The Rule of

Senatorial Filibuster and other Delay Tomfoolery.



"The Rule of Law" is a nice buzz phrase- we use it in promoting democracy around the world. It was even cited at a Red Mass as something we all aspire to uphold-or should. But few voters even know what all it connotes and why it is so important.



The Rule of Law is dependent not only on the fact that we have a Congress making laws that the President signs (remember your high school civics class on how a bill becomes a law)- but that the laws actually get enforced. Laws are useless unless they can be enforced.

Moreover, they need to be enforced uniformly, fairly, with something we call "justice."


What do you need for that to happen? A competent impartial integrous smart judiciary. Most people get that.

Here's what they don't know. It also takes ENOUGH Judges to do the job. We don't have enough Federal Judges now to move the system along smoothly. It's constipated. There is gum in the works in the appointment/confirmation process causing untold delay. This is frightening even to some of the Judges now sitting whose backlogs are overwhelming apparently.



The new President-elect of the ABA, William Robinson III among other distinguished panelists discussed the conundrum and what possibly to do about it at today's American Constitution Society event at the National Press Club.



What is the solution? Appoint and nominate more? (Obama was said to be getting better at this nominating more this year) Make the vetting less scary and personally intrusive (one candidate was a little too candid in a personals page at E-Harmony and didn't make the cut -- forget about putting shots of you in a bikini on Facebook) ? Pay them more? Presidentially promote the candidates more, push the Senate harder? Perhaps all of the above.



What really needs to happen, panel consensus seemed to agree, is that the public needs to understand that if they want a society that is ruled by Law and not just the more powerful monied folks running down the vulnerable, or the bad guys taking down the farm, that there have to be enough good judges so people can survive the process and see justice done with 'all deliberate speed.'

I am aware of something called a "rocket docket" that operates in Alexandria federal court in Virginia. I am also aware that you can be in Superior Court in DC for nearly three years with changes in rotating dockets and different judges before a matter is heard in a trial. You can also get discovery extensions and the like in any federal court when warranted on a motion usually and this can kick dates out as well, so all delay is not caused by lack of judicial ears or resources. But overall in the country, as a recent Abner Mikva article in Politico revealed, (Nov. 18, 2010) the federal nomination process is so plagued with Senatorial political manoeverings that delays of a year or more in just the appointments are not uncommon and we have a significant shortage of federal judges now as a result. A direct and proximate one even. There are, for example, only two in the Delaware federal court where there used to be four, and many corporate and securities matters are back- logged there tying up interests that need a resolution, according to one panelist. This can make people- and particularly lawyers who front costs, really suffer on a basic level.

As a lawyer, I often have to warn people that they could be two years before they see the inside of a courtroom (for other than motions) and that if it is appealed they are looking at up to possibly another two to three years. Most people don't have time to waste five years of their lives making a point of principle or statement so they swallow the injustice at times. They just deal and resign themselves to the old "life is unfair" motto because they don't have the emotional or capital reserve to last five years. This obviously favors the better healed parties (corporate defendants often.)

Laws have to be enforced in a reasonable amount of time or they mean nothing.
There has to be enough Judges to do it.
There have to be good ones- so the government has to compete with the private sector to attract good ones. That means the government has to pay them enough that it makes it worth their time when a private firm is going to pay them handsomely. The figure tossed about was around $175,000 a year, which to someone making 40k a year sounds like a fortune- but to a lawyer practicing in New York City- he might make that in the first four months of the year. So it is really important to look at the geographic market when assessing salaries, costs of living should be added (it is way more expensive to live in San Francisco and LA and New York at a professional level than DeMoines or Dayton) and no Federal Judge should make so much less money than the private bar in the same city's median partner salary range or you are not going to get good people to do it. People have to put kids through college like the rest of the world.
You don't just want good people-you want The Best people to do it. Otherwise lawyers will run circles around the Judges and lose respect for the process.

I would propose that Federal judicial salaries not fall below $200,000 and that they have costs of living added adjustments for the city where the courthouse is. Why do you want to burden judges with horrendous commutes because they can only afford houses hours outside the city where the courthouse is?

Additionally, just as we saw the President championing Supreme Court nominees, he should have a team of people that do the same thing for lower court federal judicial appointees. He should be more aggressive about promoting whom he puts forward. If only he promoted judicial nominees the way he Promotes himself with the whole "Organizing for America" drive, we would have a more Just, Rule of Law. How about "Organizing for the Bench." Now, don't you feel safer?