What would the United States be like without a first-rate federal judiciary? We are about to find out if the first two branches have their way. As a result of the sequester and the remarkable intransigence of our political leaders, an entire branch of government, a co-equal branch envisioned by the constitutional order and the framers, is set on a course toward mediocrity.
It is hard to understand why the Third Branch should be assigned to the role of collateral damage. The entire federal judiciary costs approximately 0.2 percent of the total federal budget every year. For every dollar that the two other branches spend, the judiciary spends just two-tenths of a penny. Yet the payoff for this minuscule expenditure is huge. Our economic, political and social stability, our civil rights, depend to a large degree on the quality and efficiency of our federal courts. What prudent public leader would put this quality at risk when the ratio of return to investment is so favorable?
The irony is not lost that this unnecessary wound to the republic is caused by the cowardice of across- the-board approaches to budgeting. By deciding not to decide, by ducking behind the cloak of the sequester, Congress and the president impair the ability of the very people in our system who step up to make sound and difficult decisions every day.
During challenging budget periods, some choices should be made to protect those programs which are most essential and offer the greatest return in excellence, efficiency and overall importance.
And this brings us back to the first point: For a very small investment we can protect and defend an entire branch of government, the federal judiciary and thereby the constitutional rights and structures that the judiciary maintains.
Much of what will happen in the coming weeks and months will be reductions in services and quality in probation departments, the public defenders, court security and clerks’ offices. These cuts will affect public safety, particularly the less effective supervision of criminal defendants on release or probation.
Men and women who have taken such pride in their work and service in the judicial branch will be asked to do more with less and they will make every effort to do so until they reach the breaking point. But at some point the litany of cuts and constrictions, the uncertainty and the constant grind are just too much even for the most dedicated public servants.
A few years ago, when Duke Law School was contemplating an overseas initiative, a lawyer gave me some very helpful advice. She said that when her clients from a certain part of the world failed to keep up on their legal fees, at first she had told them that she would stop work. This proved to be ineffectual; her clients saw it as bullying and posturing. They ignored the threat. Then she said: “Unless you pay what you owe, I won’t be able to put my best people on your matters.” This got their attention.
The American people – or at least the Congress and the president – are in much the same situation when it comes to the federal judiciary.
Since the founding, we have put the best people into the third branch, and given them the tools and support to do the important work of protecting and defending the Constitution, with the result that it has been and still is one of the best institutions that we have in our experiment in democracy. But at some point soon, we may wake up and find that we don’t have the best people in our judicial branch any longer, and that even the best can no longer do the job, and that will be a very sad day for all Americans.
David F. Levi is the Dean of the Duke University School of Law. He was a United States District Judge for the Eastern District of California from 1990 to 2007, serving as Chief Judge from 2003 to 2007.