The last government shutdown in 1996 had a "debilitating" effect on court operations, retired U.S. District Judge W. Royal Furgeson Jr. told lawmakers on Capitol Hill today. Testifying in Washington, Furgeson said the judiciary, already grappling with budget cuts from earlier this year, will find it “much more difficult” to cope if the shutdown continues.
Furgeson was part of a panel of lawyers speaking today before the House Judiciary Committee on the effects of the shutdown on the judiciary and access to justice. During the last shutdown, Furgeson, now the dean of UNT Dallas College of Law, said the courts felt the harm long after the impasse ended because of how much regular business was put on hold to plan for the shutdown.
The federal judiciary says it expects to be fully operational through October 15. As the shutdown continues with no end in sight, American Bar Association President James Silkenat told the House committee that "our concern for the judiciary grows every day."
A.J. Kramer, the federal public defender for the District of Columbia, said that, like the courts, federal defender offices had already been "cut to the bone" under budget cuts known as sequestration. If the shutdown lasted past the judiciary's ability to fund the courts, including the defender offices, Kramer said it would cause more delays in court proceedings and demoralize attorneys and other employees who had already been asked to make sacrifices under the sequester.
"We have nothing else really we can cut," Kramer said. The sequester and shutdown, he said, will end up costing taxpayers more because of the higher costs of paying private counsel to represent indigent criminal defendants if public defenders were unavailable.
Kramer said he expected to see public defenders file motions to force funding or to dismiss cases because of the lack of funding, citing U.S. Supreme Court case law saying defendants had a right to the services needed to present a defense. "That will present judges with a serious dilemma," he said.
Robert Kengle, co-director of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, warned the shutdown would also have long-term effects on the U.S. Department of Justice's ability to enforce voting rights laws. He noted that elections were going on today in North Carolina, which was facing prosecution over its voter identification law. Kengle said he suspected the Justice Department would be unable to monitor elections to the extent it would want to because of the shutdown.
"My sense is that the civil work in the civil rights division has basically been stopped in its tracks as a result of the shutdown," said Kengle, a former lawyer in the Justice Department's voting section. He added that he had been trying to get more information from the department, but he was having trouble getting someone on the phone.
For civil legal services providers, which often advise clients on federal programs in areas such as housing assistance or tax relief, the shutdown has created uncertainty, said Don Saunders, vice president of civil legal services for the National Legal Aid and Defender Association.
"The longer it goes on, the more chaotic the situation will become," he said.
National Law Journal photo by Diego M. Radzinschi.