By Todd Ruger and Zoe Tillman
Democratic lawmakers are raising increasing concern on Capitol Hill about the harm the government shutdown will impose on the federal judiciary, which is expected to run out of operating funds October 15.
Until now, the federal courts largely have remained on the sidelines of the shutdown debate as the more immediate and visible effects--the estimated 800,000 government workers furloughed and the closure of national parks and Washington attractions--dominated the discourse.
On Friday, House Judiciary Committee Democrats announced a forum on Capitol Hill where legal experts on the judiciary will examine the fallout from the shutdown, which began October 1. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) today delivered a floor speech highlighting the potential pitfalls for the federal courts when the judiciary's reserves are depleted. The court has been operating on reserve funds.
"Our courts have been forced to run on fumes for far too long, they can't run on empty, so we should stop playing games with our co-equal branch of government," Leahy said on the Senate floor today.
It is unclear how the courts—including the U.S. Supreme Court, which begins a new term Monday—will cope without funding if the shutdown continues, Leahy said. Leahy said he was concerned about how the judiciary, already down in resources following budget cuts and sequestration, will cope with the additional burden of the shutdown.
"Can we bring criminals and terrorists to justice? There's no court to bring them to. How about small businesses and individuals who want to have their claims resolved? No court," Leahy said today. "Every federal court in the country will have to start making decisions about what part of justice is essential and what can be delayed."
Leahy also questioned whether there would be further cuts to federal public defender offices, jeopardizing the guarantee of defense for the indigent.
Senator Chris Coons (D-Del.), chairman of the Senate Subcommittee on Bankruptcy and the Courts, said the shutdown has made it challenging to learn more about how exactly the shutdown will harm the courts. In an interview with The National Law Journal on Friday, Coon said furloughs in his office have hampered communication with the judiciary officials.
Coons, who held an oversight hearing on court funding earlier this year, said the federal courts have been under significant stress through budget reductions already. He said he wouldn't challenge district court officials who, this week, decide that every remaining employee is essential. Two courts have already made that determination.
"That's a judgment I wouldn't quibble with at this point, because at my oversight hearing I was struck at just how little they have in the way of discretionary spending left," Coons said. "I can say having the federal court system under funded or shut down is a sign blow to justice and our economy."
If the courts do run out of money, Sen. Chuck Grassley (R-Iowa) said the judiciary would "need to make tough choices like the rest of the federal government on whether to furlough employees." The federal law governing permissible activities during a shutdown, the Antideficiency Act, "gives wide discretion on what's needed to carry out essential functions," he said in a written statement, "but I assume they'll be consulting with their legal teams to ensure the court system is in compliance with the law, while meeting its core mission."
The House Judiciary Committee's Democrats forum, set for 2 p.m. Tuesday at the Rayburn House Office Building, will feature James Silkenat, American Bar Association president; retired U.S. District Judge W. Royal Furgeson, now the dean of UNT Dallas College of Law; A.J. Kramer, federal public defender for the District of Columbia; Robert Kengle, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law; and Don Saunders, director of Civil Legal Services at the National Legal Aid and Defenders Association.
In interviews last week, a number of federal chief judges and court officials said shutdown plans could include declaring certain employees in administrative offices such as human resources or procurement nonessential. The judges, who would all be considered essential, said they did not plan to send home employees involved directly in managing cases.
At least two courts, the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit, announced last week that all remaining employees are essential.
This article has been changed to correct the date upon which the federal courts expect to exhaust their funding reserves.