By Saranac Hale Spencer
Of the Legal Staff
The judiciary is often referred to as the “third branch” of the federal government.
But U.S. Court of Appeals Judge D. Brooks Smith of the Third Circuit, in a speech to Penn Law students this week, retold a joke told by one newly elected member of the House that would have given the federal courts a demotion.
There are three branches of government – the executive, the House and the Senate – said the new legislator at a meeting with a few federal judges, Smith recalled as he warned students, with a not-too-heavy tone, of the issues facing the judiciary.
The rift between the legislature and the courts, the ever-lengthening and increasingly adversarial confirmation process, and the tightening budget were the three main themes of his speech.
Morale on the federal bench is low, Smith said, not because judges don’t value the importance of what they do, but because they wonder if the other branches of government do.
In an informal meeting between the late Senator Arlen Specter and the judges of the Third Circuit, Smith remembered that a colleague of his asked, “Just what does Congress think of the federal judiciary?” To which Specter, a fixture on the Senate Judiciary Committee, said, “I don’t think they think much about it at all.”
Naturally there is tension between the judicial and legislative branches, Smith said, but it has become too pronounced. He suggested that judges should make an effort to know their members of Congress. Smith told the group that when he was chief judge of the U.S. District Court for the Western District of Pennsylvania, he arranged an annual breakfast for the judges and members of Congress so they could get to know each other.
“Judges and members of Congress need to reach out to each other,” he said, and judges need to try to understand the pressures on representatives if they want the same understanding in kind. “Understanding needs to be a two-way street,” he said.
Citing a recent report from the Brookings Institution that detailed the upward creep in the average length of time between the nomination of a judge to the federal bench and his confirmation by the Senate over the course of the last few administrations, Smith said the line between law and politics is getting blurred. The process is “sometimes a blood sport,” he said.
Historically, once a judge has gotten through the confirmation process, he or she hasn’t had to worry about staffing or workspace, Smith said. But, there are “dark clouds on the horizon,” he said, referring to the dwindling budget for the judiciary.
As it stands now, he said, the courts get only one-fifth of 1 percent of the federal budget and they don’t have lobbyists on Capitol Hill.
Saranac Hale Spencer can be contacted at 215-557-2449 or firstname.lastname@example.org. Follow her on Twitter @SSpencerTLI..