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
U.S. District Judge William Young, sitting in Massachusetts, an appointee of President Ronald Reagan, told me Thursday morning that the sequester will generate a full-blown constitutional crisis by next summer if Congress doesn't act to restore adequate funding for the judiciary. He also echoed his colleague's concerns about a lack of public consciousness about the impact of the sequester. Judge Young told me:
I don't see any particularly public consciousness. The media, not just you but Washington Post and The New York Times, they have made comments, especially about the defenders but it's all ho-hum. There is not much lobby for defending the rights of people accused of crime. I am going to approach it from a slightly different tack. It is believed that the second wave of the sequester will going into effect at the next fiscal year; that there won't be a major debate about that, and that it will go into effect.
When that happens, within the judiciary, you are going to find serious questions about separations of powers -- questions of genuine constitutional magnitude. And I start with the jury. This fiscal year we have squeaked by, we are going to squeak by as far as I can see, with sufficient funds to pay for civil juries. Civil juries are like the canary in the mine. Our budgeting for civil juries is extraordinarily accurate -- I have nothing to do with it -- we can tell within about a week to two weeks when we will run out of money for civil juries. This year, this fiscal year, we won't run out.
Next year, with additional sequester cuts, I predict (but I'm not positive) that we will run out of money for civil juries before the end of the fiscal year. July, August, I'm not sure when but we will run out. Now, on that day, the Congress will be engaged in a direct attack on the constitutional rights of all American citizens. Because it is a constitutional right to sit on the nation's juries. And it is not an answer to say "Oh no, Heavens no, all we are doing is delaying it. It's just delay. There will be more money in the next fiscal year."
That's not so -- not so in this sense. Every day when we do not sit with juries, civil or criminal, a certain percentage of citizens who otherwise would have had the chance to exercise their right to sit on the nation's juries lose that right. If you delay it, simply by a day, you are in total going to call fewer jurors than you would call if you were running on every business day. A furlough day for juries doesn't mean that you will just be able to go on. It means that all the people who would have been called for service that day will never be called, never be able to exercise their right, and it is a right, a constitutional right, to sit on the nation's juries.
Judge Young then recounted what happened the last few times the federal judiciary has (inadvertently) run out of money to pay for civil jurors -- and how that contrasts with legislative indifference this time around. Last time, he told me, Congress as an institution was mortified and quickly, and quietly, found the necessary additional funding. "Scrambled" to fix the problem is the word Judge Young used. This time, however, he says he's seen no "particular concern about the fact that we will run out of money to serve as jurors." And he also wanted to be clear about the critical distinction between judicial and legislative power.
I am a judge of the United States. I occupy a position that Congress has authorized. They could turn my permanent judgeship into a temporary judgeship -- no doubt they could do that -- they could extinguish this court. But those are discrete Congressional legislation. The point is that it is a violation of the separation of powers by a sweeping budget resolution to take away the core judicial function.
They authorized my position. The president appointed me to it. The Senate confirmed me in it. Within the bounds of judicial authority, I am expected to exercise the judicial power of the United States, insofar as a district judge does it. One of those things is I have the power to summon jurors. I have the power to adjudicate the nation's business. That's the best argument [against the sequester] under the separation of powers.
The view from Colorado
U.S. District Judge John L. Kane, sitting in senior status in Colorado, an appointee of President Jimmy Carter, chose an altogether different approach to the question. He told me Thursday that he believes the judiciary itself could also do a better job of allocating scarce resources. Echoing concerns raised by Republican lawmakers about Justice Department expenses, Judge Kane told me:
I am very distressed with efforts to cut the budgets and staff of the federal public defenders and possibly delay payments to lawyers for investigative costs, travel, experts and time while at the same time the Third Branch spends enormous sums on judicial conferences, non-case related travel and seminars. Further cuts to district court staff, already in dire straits is causing delays, mistakes and scheduling problems with both civil and criminal cases.
Article III of the Constitution requires us to administer justice and in tight financial times, all other activities should be "sequestered" rather than those for the fundamental justification for our existence. Do we really need conferences at expensive resort hotels in this age when all information can be distributed electronically? I am in the final stages of preparation for a death penalty murder trial scheduled to take eight to ten weeks. Why complicate enormous efforts with concerns about whether funds to pay defense counsel and other costs will be exhausted. If so, what then? Declare a mistrial?
Washington would do well to listen to these voices and promptly end the sequester's impact upon the judiciary. These are not political figures. These are not partisans. These are not budget-busting bureaucrats. These are three men, representing hundreds of other federal judges and thousands of other federal court officials, who simply want to be able to do their job, to fairly and justly administer justice, according to their constitutional duties. Today, in the name of partisan obstructionism, Congress is precluding them from doing so. That's a far bigger scandal, I think, then a few planes running late into and out of National Airport.