Should senior status district judges retire as a group to get the attention of Congress?

As I noted yesterday, federal district judges who take senior status work for free.  They also do a hell of lot of work.

Consider this analysis:

For the district courts, there were 678 authorized judgeships (including
temporary judgeships) and 651 judges in regular active service in December
2009. The latter accounted for 78.8% of case terminations in 2009, while
judges in senior status accounted for the other 21.2% (including 26.8% of all
trials). It would require 174 district judges in regular active service to do the
case work performed by judges in senior status in that year. Taking vacancies
into account, this translates into 147 additional authorized district court

Stephen B. Burbank, S. Jay Plager, Gregory Ablavasky, Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequence,  161 University of Pennsylvania Law Review 1, 93 (2012).

If Congress continues to starve the federal judiciary of the money it needs to perform its core functions,  perhaps a significant symbolic act is in order.  At some point, senior district judges, who obviously love the federal judiciary enough to work for free, should consider retiring as a group.   Congress would then have to find a lot of money to pay for its intransigence.   While the impact on our active judicial colleagues and our staffs would be severe, there may be no other way to truly get the attention of Congress.  I am entirely serious about this.


Statement on Impact of Sequestration on Judiciary, Defender Funding

In case anyone is not convinced of the devastating impact of sequestration on the judiciary and particularly to federal public defenders, please read the following statement that I just received via e-mail from the Administrative Office of the United States Courts:


Statement of Chief Judge William B. Traxler, Jr., Chairman of the Executive Committee of the Judicial Conference of the United States.

The Executive Committee of the Judicial Conference is responsible for developing a spending plan for the federal Judiciary’s annual Congressional appropriation. This process involves significant input from Conference committees, and under the best of circumstances, is a difficult and complex task.

The current fiscal year presents unparalleled challenges. Budget sequestration has reduced the Judiciary’s overall funding by nearly $350 million from the level provided in Fiscal Year 2012. The impact of sequestration on the Judiciary is particularly harsh because the courts have no control over their workload. They must respond to all cases that are filed, whether they are by individuals, businesses, or the government.

In February 2013, the Executive Committee implemented a series of emergency measures that were intended to mitigate the impact of sequestration to the best extent possible. Nevertheless, significant shortfalls remain.

Funds have been reduced for probation and pretrial staffing, which means less deterrence, detection, and supervision of released felons from prison. Related funding for drug testing, drug treatment and mental health treatment were cut by 20 percent. Money for security systems and equipment has been cut 25 percent and court security officer hours have been reduced. Cuts in court staffing and hours threaten to impact public access and slow case processing. National information technology upgrades to improve infrastructure and financial management have been delayed. Sequestration is impacting federal court operations and programs throughout the country, including a $51 million shortfall in the FY 2013 funds in the Defender Services account.

The Judiciary is committed to doing its part to reduce the fiscal deficit our country faces. However, a significant problem arises when budget cuts impact our responsibilities under the Constitution. This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes. The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently. This will cost us all in many different ways.

With regard to the Defender account shortfall, at its April 16, 2013, meeting the Executive Committee examined all aspects of this account, scrubbed expenses where possible, and approved a final spending plan. After lengthy discussion, the Committee determined to allocate the available funds in a manner that, without further impacting payments to private attorneys, will at least limit the number of days that any defender organization staff must be furloughed. The result is that some federal defender offices will still be forced to furlough their employees up to 15 days. The Committee also approved deferral of payments to private panel attorneys for the last 15 business days of the fiscal year.

The defender program has no flexibility to absorb cuts of this magnitude without impacting payments to private counsel appointed under the Criminal Justice Act and Federal Defender Organizations, which pay for government lawyers to provide counsel to eligible defendants. Federal defender offices already have fired and furloughed staff, as well as drastically cut essential services. Criminal prosecutions have been delayed because defender organizations do not have the staff necessary to continue their representation of the defendant or the funds to pay for experts or other cases costs.
The Executive Committee’s allocation of funds is not a solution to the $51 million shortfall. It represents a conscientious effort to mitigate the adverse impact on both personnel and services. It also means that millions of dollars in expenses in this account will be shifted to FY 2014, even though they were not part of the Judicial Branch budget submission to Congress. This level of funding is unsustainable without relief from Congress.

The Judiciary will soon ask the Office of Management and Budget to transmit an FY 2013 emergency supplemental funding request to Congress to help ameliorate the impact of the sequestration cuts to defender services, probation and pretrial services, court staffing, and court security.*

In his 2012 Year-End Report on the Federal Judiciary, the Chief Justice said:

“A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

I share this grave concern.


* Emphasis added by RGK

The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole

(Photo credit:  Alex E. Proimos' photostream pursuant to a creative commons license,

(Photo credit: Alex E. Proimos’ photostream pursuant to a creative commons license,

Years ago, I had the privilege of drafting the plan that created the Federal Public Defender for the District of Nebraska.  Thus, it was, with utter despair, that I learned yesterday that the FPD for Nebraska will let go his senior criminal investigator (who is located in Lincoln) because of the dire budget situation.

The investigator, with 18 years of service to the FPD and additional years of service before that as a lieutenant in a metropolitan police department, is among the best and brightest.  He is the epitome of integrity, professionalism and just plain common decency.  He is universally liked and respected by everyone including his former law enforcement colleagues.

Because federal defenders are part of the judiciary, they are directly impacted by the crushing reductions in funding that the judiciary faces as a result of the sequester.  Indeed, it appears that Congress has singled out the Defenders (and Criminal Justice Act panel attorneys) for special damage.

I have been with the federal courts now, in one capacity or another, for over 25 years.  I served as chief judge and at other times I chaired our budget committee.  In short, I have “been around the block” when it comes to budget crisis.  I don’t scare easily.

But this I know with absolute certainty: Never before have the federal courts faced anything like the impending disaster brought about by the failure of Congress to appropriate the necessary pittance (less than 1% of the national budget) that is required to run the courts including most especially the Federal Public Defenders.

Judge Julia Gibbons, speaking for the entire judiciary, recently told Congress that “the Judiciary cannot continue to operate at such drastically reduced funding levels without seriously compromising the Constitutional mission of the federal courts.” Funding Cuts Will Compromise Federal Courts, Judges Tell Congress, (March 20, 2013)* (emphasis added).   She was not crying wolf.

There is no other way to look at it.  Congress, with its psychotic fixation on ideology, has begun to intentionally trash the Constitution, the federal judiciary and most particularly the Federal Public Defenders.  Unless they prefer a banana republic, where the rule of law belongs only to the corpulent political elite, it is time for the citizens of this country to wake up.


*Statement of the Honorable Julie S. Gibbon, Chair Committee on the Budget of the Judicial Conference of the United States Before the Subcommittee on Financial Services and General Government of the Committee on Appropriations of the United States House of Representative (March 20, 2013).

%d bloggers like this: