Last July, Lewis Roca Rothgerber attorney West Allen testified before the U.S. Senate Judiciary Subcommittee on Bankruptcy and the Courts on the negative effects that automatic spending cuts, or budget sequestration, would have on the federal judiciary. Allen was the only private practicing lawyer invited to represent and speak on behalf of the private sector and The People of the United States.
In light of Congress's recent failure to pass a Continuing Resolution (CR) and the resulting lapse in appropriations for all of the U.S. government, including the federal judiciary, Mr. Allen's testimony and insight is helpful in understanding the implications of our current budget situation. We've asked him to explain the perils of an underfunded judiciary.
Question: In your testimony before the U.S. Senate Judiciary Subcommittee on Bankruptcy and the Courts you warned of the negative effects of an underfunded federal judiciary caused by budget sequestration. In your opinion what are the biggest dangers posed by the current financial crisis in the judiciary?
West Allen: The current financial situation in the judiciary has many far-reaching implications. One of the most significant is that an underfunded judiciary has a direct effect on our Constitutional rights. Americans have a right to a fair and speedy trial, but less money for the judiciary affects both these rights. As courts reduce their hours and staffing levels, delay in judicial proceedings becomes inevitable, simply because there are limits to how speedily courts can process and decide cases, especially when their caseloads are increasing. Delay in judicial proceedings probably has the greatest impact on our society—not only does it delay justice, there are also implications on the economy and the livelihoods of taxpayers. Budget cuts to the Federal Public Defenders Office are already making it difficult for criminal defendants to receive timely and effective representation in criminal trials. That puts their Sixth Amendment rights in jeopardy.
Question: You said this crisis will affect the economy. Can you elaborate on this?
West Allen: Sure. Waiting for judicial rulings on relatively simple motions for six months, eight months, even a year is no longer uncommon. Delay always means added costs for litigants, along with added uncertainty as to the outcome. Many small businesses operate on too tight a profit margin to be able to afford the expense and uncertainty of a lawsuit in a commercial dispute, whether they sue or are sued. Federal court lawsuits have become almost prohibitively expensive and prolonged for small businesses. If businesses fail because of drawn out legal proceedings, jobs are lost and the economy suffers.
Question: Are there any other dangers posed by an underfunded judiciary?
West Allen: There are at least two others. One is that the safety of our communities is also threatened when federal court personnel—particularly probation and pretrial service officers—are unable to properly monitor the activities and whereabouts of offenders and convicted felons. Ultimately, there can be no doubt that fewer precautions in guarding public safety will lead to an increase in the crime rate and personal harm, likely including even fatalities. The other is more philosophical, but no less real. Underfunding the judiciary threatens the very strength and independence of the Judiciary as a co-equal branch of government, as established by The People. It jeopardizes America's long tradition of excellence in the law. This has consequences. As Justice Kennedy so eloquently put it: "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled." What happens to a society founded on the rule of law when its citizens start to lose confidence in the legal system? Individuals begin to suffer. Chaos.
Question: How urgent a threat to the federal judiciary is the current government shutdown?
West Allen: These are extraordinary times. Judge John Bates, the new Director of the Administrative Office for the United States Courts, has informed the federal courts that if no CR is passed, the federal courts have funding in reserves for only 10 days more. After that, only "essential" federal employees will report for work under the "Anti-Deficiency Act" which allows "essential work" to continue, that is, work that must be done under the Constitution. And they potentially would do this work without a paycheck, until Congress decides otherwise.
Question: Any final thoughts?
West Allen: Yes. I think it's important to remember that the judiciary is not just some government program grappling for federal dollars. Our Founding Fathers wisely recognized the compelling need for a strong Federal Judiciary, established as a separate, co-equal branch of government, sufficiently independent to assure the rule of law. But independence and promptness of decision making are imperiled when the Federal Judiciary lacks the resources to properly discharge its Constitutional responsibilities. The complete independence of courts of justice is peculiarly essential under our Constitution. It is the express Constitutional responsibility of Congress to safeguard this independence by adequately funding our federal courts.
To read West Allen's full testimony, please click here.
To watch C-Span's coverage on the testimony, please click here.
For more news surrounding the senate hearing, please click here. For additional information on how the government shutdown affected federal courts, click here.
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