I blogged previously that “I couldn’t care less about splitting the Ninth Circuit…” And for the most part that’s still true.
But this utterly bizarre op-ed from Judge Alex Kozinski (for non-lawyers: he’s a bigshot) in the Wall Street Journal (subscription site) caught my eye:
Dividing the Ninth and setting up administrative structures for the two new circuits would be enormously disruptive and expensive — initial cost estimates run to $130 million. Worse, the new circuits would keep throwing away an estimated $22 million every year, duplicating each other’s core functions. This is a luxury that the federal courts, now facing their direst budget crisis in memory, can’t afford. Federal courts are making plans for cutting back key services and laying off numerous staff members who serve the public. Splitting the circuit will require further layoffs of experienced staff so that the new circuits can hire inexperienced replacements at different locales. It will necessitate construction of new courthouses, leaving present buildings underused. Three circuits, with their triplicate headquarters, clerk’s offices, procurement divisions and other administrative functions, will force judges to spend much more time feeding the administrative beast rather than deciding cases. Litigants will have to wait even longer for their cases to be resolved.
Huh? We can’t afford courts? A demographically logical courts structure is a luxury? The federal government spends $2.3 trillion dollars per year and we can’t afford courts?
Is this how far the current thinking has deteriorated in terms of what government should and should not do and where budgetary priorities should lie? We can afford every pork-barrel program imaginable for every two-bit senator and representative, we can have marginal income tax rates that would have made the Founders vomit, but we can’t afford courts?
Along with police and defense, courts are the only inarguably proper functions of government. The notion that government is “too busy doing other things” to afford an optimal court system is the sort of drivel I might expect from an underachieving high school student, not a senior federal circuit court judge.
There is something wrong, fundamentally wrong, with such a perspective, and Judge Kozinski should be ashamed for advocating it.
Splitting the Ninth Circuit either makes sense or it doesn’t. I don’t know which. But I do know this: If it does make sense, then we should do it and pay for it, and not cower behind unconscionable protestations of “we can’t afford it.”
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