The Moral Monday protests may die down come June 30, and state lawmakers may head home, but challenges to much of the conservative agenda jammed through the legislature this session will soon begin winding their way through the courts, resolved by judges largely unknown to most of us.
Already advocacy groups have announced their intentions to seek redress in the courts on issues such as voter ID and school funding. When they get there, though, they might not find swift justice.
The courts are the poor stepchild of our three branches of government – overlooked, overworked and underfunded. Still, Americans look to them to clean up legislative messes at both the state and federal level and reclaim individual rights and liberties snatched away by supposed co-equal governing partners.
But the courts themselves are now in trouble. At both the state and the federal levels, budget cuts are slowly grinding justice to a halt. Politics informs our selection of judges. And money infused from special interests now threatens the independence and impartiality of those judges.
Why courts matter
People don’t have to step inside a courthouse to be affected by what’s happening within, where judges are resolving issues as mundane as the amount of an energy bill and as fundamental as the right to vote.
Headlines from just this past week attest to that fact.
A short while back Duke Energy announced a 7.2 percent rate hike, blessed by the Utilities Commission. But in April, the state Supreme Court sent Duke back to the drawing board, telling the company to think about its customers before it tries that again.
Progress Energy announced a similar rate hike this week, again blessed by the Utilities Commission. And just as quickly, Attorney General Roy Cooper announced that he’ll challenge that hike in court.
Meanwhile, a three-judge panel in Raleigh heard testimony from legislators and others as they consider whether the Republican majority in the General Assembly improperly redistricted voters out of their polling places in 2010.
At the federal level, the U.S. Supreme Court ruled that police can do a cheek swab and check the DNA of individuals arrested on suspicion of committing a serious crime – the most important criminal decision the Court has handed down in decades, according to Chief Justice John Roberts.
And that’s just the first of several potentially historic and life-changing decisions coming down this month. Who you can marry, whether you can get into your college of choice, where and how you vote, and even whether your DNA can be patented – all those questions may be answered by the Court as it wraps up its term at the end of June.
At the federal level, sequester and obstruction
Most of the cases decided by the U.S. Supreme Court get their start in federal district courts.
But federal district courts, and the circuit courts of appeal, have a manpower problem.
Like courts everywhere, budget cuts and now the sequester have taken a toll, but so too has the growing shortage of judges needed to meet caseload demands.
At the end of May, there were 79 vacancies on the federal bench. And an estimated 90 million Americans are living in a district with nominees awaiting a Senate confirmation vote.
Thirty-two of those districts – including the Eastern District of North Carolina, with the longest open judicial seat, now approaching eight years – have been declared judicial emergencies, meaning that there aren’t enough judges to handle existing caseloads.
The result? Justice is delayed in the courts which handle the widest range of issues affecting our daily lives and often serve as the courts of last resort, given that the U.S. Supreme Court takes only a fraction of the cases brought up for review (roughly 80 out of some 10,000 cases).
Responsibility for this shortage falls squarely on U.S. senators who are charged with confirming the President’s judicial nominees. With Republicans in the majority, President Obama’s nominees have waited three times longer for a Senate confirmation vote than did those nominated by George W. Bush.
This week, President Obama met that slowdown head on by nominating three — Cornelia T.L. Pillard, Robert L. Wilkins, and Patricia Ann Millett — to the U.S. Court of Appeals for the District of Columbia Circuit, widely considered to be the second-most powerful court in the country after the Supreme Court.
The D.C. Circuit hears “the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans lives,” said Patricia Wald, a former judge on that court. And more U.S. Supreme Court justices have come from the D.C. Circuit than any other circuit court, including four current Justices.
Although the court has 11 authorized judgeships, until the May confirmation of Sri Srinivasan it was operating with just seven. The President had been locked in a struggle with the Senate over his prior choice, Caitlin Halligan, whose nomination he withdrew after it had been blocked by Senate Republicans for two years.
And rather than allow the President to fill any of the remaining vacancies on that court, Iowa Republican Senator Chuck Grassley has introduced a bill that would eliminate one of the three vacant seats from the D.C. Circuit, and move the remaining two to a different circuit.
Here at home, budget slashing and judicial politicking
In North Carolina, where we elect our judges, the legislature has turned a deaf ear to the needs of the court system.
Over the past few years, it has slashed court budgets, treating the judiciary like a state agency rather than a separate and equal branch of government and crippling courts in Wake, Durham and other urban and rural counties statewide.
Based upon the budgets proposed by the governor and the Senate, this year does not look better. Despite pleas for more judges long-delayed salary increases and better technology, help is not on the way – only more cuts, from court reporters to prisoner legal services.
And the legislature has threatened the integrity of that system by proposing the elimination of public funding for judicial campaigns, despite widespread approval of that program by judges, former governors and members of the public — including Republican voters — and by restoring partisan elections. Just this week, 14 of the 15 state Court of Appeals judges signed and sent a letter to legislators and the governor urging that public financing for appellate judges continue.
“The program is not a panacea for the ills created by the current method of judicial selection, but it helps restore public confidence in judicial independence and impartiality by giving qualified and credible judicial candidates access to funds necessary to campaign statewide, without having to rely on sources that might be questioned by the public as potentially influencing judicial decisions,” the judges said in their letter.
Those judges know all too well that partisan elections and unleashed judicial fundraising leads to public mistrust; in a 2011 poll, 94 percent of state voters said as much.
What’s needed instead of more money pouring into judicial elections, judges and voters say, is more money pouring into the court system. That’s where it matters.