituted a five justice standard for the Supreme Court, created three circuit courts, and thirteen district courts. Instituting such a revolutionary system via such a new legislative body, Congress decision to implement a parallel judicial system under the Judiciary Act of 1789 constituted “a unique experience in judicial history for up to this period no other country had established a dual system” (Surrency 2002, 21).
Unfortunately for the newly appointed federal judges and Supreme Court justices, the system was not entirely dualistic. In fact, the duality ended where the issue of resources began. Throughout the era of the “Formative Court,” the federal government required the federal courts to “[rely] upon the liberality of the local government for the accommodation of the national courts” (Surrency 2002, 81). With the exception of the Supreme Court, no federal court was allocated a courthouse or staff for its exclusive use. Additionally, should the local government object to the presence of the federal court and refuse it access to local facilities, the court was limited to spending a mere $50 per year in rent and $20 per year in furniture—the equivalent to $1020.16 today (Surrency 2002, 82; McCusker 2004, “Source Note...”). Though judges were generally well compensated to avoid bribery, the actual job description accompanying a federal appointment was far from enviable. Much of their salary went to hiring courtroom staff as an out-of-pocket expense. In addition to their dependence upon the marshals to secure the best facilities possible on the tight budget discussed above, judges at all levels—Supreme Court justices included—were required to ride all over their respective circuits and districts (Chemerinsky 1999, 25). Though district and circuit judges would no longer have to ride circuit after the passage of the Judiciary Act of 1869, Supreme Court justices would continue riding circuit until the amalgamation of the court system under the Evarts Act in 1891 (Chemerinsky 1999, 25f.) . Similarly, the financial situation of the court would advance slowly at best with the first formal appropriations for the courts appearing under the Department of the Interior budget request of 1811 (Surrency 2002, 115). Hoping not to tread on the rights of the states, Congress left the federal court struggling to survive on the most basic of resources amidst what were, arguably, the worst working conditions in its history.
Such less than favorable circumstances, however, would soon inspire two major changes to the federal court system. During the ninety years following the repeal of the Judiciary Act of 1801, the federal court would anneal its existence through the implementation of a directly assessed and systemically managed fee schedule as well as through the creation of the Circuit Court of Appeals. Filing fees in civil cases date back to English common law where they were put towards the purchase of original writs and appear prominently in the 18th century judicial commentaries of Sir William Blackstone (Constitution Society 2004, “Blackstone’s Commentaries”). As has been previously discussed, few if any resources were allocated to the courts via federal appropriations and the willingness of local courts to support an institution they saw as intruding on their jurisdiction was fleeting at best. Operating under these circumstances, clerks of the court and marshals implemented a fee schedule for the filing of civil cases and assessed fines in accordance with judgments (Surrency 2002, 113). This system, however, operated without any formal supervision either from appointed officials of the court or any other branch of the federal government. Though caps on the amount the court could collect in a given year were instituted by Congress, Treasury officials began to complain about fraudulent accounting practices and inappropriate spending from the court registry (Surrency 2002, 113). As a result, Congress created the Department of Justice in 1870 as a means of monitoring federal court collections and spending (Karr 10/27/04). Though marshals would maintain control of court funds until 1939, the ability of the court to independently collect and spend fees and fines without supervision was eliminated. Not only would this radically change the way the court spent its limited funds but the grouping of the court with the Attorney General would set in motion the changes of the coming century (Surrency 2002, 114).
Perhaps even more resounding than the fiscal control exerted over the courts in the mid-19th century, the creation of the Circuit Court of Appeals not only added another rung to the judicial ladder but also, by way of the language of the Evarts Act, represented congressional recognition of an under-funded jurisdictional mandate (Surrency 2002, 87). Over the next twenty years, the Supreme Court was empowered to expand the jurisdiction of the Eighth and Ninth Circuits to include the territories of New Mexico, Oklahoma, Utah, Alaska, and Arizona. Why is this apparently small change so important? Congress’s acknowledgement that the federal courts could not handle the caseload they had been dealt and empowering of the Supreme Court to address that issue marked the first concessions of this sort in the judiciary’s history (Karr 10/27/04). Like in the actual practice of law, the value of a precedent in the eyes of the court cannot be overstated and the judiciary has repeatedly relied upon the capitulation of Congress in 1891 as evidence that the legislative and executive branches have a direct responsibility to aid in easing the federal caseload once the court determines it can no longer function in compliance with constitutional requirements.
The legacy of the “Formative Court” is two-fold. Its longevity ensured that the federal courts would not be crowded out of the system by state courts hoping to regain their pre-Constitution dominance. Just as importantly, though, the “Formative Court” established the aforementioned precedent and, in doing so, permanently enjoined “the other branch” with Congress and the President. Without the progress of this era, the court would not have been able to establish its legitimacy as a full partner in the federal government and would likely have withered in the face of state opposition to its very existence.
The Arrival of Chief Justice as Leader of the Courts
Despite the creation of the Circuit Court of Appeals in 1891, the caseload of the federal courts continued to grow significantly over the next twenty years without any signs of slowing. As time progressed, the court found itself no longer able to keep up with the increasing caseload and was forced to reevaluate both its jurisdictional responsibilities and its operating procedures. Though the Circuit Court of Appeals initially provided relief, the availability of a new federal court encouraged Congress to continue expanding the jurisdiction of the federal judiciary. Spanning from the implementation of the Evarts Act of 1891 to passage of the landmark Judges’ Bill of 1925, this era of court crises and Supreme Court led responsive development can, more so than any other period in the court’s history, be definitively called the “Chief Justice’s Court.”
During this brief but significant era of court history, the federal judicial system found itself embroiled in the midst of two major crises attributable directly to the policies of the “Formative Court” and the congresses of the 19th century. These two crises were: 1) the explosive expansion of federal jurisdiction in civil and criminal matters; and 2) the implications of the informal fiscal interaction between individual officers of the judicial branch and Congress. The first crisis stemmed from a number of congressional actions dating back to the flurry of legislative activity in the wake of the Civil War but not achieving their full impact until this later period. With the naturalization and enfranchisement of the emancipated slaves, civil rights cases would quickly make their way into the federal courts (Karr 10/27/04). Unable to rely upon the state courts to enforce the provisions of the 14th Amendment, Congress enacted the Civil Rights Act of 1871—extending the jurisdiction of the courts to “any person who was ‘denied or cannot enforce in the courts or judicial tribunals of the State’ any right secured under the several civil rights statutes” passed by the Reconstruction Congress (Surrency 2002, 151).
Though the assertion that the Republican congresses of the Reconstruction era sought to nationalize the court is arguable, the practical impact of enacting these civil rights laws as well as absorbing bankruptcy court into the federal repertoire can be seen to do just that by the turn of the twentieth century (Surrency 2002, 152f.). Though Congress would try to stem the rising tide by raising jurisdictional diversity minimums as much as four-fold as early as 1887, developments such as the recognition of personhood for corporations and, later, Prohibition would only exacerbate the courts’ unmanageable caseload. The exact number of cases coming before the court in this time frame cannot be accurately accounted for but if the Supreme Court’s docket serves as any indicator then the radical increases in cases appealed to the Supreme Court seen in Figure 2-1 most likely mirrors a similar spike in the lower courts. In response, the federal government implemented a streamlining effort in 1911. The Judicial Code of 1911 consolidated the circuit and district courts, eliminated contradictory statutes between districts by standardizing the law governing the judiciary, raised the minimum diversity amount to $3,000 from $2,000, and empowered senior circuit court judges to “assign a circuit court judge to hold a district court ‘whenever…the public interest shall require’” (FJC 2004, “Judicial Code of 1911”). Though notable as the only piece of legislation to address the entire federal judiciary since the Judiciary Act of 1789, the Judicial Code was limited by the unofficial congressional policy of “not [attempting] too much at one time” (Surrency 2002,106f.). Limited in this way, the Judicial Code proved to be simply insufficient to address the courts growing concerns.
Further aggravated by the federal court’s increasing caseload and a continuing absence of structure, fiscal realities began to take their toll on the court’s ability to operate. As late as 1919, judges still relied upon personal contacts in Congress to garner the necessary appropriations to keep their individual districts and circuits afloat (Surrency 2002, 83). The court’s budget still fell under the purview of Department of Justice and the Attorney General throughout these first two decades of the 20th century. The problem, though, would soon reach a boiling point according to Surrency:
“Rarely in his annual reports to Congress did the Attorney General make any recommendation concerning the needs of the judiciary, but rather focused on enacting certain laws. This dependency upon the Department of Justice certainly galled some federal judges who began, with some members of the Bar, to urge a change in this relationship. Such leaders of the Bar as William Howard Taft and Arthur T. Vanderbilt in public appearance urged that this dependency be ended” (Surrency 2002, 116).
This intervention in the governance of the courts by figures outside of Congress paved the way for the coming strides in judicial independence. Led in the effort by the former President and soon-to-be Chief Justice, reformers used Taft’s speeches to illuminate the growing need for additional district court judges and to push Congress towards creating a statutorily structured organizational body to represent the federal judiciary (FJC 2004, “Judges’ Bill”). The result was the Judicial Conference of the Senior Circuit Judges.
The creation of the Judicial Conference, much like the creation of the Circuit Court of Appeals in 1891, represented congressional recognition of the court’s problems and a precedent-setting acquiescence. The Judicial Conference empowered the Chief Justice to annually summon senior judges of the Court of Appeals to Washington to “make a comprehensive survey of the condition of business in the courts, prepare plans for the temporary assignments of the judges to districts in which they were needed, and to make suggestions” for other improvements to the federal judiciary’s basic procedures (Surrency 2002, 116). Denoting a major shift in congressional-judicial relations, scholar Robert Katzmann points out that prior to the creation of the Judicial Conference: “Apart from writing judicial opinions, interpreting statutes, and enacting legislation, most judges and legislators [were] uncertain about the appropriate means of communication between the branches” (Katzmann 1997, 82). Though judges can convey their opinions on legislation indirectly by a number of means, the direct value of the Judicial Conference’s recommendations on legislation should not be undercut. “Given that the Judicial Conference is statutorily required to make recommendations to Congress,” Katzmann argues that one of the greatest powers of the Judicial Conference is its ability to formally inform Congress of the fiscal impact on the judiciary of potential jurisdictional expansions or procedural modifications (Katzmann 1997, 93). More so than the Judicial Code of 1911 and in large part due to the involvement of a unified judiciary, the creation of the Judicial Conference marks one of the most successful campaigns for court relief and restructuring in the 215 years since the Judiciary Act of 1789.
The final reforms of the period were directed at docket saturation and ensuring both fiscally sound and sufficient policy. Following with the incremental strategy of judicial reform presented by Surrency, the short title to the Judges’ Bill of 1925 declares itself to be “An Act To amend the Judicial Code, and to further define the jurisdiction of the circuit courts of appeals and of the Supreme Court, and for other purposes” (FJC 2004, “Judges’ Bill”). The Judges’ Bill, also championed by Chief Justice Taft, sought to reduce the original jurisdiction of the Supreme Court as well as further streamline the structure and procedures of the federal judiciary (FJC 2004, “Judges’ Bill”). Broadening the modern writ of certiorari, the court gave itself greater control of what cases would be admitted by limiting direct appeals to “cases related to interstate commerce and anti-trust legislation, writs of errors by the United States in criminal cases, reviews of rulings of the Interstate Commerce Commission, and injunctions against state administrative agencies” (FJC 2004, “Judges’ Bill”). Additionally, the court limited state-to-federal appeals to those decisions which declared an “act of the United States as invalid or denied a claim that a state law was unconstitutional” (FJC 2004, “Judges’ Bill”).
The impact of the Judges’ Bill was two-fold: superficially, the new law dramatically reduced the jurisdiction of the Supreme Court and gave it the power to deny access to a great number of cases. More importantly, though, the common name of the bill—the Judges’ Bill—represents the even greater value of this piece of legislation. Drafted in a committee headed by Justice Willis Van Devanter under the auspices of the Judicial Conference, the bill was subjected to approval of the entire Supreme Court before ever being presented to Congress (FJC 2004, “Judges’ Bill). This foray into policy making was well-received by Congress and marked the first time the court successfully empowered itself to reduce its caseload and also served to “[establish] the Supreme Court as a court to determine policy questions of national concern” (Surrency 2002, 354).
Though only spanning 34 years of the courts 215 year history, the “Chief Justice’s Court” played an equal role in the development of the modern federal judiciary system. Creating mechanisms for the judiciary to streamline its operation and setting a precedent of judicial legislative activism, the lobbying for the Judicial Code of 1911, campaign for the Judicial Conference, and actual drafting of the Judges’ Bill of 1925 all illustrate recognition of the federal judiciary as full branch of the federal government by Congress. In the same way Congress set a precedent of responsibility with the Evarts Act, the judiciary’s concerted efforts for reform—particularly under the vocal leadership of Chief Justice Taft—created the first precedents of judges and justices motivating change on their own terms. Though many of the problems faced by the “Chief Justice’s Court” would carry over into the next period, the capacity to address those and any future problems had been irrevocably established.
Establishing Judicial Autonomy Amidst the Explosive Growth of Federal Jurisdiction
While the formation of the Judicial Conference and the passage of the Judges’ Bill began to provide the court with the tools necessary to face ever-increasing caseloads, their respective creations, in and of themselves, were not sufficient to relieve the mounting pressure. As in the previous two eras, escalating caseloads and limited resources forced the court to reevaluate both its administrative procedures and its jurisdictional responsibilities. Unlike the previous two eras, however, crises and adjustments in the judicial system generally adhered to a regular pattern for most of this 75 year period and, hence, can be examined on a decade by decade basis. Beginning in with the implementation of the Judges’ Bill of 1925 and concluding with the Judicial Conference’s 1995 Long Range Plan for the Federal Courts, this period of jurisdictional explosion and bureaucratic expansion was most prominently defined by its intergovernmental conflicts and, therefore, distinguishes itself as the “Combative Court.”
The Department of Justice[DOJ], with direct oversight responsibilities, was given enormous control over the federal courts upon its creation in 1870. Given DOJ’s supervisory role over the courts during the next 55 years, both the actual impact and appearance of a conflict of interest began to increased judicial-executive friction as the court took control of its own procedures under the Judges’ Bill. Though the marshals still maintained control of the court’s fiscal affairs, the judiciary’s dependence upon “a branch of the government which litigated many cases in the federal courts” for budget requests soon brought about heated conflicts with the Attorney General (Surrency 2002, 113). Additionally, in its dealings with Congress, the courts lacked a central data collecting organization for justifying judicial budget requests (Stumpf 1998, 120). As a result, the Judicial Conference demanded the creation of a formal secretariat that would “[amass] reliable data on court operations, on which any effective administration action must be based” (Stumpf 1998, 120f.). Responding to the court’s demands in yet another concessionary bill, Congress created the Administrative Office of the United States Court [AOC] via the Act of 1939 to Provide for the Administration of the United States Courts (Surrency 2002, 119). The first of many conflicts to follow in the coming decades, the courts efficacious divorce from the Department of Justice in 1939 marked the first time the federal court successfully used the “Separation of Powers Doctrine” to protect itself from extra-judicial intrusion.
While the 1940’s marked a period of relative jurisdictional and general judicial calm in large part due to World War II, the major social reforms of the next twenty years would lead to both a spike in caseload and a problem never before faced by the court—a total incapacity to research potential solutions to its increasing case disposition problems. Examining Figure 2-2, data indicates the court endured sharp spikes in criminal and civil commencements; the latter were ushered in by congressional action on the pressing civil rights issues of the 1950’s (Judicial Conference 1995, 15; Surrency 2002, 357). Burdened with expansive new jurisdictional responsibilities and a 28 percent increase from the 1940 caseload, Congress added only 13 appellate judges and 54 district court judges to the federal bench by 1960 (Judicial Conference 1995, 16). The result was an average increase of 59 cases per civil court judgeship in this same time period (Stumpf 1998, 101). Lacking a research organization to create proposals and swamped by the swelling caseload, the AOC happened upon a novel solution to solving both problems simultaneously—the creation of the Federal Judicial Center.
Created by the Act of December 20, 1967 as a part of Lyndon Johnson’s “Message on Crime in America,” the Federal Judicial Center [FJC] was established at the aggressive behest of the Judicial Conference as “the research and education agency of the federal judicial system” (FJC 2004, “The Federal Judicial Center”; Surrency 2002, 127). Embraced by Congress for its ability to “study and develop administrative techniques to control the tremendous increase in the business of the courts,” the FJC researched and prepared data that drove much of the sentencing legislation and rules changes of the 1970’s as well as standardizing the professional education of judges and their staffs (Surrency 2002, 128f.). In addition to providing data to the Judicial Conference, the FJC can be partially credited with the 59 percent increase in judgeships between 1960 and 1970 as well as the implementation of the Federal Magistrate System under the Federal Magistrate’s Act of 1968 (Judicial Conference 1995, 15f.; Foschio 1999). Helping Congress limit the creation expensive new judgeships while also relieving mounting caseload problems, this highly successful program cemented the combined value of the FJC and AOC—giving the judiciary the authority to make formal policy proposals without having to rely upon the leadership of a powerful chief justice, like Chief Justice Taft in the 1920’s, to facilitate change.
The next major issue to affect the court would spawn a period of federal friction over judicial matters the likes of which has never been seen in court history. After passing the Controlled Substances Act of 1970 to federalize all drug crimes in response to increases in drug-related criminal activity, Congress would go on to implement three omnibus crime bills between 1984 and 1994 in hopes of achieving similar effects to the 1970 act (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). The Comprehensive Crime Control Act, passed in 1984, redirected much of the annual justice appropriation to the Department of Justice’s Office of Justice Programming (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). The Crime Control Act of 1990 mandated, though did not fund, implementation of “a codified Crime Victim’s Bill of Rights” while also sending further resources down into the state court and penal systems (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). Finally, in 1994, the Violent Crime Control and Law Enforcement Act expanded law enforcement funding, increased federal gun and violent crime jurisdiction, and implemented the current “Three Strikes” sentencing guidelines (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). The Act also broadened federal jurisdiction to include more cases formerly under the purview of the states by allowing for the federal prosecution of defendants 13 years of age and older (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). As a result of these four major legislative developments, 40 percent of federal criminal filings fell under the federal drug statutes, there was a 118 percent increase in the number of jury trials lasting 6-20 days, and 38 districts, as opposed to 20 in 1972, devoted more than 50 percent of docket time to criminal cases (Judicial Conference 1995, 12). In this same period, the redirecting of funds to the Department of Justice led to a 125 percent increase in the number of prosecutors while the judiciary only enjoyed an 18 percent increases in the number of judges (Judicial Conference 1995, 12). These problems manifested themselves most clearly in terms of criminal disposition time as seen in Figure 2-3. Between 1972 and 1994, the average time from filing to conclusion increased from 3.2 to 5.7 months—an increase of 78 percent—in spite of the sharp decreases of the late 1970’s and dramatic shortening of bench trials in the late 1980’s (AOC 2003, “Judicial Facts and Figures”). Examining the impact of these acts of Congress, the Judicial Conference noted that “Congress should be encouraged to review existing federal criminal statutes with the goal of eliminating provisions no long serving an essential federal purpose” (Judicial Conference 1995, 25).
Unlike the conflicts with the Department of Justice in the 1930’s and with Congress in the late 1940’s, this most recent battle for court dominance of its procedures and resources was dealt two serious counter-blows by Congress. After surviving the budget manipulations of President George H. W. Bush’s Office of Management and Budget and President Clinton’s Chief of Staff Leon Panetta, Congress dealt its first serious blow to the judiciary when it bypassed the budgetary mechanisms of the Judicial Conference and AOC and provided questionnaires directly to every federal judge (Peterson 1998, 995f.). This new technique, originally pioneered by Senator Charles Grassley (R-IA) in uncovering wasteful Pentagon spending, enjoyed a 68.3 percent response rate from circuit judges and a 58.6 percent response rate from district judges—successfully accomplishing Sen. Grassley’s self-professed goal of circumventing the court bureaucracy to facilitate “talking with one another in ways differently than we have in the past ten years (Peterson 1998, 1004f.; Katzmann 1997, 7). Relatively benign in and of itself, the distribution of the survey prevented the federal judiciary from presenting the united budgetary front of the past 70 years—effectively executing a “divide and conquer” strategy within the bench. No longer united in its presentation, the piecemeal assembly of judicial funding requests by the Senate Judiciary Committee facilitated the far greater blow to judicial power. Beginning with Sen. Grassley’s arrival on the Judiciary Committee in 1996, Congress began earmarking judicial appropriations for the first time in the history of judicial-congressional relations (Peterson 1998, 995f.). While Congress’s responsibility to provide the functional necessities of each branch and to uphold the emoluments clause has long been established by the Supreme Court via cases such as Knote v. United States
, 95 U.S. 149 (1877), and United States v. Will, 449 U.S. 200 (1980), respectively, the means by which Congress appropriates funds has never been ruled upon (Peterson 1998, 1011ff.). Specifically appropriating funds, Congress prevented the judiciary from shifting funds between areas of perceived surplus and deficit to offset the impact of increasing caseload (Peterson 1998, 1010f.). At the same time that the court saw annual shortfalls of $50 million in 1988, $100 million in 1989, $200 million in 1992, $400 million in 1994 and a hiring freeze in 1992, the limits of earmarking became so severe that Chief Justice William Rehniquist warned that “the effective and efficient operation of the judicial branch is being threatened” and suspended all jury trials as the juror appropriation for FY1993 was exhausted by June (Longan 1996, 26ff.). Ending the century amidst unprecedented governmental turmoil, the court found itself overly limited and under-funded going into the 21st century.
More so than in previous eras, the “Combative Court” endured swings from triumphal success to abysmal defeat in its many challenges to both the executive and legislative branches. Going into the 21st century, the court was faced with the dire prognostications of the American Bar Association that “the combination of increased demand and shrinking resources puts at risk the quality and availability of justice in this country” (McWilliams 1993, 8). Nonetheless, the court evolved past the passive aggressive participation of the “Formative Court” and the leadership dependency of the “Chief Justice’s Court” by creating the necessary mechanisms to do political battle with its federal brethren. While the era ended in defeat, this legacy of institutional participation in the appropriations and procedural revision process fully and lastingly established the judiciary as master of the legal domain and insured that future encroachments by presidential or congressional personnel will not come without a fight.
Examining the Judiciary after 206 Years: The courts face a new millennium
From its inception, the judicial branch of the federal government has had one critical problem—it lacks a constituency. Treated as a discretionary program and lacking a public to which it could directly appeal, the judiciary has all too often found itself at the mercy of the more politically motivated legislative and executive branches and held accountable for the congressional mandates it cannot afford to support (Arnold 1996, 25). Examining the increasingly negative interactions between Congress and the courts in the late 1990’s, an outsider might perceive this degeneration to “near name calling” as an omen of a breakdown in the system (Hansen 1996, 24). On the contrary, though, the recurring cycle of crisis and response over the past 215 years has proven one of the greatest sources of improvement and innovation both in the judiciary’s intergovernmental relationships and self-administration. Each of the three eras of court history described in this chapter was propelled by the lag in congressional response to judicial needs and judiciary’s makeshift solutions to the ensuing crises. The result has been the transformation of the judiciary from an insignificant “other branch” into an active governmental participant and agent for its own survival and improvement.
The Judiciary in a New Millennium
Coming off more than 200 years of tumultuous development the federal judiciary entered the 21st century facing a plethora of problems with few—if any—solutions at hand. Only making matters more difficult, the general apathy and occasional animosity of Congress had become a constant roadblock to judicial autonomy. Reflecting on the first year of the new century, the Director of the AOC’s annual report described the court as “facing record levels of work and a challenging budget environment” (AOC Report 2000, 5). The court spent the first two months of the fiscal year surviving on continuing resolutions and was ultimately given a $3.95 billion appropriation in conjunction with similar appropriations for the Departments of Commerce, Justice and State under the Appropriations Consolidation Act of 1999 (AOC Report 2000, 6). By the end of the year, though, the court would run up financial obligations in excess of $4.283 billion (AOC Report 2000, 7). Entering the new century, the court seemed to face a future of budget shortfalls and emergency spending bills reminiscent of crises of the mid-1990’s.
Unlike prior periods, this most recent era of court history began with crisis rather than slowly moving towards it. Due to this reverse in the historical cycle, this chapter will first examine the two most significant problems facing the judiciary between FY2000 and FY2001: 1) Increasing budget shortfalls and continued reliance upon emergency spending bills and 2) The failure of both Congress and the President to fill judicial vacancies. The chapter will then consider the actions of Congress and the Bush Administration in response to the increasing severity of these mounting problems.
Making-Do: The Court’s struggle to survive under increasingly tight budgets
Preparing the 1995 Long Range Plan for the Federal Courts, the Judicial Conference projected a caseload increase of approximately 37 percent by the year 2000 and a 144 percent increase by the year 2010 (Judicial Conference 1995, 15). At the same time, however, the Conference reported that unless “the nation cares about quality justice and will pay a fair price to obtain it” the court system will no longer be able to manage “a system of such gargantuan proportions” (Judicial Conference 1995, 93). With the consolidation of judicial and major executive department appropriations and Congress’s reliance upon continuing resolutions to sustain the execution of justice in the United States, however, the Conference’s warning appeared to go unheeded.
Between FY1999 and FY 2000, the Judiciary’s budget was granted a 9 percent increase in nominal value (AOC Report 2000, 7). Between FY2000 and FY2001, the Judiciary’s budget was again nominally increased by 14 percent (AOC Report 2001, 6). Given these generally steady increases, one might assume that the fiscal crisis of the early and mid-1990’s had finally passed. These nominal increases, however, conceal the single greatest ongoing problem in judicial appropriations—matching cost increases. After surviving the FY2000 budget shortfall of nearly $300 million, the AOC projected actual appropriations for FY 2001 in the area of $4.63 billion (AOC Report 2000, 7; AOC Report 2001, 6). Actual appropriations, however, would fall well short of that figure—amounting to only $4.21 billion (CRS 2001, 33). Reporting to Congress, the judiciary sought budgetary obligations of $4.65 billion in order to empower the court to fulfill the statutorily set staffing formula for the first time since FY1999 (CRS 2001, 34). Even with the 14 percent nominal increase in spending, the courts were still left short of meeting minimum manning requirements.
Furthermore, the judiciary reported a number of other reasons for increasing funding both in FY2000 and FY2001. Lobbying for the FY2000 increases, the Judicial Conference pointed to the lag in judicial salaries caused by an earlier connection to congressional and presidential salaries and argued that judges required more than the 2.7 percent raise granted their legislative and executive counterparts (AOC Report 2000, 8). Courthouse construction, which will be discussed further in this paper, took center stage as Congress rejected an Office of Management and Budget [OMB] proposal to implement courtroom sharing on a ratio of 4 courtrooms to every 5 judges (AOC Report 2000, 7f.). Though both the Senate and the House would approve 16 of 17 General Service Administration construction proposals as an alternative to the OMB plan, appropriations “did not cover all of the projects that were authorized” (AOC Report 2000, 7). Returning to Congress in FY2001, the AOC’s budget request pointed to continued staffing shortfall and the need to expand the Federal Magistrate Judge System to relieve Article I judge caseloads (CRS 2001, 35). The budget also called for special allotments to address the judicial impact of Congress’s Southwest Border Initiative and need to pay participants in the federal Defender Service’s program at a higher rate (CRS 2001, 35f.). This last program increase, however, was totally rejected by the Senate Appropriations Committee despite House support (CRS 2001, 36). Similarly, the courts were only allocated only $5.3 million more than an in FY2000 for security purposes despite complaints that the court security forces needed a significantly higher number of uniformed officers (CRS 2001, 38f.) Thus, in spite of nominal increases handed down by Congress on an annual basis, the court has continued to find itself fiscally behind and crying out for emergency spending bills to stop gap annual budget shortfalls that could otherwise prevent the effective disposition of pending cases.
Despite the nominal increases described previously, these major shortfalls in critical areas of court function led Chief Justice William Rehnquist to point out in FY2000 that “[Congress must] increase compensation for federal judges to maintain the quality and morale of the federal Judiciary” (Rehnquist 2000, “Year-end Report”). He added in FY2001 that the judiciary must go on in spite of “an alarming number of judicial vacancies” until Congress and the President can be convinced to rectify the problem (Rehnquist 2001, “Year-end Report”). The consistent message out of the AOC and Supreme Court has been that without further funding the sheer magnitude of the congressional mandate laid upon the courts will drive quality judges from the bench, jeopardize the safety of the federal courts, and lead to a significant decline in the quality and expediency of American justice.
Political Strife Comes to Dominate Judicial Policymaking
Describing the current political situation in the United States, Bob Schieffer, anchor of CBS’s Sunday morning talk program Face the Nation, uses only one word “polarized” (Schieffer 9/13/04). Having observed politics from the media perspective for nearly 40 years, Schieffer argues that the extreme polarity represented in political television programs like CNN’s Crossfire is simply a reflection of the sharp divide both in the electorate and the Congress (Schieffer 9/13/04). Sharply divided after the 2000 election, the electorate’s voting patterns have represented just such a divide. With such a sharply divided public and a Senate closely split and even tied early in 2000, what is the impact on the judiciary? Usually removed from the political spectrum in most ways, the complicated process of judicial confirmations has suffered as much if not more than anything else in the political arena. The intense politicization of all aspects of decision making on behalf of the federal courts by an increasingly polarized legislative and executive establishment served to exacerbate the problems posed by the ever-mounting caseload. The result was that, despite Chief Justice Rehnquist’s warning, as judges have left the bench their positions have been left vacant in their absence.
The first half of the appointment process begins well before the executive-legislative conflict regarding the judiciary ever comes into play. Instead, appointments begin with judicial authorizations. Given the power to “ordain and establish” the lower courts in Article III, Congress maintains therein the implicit power to create, though not abolish, positions on the federal bench. The first problem with creating new judgeships comes from Congress. Creating only ten new judgeships in the last four years, Congress’s is extremely hesitant to create new judiciary positions (AOC 2004, “Authorized Judgeships”). Satisfied with a ten judge expansion in FY2000, the Senate flatly refused not only a Judicial Conference request for 59 Article III positions but also a request for 24 Article I positions (CRS 2001, 40). At the same time, alternative judiciary appropriations bills S. 1145 and S.2730 including significant expansions to bench never reported out of committee (CRS 2001, 40). The reason Congress is so concerned about expanding the bench comes straight out of the Separation of Powers doctrine—because they can be concerned about it. Limits on authorizations represent a critical facet of the Separation of Powers doctrine and give Congress leverage to assert itself into an area where it would otherwise usually be content to let the judiciary “guide Congress in setting the agenda for the federal courts” (Katzmann 1997, 109ff.). With increase in congressional oversight in the late-1990’s, deference to Judicial Conference’s demands has significantly decreased and Congress has increasingly exercised its power in opposition to the will of the judiciary (Peterson 1998, 995ff.).
Historically, though, the primary source of limits on authorizations has been the judiciary itself. While the courts will regularly request moderate increases in the number of judgeships, the Judicial Conference has consistently argued that massive expansion of the judiciary “will alter the character of the courts” by stripping judgeships of their prestige and “will erode [the] coherence, collegiality, and efficiency” of the bench (Katzmann 1997, 111). The Long Range Plan directly suggests that “the growth of the Article III judiciary should be carefully controlled so that the creation of new judgeships, while not subject to a numerical ceiling, is limited to that number necessary to exercise federal court jurisdiction” (Judicial Conference 1995, 38). In addition to fearing that expansion would diminish the reputation of the judiciary in terms of exclusivity and effectiveness, opponents to authorizations fear Congress would render any expansion null by failing to fill vacancies and would not provide sufficient resources to pay for additional judges and their staffs should vacancies actually be filled (Katzmann 1997, 111). Nonetheless, the Conference’s annual defense of budget requests has included incremental increases in the size of the federal bench which have been rather routinely denied over the past fifteen years.
Once authorizations are agreed upon by Congress and the Judicial Conference, the process is still less than half-over. The process of appointing individuals to the courts, perhaps the biggest problem faced by the courts since the turn of the century, has become increasingly contentious. While political rejection of Supreme Court appointments became a mainstream political maneuver in the late 1960’s, the real turning point in the politicization of judicial appointments came with the Senate confirmation of Robert Bork (Stumpf 1998, 192). The first confirmation hearing to receive television coverage, Bork’s hearing was peppered with the sort of doctrinal questions usually avoided under the dictates of unwritten Senate rules (Stumpf 1998, 193). As a result, public opinion of Bork quickly turned sour. Bork’s plummeting approval ratings among the viewing audience emboldened Congress to challenge the President and reject the nomination along political lines (Stumpf 1998, 193f.). As a result, the once “rubber stamp” procedure of confirmation has become a contentious political issue in the Bush Administration and now extends beyond the Supreme Court nominations to appellate and district appointments.
During his first administration, President Bush nominated a total of 201 judges to the federal bench. In spite of successfully pushing his first group of nominees through Congress in 2002, Bush had to personally intervene to surmount Senate Democrat efforts to block appointments strictly on the grounds that the nominees were “too conservative” (Washington Post 2003, “Bush Decries Tactics”). The president has asserted that the Senate overstepped its constitutional authority by holding such extensive confirmation hearings and is bound to confirm or reject nominees by a standard up-or-down vote. Bush’s involvement has lead Senate Republicans to begin formulating plans to amend Senate rules to set a concrete time limit on confirmations to prevent future filibusters of court nominees (Washington Post 2003, “Bush Decries Tactics”). Perhaps the most interesting part of the 2003 conflict, though, was that Bush was merely appointing District and Appellate Court judges—the last of the “rubber stamp” confirmations when he took office. During the president’s first administration, the congressional turmoil preventing confirmation led to the sharp increases in vacancy time seen in Figure 3-1. In the District Courts, where vacancies are the most common both for political and fiscal reasons, the number months of vacant judgeships reached an all-time peak of 793.4 months nationwide (AOC 2004, “District Court Caseload Profile 2003”). Unless Congress and the president can cooperate to successfully fill new authorizations and existing vacancies, any further judgeships that are created via the authorization process are useless in addressing judiciary caseload issues.
President Bush has not had the opportunity to fill any Supreme Court vacancies but, judging from the conflicts generated by appointments to the lesser courts, the stage is set for a massive political conflict with the potential to embroil all judicial matters—not just the appointments at stake—in a polarization quagmire. Perhaps the most contentious and dangerous problem facing the judiciary in the immediate future, the problem of working around the political conflicts generated by the appointment process has the potential to undercut the judiciary’s ability to seek appropriations, sustain the bench, and receive the support from Congress and the President necessary to its survival as an effective and efficient vehicle of justice.
The Successes of Judicial Conference Lobbying in the Wake of September 11th
Entering into FY2001, the judiciary had little if any hope of immediate alleviation of the problems it faced. As with so many other areas of the federal government, though, the terrorist attacks of September 11, 2001 changed the way Congress looked at the entire law enforcement realm—from officers on the street to Supreme Court justices in Washington, D.C. Along with benefiting from a flurry of legislative activity responding to Judicial Conference concerns late in 2002, the judiciary took possession of a number of construction projects, received judicial authorizations for the first time in three years, and successfully pushed bankruptcy reform proposals through both sessions of the 107th Congress (AOC Report 2002, 6ff.; AOC Report 2003, 8f.).
While the September 11th attacks encouraged increased federal attention on law enforcement, the fiscal impact of the attacks on the courts was minimal as the AOC limited itself to creating a Judiciary Emergency Preparedness Office and providing for safe mail distribution in the wake of anthrax scares (AOC Report 2002, 4). As a result, the Judicial Conference was able to focus the congressional energy inspired by the attacks into a number of pending reform proposals for the balance of 2001 as well as most of 2002. Among the these actions, the most significant were: 1) passage of the Federal Courts Improvement Acts of 2002; 2) launching the bankruptcy reform initiative; and 3) insuring major increases in funding for FY2003 and FY2004.
Through the Federal Courts Improvement Act of 2002 [FCIA 2002], initiated by House Republicans, provided for a wide-variety of statutory adjustments. The most important changes contained within the bill regarded bankruptcy reform, clarifying diversity jurisdiction, and, by far the most important, massive authorizations for increased salaries and benefits for judiciary employees (Report H.R. 4125 2002, 2ff.). Regarding bankruptcy, which will be discussed further, the FCIA 2002 simply set in motion bankruptcy reform by empowering the Judicial Conference to perform the necessary judicial experimentation to create future proposals (AOC Report 2002, 6). Specifically, the act entitled the judiciary to create “trustee” positions in the disposition of bankruptcy cases and authorized the Federal Bankruptcy Court to organize a series of committees of creditors (Report H.R. 4125 2002, 2). In terms of jurisdiction, FCIA 2002 reduced federal responsibility by eliminating federal responsibility in diversity cases involving citizens versus resident aliens (Report H.R. 4125 2002, 3). Most importantly, though, the staffing benefits concessions contained within the bill marked the end of a long congressional lobbying campaign on behalf of non-appointed employees. The bill raised the maximum amounts of compensation for court attorneys, insured health and retirement benefits given to court employees would be comparable to those given by state governments and the private sector, and protected the assets of federal judges by determining that issuing a false lien against a federal judge would henceforth be a felony offense (Report H.R. 4125 2002, 3f.; AOC Report 2002, 5). Nonetheless, the act, though helpful, lacked full congressional concessions on bankruptcy reform and appropriations increases.
As early as 1995, the Judicial Conference reported that, as successful as the Bankruptcy Court program has been since its inception in 1978, Congress must “clarify bankruptcy judges’ authority to conduct the proceedings before them, including express authority to deal directly with civil contempt and limited power to punish criminal contempt” in order to fully utilize the court’s potential (Judicial Conference 1995, 93). While FCIA 2002 accomplished a small portion of the Conference’s request, the bulk of bankruptcy reform has been encapsulated in the pending Bankruptcy Abuse Prevention and Consumer Protection Act of 2003 [BAPCPA]. Appearing in every AOC annual report since 2000, BAPCPA gained the endorsement of the Judicial Conference beginning in late 2002. The AOC endorsed a 107th Congress manifestation of the bill that died in the Senate at the end of the session but was quickly revived at the beginning of the 108th Congress (AOC Report 2002, 5). Having passed the House and waiting on Senate action, BAPCPA provides for: A) judicial control over the conversion of Chapter 7 cases to Chapter 11 or 13 cases; B) allows for easier dismissal in cases of bankruptcy abuse by adjusting the dismissal standard to one instance of abuse; C) broadens the scope of the term “debtor’s monthly expenses” to afford the court greater latitude; and D) implements a broad array of limitations to aid the court in rooting out cases abusing the bankruptcy process (House of Representatives 2003, “H.R. 975 Status and Summary”). Congressional Budget Office [CBO] estimates show a net gain of $2 million for the government as a whole with over $280 million in new fees being directed into judiciary accounts (CBO 2003, “H.R. 975”). While the net federal gain may seem paltry, the redirection of so much wealth into judiciary coffers means passage of the bill could yield enormous returns for the courts beyond the five-year period examined by the CBO. Though the bill has not successfully made its way into law as the 108th Congress enters its final lame duck session, the bill will certainly be revived with greater support from the recently increased Republican majority in the 109th Congress should it fail to reach the Senate floor by the end of the session in December.
Considering the regularity and increasing magnitude of the budget shortfalls thrust upon the judiciary, appropriations for FY2002 and FY2003 proved even more surprising than either the passage of FCIA 2002 or the progress of BAPCPA. While the court fully expected unanimous support for its security expense increases in the wake of the September 11th attacks, little did the AOC realize how receptive the increasingly Republican congress would be to filling the judiciary’s budget requests. FY2002 saw an 8.4 percent increase in the overall budget amounting to roughly $360 million (CRS 2002, 34). In a major victory for the AOC, the House formally recognized “that the workload of the courts was continuing to escalate…due to expanding jurisdiction…and increases in funding provided to the Department of Justice” and subsequently appropriated $240 million of the $340 million requested by the AOC for salary increases and hiring staff (CRS 2002, 34f.). Additionally, Defender Services received approximately $500 million more than in FY2001 (CRS 2002, 35). Similarly, the judiciary received fairly significant increases in appropriations for FY2003. Congress granted the judiciary a 6.7 percent increase in the overall budget to $4.965 billion but fell almost $270 million below the AOC’s recommended minimum operating costs blaming the recession for reduced discretionary funding (AOC Report 2002, 8). As a result of this shortfall, the court completely expended its juror’s fees and Defenders Services appropriations and had to divert $5 million to each from the emergency reserves of the salary and expenses account (AOC Report 2003, 9). Coming into FY2004, the AOC braced for major cuts as the House worked to limit judiciary increases to a mere 5.9 percent over FY2003 and enforced across-the-board federal cuts that knocked the increase even further down to 4.7 percent (AOC Report 2003, 9f.). The growing discrepancy between AOC requests and actual appropriations can be seen in Figure 3-2. Due to continuing resolutions and emergency spending, however, the courts did not have to resort to diverting funds again after FY2003.
In general, the development of the congressional-judicial relationship has continued to move in a positive direction in spite of occasional setbacks. Gaining ground both in terms of policy and fiscally sound appropriations, the true crisis faced by the court given increasing congressional support for the judiciary in 2001 came with the emergency diversions of funds in FY2003 and has since been addressed by Congress (AOC Report 2003, 9). Congress and the Bush Administration have worked to fill vacancies and meet the basic needs of the court—remedying many of the problems forecasted by the Judicial Conference at the turn of the 21st century.
Court Prospects After the 2004 Presidential Election
Beginning a second Bush Administration with a Congress favoring Republicans even more than before, the 2004 election dealt the judiciary a mixed hand. The strengthening of the Republican majority bodes well for finally pushing bankruptcy reform through Congress and continued implementation of programs like FCIA 2002. At the same time, Republican chairmen and members on the Senate Judiciary and Appropriations Committees have regularly proven themselves the greatest obstacle to increased judicial funding. Similarly, the loss of four Democrat senators has the potential to galvanize the remaining Democrats in opposition to President Bush’s nominees to the appellate, district, and Supreme Courts. Furthermore, elevated congressional attention on judiciary matters tends to spawn the sort of surveying and earmarking that dominated the judiciary budgets of the 1990’s. Nonetheless, recent economic improvement stands to emphasize the positive aspects of the electoral results in the near future.
The Status of America’s Federal Courts
Despite the relatively foreboding signs throughout this chapter, the last two years of the Bush Administration brought with it general improvements not only in overall caseload but in the ability to manage that caseload. Should the judiciary manage to safely traverse the political minefield prepared for it by the 2004 election, the judiciary may be able to continue expanding annual appropriations and staffing while reigning in the growth of the bench and federal jurisdiction. As Director of the AOC, Leonidas Mecham asserted in his annual message that, “the Administrative Office will continue to speak out about [any congressional] ill-founded provision, and whenever judicial independence is in jeopardy” (AOC Report 2003, 2). With the institutions such as the Administrative Office of the United States Courts and the Federal Judicial Center in place to defend the judiciary and the traction of four years progress lobbying Congress towards the clearly established goals of the Long Range Plan of the Judicial Conference, the courts are now more in control of their future than at any point in their history.
Determining the Sufficiency of Federal Court Funding
Considering the judiciary was allocated neither Force nor Will in its inception, how can this “least dangerous” branch of the federal government possibly hope to uphold its duty to protect the rights of American citizens and insure a limited Constitution? Despite the protections of the Emoluments Clause and life tenure provisions provided in Article III, the question remains as to whether or not the courts are being provided with sufficient resources to meet their constitutional responsibilities as well as their ever-increasing jurisdictional mandates. Judging from the caseload, appropriations, judgeship, and disposition trends discussed in Chapters 2 and 3, there are two possible answers: Congress has failed to allocated sufficient resources to fulfill its own demands or the federal courts have failed to efficiently apply their resources to address their congressional mandate.
The purpose of this chapter, then, will be to first determine the sufficiency of federal court funding in relationship to jurisdictional requirements. “Sufficiency” will be measured in terms of three factors: 1) space allocations and courthouse construction; 2) judicial appointments and funding for the accompanying staff requirements; and 3) general disposition time. In order to examine each in relationship to jurisdictional requirements, all three factors will be considered in comparison to caseload figures. Upon reaching a conclusion as to the sufficiency of judicial appropriations, the chapter will then proffer several proposals on how to remedy either an appropriations insufficiency or application inefficiency.
Housing the Growing Caseload: The Sufficiency of Judicial Real-estate
Examining the brief history of the federal courts and their relationship to society, Erwin Surrency points out that the “public’s conception of a court is the courtroom in which its sessions are held” (Surrency 2002, 81). While the federal court system had to rely upon the generosity of state courts to provide that courtroom for its day-to-day operations for nearly 70 years of its history, the President and Congress saw fit to begin constructing multi-purpose federal buildings including courtrooms with attached office space in 1854 (Surrency 2002, 82). Since that time, the federal government has constructed, acquired, or leased approximately 750 courthouse facilities throughout the United States (AOC 2002, 42). These 750 facilities processed all of the federal court’s 2,686,687 cases and appeals in 2003 (AOC 2004, “Judicial Facts and Figures”). As a result, the caseload allocated to each facility (assuming all are operable courthouses taking an equal number of cases) was roughly 3,582 cases per courthouse. That breaks down further to 14.2 cases per business day. These statistics raise a critical question: can a federal courthouse justly and efficiently handle 14.2 cases everyday? The answer, as indicated both by judicial pleas for increased construction and increased congressional concessions, is clearly “no.”
The Judicial Conference has and continues to argue that the judiciary is not being granted sufficient space to conduct its business. First pushing for a major round of courthouse construction in 1995, the Conference proposed a total of 19 new construction projects to be assigned to the General Services Administration as determined by needs assessment studies conducted through the Administrative Office of the Courts (Third Branch 2004, “Projects for FY2005”). Preparing for a major budget battle with Congress for FY2005, the Conference scaled back its request to four new construction projects and 10 renovation programs in an effort compromise with congressional demands for cuts in the wake of economic recession (Third Branch 2004, “Projects for FY2005”). Why, though, do the courts need new facilities—what is wrong with 14.2 cases per day per courthouse? The problem, as stated by F. Michael Wong in his book Judicial Administration and Space Management, is that a court’s principal objective—“to do justice in individual cases”—is facilitated, at least in part, by the availability, accessibility, and technological capacity of courtrooms in a caseflow system (Wong 2001, 17ff.). With such a heavy burden placed on every individual courtroom, the archaic American collection of ritual court buildings needs to be replaced by structures “designed to do justice, not be a monument to it” (Wong 2001, 34). According to Wong, the problem facing the courts is not only the availability of physical space but the quality of that space (Wong 2001, 35). By standardizing courtroom size, increasing seating capacity, and attaching alternative spaces for things such as settlement conferences and support staff offices as well as including better caseflow technology, Wong suggests that renovations and changes in the way courthouses are constructed could help Congress afford further projects.
This need to replace iconic courthouses with modern, functional facilities was recognized by the AOC in its Report to Congress on the Optimal Utilization of Judicial Resources 2001. Subsequent to undergoing a voluntary third party evaluation by the private firm Ernst & Young, the judiciary implemented limited courtroom sharing, thereby releasing rented space, and eliminated an additional 15,800 square feet of judicial property (Optimal Utilization Report 2001, 14). The total net gain, as reported by Ernst & Young, not only saved the government approximately $84 million over three years but also provided enough funding to complete 38 of the building and upgrade projects included in the 1995 Long Range Plan of the Federal Courts (Optimal Utilization Report 2001, 14f.). More than just a success story in judicial cost-cutting, the implication of the drastic budget reduction methods undertaken by the AOC combined with the 2004 reduction of proposed construction projects indicates two important facts: the federal judiciary recognizes the reality of the budget environment in which they must compete and the AOC has worked to efficiently employ facility resources as well as acquire additional space.
Considering these efforts on the part of the AOC to more efficiently employ courtroom space and to pursue improvement over grandeur, why has Congress still refused to increase funding for construction and renovation beyond the concessions of FY2005? Considering this question in its annual “Views and Estimates” publication, the House Transportation and Infrastructure Committee conceded that “the space needs of the Judiciary will not be met and will not keep up with an ever-expanding volume of cases” even despite the “the absence of courthouse funding in three of the past seven years” (House Transportation Committee 2004, “Views and Estimates”). The reason behind this, the committee suggests, is two-fold. First, due to the austerity of the federal budget in light of record deficits, the full $1.6 billion in funding recommended for FY2005 is intended as a stop-gap measure rather than an actual solution. In fact, the only reason the committee gives for forwarding a full-funding recommendation is that “under-funding these needs will lead to significant increases in construction costs” (House Transportation Committee 2004, “Views and Estimates”). Second, the committee points to the GSA as the source of the insufficiency of courthouse funding. Claiming “the Committee is concerned about the ever-increasing cost of courthouse construction projects above and beyond authorized levels” where the GSA has failed in its responsibility to limit increases in construction costs, the committee suggests that better GSA management is the key to meeting the AOC’s projected courthouse needs. Ironically, the Judicial Conference and AOC’s proposal to take the GSA out of court construction altogether and allow the AOC to administer judicial facilities has been rejected every year since it was first proposed in the 1995 Long Range Plan. Distrusting the judiciary’s space allocation formula more than the GSA’s project management techniques, no bill statutorily removing the GSA from facilities management has ever been seriously considered in Congress (Cardman, 11/23/04). The committee’s admissions combined with its refusal to remedy the very problem it has identified illustrate the challenge faced by the AOC in attempting to regulate and improve its facilities.
Ultimately, the plethora of problems created by mandating every courthouse complete 14.2 trials rests squarely with Congress. Though the AOC has voluntarily reduced its expenses and rolled-back the number of project proposals, Congress refuses to either meet the judiciary’s minimum space requirements or facilitate more efficient management by removing the GSA from courthouse construction and administration. Hardly responsible for the increasing case per courthouse ratio, the courts are subject to an appropriations insufficiency when it comes to space allocations and courthouse construction.
Judges and their Staff: The Sufficiency of Judicial Human Resources
Perhaps the most contentious and complicated issue influencing judicial-congressional relations, the seemingly simple, clear-cut task of appointing judges to the federal bench is neither simple nor clear-cut. One of the few dual “checks” in the American federal system, the congressional power to authorize judgeships and approve executive branch nominees has developed into a major political tool since the turmoil of the Bork Hearings of the late 1980’s (Katzmann 1997, 28). Two other factors, though, grossly complicate the issue. First, how many judges can sit on the federal bench without detracting from the prestige afforded these scarce positions? Second, what hidden costs accompany the authorization and appointment of a judge who cannot carry out the administrative tasks associated with a federal judgeship without a full compliment of staffers in tow? Contrary to the public perception of Congress as the primary roadblock to appointing judges, these two factors dictate the sufficiency of authorizations and the efficiency with which they have been applied by the federal courts.
Considering the ever-increasing caseload statistics and constant pleas for greater funding out of the Judicial Conference described in the previous two chapters, one might logically arrive at the conclusion that there are simply not enough judges working in the courts to handle all the cases. The solution would then seem to be to appoint more judges. Unfortunately, expanding the federal bench—as easy of a solution as it may seem—would most likely do more harm than good. Projecting their needs through 2020 in the 1995 Long Range Plan, the Judicial Conference pointed out that “a future of unrestrained growth would alter irrevocably the nature of the judicial institution and impose a substantial burden on the federal treasury” (Judicial Conference 1995, 38f.). That is not to say that appointments should be stopped altogether; rather Congress must limit the number of authorizations to an absolute minimum. The Conference’s reasoning returns to a basic “quality versus quantity” argument. In opposing major expansion of the bench, chief judges from the Second, Eleventh, and Fourth Circuits warned that such growth would “erode [the] coherence, collegiality, and efficiency” necessary to meet caseload requirements and still uphold uniform standards throughout the federal courts (Katzmann 1997, 111). As a result, the AOC has successfully lobbied Congress to limit authorizations. Examining the statistical reports prepared by the AOC, the courts have subsequently seen little deviation in their cases per judge average as a function of new authorizations in spite of a general upward trend in caseloads at the district level as seen in Table 4-1. While the federal bench must inevitably creep upwards in size, the Conference has consistently sought to maintain the sort of plateau effect reflected in the general consistency in the number of actions per judgeship despite fluctuations in overall caseload.
Even with the general sufficiency of the number of authorizations Congress has created since the late-1990’s, the problem of assessing the sufficiency of overall appointments and staffing is an entirely other matter. The difficulty, as articulated by American Bar Association Senior Analyst Denise Cardman, is that Congress has no responsibility to pay for the programs it establishes (Cardman, 11/23/04). According to Cardman, the typical cycle of congressional action begins with jurisdictional expansion “in an attempt to look tough on crime” and ends with a flurry of authorizations to compensate for increased caseload (Cardman, 11/23/04). While Congress has readily approved authorizations and even accelerated confirmation to address AOC concerns over vacancy periods, the drain on the annual budget created by new judgeships combined with the austerity of the current budget environment forced the AOC to cut programs, refuse to rehire personnel, and furlough over 1400 employees over the last few years (Cardman, 11/23/04). Summarizing the conflict, Carman added, “Funding and staffing go hand-in-hand…judges are needed but so is staffing—insufficient staff reduces the administrative efficiency of the court” (Cardman, 11/23/04). Bolstering Cardman’s argument, F. Michael Wong points out that even an overhaul of the court staffing system will not be sufficient to address the increasing problem of underutilized judgeships. According to Wong, only increased federal funding, and possibly even supplemental state funding, can facilitate the sort of personnel maintenance and improvement necessary to allow efficient operation (Wong 2001, 96). Addressing this very issue in a letter to Senate Appropriations leaders, Senate Judiciary Committee Chair Orrin Hatch (R-UT) warned the Senate that between FY2001 and FY2004 the overall workload of the court had increased by ten percent but Congress had only allocated an additional two percent for staffing (Hatch 2004, “Hatch Warns…”). As Congress considers a “hard freeze” on the judiciary’s Salaries and Expenses appropriation, Hatch calculates that the AOC would need a 9.2 percent increase in funding to maintain service levels (Third Branch 2004, “Hatch Warns…”). Even if one could successfully argue the AOC has inefficiently employed the judicial authorizations it has received from Congress, such an argument would only further illustrate Congress’s core failure—it must allocate sufficient resources not only in terms of judges but in terms of those resources that allow judges to be used to their fullest capacity.
So long as Congress can consider authorizations and confirmations without examining the strain of judicial and chamber staff salaries on the judiciary’s budget, the AOC will have to continue cutting services to maintain the core functions of the court at the current levels not because there are not enough judges but because the AOC has not received the necessary resources to efficiently utilize appointments. As was the case with space allocation and courthouse construction, the issue of judge appointments and funding for the accompanying staff requirements is not a case of application inefficiency but a matter of an appropriations insufficiency. Even though Congress has repeatedly allowed, in statute, for the AOC to pursue remedies to dispose of the increasing caseload, the lack of a “pay-as-you-go” policy on those statutes has rendered them useless and the confirmation of judges virtually worthless in terms of reducing the burden upon the courts.
Disposition Time and the Court’s 6th Amendment Duty
The 6th Amendment dictates that all American citizens are entitled to “a speedy and public trial.” What, though, constitutes a speedy trial is unclear. Is it a relative to the total caseload or is their a finite time limit? The Speedy Trial Act of 1979(18 U.S.C. §§3161-3174) fixes a 30 day time period between arrest and arraignment and a 70 day period between arraignment and trial barring requests for reasonable continuances. The critical constitutional importance of a speedy trial, though, far exceeds the simplicity portrayed by the concrete standards articulated in the 1979 statute as suggested by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Speaking for the majority, Justice Lewis Powell argued that:
“In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial…the inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.” (407 U.S. 514)
The most effective barometer for measuring the protection of this “fundamental right” so vigorously defended by Justice Powell is disposition time. Defined as the amount of time the court takes from filing to arrive at a final determination in a criminal case, disposition time is determined, in large part, by the two factors examined previously. Despite the resounding prevalence of appropriations inefficiencies both in space allocation and staff funding, Congress has done little, if anything at all, to remedy the problem of increasing disposition time in the federal courts.
As discussed in Chapter 2 and represented in Figure 2-3, disposition time has steadily risen over past several decades with seemingly little regard for the number of judges on the bench. An examination of Figure 4-2 illustrates the continuation of this trend of lengthier periods between filing and disposition. As is apparent in the graph above, this slow upward creeping in the total disposition time has proceeded unabated by additional authorizations, appointments, and decreases in vacancy time. The responsibility for this movement away from efficiently executed speedy trials rests solely in the hands of Congress. Exacerbating the problems faced by the judiciary throughout the later decades of the 20th century, Congress’s perpetual electoral motivation to look “tough on crime” has crippled judicial efficiency (Cardman, 11/23/04). Though some scholars, like Robert Katzmann, argue that the use of judicial impact studies in lobbying Congress could potentially “have the salutary consequence of sensitizing lawmakers to consider how proposed legislation could affect the administration of justice,” ABA Senior Analyst Denise Cardman argues to the contrary (Katzmann 1997, 102; Cardman, 11/23/04). Asked whether the AOC could benefit from an organization dedicated to producing jurisdictional expansion impact studies, Cardman replied that “Congress has the ability to know but chooses not to. The problem is not a lack of knowledge—[the court and supporting lobbying groups] send white papers to Congressional committees regularly—the problem is politics” (Cardman, 11/23/04). Because the judiciary lacks any public constituency, Congress is free to make superficially beneficial decisions, such as expanding federal jurisdiction, without the threat of repercussions on Election Day.
More so than any other area examined in this chapter, the difficulties the AOC has faced in attempting to maintain disposition time are directly attributable to appropriations insufficiency rather than application inefficiency. Unlike the other two areas, however, this problem is illustrated not by scholarly debate but by general congressional silence on the matter. At a time of mounting caseloads, Congress has failed to recognize the potential impact of increasing federal jurisdiction so regularly that that in FY2005 Chief Justice William Rehnquist had to enter into the appropriations debate for the second time in ten years. Warning, as in the early 1990’s, that the court would cease to function at necessary levels without further appropriations, Rehnquist’s pleas for greater funding echo those proffered by Senator Hatch (R-UT) in addressing staffing shortfalls—more cases cost more money to try (Third Branch 2004, “Chief Justice Appeals for Funding…”). So long as Congress continues to allocate fewer dollars for the execution of each case on the federal docket while simultaneously adding to that same docket by stripping the states of jurisdiction in a variety of criminal matters, the disposition times of the federal courts will continue to steadily climb until ultimately reaching a point of climactic constitutional crisis.
Appropriations Insufficiency or Application Inefficiency: The verdict on a congressional mandate
At the outset of this chapter the criteria for arriving at a conclusion as to the adequacy of the appropriations for the federal judiciary was limited to addressing three factors with one question: Were the problems regarding space allocation and courthouse construction, judicial appointments and funding for the accompanying staff, and general disposition time the result of appropriations insufficiency or application inefficiency? On each count, as has been previously pointed out, congressional mandates were not met with sufficient appropriations to maintain, much less improve, court standards. In each area, any suggested examples of application inefficiency on the part of the AOC can be traced directly back to the funds it was allocated. As a result, the answer to the fundamental question of whether the judiciary been granted funds commensurate to its growing caseload is clearly “No.”
The apparent corrective to all three of the problems thus far examined would be greater funding. In a time of increasing non-discretionary spending and exponential deficit growth, though, the stark nature of the current budget environment does not lend itself to increases in discretionary spending. As a result, any proposal to increase funding on the congressional side is currently unfeasible. Despite the fact that the AOC cannot be accused of any genuine application inefficiencies, the two fundamental keys to improving the situation of the courts without major budget increases are increasing efficiency and reducing overall workload. In response to this conclusive analysis, the balance of this chapter will be dedicated to laying out three potential policies involving the AOC, Congress, and the Judicial Conference. These policy initiatives are: 1) Temporarily expand the Magistrate Judge System to include more Article I judges and grant those judges a broader array of functions; 2) Devolve jurisdictional responsibilities back to the states in limited criminal and diversity cases; and 3) Develop a standard experimental procedure for developing future Alternative Dispute Resolution techniques. Through the implementation of the these three policies the judiciary stands not only to improve its operating conditions through the current period of scarce budget resources but to also provide the necessary mechanisms to manage and even prevent future crises.
The Magistrate Judge Solution to Insuring a Speedy Trial
On a given day, the docket for Judge Ronald A. Goodbread of the District of Columbia Superior Court, a United States Territorial Court, regularly includes between 250 and 400 matters ranging in subject matter from debt collections to automobile accidents to home improvement contracts. In addition to handling his daily docket and completing an average of two to four trials per day, Judge Goodbread participates in the committee responsible for the court-appointed defenders list and is currently writing an extensive opinion on the use of lye-based versus non-lye-based hair-straighteners for African-American women (Goodbread, 11/5/04). Yet, Judge Goodbread is not an Article III judge. Rather, Judge Goodbread is a magistrate judge—an Article I federal employee with many of the lesser responsibilities of a member of the bench but granted only limited tenure and slightly lower compensation. Handling thousands of cases every year—including roughly 1,000 trials—Judge Goodbread represents the solution to eliminating short-term backlogs and giving the AOC time to pursue more lasting solutions to providing satisfactory service on an unsatisfactory budget. The AOC and Judicial Conference should pursue a short term increase in the number magistrate judges and a broadening of their responsibilities to allow magistrate judges to preside over cases dealing with charges above the level of a federal misdemeanor upon the mutual consent of the concerned parties.
The history of the magistrate judge, as was briefly touched upon in Chapter 2, only stretches back to 1968. Converting the large contingent of United States Commissioners to United States Magistrate Judges with the Federal Magistrate’s Act of 1968, Congress granted early magistrate judges little authority in the federal courts (Foschio 1999, “Magistrate Judge System”). These early magistrates were limited to carrying out the commissioners’ duties and performing limited pre-trial hearings, discovery, and hearing habeas corpus petitions as the local district judge saw fit (Foshcio 1999, “Magistrate Judge System”). With the sharp spike in caseloads throughout the 1970’s, though, Congress, at the behest of the judiciary, enacted the Federal Magistrate Act of 1979. The 1979 act dramatically increased the effectiveness of magistrates in the federal courts by allowing them to absorb the trial duties of district judges in civil matters and federal misdemeanors as well as to continue carrying out evidentiary hearings (Foshio 1999, “Magistrate Judge System”). Since that time, the magistrate system has not only dramatically improved court efficiency but also served as training ground for future Article III judges. Between 1968 and 1999, a total of 67 magistrates were elevated to Article III positions with five earning Circuit positions and several others receiving appointments to chief judgeships (Foschio 1999, “Magistrate Judge System”). Additionally, the AOC and Congress have been so satisfied with the program that, with the exception of the 1979 act and a statutory change in the position title in 1990, the magistrate system has remained virtually unchanged since its inception.
Young but tested, the concept of magistrate judges has survived in the American system virtually unscathed for its 36 year history.
Why are magistrates so beneficial to the court? According to Judge Goodbread, the answer lies in the selection process and the limitations on the position. In most cases, the authority to fill magistrate slots lies with the judiciary itself. The typical selection process begins with an open-season, declared by public notice, for applications. Upon receiving the applications, a committee of judges culls down the applications to three candidates for each magistrate position. The chief judge then selects one of the three to fill the position. After selecting his candidate, the chief judge submits his choice to the entire district bench which, in turn, votes to accept or reject the candidate (Goodbread, 11/5/04). Only after enduring this extensive and exhausting selection process can a magistrate judge take the bench. The result, Judge Goodbread points out, is that magistrate judges are, by definition, “a judge’s judge” (Goodbread, 11/5/04). Once appointed, magistrate judges are limited to working on areas of the law below a certain threshold of magnitude. They cannot preside over any trial without the consent of both parties and they are prohibited from presiding in any criminal trial involving a charge greater than a federal misdemeanor (Foschio 1999, “Magistrate Judge System”). That is not to say that the job is any easier than that of an Article III judge—in fact the position may actually handle more difficult matters. Speaking based on his experience as a magistrate in a United State Territorial Court, Judge Goodbread argues that an associate judge simply lacks the time to fulfill the magistrate’s role as a fact-finder in cases involving lesser values and charges(Goodbread, 11/5/04). Similarly, the responsibility of acting as a fact-finder carries with it the responsibility of justifying a judgment—one more task magistrates absorb from their senior counterparts (Goodbread, 11/5/04). Since the vast majority of cases that come before the court are at a level within magistrate jurisdiction and will be completed more quickly via a bench trial, the magistrates serve to expedite the bulk of the cases flowing through federal courts. The combined impact of a strenuous selection process with statutory limitations insures that the best candidates are selected and then are given responsibility well within the bounds of Article I positions without offending the authority of Article III judges.
Considering its exceptionally successful history and the direct benefits of employing magistrate judges in the federal system, the most expeditious and prudent stop-gap remedy currently available to the AOC is the Federal Magistrate Judge System. At a time when the combined vacancy time at the district level is approaching 450 months, an expansion in the number of magistrate judges by ten percent to roughly 500 full-time positions would serve as the ideal solution to facilitating increased caseflow at a lower cost (AOC 2003, “Judicial Caseload Profile”). In order to make such a proposal fiscally feasible, new magistrates should be appointed for a term of four rather than the current eight years to allow for a slimming of the magistrate bench as Article III vacancies are filled in the coming years. At the same time, magistrate judge authority should be temporarily increased to allow magistrate judges to hear drug-based felony cases with the consent of both parties. By expanding the magistrates’ authority specifically into this area of criminal law, the AOC can cost-effectively address mounting drug cases while still working to roll back jurisdiction over certain drug crimes. Due to the absolutely critical nature of protecting the Article III bench from being supplanted by Article I appointments, this expansion of power should only be allowed for the next eight years in order to aid the AOC in weathering the current budget drought while not establishing a permanent authority. In the meantime, though, magistrate judges are cheaper (they are paid eight percent less than district judges), their limited tenure allows for the removal of ineffective or inefficient judges, and, as a rule, magistrate judges require less staffing to execute their duties (Cardman, 11/23/04; Foschio 1999, “Magistrate Judge System”). While this proposal only includes marginal expansions in order to measure the exact effectiveness of an increased magistrate bench, the policy, upon implementation, would lend itself to further expansion as seen fit by the Judicial Conference and the AOC. Though the benefits of expanding the magistrate system might not be felt immediately upon implementation, the addition of further magistrate judges represents the quickest way to solve the service problems currently facing the courts while still working more complex solutions in the longer term. Cited by the Judicial Conference’s Long Range Plan as disposing of 511,039 matters for the federal judiciary in 1995, magistrate judges have been central to sustaining court service levels in the past and expansion to their ranks remains in-line with the long term proposals of the Judicial Conference (Judicial Conference 1995, 11).
Pruning the United States Code: A Methodology for Rolling Back Federal Jurisdiction
Beginning, in large part, with the federalization of drug crime and continued through the 1980’s and 1990’s by a series of omnibus crime bills pushed through Congress, the long-term expansion of federal jurisdiction serves as the single greatest factor contributing to the unmanageable caseload now facing the federal judiciary. In the wake of September 11th and the passage of the Patriot Act, federalization of criminal charges and expansion of law enforcement again became a hot topic on Capitol Hill. Needing to convey a sense of security to the American public, Congress not only expanded the reach of the federal courts by stripping the states of jurisdiction by redefining a number of offenses as terrorist activity but also increased funding to law enforcement without providing commensurate funding to dispose of the cases created by increased law enforcement capabilities (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). In the current era of heightened security concerns and an actual need to federalize areas of the criminal law, like issues pertaining to terrorism, Congress must begin the painful process of devolving less critical areas of federal jurisdiction to reduce the judiciary’s caseload and facilitate effective implementation of the jurisdictional expansions of the last three years.
The key to understanding the problem of jurisdictional expansion is to examine the process by which it came about in relationship to the economic realities of the current federal budget. Testifying before the Senate Governmental Affairs Committee in 2003, Louisiana State University Law Professor and expert in federalization of criminal law John S. Baker, Jr. warned committee members that the “nature and function of the federal judiciary within the constitutional system is such that the number of federal courts and judges cannot be much enlarged” (Baker 2003, “Governmental Affairs Testimony”). At a certain point, he argues, the expansion of criminal jurisdiction no longer increases the overall percentage of criminal convictions but, instead, merely affords federal law enforcement inordinate powers (Baker 2003, “Governmental Affairs Testimony”). This problem began, historically speaking, with the rising crime rates of the 1960’s combined with the report of President Lyndon Johnson’s Committee on Law Enforcement and the Administration of Justice led to a fundamental shift in congressional philosophy regarding federal crime. Congress, upon the committee’s recommendation, came to recognize "crime is a national, as well as a state and local phenomenon" and immediately began expanding federal jurisdiction via laws such as the Omnibus Crime Control and Safe Streets Act of 1968 (PolicyAlmanac.org 2002, “Crime Control: The Federal Response”). Examining the same topic in greater depth than during his testimony, Professor Baker’s report Measuring the Explosive Growth of Federal Crime Legislation examines the actual growth of offenses under the United States Code. Baker argues that, since that time, federal jurisdiction has grown exponentially. Estimated conservatively at roughly 3,000 offenses by the ABA in 1982, Baker suggests that there are as many as 4,000 specific crimes and 10,000 possible charges under the United States Code as of 1996 (Baker 2004, 6). At a bare minimum, the total number of charges has increased by a total of 33 percent in twenty years (Baker 2004, 8). As a result, the federal courts endured a caseload increase of nearly 58 percent—a total of 16,216 cases per year—as of 1995 (Judicial Conference 1995, 15).
In addition to the administrative costs of such a dramatic increase in caseload, Baker warns of a number of secondary consequences to absorbing state jurisdiction into the federal courts. In his testimony, Baker claims that the massive expansions of congressional legislative authority not only afford law enforcement inordinate power but that the interpretation currently supported by the Supreme Court perverts the Commerce Clause’s meaning and intent. Should the court continue interpreting the Commerce Clause in this way, the end result will be virtually unlimited potential for expansions in federal jurisdiction (Baker 2003, “Governmental Affairs Testimony”). Similarly, Baker warns that the commingling of commerce with crime poses a specific threat to individual sentences. Specifically, he points to the evolution of drug crime statutes. Though the federal government has a responsibility to regulate or prevent the interstate transaction of drugs, the Tenth Amendment, on its face, seems to grant states the police powers over drug use. Because the federal government is limited to commerce-related issues, though, individuals tried in federal court typically are charged with a commerce-related crime and given a stiffer penalty than those tried for the same act in state court (Baker 2003, “Governmental Affairs Testimony”). “Using federal prosecutions in this manner distorts the proper balance between state and federal governments,” Baker points out (Baker 2003, “Governmental Affairs Testimony”). Consequently, the first proposal Congress must pursue to insure judicial equality as wells as maintenance of federal court service levels is an immediate moratorium on expansions in federal jurisdiction except for areas of absolute national necessity, in exemplum crimes related to the on-going War on Terror.
In addition to preventing further expansion, Congress and the Judicial Conference must begin the more difficult task of identifying areas of the criminal code not pertaining to the core functions of the federal court and devolve those responsibilities upon the state courts. To Congress and the Conference’s benefit, the Supreme Court has laid the groundwork for just such a rollback in the criminal code. Ruling that Congress had stretched the Commerce Clause too far in creating the Gun Free School Zones Act of 1990, the Court, in United States v. Lopez,, prevented the federal government from taking responsibility for certain illegal weapons possessions charges away from the states (Beale 2002, 1644). This fundamental shift on the elasticity of the Commerce Clause also suggests other areas of federal criminal law absorbed from the states could be unconstitutional. As a result, there are two methods by which federal jurisdiction can be devolved. The first, and more difficult, requires future test cases, like United States v. Lopez, to overturn congressional acts responsible for jurisdictional expansions. The alternative is to take the AOC’s jurisdictional complaints to Congress. Arguing from the U.S. v. Lopez precedent, the AOC and Judicial Conference should be able to convince Congress to engage in at least moderate rollbacks in order to avoid averse Supreme Court decisions. While the latter option primarily depends upon fortuitous appeals, the former represents a feasible method by which the courts may be able to achieve modest results. Specific areas for rollback are beyond the scope of this particular examination and would require significant additional study in order to be suggested. Nonetheless, the criminal code has grown out of control and must be pruned if the federal courts are to continue fulfilling their constitutionally required duties and meeting their legitimate congressional mandates.
A Better Court System Through Judicial Science
The best solution to increasing caseloads without increase appropriations has, in recent years, definitely been Alternative Dispute Resolution [ADR] tactics. Including the use of magistrate judges, binding arbitration, and early case management, the fundamental problem with all methods of ADR is that they, are until confirmed by the Supreme Court, experimental (FJC 1997, iii). While the general belief that states are the laboratory of democracy facilitates the safe, measured implementation of experimental legislation, the federal courts have yet to discover a consistent, just way to test new ADR techniques. Considering this dilemma, the Judicial Conference and AOC should engage with various state judiciaries around the country to begin testing ADR methods in state courtrooms to facilitate full experimentation via large state caseloads but still protecting individual rights by insuring the presence of an additional court of last resort presides in the appeals process.
Creating the Report to the Judicial Conference Committee on Court Administration and Case Management in order to evaluate five new civil ADR programs in 1997, the FJC sought to determine the actual benefit of ADR as well as the security of the subsequent settlements upon appeal (FJC 1997, ii). In order to determine the exact value of these variable issues, the FJC interviewed judges, court staff, attorneys, but not litigants (FJC 1997, iv). Far from exact, this subjective method of gathering data limited the report to generating broad conclusions and relying upon perceptions that “do not provide conclusive evidence of actual program impact” (FJC 1997, iv). While admitting the shortcomings of this sort of data gathering, the FJC indicates that opinions expressed by judges and attorneys were valuable and would be increasingly so in larger numbers (FJC 1997, iv). Discussing this technique of experimental research coupled with interviews, Thomas E. Willging, senior researcher at the FJC, points out that previous use of experimental testing has helped to “improve the quality of [procedure] rules adopted and the quality of our knowledge of the justice system” (Willging 2002, 1204). In arriving at this conclusion, though, he adds that only by observing enough individuals to make fair generalizations about the entire population can the isolated study format employed by FJC provide accurate assessments (Willging 2002, 1136). Qualitative field research, Willging argues, requires enough data to “quantify the frequency” of a given response into an empirically viable format (Willging 2002, 1137f.). The ultimate conclusion drawn from the FJC’s report to the Judicial Conference and Willging’s research is that isolated experimentation, when conducted properly, is the only method by which ADR programs can be introduced to the satisfaction of all the players in the court system.
Building off of these conclusions, the Judicial Conference and FJC should begin implementing a new policy of state-based ADR experimental testing for criminal as well as civil cases. Such a development would provide several specific benefits to participant state courts as well as the federal judiciary. At a time when, pursuant to the previous proposal, the AOC should begin devolving jurisdiction upon the states, the implementation of ADR techniques will be critical to state courts seeking to reduce their caseloads. By cooperating with the federal judiciary’s need for an experimental forum, the state courts would gain direct access to the expertise of the FJC as well as the federal courtroom personnel most directly involved in previous ADR experiments. Because they typically manage a greater volume of cases within the limited range of ADR disposition, the state courts offer the federal courts an opportunity to explore greater samples before implementing new ADR strategies. As a result, the Judicial Conference and AOC would be empowered to employ ADR strategies upon a stronger foundation in a shorter period of time. Finally, by implementing a state-based model, the use of ADR could be expanded to include a number of lesser criminal offenses. While magistrate judges are currently involved in the disposition of some criminal cases, no other ADR techniques are used in criminal cases with any regularity. The reason, as Willging notes, is that trying suspects in an experimental fashion raises serious ethical concerns—particularly fears of false convictions (Willging 2002, 1204). Working through the state courts, though, experiments would enjoy an additional rung on the judiciary latter. Whereas federal experimentation would flow from the United States District Court to the United States Appeals Court to the United States Supreme Court, a state-model would involve four courts as cases would flow from the court of original jurisdiction to the state appeals court to the state supreme court and then to the United States Supreme Court. This additional step works to further insure the protection of a suspect’s right to a fair trial and just verdict. Considering the fact that the AOC cannot count on improvements in the judiciary’s funding status any time soon, the implementation of a state-based experimental structure would expedite the development of cost-reducing ADR techniques for the federal courts without jeopardizing the constitutional protections left in the care of the judiciary.
Overcoming Insufficiency with Efficiency: Weathering Budget Austerity
Congress has, by all accounts, failed in its responsibility to allocated sufficient resources for the AOC to maintain service levels for the ever-increasing number of cases now arriving in federal courts. The judiciary lacks the facilities, judges, and staffers to maintain disposition times at their already inflated levels. Nonetheless, the federal courts have a constitutional responsibility to protect every litigant’s and every suspect’s rights. The only way the AOC will be able to effectively to manage the paradoxical problem of completing increasing amounts of work with decreasing resources is to improve the application efficiency of appropriated resources and actively working to divert as much of the federal caseload into other courts. In the grander scheme of court planning, though, the devolution of federal jurisdiction and expansion of the magistrate bench are short term solutions to a long term problem. Using those two policy initiatives to sustain levels, the FJC, in cooperation with the Conference and AOC, must actively pursue experimental ADR programs through the states in order to improve caseflow in courts at all levels throughout the United States. Regardless of what ADR programs are tested, the creation of a streamlined, standard experimental process for testing adjustments to the federal court system will empower the federal courts, in the long term, to address both the current budget crisis and future problems associated with later economic downturns.
Conclusion: The Perseverance of the Court
Since their creation in 1789, the federal courts have adhered to the constitutional principals elaborated upon by Alexander Hamilton in The Federalist Papers more so than any other branch of the federal government. Purposefully hamstrung in terms of power and wealth, the judiciary has generally remained within its limited role as guardian of the Constitution, except at the express direction of Congress, for more than 200 years. Nonetheless, the courts have successfully evolved into an equal federal partner in the American system. No longer dependent upon the largesse of the states and operating in full view of the citizenry of the United States, the federal judiciary has now achieved a level of recognized authority in full measure with Hamilton’s demand of a judiciary capable of insuring “the power of the people is superior to both” the legislative and judicial powers of the federal government (Avalon 2004, “Federalist 78”). Still, the development of the federal courts remains incomplete—especially where funding and jurisdiction are concerned. Due to this area of judicial underdevelopment, the future of how congressional mandates are funded with be based on studies in the following three areas: 1) the ability of the courts to prevent further jurisdictional expansion; 2) the development, testing, and substantive value of ADR; and 3) efforts on the part of the AOC and the Judicial Conference to complete the solidification of judicial independence from executive agencies.
Determining the reach of federal jurisdiction is not as simple as it appears on its face. Dictated, in large part, by current events, technology and the general political clime, the catalysts of jurisdictional expansion reach far beyond politicians trying to look tough on crime. As the first area of future development in the congressional mandate issue, the ability of the judiciary to limit future expansions is only partially within its control. Should something as terrible as another terrorist attack striking the United States or something as benign as the release of a revolutionary technology occur in the next five years, the federal criminal code could be shaken up once again as it was in September and October of 2001. Not entirely as bleak as they may at first appear, the recognition of these startlingly realistic scenarios by Congress may prove to be the argument the Judicial Conference has been seeking in preventing increases in jurisdiction. Regardless of how this potential future development is used, however, jurisdiction will continue to expand and its impact on the judiciary will only become more pronounced—ultimately forcing Congress to address the criminal code it has created.
Because jurisdictional expansion is most likely an inevitable outcome, future research into Alternative Dispute Resolution techniques is certainly warranted. Considering the success of these programs as discussed in Chapters 2, 3, and 4, ADR may represent the AOC’s only choice in the battle to maintain services with inadequate resources. While the next economic boom may bring adequate funding for the courts in the short term, the development of ADR strategies is, quite possibly, the only method by which the courts will be able to whether future economic storms. Bolstered in large part by the development of a better experimental methodology as discussed in Chapter 4, the development of ADR techniques represents an opportunity to realize short term benefits through improvement to existing programs as well as producing extended advantages by encouraging experimentation with new streamlining ideas in both criminal and civil areas of law.
Finally, judicial independence, the current issue slowly coming to a boil but not yet sufficiently developed for inclusion in this paper’s examination, will soon come to the forefront of judicial and Separation of Powers scholarship. Struggling with dependency upon the Government Services Administration and the Department of Justice as well as the linkage between congressional and judicial salaries, the literature produced by the Judicial Conference has become increasingly more vocal on the issue of judicial independence. The ramifications of severing intergovernmental ties, however, have not been fully examined thus far and will certainly be a primary topic in the coming years. As the courts continue to assert their authority as an equal partner in the American system, the intergovernmental tug-of-war will continue to heat-up on its current path and encourage greater exploration of the Separation of Power doctrine as it pertains to the federal judiciary.
Regardless of how the three areas mentioned above develop in the coming years, the fact that they—rather than everything that has come before—are the central issues of judicial concern proves that the court has arrived in the niche designed for it by the Drafters of the Constitution in 1787. When Publius demanded that “the courts must declare the sense of the law” with “judgment” rather than “will,” he argued for an insulated court able to stand-up to the powers of Congress and the President yet still remain deferential to the Constitution (Avalon 2004, “Federalist 78”). Constantly seeking new ways to provide a higher quality of justice in order to protect the power of the people, the federal judiciary has proven itself a responsible partner in the federal protectorate of the American system.
Appendix I: Methodology
The information found in this paper is current as of December 5, 2004, at which point the research and composition of the paper was completed. Primary sources utilized in the course of this investigation included: personal interviews; guest lectures; reports from the Judicial Conference, Office of the Chief Justice, AOC, and FJC; data collected by the AOC; congressional testimony transcripts; and law review articles contemporary to the subject matter they addressed. In addition to primary source material, a number of published texts, internet-based research articles, and law review articles not contemporary to their subject matter were used to construct the history of the federal courts and establish the current status judiciary.
The historical subject matter addressed in Chapters 2 and 3 was generally drawn from previously compiled histories but was also combined with AOC and Judicial Conference data for 1980 through the present. Most of the secondary texts used in this paper were published between 1997 and 2002. Broad texts like Erwin Surrency’s The History of the Federal Courts and Erwin Chemerinsky’s Federal Jurisdiction were combined with reports like the Judicial Conference’s Long Range Plan for the Federal Courts and current law review articles to construct the most complete picture of relevant judicial history possible.
In addition to these established sources, analysis—particularly as seen in Chapter 4—was heavily reliant upon congressional testimony, the raw caseload data collected and published annually by the AOC, and personal interviews with parties relevant to each of the proposals laid out after the factor analysis. Interviews with the American Bar Association and District of Columbia Superior Court were especially critical in constructing the policy proposals set forth in the paper. Interviews were conducted in person and then followed-up with further questions by telephone and email to allow each individual to address new issues not considered at the time of the original interview. The interviews conducted in the course of completing this paper were combined with congressional testimony and various histories of congressional action in order to provide the most balanced analysis possible.
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 The corresponding number of states and districts was not a coincidence. In order to pay equal deference, the bill assigned one district to each of the thirteen states.
 The one notable exception would be the courts freedom to use the United States Marshals Service.
 Supreme Court justices were briefly given a respite at the end of Adams’ second term of office under the Judiciary Act of 1801. Upon taking power, however, Jefferson’s Anti-Federalists repealed the act as a show of support for the state judiciaries (Surrency 2002, 30f.).
 The term “Circuit Court of Appeals” was changed to “Court of Appeals” in 1949 to avoid confusion with the original trial court (Surrency 2002, 87).
 A plethora of cases can be credited with cementing personhood for corporations but the most prominently cited cases include: Paul v. Virginia, The Slaughterhouse Cases, and, most significantly, Minneapolis & St. Louis Railroad v. Beckwith (Edwards 2002, 1f.)
 Notably, some members of Congress wanted to do even more by raising the diversity minimums to $5,000 but ultimately had to compromise (FJC 2004, “Judicial Code of 1911”).
 Notably, this proposal also marked the first major cooperative effort between the AOC and FJC to utilize caseload data to construct a policy proposal to set before Congress (Surrency 2002, 399).
 The Controlled Substances Act of 1970 has the distinction of being the largest increase in federal jurisdiction in the court’s history as it federalized all criminal drug offenses. The Act is second only to the Judiciary Act of 1789 in terms of total jurisdictional impact (CATO 1996, “Crime”).
 By tradition, the Judiciary Budget is transmitted to Congress by the President unaltered. In 1988, the courts had to resort to calling directly upon President Bush to rectify adjustments made to the Judiciary Budget by the director of the Office of Management and Budget. Similarly, President Clinton was called in to remove $500 million in “negative allowances” inflicted upon the Judiciary Budget by Chief of Staff Leon Panetta. President Clinton had to step in the next year to prevent Panetta from diverting funding to correctional facilities (Arnold 1996, 21-34).
 Notably, the Congressional Research Service calculates the increase to be on 6.2 percent between FY2000 and FY2001 (CRS 2001, 33).
 Congressional Quarterly reported in 2000 that “even when Congress does not take deliberate aim at judges, political pressures sometimes lead it to affect the judicial branch in an indirect manner…for example, for much of the 1990’s, federal judges receive no increase in pay because their salaries were linked in the appropriations process to those of lawmakers, who repeatedly froze their pay for political reasons (CQ 2000).
 As a result of this moratorium on new judgeships, the total number of filings per district judge reached an all time high of 518 per judgeship in 2002 (AOC 2004, “District Court Caseload Profile”).
 Security measures only received a 10.8 percent funding increase in the judiciary budget over their FY2001 totals due to the availability of supplemental appropriations to cover post-9/11 security costs (CRS 2002, 33f.).
 Calculation based on 251 business day calendar. This does not include training days or other non-federal holidays when a given court may not hear cases.
 While not specifically responsible for construction appropriations, the House Transportation and Infrastructure Committee approve or disapprove GSA construction project proposals.
 This act was motivated in part by the Supreme Court’s ruling in Wingo v. Wedding. After the court found the 1968 act did not give magistrate judges authority to conduct evidentiary hearings, Congress set about the business of passing a new statute to bestow magistrates with that authority (Foshio 1999, “Magistrate Judge System”).
 There are currently 454 full-time and 65 part-time magistrate judges as of the last round of magistrate authorizations in 1999. (Foschio 1999, “Magistrate Judge System”). No new authorizations have been created since that time.
 The United States Code has no definition of the term “crime.” As a result, estimates of the number of offenses are contingent upon a given research’s definition. As a result, estimates of the actual 1982 total—before the omnibus crime bills of 1980’s—range from as low as 3,000 to as high as 3,500 total offenses (Baker 2004, 4ff.).
 According to Professor Baker, the federal courts are responsible for approximately five percent of all cases initiated in the United States annually (Baker 2004, 3ff.).