Judicial independence exists for the benefit of the people, not for the personal benefit judges or the lawyers who appear before them. As put forth in Article III, Section 1 of the Constitution, the federal judiciary is established as an independent branch of government and guarantees federal judges life tenure during good behavior and an undiminished salary. These guarantees make it possible for a judge to protect and enforce individual rights—even when doing so is contrary to popular opinion—and for the judicial branch to carry out its role in the system of checks and balances so artfully devised by the Founding Fathers.

We at the ABA take great pride in helping to defend judicial independence —and consider it our utmost responsibility to do so. Unfortunately, for several years now, we have witnessed a disturbing trend toward increasing intrusion by the legislative branch into the constitutional role of the courts, which threatens to erode the independence of the judiciary. Perhaps the time has come to step back and take a broad look at this trend—to take a big picture account of the erosion of the relationship between the legislative branch of government and our federal judiciary. And, find a way to return to the comity of past eras.

The checks and balances that the Founding Fathers established at the core of our democracy purposely created a tension between judicial independence and accountability. That friction makes some inter-branch friction inevitable. The key to managing it and advancing the purpose of government has always been for each branch to refrain from pressing its powers to the utmost. But, increasingly, the temptation by some members to carry out its legitimate oversight function in a manner so heavy-handed that Chief Justice Rehnquist has gone so far as to call it "micromanaging" appears to be too great to resist.

Starting in the 104th Congress, we have witnessed a deterioration in the relationship between the legislative and judicial branches. Most notably, we have witnessed a withering of bipartisan cooperation on the process of nominating and confirming federal judges, which resulted in exceedingly high numbers of vacancies in the 1990s that lasted for years. The number of vacancies exceeded 100 at various times, crippling certain circuits and threatening public confidence in the courts.

While we are discouraged that partisanship continues to interject itself into the nomination and confirmation process, we are nevertheless grateful to note that it has not thwarted that process. In fact, the vacancy rate has hovered at around 4.5 percent for almost a year—the lowest rate in over a decade.

In other areas, the outlook is less positive. Starting in the mid-nineties, certain judicial decisions involving controversial and divisive social issues of the moment caused some members of Congress to castigate the judges who authored them and label those judges as "activists." Some members even called for the impeachment of certain judges based on disagreement with one particular decision. Although robust criticism of judicial decisions is fully protected by the First Amendment and is indispensable to the well being of a democracy, misleading or intemperate judicial criticism misinforms the public, distorts their view of the judicial process, and may undermine public confidence in our courts.

Disagreement with decisions involving controversial social issues of the moment persists today. Some members of the current Congress have proposed legislation to strip certain controversial issues from the federal courts or to curtail remedies available to federal courts in cases involving constitutional rights for the purpose of changing constitutional law. The ABA steadfastly opposes these "court stripping" bills, along with other legislative initiatives that infringe upon the separation of powers between Congress and the courts.

We are disappointed that a judicial pay raise will not be enacted this Congress and promise in the future to renew our efforts to raise judicial pay and enact meaningful salary reforms that will provide long-term solutions.

But this is not the only funding issue that threatens our courts. Now, added to the pay issue, we have a new problem emerging, the dimensions of which are not yet fully known. Because of budget shortfalls for FY 2004, courthouse renovation and construction has practically come to a halt and the courts have been forced into significantly downsizing their support personnel despite rising workloads. According to the Administrative Office of the Courts, courts are not filling staff vacancies, are planning for the involuntary separation and buyout of hundreds of employees and are expecting to furlough more than 2,600 court employees before September 2004.

While the full impact of these reduced staffing levels is not yet known, the Federal judiciary is bracing for a bigger crisis in FY 2005. If the federal judiciary’s FY 2005 appropriation request for an 11.5percent increase over FY 2004 is denied, the judiciary may have to slash operating expenses in half and fire or lay off approximately 3,800 employees, which will have severe implications for every level of the judiciary and every service rendered. Inadequate court resources surely affect the quality and timeliness of justice, and, while never before pressed to the point of constitutional confrontation at the federal level, has implications for the institutional independence of the judiciary.

Standing alone, no single one of these issues is of grave concern; together they paint a disturbing picture of a judiciary whose independence is being eroded as trust between the branches vanishes. Maintaining public confidence in the judiciary depends upon Congress and the courts interacting with the necessary spirit of restraint and common purpose. That restraint is a two-way street. When Congress raises concerns, it should be seen as an opportunity to respond jointly and constructively to public dissatisfaction. For its part, Congress needs to be responsive to the needs of the judiciary, to provide it the resources to maintain its effectiveness, stability, independence and durability.

From the judges’ perspective, the challenge is for Congress to engage in its legitimate oversight role without micromanaging and in a manner that respects the independence of the judiciary. From Congress’s perspective, the challenge for the federal judiciary is to understand that not every disagreement is a threat to judicial independence—that some measures with which they disagree are part of the Congress’s legitimate oversight function. Then, and only then, can we ensure the continued vitality of our independent judiciary, which the late Senator Sam J. Ervin Jr., called "the most essential safeguard of a free society."

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