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Crisis is an overused word in Washington. But if a worsening problem that will have profound consequences qualifies as a crisis, then the decreasing resources and increasing workload facing the federal courts is a crisis in the making. Congress is budgeting for next fiscal year, which begins on Oct. 1, and the judges now sound like the chorus in a Greek tragedy. The judiciary already has reduced staff and services for two successive budget cycles; courthouse hours have been cut back, some employees have been laid off, others are working substantial overtime without pay and supervision of convicted felons released from prison and drug testing and aftercare programs have been reduced. Judges warn that, before long, without additional funding, they will have to suspend all civil jury trials because there will be no money to pay jurors. Creditors and debtors will experience uncertain delays in the closing of bankruptcy cases. If Congress follows through on its threat of a hard freeze on overall federal spending next year and fails to provide the necessary increases in spending for federal courts, the judicial branch will be decimated by the resultant firing or furloughing of an additional 2,000 to 5,000 employees. Of course, the courts do not have control over their workload and court wonks can spout caseload statistics like a baseball fan in the off-season. In 2003, in the district courts, criminal cases rose by 5% to 70,642, breaking the previous record set back in the last year of Prohibition. Civil filings were down by 8% to 252,962-but that statistic hides a growth trend, because the previous year there was a 98% spike in personal injury filings, mostly asbestos cases. Total bankruptcy filings reached a historic high of 1,661,996: Nonbusiness petitions, which account for most filings, were up by 8%; business petitions were down by 7%; and adversary proceedings jumped by 31%. There were 110,621 people under post-conviction supervision, a 2% increase. In the courts of appeals, the number of appeals rose by 6% overall to 60,847, for the eighth consecutive year of increases. The point is that every year the federal courts set records for the number of new cases and new appeals docketed. The irony is that these high demands are the result of their historic performance and deserved reputation for being accessible and impartial decision-makers-for always being ready and able to dispense a more just form of justice. Congress is under severe fiscal restraints, to be sure, given the national spending priorities for homeland security and the war on terrorism coupled with growing deficits. But the federal courts are essential to keeping the promises in the preamble to the Constitution to “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Indeed, the federal courts play the critical and important role in homeland security of trying those accused of terrorism and presiding over immigration prosecutions. Criminal law enforcement takes place in the courts. Our court system is a critical component of the national economy, within the global economy, upon which business and commerce have historically depended to protect settled economic expectations. The courts are the guardians of our fundamental civil rights and civil liberties. The answer to the question “How much justice can we afford?” has to be “As much as we need.” The judicial branch request for funding is $5.7 billion, not an insignificant amount of money, but less than two-tenths of 1% of the enormous federal budget. This is the proverbial bottom line-the cost of avoiding this crisis. Otherwise, we will see those orange “closed for business” banners strung on our federal courthouses. By comparison, the judiciary’s proposed budget request is about 1.4% of the U.S. Department of Defense’s budget-that comes out to 2 1/2 B-2 stealth bombers-or about 10% of the U.S. Department of Education’s budget. That is the same amount the United States is giving away in foreign aid to other countries in the fight against terrorism. And we have pledged to spend about four times that much to restore Iraq’s infrastructure, including re-establishing its legal system. All that may be money well spent, but just what is it that we are defending and promoting at home and abroad, if not the constitutional rule of law as embodied and realized in our judicial system? Judge Learned Hand wisely warned: “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” We cannot break that commandment. Congress must appropriate sufficient resources for the third branch. Thomas E. Baker is a professor of law at the Florida International University College of Law.

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