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Judicial Crisis

February 1, 2011

The U.S./Mexico border, a region notorious for the most murders and violence on the face of the earth during the past five years, was front and center again in the news this past week. In a syndicated article by Gary Martin of the San Antonio Express, a new dimension was brought to light outlining the intersection of two issues and how they are mutually creating an impending crisis along the U.S. Border.


The two issues are the significant jump in federal cases within the Federal Districts along the U.S border in Texas, New Mexico, Arizona and California and the lack of judges sitting on the federal bench to hear those cases. The jump in cases is directly linked to the drug violence on the border; murders, kidnappings, extortion, gang violence, human smuggling and the like coupled with a rapidly growing immigration docket as border security folks attempt to arrest and stem the flow of illegal entry into the U.S.


While we as a nation should be stepping up to vigorously address the growing crime and security issues at the border, we find ourselves instead in the midst of crisis with empty federal benches all along our southern border and no one to hear those case and grind those wheels of justice forward.


The situation is grave and has national security implications.
The lack of federal judges is the bottleneck. Without the jurists in place to hear the cases, the entire system backs up, the bad guys win and we, the American people lose. Under the Speedy Trial Act of 1974, the federal government must be prepared to present their case within seventy days of the filing of formal charges. Many serious criminals and their attorneys play the “poker game” with federal law-enforcement. They know the system is backed up and their cases will never realistically be presented within the seventy day parameters of the Speed Trial Act and they walk. Ultimately what happens is Federal prosecutors take less cases and/or they raise the thresholds for prosecutions for federal offenses, letting many serious criminals escape the consequences of their malevolence. The ripple back is that federal law-enforcement agencies like the FBI, DEA, U.S. Secret Service, and ICE, then open less cases because the hope of a long term investigation seeing the inside of a federal courtroom continues to dwindle with a lack of judges. Moreover, the indirect affect on morale with the federal law-enforcement community can be deleterious.


In the State of Texas alone there are seven vacant judgeships, four of them in border areas. Supreme Court Chief Justice John Roberts has called the filling of these vacancies an “urgent need” and it was reported that Chief Judge John Roll of Arizona who was to visit with Congresswoman Gabrielle Giffords, the day he was murdered, specifically planned to discuss the dire situation at the border and to ask for her intervention and assistance in filling those empty seats on the federal bench.


So why are these seats languishing empty while crime soars on our southern flank? Political partisanship is to blame for the most part; Democrats don’t like or want to confirm Republican appointee recommendations and Republicans don’t want to confirm those recommended by the Democrats and, again, we, the American people lose. It seems as though we as a nation have never recovered from the “bloody partisan battles” of the Robert Bork and Clarence Thomas hearings twenty years ago and that the contentious partisanship has persistently loomed over us. Is it possible more conciliation and less partisanship will emerge in the wake of the Tucson massacre?


We are not talking about appointments to the Supreme Court or even to the Fifth Circuit Court of Appeals; these are sitting federal judgeships, critical to the day-to-day administration of jurisprudence on the federal level as well as to the public safety and national security of our nation. The American people really don’t care if a Federal judge votes Democratic or Republican when he or she goes to the polls; if there is something egregious in their personal or legal history it will come to light during the background investigation and prior to the approval by the judiciary committee. Let’s just get good sensible people in place; people willing to assume the responsibilities of a federal judgeship, those who are willing to leave much more lucrative legal practices, are willing to step up to the plate, be true patriots and take on the most critically important role in any democracy, that of maintaining law and order.


How can we ask our neighbors to the south in Mexico, Colombia and throughout the globe for that matter to work bi-lateral operations with us, to maximize their limited resources and share intelligence and evidence with us, if the realization of a federal prosecution is minimal at best. How can we ask our counterparts in Mexico to move more quickly on judicial reform, moving their system to one more similar to that of ours with oral instead of written arguments presented in a court of law, when we can’t eliminate the self-imposed bottleneck choking our own federal judiciary.
 

Let’s hope the congressional “date night” last week on the evening of the President’s State of the Union address, mollifies some of the partisanship in the appointment of federal judgeships; our democracy and our national security are at stake.

 

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