It has been 134 days now -- roughly one-third of a year -- since the federal budget "sequester" formally took hold. And while members of Congress rushed a few months ago to ease the sequester's impact upon air traffic control -- that is, rushed to make sure their planes would take off on time as they got out of Washington for their long weekends -- there has been no such rush to protect the nation's legal system from the grim impact of the budget cuts. Our federal trials can be delayed at great cost to litigants, our nation's third branch may slide into third-world practices, but God forbid our planes should be late.
It would be one thing if the federal judiciary's budget were bloated. But clearly it is not. "For every one thousand dollars ($1000) of federal spending, the Judicial Branch uses one dollar and eighty-nine cents ($1.89)," U.S. District Judge Fred Biery wrote last week in an open letter to members of the Texas delegation to Congress. "Of that amount," the judge added, "the Western District of Texas uses three pennies." The sequester, in West Texas and everywhere else in the United States, is about the willingness of Congress and the White House to hinder justice by squeezing pennies out of the nation's already-underfunded courts.
Few outside of legal circles want to talk about the impact of the cuts upon the administration of justice. It rarely makes news -- and certainly not television news since there are few images to broadcast. But the sequester's impact upon the federal courts is bad, and getting worse, and will reach constitutional crisis next year around this time if the budget cuts reach into the next fiscal year. In the past few days, I've rounded up a sampling of views from some federal trial judges on what this means for federal litigants today and what it portends for future litigants if Congress continues to fail or refuse to adequately fund the federal court system. Read this cogent "fact sheet" from the Federal Defenders Office if you want details.
Included below are the comments of several sitting federal trial judges who expressed concern to me not just about the cost-cutting that impacts their courtrooms now but also about the profound separation-of-powers principles implicated by the lingering political deadlock in Washington. The sequester, in other words, represents an assault by the legislative and executive branches upon core judicial functions. And if it lasts much longer, if the next fiscal budget is impacted, the sequester will strip Americans of their right to both serve upon and to be served by juries.
The Administrative Office of the United States already has indicated that it may be forced to eliminate civil jury trials in the month of September -- a whole month without federal civil trials anywhere in America! "If sufficient funding is not provided to the courts," 6th U.S. Circuit Court of Appeals Judge Julia Gibbons bluntly told lawmakers in March, "we cannot provide the people of the United States the type of justice system that has been a hallmark of our liberty throughout our nation's history." The sad truth is, however; few of the nation's political leaders, including the former constitutional scholar who now inhabits the White House, seem to care.
The view from the bench
I asked U.S. District Judge John E. Jones, of the Middle District of Pennsylvania, an appointee of George W. Bush, for his views on the sequester's impact upon his courtroom and courthouse. Judge Jones told me Thursday morning:
To us, it's a gathering storm. We are seeing presently the effect of furloughs in our federal defenders office. So we are ending up not being able to schedule criminal cases on particular days because of the unavailability of federal defenders. As we look ahead, we have been forewarned... that there are enormously impactful cuts [coming]. The sort of rolling effect of the sequester is evident and it gets really worse by the month for the federal courts.
I wouldn't say that it's impacted issuing decisions at present but for example there are fewer people in the clerks office -- which means we are in a clerk sharing situation. All of us are concerned because as you know there is a speedy trial rule in the federal courts and the unavailability of defenders who are constitutionally mandated is something that I think concerns every federal judge. I think the criminal side, at least here, is where we have concern.
We felt we were running lean before the sequester. As we progress, if there is not a fix by the Congress it's highly likely in my view that there are just going to be certain days where we are not going to be able to conduct trials. It's that simple and that's justice delayed, obviously, where we are going to be not staffed. I don't think that's too far ahead. I can foresee that looming ahead, absolutely, because you don't have an available courtroom deputy, you don't have a defense counsel available, it impacts resources that we use to pay jurors, it cuts across everything that we do...
This is so difficult because the average guy on the street doesn't particularly have sympathy for the federal judiciary. I think it's abstract for people... They think we ought to do with less except that we are operating under as I said earlier constitutional mandates. If you have a case pending, if you want access to the federal courts, you ought to be concerned about this... Maybe the public doesn't care about it but I would suggest that they should care about justice in America. I wish there was the will to be smart to fix this but I'm not perceiving it.
The view from Massachusetts