CQ WEEKLY – IN FOCUS
Sept. 22, 2012 – 12:21 p.m.
Federal Bench Braces for the Blow
By John Gramlich, CQ Staff
In early September, James F. Holderman, the chief judge of a federal district court in Chicago, sounded an alarm in an unusual letter to bar associations, law firms and other legal groups around Illinois. “The enforcement of the laws and the delivery of justice in the United States courts is in peril,” he wrote. “I write for your assistance.”
The veteran judge, named to the bench by President Ronald Reagan, announced that he was considering closing the busy U.S. District Court for the Northern District of Illinois for one day each week between January and September 2013. The proposal is just one step Holderman is weighing to meet the automatic spending “sequester” dictated by the debt-reduction deal that Congress passed last year and President Obama signed into law.
Criminal and civil trials also would be suspended each Wednesday, and court staff would be furloughed. Court supervision of defendants and those on probation would be “severely limited,” Holderman wrote, urging recipients of his letter to respond in writing about how such steps would affect their own work.
The courts, of course, aren’t alone in this. In January, almost every federal agency will share in more than $100 billion of immediate, across-the-board cuts from the sequester knife. Concerned stakeholders ranging from local government officials to defense contractors are protesting about the potential adverse consequences for an array of programs and services, as well as the broader economy.
Most lawmakers view the sequester as harmful, and it was, in fact, designed to be a Draconian threat to force Congress to make tough, long-term fiscal policy choices. But negotiations to replace the sequester with alternative savings have been put off until after the November elections. And there are no signs that an alternative might be found before the sequester kicks in.
Unlike those in the executive and legislative branches of government, federal judges and other court officials have no seat at the negotiating table. Moreover, unlike lawmakers and the president, judges have no bully pulpit from which to condemn actions taken by the other branches of government. Judges generally do all they can to preserve their independence and avoid weighing in on most aspects of public policy outside of the courtroom.
In spite of those limitations, judges responsible for the administration of the federal courts are going public with detailed warnings on what they contend will be serious damage to the judiciary and to the cause of justice. Federal judges are warning of possible breaches in constitutional principles and are working to rally powerful interests — lawyers, businesses, prosecutors, social advocates and other groups that rely on the courts — to help shield the judicial branch from the sequester.
“Everything we do is related to our constitutional or statutory functions,” says Judge Julia Smith Gibbons of the 6th U.S. Circuit Court of Appeals in Cincinnati. “We do not have whole programs or activities that we can stop doing,” says Gibbons, who serves as budget committee chairwoman for the Judicial Conference, the policy-setting body for the federal courts.
‘Highly Deleterious Impact’
The swift response to Holderman’s letter provides a view of how effective one judge’s effort can be. The Illinois State Bar Association said business interests would be harmed because a weekly court closure would disrupt “the normal flow of commerce in one of the nation’s most populous court districts.” The chief U.S. pretrial services officer for the Northern District of Illinois estimated that three in 10 sex offenders, as well as those with drug and alcohol addictions and mental health problems, would no longer receive treatment due to the reduced amount of court supervision. The Chicago Council of Lawyers warned broadly of a “highly deleterious impact on the quality of justice in our community.”
The details revealed in Holderman’s letter are likely to mirror the kind of cost-cutting measures that other federal judges face. Chief judges in each of the 94 federal trial courts and in the 13 appeals courts are developing similar plans ahead of January, according to the Administrative Office of the U.S. Courts.
Federal Bench Braces for the Blow
“I feel uncomfortable because it is not the typical way that a judge, even a chief judge, has to spend his or her time: trying to convince Congress that its actions will actually have a detrimental effect on the delivery of justice,” Holderman says.
Obama heralded the courts as the “guarantors of civil justice, social order and public safety” in his national “Law Day” declaration in May that celebrated the country’s legal system.
“The courthouse doors must be open, and the necessary services must be in place to allow all litigants, judges and juries to operate efficiently. Likewise, we must ensure that access to justice is not an abstract theory, but a concrete commitment that delivers the promise of counsel and assistance for all who seek it,” read the president’s proclamation.
Despite the words, there is trepidation among judges and lawyers about whether those commitments can be met if the sequester is allowed to take effect.
The budget for the federal judiciary is about $7 billion a year, a figure that has remained little changed for the last three years, even as the caseload of the federal courts has increased. Under the sequester, the federal judiciary’s budget would be cut by $555 million, or roughly 8 percent, in fiscal 2013 according to a Sept. 14 report by the Office of Management and Budget. A cut of that magnitude would bring court spending about level with fiscal 2009 spending, according to the Administrative Office, and directly affect the number of court personnel, since most of the judicial budget goes for salaries.
About a quarter of all court employees — roughly 5,400 people — might be fired or furloughed if the automatic cuts take effect, the Federal Bar Association cautioned in a letter to congressional leaders two weeks ago. That would come on top of 1,100 positions already eliminated over the past year as the courts contended with constrained appropriations, the association said.
Besides furloughs and firings, the courts are likely to suspend civil jury trials because of insufficient money to pay jurors and skip payments to lawyers who provide defense counsel under the Criminal Justice Act. That law requires free legal representation to indigent defendants. Court clerk’s offices might be required to reduce their hours and other officials might have to pare back the number of security personnel.
Even the mechanics of imposing the spending cuts pose some unique challenges for the courts. U.S. attorneys are financed under a separate budget for the Justice Department, as are U.S. Marshals, who provide security at federal courthouses. This means the courts will need to coordinate with the executive branch in determining how, exactly, to find the required savings. “It’s a tricky, tricky issue,” says David Sellers, a spokesman for the Administrative Office.
One special consideration that the sequester raises for the judiciary is whether some cost-cutting steps can hold up to constitutional challenges. The Bill of Rights specifically guarantees defendants the right to counsel, the right to a speedy trial and the right to a jury trial. The definition of “speedy” may come under new scrutiny if the sequester causes the courts to pare back their workload and delay some trials.
Some cuts that judges are discussing have encountered legal problems in the past. In 1986, for example, the 9th U.S. Circuit Court of Appeals ruled that the 7th Amendment guarantee that “the right of trial by jury shall be preserved” had been violated by a lengthy suspension of civil jury trials by federal district courts in Alaska and California.
“The availability of constitutional rights does not vary with the rise and fall of account balances in the Treasury,” Judge Stephen Reinhardt wrote for the majority in that case, Armster v. United States. “The constitutional mandate that federal courts provide civil litigants with a system of civil jury trials is clear. There is no price tag on the continued existence of that system, or on any other constitutionally provided right.”
Missed payments to federal defense lawyers or to private lawyers who assist when federal defenders cannot handle a case may raise constitutional questions about whether defendants are being provided effective counsel.
Federal Bench Braces for the Blow
In some cases, defendants might not receive counsel at all, which, in turn, might help the defendants avoid trial, but at the same time — at least theoretically — pose a concern for public safety. “Dismissal of criminal trials may have to occur as many sole practitioners may be unable to accept appointments without compensation,” the Federal Bar Association said in its letter to Congress.
An inherent problem with across-the-board automatic spending cuts for the judiciary is the conflict of interest that might arise if judges are asked to weigh in on the constitutionality of such spending reductions on the delivery of justice.
“I hope I don’t have to face that issue,” Holderman says.
Competing With the Debt
Some legal groups, including the Chicago Bar Association in its response to Holderman’s letter, argue that the courts — as a separate branch of government — ought to be exempt from the sequester. Privately, some judges agree. But lawmakers may have other ideas, even if they are fundamentally sympathetic to the plight of the courts.
“We will try to ensure that you have the resources needed to accomplish your important mission,” Emerson told appellate Judge Gibbons during an appropriations hearing in March. But regardless, Emerson said, the growing, $16 trillion federal debt compels Congress “to reduce spending, and I’m committed to bringing down the deficit.”
All sides agree it’s anyone’s guess how the postelection negotiations will turn out, and how the courts will fare.
“It’s going to be highly political and it’s going to be a very intense negotiation,” says one House Republican aide. The courts’ unique concerns are understandable, but also part of a much larger battle as officials in the executive and legislative branches are “jockeying for position,” according to the aide.
FOR FURTHER READING: Fiscal 2013 appropriations, p. 1882; sequester approaching, CQ Weekly, pp. 1608, 800; debt limit law (PL 112-25), 2011 Almanac, p. 3-11.