Courts under Attack


Although attacks on the courts are nothing new, the latest set of proposals seems to have reached new levels in both numbers and acrimony.

"We are going to take back control of our courts," one state senator recently proclaimed. Such statements are characteristic of the mood in many state legislatures regarding the courts. Legislative proposals create the impression that courts are under attack. They also demonstrate a profound misunderstanding of, or disregard for, the role of courts in our society. Attacks on the courts are nothing new; they are at least as old as our country. However, the latest set of proposals seems to have reached new levels in both numbers and acrimony. People concerned about preserving fair and impartial courts are particularly worried about three categories of legislative proposals: those addressing budgetary issues; those addressing methods of selecting judges; and those addressing the structure of the court system.

All are aware that revenues have declined significantly in most states of late. In many states, courts have had a difficult time securing a fair share of the revenue pie even in good years. For the last few years, court funding in many states can only be described as dismal. While it is certainly true that courts must bear their fair share of the financial hardships caused by the precipitous drop in revenue, the more difficult issue involves defining what, precisely, is "fair" when talking about reductions in funding for the courts.

Legislators seem not to understand, or simply not to care, that, when the economy suffers a significant downturn, the work of the courts increases significantly, because of increases in crime and cases tied to financial misfortune, such as foreclosures and debt collection. The saying "justice delayed is justice denied" is more than simply an old saw; it is a truism. As the Chiefjustice of Hawaii said in his recent state-of-thejudiciary address, "Justice is not something that should be rationed." Yet, that is precisely what is happening in many states. Court budgets were cut in 29 states this year; in some states, civil jury trials have been put on hold; and employee furloughs and court closings are now routine. State legislators must be made to realize that, if "the rule of law" is to continue to have meaning, court systems must be ensured a level of funding adequate to permit them to carry out their core functions.

This past session, many state legislatures considered proposals to change the method by which some or all judges are selected or retained. There has been particular activity in states that use some type of "merit" system, a method long-advocated by AJS. Nebraska and Indiana have both sought to enhance their merit-based systems. Tennessee's merit-based system is under attack; however the legislature's session ended without any action. It appears likely the issue will return in the 2012 session. Proposals that would severely impair Arizona's merit-based system will appear on the ballot in 2012.

In Florida, where politically motivated activity was particularly pronounced, a proposal to give the governor essentially complete control over selection of all nominating commission members narrowly failed, but will almost certainly be back in the 2012 session. Florida's Republican-controlled legislature did, however, manage to keep in a proposed constitutional amendment a provision that would require senate confirmation of all new supreme court justices. The proposal will be on the 2012 ballot. The effect of such attacks will almost certainly be to inject partisan politics into the process of selecting judges.

There were also proposals directed at the structure of several states' judicial systems, all in the name of improving court efficiency, some legitimately so and others relatively clearly politically motivated. …

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