Tell Congress to go to hell–all federal district court employees are essential

As the federal courts approach the point where all non-appropriated funds are expended, which remaining employees are essential becomes a heart-breaking question.  STOP!

Reject the premise of the question. Given the loss of employees already suffered by the judiciary on account of the sequester and otherwise, why shouldn’t every remaining employee of every federal district court (including FPD employees) be declared “essential?”

If the Chief Judge, and all the district judges, issued an order so stating, the Clerk of Court, the Federal Public Defender and all the other Unit Executives, would be protected from prosecution under the Anit-Deficiency Act. Furthermore, there is a strong argument for such a declaration. Best of all, such an order would set up an inter-branch dispute worth having.

Given such an order, Congress would have two choices. It could do nothing in which event Congress loses its ability to destroy the judiciary be failing to pass a budget. Or, Congress could go batshit, and the judiciary and Congress could have it out.

As I said, there is strong support for such a declaration. One Senator prominent in judiciary matters has even made an admission that such a decision should go unchallenged because it is entirely justified:

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.

Todd Ruger and Zoe Tillman, Lawmakers Sound Alarm Over Shutdown’s Blow to Judiciary, The BLT: The Blog of Legal Times, October 5, 2013. (Emphasis added.)

It is time to tell Congress to go to hell. It’s the right thing to do.


The essential Bren

I worry about whether our law clerks are “essential” under the “Shutdown Plan” and the Anti-Deficiency Act. I know Jim and Jan are essential and that’s because they are old. If I sent them home, they would get used to afternoon naps and never come back. I know Gabi and Ryan, the pro se staff lawyers, are essential. Otherwise, we would have to deal with the great unwashed ourselves and that would be icky.

However, I had my doubts about Bren, the career law clerk for Magistrate Judge Zwart. I know he is super smart and a great writer. He holds a Master’s degree and graduated with a whole bunch of honors from the UNL law school–degree awarded with High Distinction, Editor, Nebraska Law Review, Order of the Coif.

I also know Bren played linebacker at Nebraska Wesleyan University. But, I doubted he could swing both ways. If he couldn’t, there was no chance we should call him “essential.” That would require a report to the Anti-Deficiency police.

So, I followed Bren down the hallway as he aimlessly wandered about. Bren wanders the halls all the time (particularly when Judge Zwart is gone). It has something to do with the many concussions he suffered while playing linebacker. A nasty little twitch is  a byproduct too. Anyway, when I sensed he was at his most vulnerable, I struck from behind. I applied the ultimate test of essentiality.

I screamed “Heisman pose.” To my utter astonishment, and without any hesitation, Bren twirled around and, well, this is what I saw:

Bren Chambers showing his Heisman moves

Bren showing his Heisman moves and passing the essentiality test

Despite the vacant look (probably the concussion thing), I am now convinced. Bren is essential.


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