In order to continue its tradition of providing justice to American citizens and as a co-equal branch of government, the federal Judiciary should be excluded from coverage under the proposed line-item veto legislation, a representative of the Judiciary told a joint House-Senate committee today.
"These protections need to endure," said Chief Judge Gilbert S. Merritt, chairman of the Executive Committee of the Judicial Conference of the United States. "While Congress and the President attempt to reallocate between themselves the power to enact and approve what are often complex and controversial appropriations bills, the Judiciary should not be a part of that process. The Congress can protect itself but the Judiciary would be at the mercy of the Executive Branch," Merritt said in his testimony. "It requires little imagination to see how one of the greatest threats to this independence could come from undue financial pressures by the Executive Branch. The last thing needed is a new mechanism to give the Executive Branch control over the Judiciary's budget, particularly in light of the fact that the United States, almost always through the Executive Branch, has more lawsuits in the federal courts than any other litigant," said Merritt.
As currently drafted, the line-item veto legislation applies to discretionary funding, which encompasses the vast majority of the Judiciary's appropriations. Only the salaries of Article III judges and bankruptcy judges and retirement-related programs currently are classified as mandatory and would not be subject to a line-item veto. The line-item veto provision is contained in the Fiscal Responsibility Act, one of the bills that makes-up the Contract with America. It was the subject of a joint hearing today by the Senate Committee on Governmental Affairs and the House Committee on Government Reform and Oversight.
Since the creation of the Administrative Office in 1939, the financial affairs of the federal Judiciary have been carefully insulated from Executive Branch influence. However, prior to this time, budget submissions and all other administrative support services for the lower federal courts were provided by the Executive Branch through the Department of Justice. The inevitable conflict inherent in this process reached a crisis level during the 1930s when the Executive Branch actively and unilaterally cut the Judiciary's funding, forced the firing of many court staff, and cut the salaries of senior judges' secretaries in half. The pleas of judges at the time were ignored or rejected.
"The Judiciary's budget requests are subjected to full review by the congressional appropriations committees in keeping with the fiscal power conferred on Congress by the Constitution," said Merritt. "The Judiciary must justify each dollar it receives. This is appropriate and the Judiciary cheerfully respects this role of Congress. We do not get a free ride, we never get all that we ask for or need. But the balance would be tilted dangerously toward Executive dominance and control over the Judiciary if the President had line-item veto authority over the Judicial Branch," Merritt told the joint committee.
Even the current protections have not insulated the Judiciary from external influence and funding shortages. In 1986 and 1993 inadequate funds forced a deferral of both civil jury trials and the payment of court-appointed criminal defense counsel. And, in 1989, 1993, and 1994, in violation of the Budget and Accounting Act, the Executive Branch reduced the Judiciary's budget request by a total of more than $1 billion.
"It seems inconsistent to prohibit the Executive Branch from changing the Judiciary's budget prior to submission, but then give the President unilateral authority to revise an enacted budget," Merritt said.
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