Like a top that now spins ever faster, going nowhere, powered mostly by its own unstoppable momentum, California’s prison overcrowding drama continues and continues. Last Thursday there was a new development when a federal judge ordered Governor Arnold Schwarzenegger and two of his main aides to answer questions under oath as part of a lawsuit that, in November, could result in a panel of three judges forcing the state to cap the number of inmates in its prisons.

(As of today, California’s 33 adult prisons, which were designed for about 100,000 inmates, hold 159,000—-give or take a thousand or five.)

The overcrowding affects everything, say the inmate plaintiffs and their lawyers. It affects the badly broken prison health care system, and certainly the safety and the mental health of the prisoners—more than 130,000 of which are paroled back into California’s communities every year.

It also helps spread communicable diseases like Hepatitis C,—which, in some of California’s prisons, may infect nearly 50 percent of the facility’s population.

All that said, should the Governor be required to testify about the issue? Speaking personally, I rather liked the idea, since I believe that someone ought to be answering questions as to why, after nearly five years of promises made about prison reform, the Governor has managed to reform pretty much exactly zero.

But on Friday, California Attorney General Jerry Brown officially opposed the judge’s order requiring Arnold and staffers to be deposed. What is more, the AG phrased his objection in fairly strong terms.

Curious, about his thinking—and knowing that, whatever the topic, no conversation with Jerry is ever dull—I asked to chat about the matter with the Attorney General. Here’s how the conversation went:

WitnessLA: On Friday you opposed the ruling that would require the Governor and several of his senior staff to be deposed in the trial upcoming in November about prison overcrowding. What was your reasoning?

Edmund G. Brown Jr: Well, first of all, I’m the Governor’s lawyer.

WLA: I understand, but I got the feeling that you also believe it’s a bad idea.

EGB: There’s no reason why the Governor should be questioned about the day-to-day running of the prisons. That isn’t his job. He doesn’t make the individual decisions about whether to move this group of prisoners to that facility. These depositions are a stunt. It’s a public circus that’s has more to do with a lot of lawyers making millions and millions of dollars with these lawsuits.

WLA: On the other hand, we have prison overcrowding that’s completely out of control.

EGB: But bringing a bunch of lawsuits isn’t the way to solve anything. Look, the courts are a blunt instrument.

WLA: Nothing else seems to have worked….

EGB: And many of these lawsuits aren’t working so well either. There are dozens of consent decrees already in place. It began with Ronald Reagan….

WLA: Yes, we have our own pleasant consent decree in Los Angeles with the LAPD. It began as a good idea. But we now have a federal judge who appears to actively hate our police department.

EGB: We had one in Oakland with the police department.

Now the California prison system has become a repository for lawyer activists who submit unending lawsuits. And when you have the judiciary trying to solve every problem, it goes against the basic principle of the balance of powers. It’s not at all what the authors of the Federalist Papers had in mind. The separation of powers, among the judiciary, the legislature, and the executive is fundamental to our form of government.

WLA: But to play devil’s advocate, we do have disastrously overcrowded prisons, and that problem isn’t going to get fixed by the head of the CDCR. [California Department of Corrects and Rehabilitation.] It’s far more in the hands of the Governor and the legislature. To my layperson’s eyes there are two remedies: One is sentencing reform and the Governor has failed to do anything to push that forward. And the second is letting prisoners out early. There was talk of the Governor releasing 22,000 short term nonviolent prisoners to relieve the overcrowding, yet that never came about. Why isn’t it valid to depose the Governor to ask him about those issues?

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