Federal Courts Peering over the Fiscal Cliff
Sequestration threatens drastic budget cuts
Pursuant to the Budget Control Act of 2011, which Congress passed in response to that year's standoff over the debt ceiling, the United States is currently on course to "go over the fiscal cliff" at the beginning of 2013. This anticipated budgetary catastrophe is a product of the Act's requirement of some $1.2 trillion in deficit reduction measures. Because Congress failed to enact legislation to reduce the national debt by a target amount prior to a deadline set by the Act, a package of tax increases and spending cutsthe latter referred to as "sequestration" in budget parlance - is scheduled to automatically go into effect on January 2, 2013. For nondefense discretionary appropriations - a category that includes the judiciary - the required reductions would amount to an 8.2 percent reduction as compared to the preceding year's spending levels.
A trip over the fiscal cliff would obviously have dire consequences. The debate over such consequences has focused on the potential havoc wreaked on the economy. Against this backdrop, it is perhaps unsurprising that the consequences of budget sequestration for the federal judiciary have received relatively little attention. Yet those consequences, too, would be far-reaching and catastrophic, and the need to avoid them provides yet another significant reason for Congress to take action to avert sequestration.
To be sure, budget pressures are nothing new for the federal judiciary. In his 2004 Year-End Report on the Federal Judiciary, Chief Justice Rehnquist identified a budget crisis extending back at least a decade and asked that the Judicial Conference focus on cost control. In response to these funding realities, and mindful of the belt-tightening required throughout government, the Judicial Conference has worked hard to contain costs, redoubling its efforts as of late: over the last several years it has worked with the General Services Administration to reduce its ongoing facilities costs, and just last month the Conference agreed to close court space in six facilities that do not have a resident judge. Even more closings are under consideration. The Judicial Conference has also generated cost savings through consolidation and standardization of its computer systems as well as through efforts to limit growth in the cost of law clerks and to more efficiently allocate the resources of probation and pretrial services offices.
Of course, personnel costs consume the bulk of the judicial branch budget. Costs have been contained there as well: the level of funding provided for fiscal year 2012, coupled with concern about fiscal year 2013, has led to a reduction in staffing of nearly 1,100 personnel and more than 3,200 furlough days since July 2011. This has left the courts' staffing level at 80 percent of what the judiciary's staffing formula calls for given its workload, even after a re-examination of the formula itself. In fact, if the funding level for fiscal year 2013 were simply to remain frozen at 2012 levels, the Judicial Conference estimates the need for the elimination of an additional 1,000 personnel. In total, this would represent a nearly ten percent reduction in staff over a roughly two-year period.
These cost containments are, it bears repeating, the consequences of a mere freeze in funding levels. As the numbers suggest, the consequences of the Budget Control Act's across-the-board spending cuts would be dire indeed. The Judicial Conference projects that the mandated 8.2 percent cut would entail a 5,400-person staffing reduction, a mandatory four-week furlough for all personnel, or some combination thereof which would result in equivalent savings. That would be only the beginning: payments to lawyers representing indigent criminal defendants would be suspended for the final six weeks of the fiscal year and civil jury trials would have to be suspended for the same period due to a lack of funds to pay jurors. …