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--1NC--A] Uniqueness: Courts have heavy burdens now and are on the

brink – one big push causes collapse o the !udiciary and stops

all enorce"ent o the law#

$%A& 1'. People for the American Way conducts research, legal, education, andadvocacy for a wide variety of liberal causes. Current issues, news, activist networklinks, and background information; “verloaded Courts, !ot "nough #udges$ %he&mpact on 'eal People( )bstruction *y the !umbers+;http$www.pfaw.orgsitesdefault-leslowerfederalcourts.pdf  /0 11.23.13

 #udicial emergencies are putting a substantial strain on the 4udiciary.  “#udicial emergency( is a formal

administrative term used by the Administrative ffice of the 5.0. Courts. o Circuit Court any vacancy in a court of appeals where ad4usted -lings per panel are ine6cess of 788; any vacancy in e6istence more than 19 months where ad4usted filings are between 388 to 788 per panel. o :istrict Court any vacancy where weighted -lings are ine6cess of 88 per 4udgeship; any vacancy in e6istence more than 19 months where weighted filings are between <=8 to 88 per 4udgeship; any court with more than one

authori>ed 4udgeship and only one active 4udge. Across the country, 4udges in their 98s and ?8s who want to retire are stayingon the bench to mitigate the caseload for other 4udges in their districts. !early half of current vacanciesare 4udicial emergencies @2? in all "ven if every vacancy were to be -lled tomorrow, there

would still not be enough !udges to ensure every American+s opportunity to have their day in court$ #udges are so overwhelmed that the #udicial Conference of the

5nited 0tates recommended in Barch of 2813 that Congress create -ve new circuit court seats and 9 new district court seats @as well as make permanent nine district court seats that are now temporary. 0o -llingvacancies is a priority. %he 0enate is not living up to its responsibility to uickly consider and hold votes on circuit and district court nominees. nly in 281< D a year of striking success on 4udicial

nominations D was the obstruction overcome. *ut the process has been reversed in 2813. 0enate consideration of 4udicial nominees has slowed down significantly in President bama+s last two years of office. o #udiciary

Committee Chairman Chuck Erassley holds con-rmation hearings infreuently andforces nominees to wait weeks or months longer than necessary for their hearing. &n the

-rst ten months of the year, Erassley held only seven con-rmation hearings for circuit and district court nominees, and they usually could have accommodated more nominees than Erassley allowed. Fe has also routinely delayedscheduled committee votes on nominees without e6planation. o 0enate Ba4ority Geader BcConnell rarely schedules con-rmation votes, so there are often longHwaiting nominees. Currently, there are 1< circuit and district 4udicialnominees who should have a vote. 0i6 have been waiting two months or more since committee approval, three of them since #uly. All were approved by the #udiciary Committee unanimously. "ight are women or people of

color. !ine would fill 4udicial emergencies. o %his is a stark contrast to how the :emocraticHcontrolled 0enate processed Eeorge W. *ush+s nominees during his last two years in office. 0ince the beginning of 2813, the number of

current circuit and district court vacancies has increased from <8 to 2, and the number of those that are 4udicial emergencies has increased from 12 to 2?. &n contrast, when :emocrats controlled the 0enate during Eeorge W.

*ush+s last two years, the number of current vacancies dropped substantially, from 3 at the start of 2887 to <3 at the start of !ovember, and as low as =< in the early fall of 2889. %he 0enate has confirmed only ten circuit or

district court nominees during this Congress. At the same point in 2887, the 0enate had confirmed =< nominees, and it confirmed 9 in all during *ush+s last two years. %he obstruction has been going on since the beginning of the

bama Administration, so that the con-rmation pipeline is regularly clogged at the top by longHpending nominees who are needlessly denied a con-rmation vote. %his also delays the con-rmation process for all nominees who follow.o 5ntil the closing minutes of the 11=th Congress in :ecember 281<, 'epublicans had refused to consent to even one 4udicial con-rmation since !ovember of 281=. "very 4udge during that time, e6cept for the -nal few, reuired atimeHconsuming cloture vote to overcome a -libuster @after which they were usually con-rmed overwhelmingly, sometimes unanimously. &n many cases, even after the cloture votes, 'epublicans invoked their rights under 0enaterules to reuire hours of needless “postHcloture debate( before the con-rmation vote itself can be held, a signi-cant delaying tactic that discouraged 0enate leadership from calling cloture votes even for consensus nominees. o:uring President bama+s -rst si6 years in oIce @when 'epublicans were in the 0enate minority, ?= of his circuit and district court nominees needed cloture votes to break -libusters. &n contrast, during the entirety of Eeorge W.*ush+s presidency, 1 of his lower court nominees needed cloture votes to break filibusters. President bama+s nominees have been forced to wait far longer after committee approval for a confirmation vote than was the case for

Eeorge W. *ush+s con-rmed nominees at the same point in his presidency. o Circuit court nominees$ 9? days @*ush vs. 12? days @bama o :istrict court nominees$ =? days @*ush vs. ?? days @bama o *oth circuit J district$ <?

days @*ush vs. 18< days @bama %he seriousness of the problem has prompted widespread nonpartisan calls for the

0enateto end the gridlock and address the vacancy crisis# Chief #ustice #ohn 'oberts D 2812 /earH"nd

'eport on the Kederal #udiciary o “& therefore encourage the President and Congress to be especially attentive to the needs o the

 (udicial )ranch and provide the resources necessary for its operations. %hose vital resource needs include the appointment of an adeuate number of 4udges to keep current on pending cases. At the

close of 2812, twentyHseven of the e6isting 4udicial vacancies are designated as presenting 4udicial emergencies. & urge the "6ecutive and Gegislative *ranches to act diligently in nominating and confirming highly ualified candidates to fill those vacancies.(  #usticeAnthony Lennedy D 0peech to the !inth Circuit Conference, August 12, 2812 o “When you+re appointed to a lifetime position, it+s proper for the political branch of the government to have considerable

authority over that decision. n the other hand, there is a diMerence in a political function and a partisan function, and the current climate is one in which highly uali-ed eminent practitioners of the law simply do not want to sub4ectthemselves to this process. And & think it+s incumbent upon members of this conference, particularly the members of the bar to face the fact that they have the responsibility to ensure that this appointment, selection, and

con-rmation progress is done without the partisan intensity that now accompanies it. %his is bad for the legal system. &t makes the 4udiciary look politici>ed when it is not, and it has to stop.(  Kormer  #ustice 0andra :ay+Connor D %he !ew /orker, #eMrey %oobin post, #une 11, 2812 o “ %he con-rmation process is taking longer than one would hopeit would. &t would be better if it could move along at a steady pace. /ou don+t want to leave positions vacant for a very long time.( A*A President Gaurel E. *ellows, %he Fill, April 17, 281= o  %here aremany losers in this stalemate. ne is the 4udicial nominee, whose law practice and family suMer during thee6tended limbo of the pending nomination. 'eal costs are often borne by businesses whose viabilityrelies NrelyO on the timely resolution of commercial disputes, by defendants who lose 4obs and sometimes family ties while

languishing behind bars awaiting trial, and, ultimately, the public that e6pects courts to deliver on the promise of 4ustice for all. ur economy depends on courts toenforce contracts, protect property and determine liability. #udicial vacancies increase caseloads per 4udge, creating delays that

 4eopardi>e the ability of courts to e6peditiously deliver 4udgments. :elay translates into costs for litigants. :elay results in uncertainty that discourages growth and investment. With 8

percent more 4udicial vacancies at present than in #anuary 288? and pending civil cases in 5.0. :istrict Courts 7 percent higher than in 2883, vacancies are potential 4obHkillers. 5.0. Chief #udge #. Curtis #oyner @"astern :istrict of

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Pennsylvania, As "astern :istrict acancies Erow, 'einforcements 5nlikely, %he Gegal &ntelligencer, #une 13, 2812 o “&t delays 4ustice,( #oyner said of the burden that having vacancies puts on the

court. And, he said, “4ustice delayed is 4ustice denied.( A*A President William %. 'obinson &&&, !ominees :eserve otes by the 0enate, Charleston Post and Courier opHed, Barch 2, 2812 o NAOppro6imately one of every 18

federal 4udgeships remains vacant due to death or retirement. %he rate has been steady for 2< months. Q Why is this a

problemRAn understaMed 4udiciary means case backlogs. )acklogs mean 4ustice delayed incases 

involving protection of individual rights, advancement of business interests, compensation for in4ured victims and enorce"ent o ederal laws . ... Eiven the federal

courtsS longHterm backlogs, itSs important that nominations and confirmations outpace attrition. American *ar Association, press release, Kebruary 27, 2812 o “Washington+s partisan gridlock has

stymied not 4ust the policy process, but also the responsibility of the 0enate to give advice and consent in the nomination process.ur federal court systemT

indispensable to the nation+s economy and the 4ustice and freedoms we cherishTis being uietly undermined by needless deadlock.( o “Gongstanding vacancies on

courts with staggering caseloads impede access to the courts. %hey create strains that, if not eased,

threaten to reduce the uality of our 4ustice system. %hey erode con-dence in the courts+ ability to uphold constitutional rights and render fair and timely decisions. :elay at the federal

courts puts people+s lives on hold while they wait for their cases to be resolved. *usinesses face uncertainty and costly holdups, preventing them from investing and creating 4obs. &n sum, 4udicialvacancies kill 4obs.( American *ar Association, letter of ctober 1=, 2811 to 0enate Ba4ority and Binority Geaders o “Killing e6isting vacancies on the federal bench has become a matter of

increasing urgency. Across the nation, federal courts with high caseloads and lo ngstanding or multiple vacancies have no choice but to delay or temporarily suspend their civil dockets due to 0peedy %rial Act reuirements.

 %his deprives our federal courts of  the capacity to deliver timely 4ustice  in civil matters and hasreal conseuences for the -nancial wellbeing of businesses and for individuallitigants whose lives are put on hold pending resolution of their disputes.( !ational Association of Assistant 5nited 0tates Attorneys D letter of :ecember 17, 2818 to

0enate Ba4ority and Binority Geaders o “#udicial vacancies in our federal courts are reaching historic highs. ur members H career federal prosecutors who daily appear in federal courts across the nation H are concerned by the

increasing numbers of vacancies on the federal bench. %hese vacancies increasingly are contributing to greater caseloads and workload burdens upon the

remaining federal 4udges. ur federal NmeansO courts cannot function eMectively when 4udicial vacancies restrain the ability to render swift and sure 4ustice.(

)] *ink: (ury Nulli+cation sends "ore cases to trial which clogs

the courts#

,spara 1'. Andre Eabriel "spar>a; “#ury !ulli-cation$ %he Achilles Feel of the Police 0tate(; ctober 8=;

http$www.brettsanders.me2813184uryHnulli-cationHtheHachillesHhealHofHtheHpoliceHstate

 %he system of mass incarceration depends entirely on the steady stream of misinformation it imposes on the humans it looks to control. &f overnight everyonecharged with victimless crimes e6ercised their constitutional rights, the shortage of

 4udges , lawyers, and cops would be e6posed right away in the handling ofoverUowing 4ury trial cases. Can we 4ust imagine if the number of people demandingtheir trial rights 4ust doubled or tripled in occurrenceR &t would be absolute chaos for

the 4ustice system. %his immediate crisis would )bullet train+ mass incarcerations to the number one priority for 4udges and politicians. %hey would only be left withthe option to either throw out a lot of the )criminal+ cases -led, for e6ample drug possession, disobeying un4ust laws, and victimless crimes. r go with the more diIcult option and try

to amend the Constitution to turn the tables into their favor. Crashing the system by being informed and e6ercising our rights is an achievable concept. "ven the

dissolution of the :rug War could be commenced with this powerful tool. 0paring the destruction of innocent lives on the civilian side and senseless overreach on the police side. Geavingit to the individual to decide what to put into their own bodies without being raided, kidnapped, and locked up for a precious portion of their life.

.his divests a li"ited a"ount o !udicial resources which clogs

the courts#

%rothingha" 1/. 0tephen Krothingham; Associated Press; “Allowing 4uries to

 4udge lawR :isastrousR(; 0eacoast nline; :ecember 17, 2818.

5nder the bill, 4udges could instruct 4urors they could acuit defendants H even if prosecutors proved the crime was committed H if

the 4ury disagreed with the law. !ew Fampshire would become the only state with 4ury instructions allowing soHcalled 4urynulli-cation, which also is banned in federal courts. %he 0enate 4udiciary committee voted =H2 on %uesday to not support

passage of the bill, which has passed the Fouse. #udges would have to give the 4ury instruction if thedefense reuested it, which legal e6perts said would be almost every time. Proponents said empowering

 4uries would keep the three branches of government in check. V%he people are the ultimate source of our operation as a

government,V the billSs sponsor, 'ep. 'ichard Barple, 'HFooksett, told a state 0enate committee on %uesday. Fowever, prosecutors,

police and court oIcials said the bill Nnulli-cationO would tip the scales of 4ustice too far toward thedefendant and clog the court syste"  with more trials, longer trials, and mistrials.V%he practical application of this bill would be disastrous upon our criminal 4usticesystem,V Attorney Eeneral Peter Feed told the committee. Feed said the bill would turn trials into VminiHreferendumsV on laws.

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Uncertainty and inconsistency leads to the en banc process

clogging the courts even "ore#

0irk /. Bichael L. Lirk, e6ecutive director of the American &ntellectual Property Gaw Association. Barch 2<, 288.

http$www.aipla.orgAdvocacy280hared28:ocuments%"0288H8=H2<18?C&mmigration*illHKristHLirk.pdf 

& am writing to you on behalf of the American &ntellectual Property Gaw Association @A&PGA regarding the pending immigration reform legislation that would transfer 4urisdiction over immi gration appeals to the 5.0. Court of Appeals

for the Kederal Circuit. We believe that suchbroadening of the Kederal Circuit+s 4urisdiction would seriouslyhinder  the court+s ability to render high uality, timely decisions on patent appealsfrom district courts, and patent and trademark appeals from the 5.0. Patent and

 %rademark Ice. %his runs directly counter to the present eMorts of Congress to otherwise reform and improve this nation+s patent system. We take no position on other speci-c elements of the

legislation or on the underlying need for immigration reform. ur concern focuses solely on the proposed shift in appellate 4urisdiction, which we believe will do more harm than good. A&PGA is a national bar association whoseappro6imately 1,888 members are primarily la wyers in private and corporate practice, in government service, and in the academic community. A&PGA represents a wide and diverse spectrum of individuals, companies, andinstitutions involved directly or indirectly in the practice of patent, trademark, copyright, and unfair competition law, as well as other -elds of law aMecting intellectual property. ur members represent both owners and users ofintellectual property, and have a keen interest in an eIcient federal 4udicial system. %he Court of Appeals for the Kederal Circuit was established in 1?92 after more than a decade of deliberate study and Congressional consideration.

 %he Fruska Commission @chaired by 0enator 'oman Fruska conducted a study lasting nearly three years before recommending to Congress the establishment of a national appeals court to consider patent cases. &t took twoAdministrations, several Congresses, and a number of hearings in both the Fouse and 0enate before legislation establishing the Kederal Circuit was -nally enacted. ver the past 2 years the Court, through its thoughtful anddeliberate opinions, has made great progress in providing stability and consistency in the patent law. 'emoving immigration appeals from the general 4urisdiction of the twelve regional Courts of Appeals and centrali>ing it in theKederal Circuit is an enormous change. Geaving aside the impact, both pro and con, on the aMected litigants, the Kederal Circuit is simply not euipped to undertake the more than 12,888 reuests for review of deportation orders thattwelve courts now share each year. %he Kederal Circuit currently has no e6pertise or e6perience in the -eld of immigration law. While the legislation envisions adding three 4udges to the twelve currently on 2 the Court, we have

serious concerns whether this increase will be adeuate. #udge Posner has calculated that, even with the three additional 4udges proposed inthe legislation, each of the -fteen Kederal Circuit 4udges would be responsible for about 928 immigration cases per year, on the averageTan incredibly large number that we believewill

have a signi+cant adverse i"pact on the  remainder of the court2s docket# &t seems inevitable that the proposed

legislation will have a dramatic, negative impact on Kederal Circuit decisions in patent cases and appeals from the 50P%. 0uch an increased caseload will 

necessarily delay decisions in these appeals, which in turn will cause uncertaintyover patent and trademark rights and interfere with business investments intechnological innovation. *eyond mere delay, the KederalCircuitSs ability to issue consistent3

predictable opinions  in patent cases will be complicated by an increase in the number of 4udges. &f conUictsin panel opinions increase, the ineIcient and often contentious en banc process will have to be usedmore often , further adding to the overall burden on the court. *usiness can eMectively dealwith decisions, positive or negative, but it cannot deal with protracted uncertaintycaused by inconsistent opinions or long delays in 4udicial review. :emand for reform of the patent system has been the

topic of considerable public debate of late. Congress held e6tensive hearings on this sub4ect last year, and more are scheduled in coming weeks. %he Fouse is currently considering legislation that would dramatically change thepatent statute, and we understand that patent reform legislation may soon be introduced in the 0enate as well. &t would be unfortunate for Congress to inadvertently compound the challenges facing the patent system by weakeningthe ability of the Kederal Circuit to give timely and consistent consideration to patent cases.

C] 4nternal *ink: Court clog collapses the ederal !udiciary due

to institutional strains5akley 6. #ohn *. akley. #.:. /ale 5niversity, 1?72. Professor at 5C :avis 0chool of Gaw.X “%he Byth of

CostHKree #urisdictional 'eallocation(. 1??.

Personal eMects$ %he hidden costs of greater workloads. %he hallmark of federal 4ustice traditionally has been the searching analysisand thoughtful opinion of a highly competent 4udge, endowed with the time as well as the intelligence to grasp and resolve the most

nuanced issues of fact and law. 0wollen dockets create assemblyHline conditions, which threaten the ability ofthe modern federal 4udge to meet this high standard of uality in federal ad4udication. !o

one e6pects a federal 4udge to N%hey can+tO function without an adeuate level of available tangibleresources$ suIcient courtroom and chambers space, competent administrative and research staM, a good library, and a

comfortable salary that relieves the 4udge from personal -nancial pressure. Although salary levels have laggedTencouraging 4udgesto engage in the limited teaching and publication activities that are their sole means of meeting such newly pressing -nancialobligations as the historically high mortgage e6penses and college tuitions of the present decadeTin the main, federal 4udges havereceived a generous allocation of tangible resources. &t is unlikely that there is any further signi-cant gain to be reali>ed in theproductivity of individual federal 4udges through increased levels of tangible resources,1= other than by redressing the pressure to

earn supplemental income.1< n a personal level, the "ost i"portant resource available to the federal

 4udge is ti"e#13 Caseload pressures secondary to the indiscriminate federali>ation of state law are stealing time from federal

 4udges, shrinking the increments available for each case. Kederal 4udges have been forced to compensate by operating more like

e6ecutives and less like 4udges. %hey cannot read their briefs as carefully as they would like, and they are driven to rely unduly onlaw clerks for research and writing that they would prefer to do themselves.1 &f federal 4udges need more time to hear and decideeach case, an obvious and easy solution is to spread the work by the appointment of more and more federal 4udges. Congress hasbeen generous in the recent creation of new 4udgeships,17 and enlargement of the federal 4udiciary is likely to continue to be thedefault response, albeit a more grudging one, to 4udicial concern over the caseload conseuences of 4urisdictional reallocation.

0ystemic eMects$ %he hidden costs of adding more 4udges. NFowever,O &ncreasing the si>e of the federal 4udiciary creates institutional strains that reduce and must ultimately rule out its continued acceptability as a

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countermeasure to caseload growth. While the dilution of workload through the addition of 4udges is always incrementally attractive,

NandO in the long run it will cause the present system to collapse. & am not persuaded by arguments

that the problem lies in the declining uality of the pool of lawyers willing to assume the federal bench19 or in the greater risk that,as the ranks of federal 4udges e6pand, there will be more freuent lapses of 4udgment by the president and the 0enate in seating themediocre on the federal bench.1? &n my view, the diminished desirability of federal 4udicial oIce is more than oMset by the rampantdissatisfaction of modern lawyers with the e6cessive commerciali>ation of the practice of law. %here is no shortage of sound 4udicialprospects will ing and able to serve, and no sign that the selection processTnever the perfect meritocracyTis becoming lesseMective in screening out the un-t or undistinguished. Kar more serious are other institutional eMects of continuously compounding

the number of federal 4udges. Collegiality among 4udges, consistency of decision, and coherence of doctrine across courts are allimperiled by the growth of federal courts to cattleHcar proportions. /et the ability of the system to tolerateproliferation of courts proportional to the proliferation of 4udges is limited, and while collapse is not

imminent, it cannot be postponed inde-nitely. Congress could restructure the federal trial and appellate courts without imperilingthe core functions, but the limiting factor is the capacity of the 0upreme Court to maintain overall uniformity in the administrationand application of federal law. %hat Court is not only the crown but the crowning 4ewel of a 288HyearHold system of the rule of law

within a constitutional democracy, and any tinkering with its si>e or 4urisdiction would raise the most 

serious questions o the uture course o the nation#

7ultiple 4"pacts:

1# Court clog destroys a8r"ative solvency because it re"oves

the only enorce"ent "echanis"# Court backing is

necessary or !ury nulli+cation#9# Court clog controls the internal link to oppression – rushed

court cases and poor standards o ederal ad!udication

eli"inates !ust decisions3 causing courts to perpetuate the

oppression they eist to prevent#

;# Court Clog leads to etinction# ,<ective separation o power

solves unaccountable decisions to go to war#

Adler 6. @:avid, professor of political science at &daho 0tate, %he Constitution and Conduct of American

Koreign Policy, p. 2=H23

 %he structure of

shared powers in foreign relations

serves to deter the abuse of power, misguidedpolicies, irrational action, and unaccountable behavior. As a fundamental structural matter, the

emphasis on 4oint policymaking permits the airing of sundry political, social, and economic values and concerns. &n any event, thestructure wisely ensures that the ultimate policies will not reUect merely the private preferences or the shortHterm political interestsof the president. f course this arrangement has come under -re in the postwar period on a number of policy grounds. 0ome criticshave argued, for e6ample, that fundamental political and technological changes in the character of international relations and theposition of the 5nited 0tates in the world have rendered obsolete an eighteenthHcentury document designed for a peripheral, smallstate in the "uropean system of diplomatic relations. Boreover, it has been asserted that uick action and a single, authoritativevoice are necessary to deal with an increasingly comple6, interdependent, and technologically linked world capable of massivedestruction in a very short period of time. "6tollers of presidential dominance have also contended that only the president has the

ualitative information, the e6pertise, and the capacity to act with the necessary dispatch to conduct 5.0. foreign policy. %hesepolicy arguments have been reviewed, and discredited, elsewhere; space limitations here permit only a brief commentary. Above all

else, the implications of 5.0. power and action in the twentieth century NhasO have brought about aneven greater need for institutional accountability and collective !udg"ent that

e6isted 288 years ago. %he devastating, incomprehensible destruction of nuclear war and

the possible e6termination of the human race demonstrate the need for 4ointparticipation, as opposed to the opinion of one person, in the decision to initiate war. Boreover, most of the disputes at stake

between the e6ecutive and legislative branches in foreign aMairs, including the issues discussed in this chapter, have virtually

nothing to do with the need for rapid response to crisis. 'ather, they are concerned only with routine policy formulation and

e6ecution, a classic e6ample of the authority e6ercised under the separation of powers doctrine. *ut these functions have been 

fused by the e6ecutive branch and have become increasingly unilateral, secretive, insulated frompublic debate, and hence unaccountable.  &n the wake of ietnam, Watergate, and the &ranHContra scandal,

unilateral e6ecutive behavior has become even more diIcult to defend. 0cholarly appraisals have e6ploded arguments aboutintrinsic e6ecutive e6pertise and wisdom on foreign aMairs and the alleged superiority of information available to the president. Boreover, the inattentiveness of presidents to important details and the eMects of “groupHthink( that have dramati>ed and

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e6acerbated the relative ine6perience of various presidents in international relations have also devalued the e6tollers arguments. Kinally, foreign policies, like domestic policies, are a reUection of values. Against the strength of democratic principles, recentoccupants of the White Fouse have failed to demonstrate the superiority of their values in comparison to those of the Americanpeople and their representatives in Congress.