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View Diary: Federal judicial crisis affects two-thirds of the nation (43 comments)

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  •  The backlog is a feature, not a bug. (4+ / 0-)

    Eyes on the prize: privatization. Corporate interests used to be fairly reliable "good government" supporters of the federal judicial system because they needed the courts to enforce their contracts, protect their intellectual property, and provide a venue that would defuse angry consumers without  being overly plaintiff-friendly as many state systems were seen to be. With the growth of private justice (aka alternative dispute resolution), businesses no longer need the courts all that much. Consumers can be shunted to arbitration by clauses that are now routinely upheld no matter how business-tilted. Business-to-business disputes can be handled by mediation or arbitration faster and less expensively than court litigation. Although not as much cheaper as touted, it has the critical feature of secrecy. No pesky public disclosure of smoking guns or sweetheart deals. No development of case law that might be inconvenient next time around. And, of course, as repeat players the businesses are better able to influence or capture the private justice industry.

    Private justice has been blessed by the courts somewhat begrudgingly at times, but largely because of the stresses on the system -- anything that clears the docket is a plus. Without what used to be unified corporate and non-corporate support for judicial pay increases & other court needs, enter the death spiral: fewer judges with dockets now light on the interesting cases that drew them to the bench and laden with criminal cases, prisoner litigation, pro se wackos, personal injury, and the occasional bankruptcy appeal; job becomes less desirable; pay drops below that of junior associates at big firms; judges resign at an unprecedented rate; vacancies go unfilled; lather, rinse, repeat. (Life tenure is still a big draw, but it doesn't pay for Junior's Harvard education.)

    That's just the district courts. At the courts of appeals, partisan politics play a much bigger role, as we all know. Either party will try to put in more of its own kind and keep out the other kind. (Repubs do seem to be much more disciplined about developing a stable and pushing their nominations than Clinton and Obama have been, for whatever reason, and I suspect that's where the corporate support now goes.) But at the courts of appeals, you also sometimes have gameplaying by judges on the courts to avoid new appointments by the "wrong" party. If the court doesn't ask for another judgeship, one isn't created; if they claim "everything's fine here!" it becomes an excuse not to fill an existing vacancy. (This isn't always public -- remember that almost every circuit judge has a friend or two in the Senate.) These logjams tend to clear up after a president is reelected because they can't justify four more years of overburdening their colleagues just to obtain nominees to their liking.

    In today's budget climate, add to all the partisan political stuff the reality of cost -- every filled judgeship costs money (ten years ago or so it was about $1m, presumably more these days). Once filled, that is largely non-discretionary (entirely so as to judicial salary; difficult to cut the rest, which is formula-driven usually by the numbers of judges and cases). Although the judicial branch is a tiny, tiny part of the federal budget, there's no great percentage in it for Congress to help it out.

    •  Fascinating (2+ / 0-)

      I thought my spotlight had pretty well illuminated the whole privatization racket. But I never saw privatizing the justice system coming.

      Thank you Villanova Rhodes for the remarkable insight.

      •  Thanks. (0+ / 0-)

        In this case, it's a little bit of a twist on the usual privatization push -- it is not entirely to push the money to campaign donors, for example, but to build up an alternative structure that better serves their private interests. Some parallels here with the use of contractors to do things the military used to do.

    •  Comprehensive, and because of that, (1+ / 0-)
      Recommended by:
      Villanova Rhodes

      so very depressing.

      Isn't there also the 'rent a retired judge' option?  S/he does the preliminary work, taking depositions, whatever, which moves your case forward so that it gets in the line sooner and gets heard sooner?  

      Democrats - We represent America!

      by phonegery on Thu Sep 29, 2011 at 09:00:25 PM PDT

      [ Parent ]

      •  Depressing indeed. (0+ / 0-)

        I don't know of good data on the question, but it appears retired judges are more likely to get into the private judging business (acting as mediators & arbitrators) than the grunt work of litigating. It might track whatever was the larger or more enjoyable part of their career. Some judges really were happier as trial lawyers. It used to be that retired judges would show up in the larger or more elite law firms to add prestige, but these days they need to bring in money as well, so they are probably doing more trial work.

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