Cicero's warning: Eastern District emergency

Article III of the U.S. Constitution states, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress from time to time may ordain and establish." Among other controversies, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made ... under their Authority ... Controversies to which the United States shall be a Party ... [and] Controversies between two or more States." The Constitution defines the Supreme Court's jurisdiction as mainly appellate, meaning that Congress' establishment of lower federal courts, and particularly the workhorse district courts where criminal and civil trials occur, is essential to the administration of justice.

It is also essential to the Founder's diffusion of power through three co-equal branches of government: legislative, executive and judicial. James Madison defined tyranny as all three of these powers being in one branch or one person. He and other Founders studied and knew that poorly organized governments were highly vulnerable to tyranny. They counted on three co-equal branches to prevent any one branch or person from becoming a tyrant. They were also students of Cicero's long but unsuccessful effort to preserve and improve the Constitution of the Roman Republic, with its stifling excessive checks and balances, as first century B.C. Rome descended into chaos, extreme political violence and despotism. So the Founders sought a diffusion of power that was "just right," that would prevent tyranny but not stifle effective government. The result has been what Washington called, "the experiment entrusted to the hands of the American People."

That experiment is now in danger. Crucial to that experiment, but too often missing today, are citizens, legislators, presidents and judges who are educated in its design and history, who understand their constitutional duties, who understand the necessity for compromise to avoid ineffective government, and who have faith in the Founders' design. Key to the system is a healthy co-equality and respect between the three branches. Congress legislates and funds the other branches, the executive branch enforces the laws, controls the military, and nominates judges for Senate approval, and the judiciary decides disputes of federal law and the constitutionality of laws.

Imagine the crisis if the Supreme Court ordered a hypothetical president to comply with a subpoena, but he refused. The court's marshals are no match for the military. Would a faction-ridden Congress impeach? While Congress debated, suppose such a president ordered marshal law. Would the military defy the civilian commander-in-chief, which itself would be a constitutional crisis?

Far-fetched? Perhaps, but a healthy balance between all three branches is essential. The failure of Congress in recent decades to ensure courts are there and funded reflects its own inefficacy and leaves the courts unable to do their constitutional duties to meet the needs of the nation. The executive branch fails its responsibility in not promptly nominating judges for vacant judgeships. There are 677 district court judgeships nationwide. As of Monday, 126 were vacant with only 73 nominees pending. Many are judicial emergencies due to the length they have been vacant and the size of caseloads.

The Eastern District of California presents a grave, if not the gravest, emergency, not only because of soon-to-be vacant judgeships, but because Congress needs to establish additional judgeships. This district encompasses about 55 percent of California's land mass and includes, among others, Sacramento, Stockton, Modesto, Fresno and Bakersfield. All of its Article III judges recently sent a letter to pertinent representatives and senators pointing out that no new judgeships have been established since 1978. Meanwhile the population of the district has grown from about 2.5 million to over 8 million. Impending retirements of judges will mean that in about 18 months the court will no longer be able to hear civil cases; criminal cases, which already take three times more than the average amount of time to get to trial, will take even longer. These judges are begging Congress to create at least five new judgeships on an emergency basis; soon to be vacant existing judgeships will need to be promptly filled. Past entreaties have failed. The impartiality required of Judges prevents effective lobbying.

Please write, call, email, visit and then write, call, email and visit again, and again, with our representatives and senators until action is taken. I served as a summer intern in Washington D.C. in 1972 for Congressman B.F. Sisk. This was likely the hardest working office on Capitol Hill. Constituent letters received thorough and careful attention. Today, if filling in an email box on a representative's website and certifying you are not robot seems uninviting, write a letter, call or visit. These communications can have an effect. They will know you vote.