Federal Judges Are, in Fact, 'Job Creators'

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A comment made by Senator Mitch McConnell is a reminder of how some lawmakers plainly do not understand the role of the judiciary.

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Following last week's Senate "deal" over judicial nominees -- "well, that's a step in the right direction" anyway, Peter O'Toole said in Lawrence of Arabia -- I want to come back briefly to one point which is under-analyzed in the debate over the costs of political obstructionism in the face of "judicial emergencies" all over America. It is the concept that federal judges are themselves a vital form of "capital investment" in the districts and circuits in which preside; more important to their communities -- and almost always more of a bargain -- than any pet project a politician is likely to scoop out of the pork barrel.

It was an epic comment made last Tuesday by Sen. Mitch McConnell (R-Ky), before the deal was struck, that reminded me of how little respect some lawmakers must feel for judicial nominees, how little understanding they must have of what federal judges do, and how little senators must care about who suffers when worthy nominees are blocked from adjudicating cases as quickly as practical.

"This is a needless exercise and a waste of the Senate's time because I assume these 17 people already have a job," McConnell said of the 17 judicial nominees in play at the time on the floor of the Senate. "What we're worried about is all the people who don't currently have a job who might in some way benefit from a jobs package that we are by and large in agreement on," Sen. McConnell added.

The senator evidently was making a play on words about a jobs bill that Senate Majority Leader Harry Reid (D-Nev) had threatened to stall if Senate Republicans didn't stop blocking floor votes on the judicial nominees, 14 of whom were either unanimously endorsed by the Senate Judiciary Committee or had only one Republican Committee member vote against them.

Sen. McConnell is right to worry about jobs. But last week's fight over judicial nominees wasn't a fight over the 17 nominees themselves -- it was a fight for the rights and remedies of tens of millions of potential litigants residing in the judicial districts those nominees would serve. It was a fight with real meaning to people all over the country who have grievances with one another that must be resolved in federal court. What Senate obstructionists (of both parties) ignore in their preening speeches about "job creation" is that federal judges are perennial job creators -- to the extent they bring certainty and finality to legal disputes.

It's not complicated. When a federal judgeship goes vacant because of Senate intransigence, where judicial nominees with bipartisan approval are held up for no good reason, it's not typically the criminal cases which get unreasonably delayed. Criminal defendants have a speedy trial right under the Sixth Amendment. There is no such right for civil litigants. This means those litigants have to wait, often for years, for a trial judge to make available a time for the disposition of a dispute. The problem only gets worse, like it is now, when district courts are understaffed and judges are forced to handle more than their expected case load.

And who are civil litigants in our nation's federal courts? They are corporations and small business owners, investors and merchants, employees and employers, people just like you and me. Well, maybe not you and me since I didn't file a lawsuit this past year and you probably didn't either. But a lot of other people sure did. In 2010, according to federal court records, no fewer than 282,896 federal lawsuits were filed in America. In 2011, 289,252 lawsuits were filed, a 2.2 percent increase from the year before. The latest statistics reveal that there are currently 270,839 pending civil cases in our federal courts.

There's more alarming news. As Mike Scarcella reported last week in the National Law Journal, the Administrative Office of the U.S. Courts announced last week that there was "an 11 percent increase in intellectual property cases and a 15 percent increase in consumer credit filings" last year. The total number of pending cases in the federal system, including criminal cases, now is 367,600 and, guess what? Even as the number of federal laws (and federal crimes) increases, Congress plans to cut the budget for the federal judiciary come next January. Fewer judges. A smaller budget. Signposts on the road to third-world justice.

So what happens to many of these cases when our benches remain empty? They languish in limbo and the litigants have to live with the financial uncertainty that pending litigation brings. If you are sued for a million dollars, for example, you might choose not to invest that million dollars in a new store, or in hiring new employees, until the lawsuit is over. And if you are suing for money, you aren't likely to spend it until you get it. What federal trial judges do for these litigants, therefore, isn't just to pick a winner and a loser in a particular. The court system provides the oil that helps run the machinery of commerce.

Politicians like to decry so-called "judicial activism" and argue that the federal bench should not be populated by partisan jurists. But in the vast majority of civil cases federal trial judges aren't staking out controversial new legal precedents or otherwise making policy from the bench. Instead, they are merely applying well-settled law to the facts of a case. When we talk about the importance of the "rule of law" this is what we mean-- someone needs to efficiently interpret the rules upon which civilized society is based. It's what separates us from nations where justice can, literally, be bought and sold.

And Sen. McConnell? His long, rich history of pork projects makes his obstruction over judicial nominees even harder to bear. For a little context, here's what Joe Conason wrote in 2009 about what Sen. McConnell has brought home to the bluegrass:

Certainly nobody can say that the senior senator from Kentucky has failed to make his mark with those projects. His campaign for a sixth term last autumn might as well have been a tour of the many federally funded sites that literally bear his stamp. In Owensboro, residents can stroll through Mitch McConnell Plaza, an urban renewal project that is the pride of that riverfront town. In Lexington, students can take advantage of the wonderful Mitch McConnell Distance Learning Center at the university's law school. In  Louisville, joggers can stretch their legs along the Mitch McConnell Loop Trail in the city's new $38 million park.

Seems to me that if Sen. McConnell can fight for these forms of federal largesse he can fight to re-populate the nation's benches. In the end, the Senate made a deal that will see 14 of President Obama's most uncontroversial judicial nominees, including two federal appeals court nominees, head to the bench in the next few months. That's a nice down payment. But it's time for the Senate (and the White House) to push for a faster pace of investment in the nation's business affairs. Efficient court systems are good for the economy. Don't believe me? Just ask anyone you know who's a civil litigant today in federal court.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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