Washington Watch | January/February 2013
By Bruce Moyer
Federal court chief judges and administrators across the country are putting contingency plans in place should the U.S. Congress fail to derail the deep, government-wide budget cuts due to take effect in January 2013, as part of a budget process called “sequestration.” Those cuts, amounting to roughly 8 percent of the federal courts’ overall budget, could considerably cripple court operations in a number of ways.
Over the past several months, the FBA has been warning Congress, the public and the legal community about the danger of these automatic budget cuts and urging Congress to adopt a comprehensive deficit-reduction package. FBA leaders at the national, chapter, and section levels, through a coordinated grassroots advocacy campaign, have been contacting their Senate and House lawmakers to highlight the danger of sequestration upon the federal courts, pointing to the numerous impacts. It’s one more way that FBA continues to serve its important role as the foremost constituency of the federal courts.
Congress, during its postelection lame-duck session between Thanksgiving and the holidays will have the chance to avoid those cuts through adoption of a thus-far elusive deficit-reduction package. The chances of Congress reaching a major budget deal during the lameduck session are slight, given the shortness of the session. Instead, Congress is more likely to adopt a “framework” for reaching a comprehensive spending and revenues package in 2013. Reaching agreement on even a framework during the lame-duck session will not be easy, assuming compromises on both spending and taxes are involved. Political control coming out of the November elections will influence the dynamic and content of how that evolves.
For the average person outside of Washington, D.C., it is hard to believe that Congress would ever allow sequestration to happen. Economists warn that the overall decrease in public spending caused by sequestration, along with the expiration of the Bush-era tax cuts, will throw the nation off the “fiscal cliff” and into another deep recession.
Ironically, Congress never fully intended sequestration to happen. The automatic cuts, scheduled to begin in January 2013, were included in the debt ceiling agreement of 2011 as a deterrent to motivate congressional adoption of a comprehensive deficit-reduction plan. But that hasn’t happened. It now remains for Congress to avert sequestration during the postelection session—or sequestration will proceed.
For the federal courts, the direct consequences of sequestration will be deadly, with cutbacks in court personnel and court operations that will vary from court to court. Because so much of court spending involves personnel costs, sequestration would force the judiciary to reduce its overall workforce by 5,400 court staff—roughly one-quarter of its total workforce—through layoffs and/or furloughs. That would come on top of 1,100 positions already eliminated over the past year due to prior funding cuts.
The budget for the federal judiciary is about $7 billion a year, a figure that has remained relatively constant 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. A cut of that magnitude would bring court spending down to what it was in fiscal 2009, according to the Administrative Office of the U.S. Courts.
In some courts, sequestration could reduce the hours of operation in their clerk of court offices, and some courts may even be forced to close for one or two days each week. This could lead to delays in court proceedings, particularly in civil and bankruptcy cases.
Public safety also could be endangered. “The federal courts would be unable to properly supervise thousands of persons under pretrial release and convicted felons released from federal prisons, thus compromising public safety in the community,” predicted Rep. Norman Dicks (D-Wash.), U.S. House of Representatives’ Appropriations Committee ranking member, in an October letter to lawmakers. In addition, the cuts could translate into staffing cuts for U.S. marshals and court security officers, potentially creating security vulnerabilities and requiring new limits on public entrance into courthouses.
As a last resort, the courts could be forced to suspend civil jury trials because of insufficient money to pay jurors. In criminal cases, payments to private panel attorneys in Criminal Justice Act cases could be suspended and federal defender organization staff furloughed. This would severely disrupt the provision of constitutionally mandated representation and the ability of the federal courts to resolve criminal matters in a just, expeditious manner. And because many criminal defendants are detained, this would result in extended pretrial detention, creating additional costs. The suspension of civil jury trials, however, would not come about until later this summer. By then, Congress hopefully will have scaled the fiscal cliff.
Bruce Moyer is government relations counsel for the FBA. © 2013 Bruce Moyer. All rights reserved.