Court budget personnel now predict that money will run out by the end of this week. | REUTERS 'It is time to tell Congress to go to hell'

Federal judges, long used to being blasted as “judicial activists” by members of Congress, are now directing a stream of anger and vitriol right back at Capitol Hill.

Driving judges’ ire: the budget austerity and chaos lawmakers have imposed on the judiciary. Jurists say funding for the courts has already been cut to the bone by way of sequestration — and now the government shutdown has added insult to injury, leaving the government’s third branch running on fumes that likely won’t last out the week.


“It is time to tell Congress to go to hell,” Senior U.S. District Judge Richard Kopf wrote on his blog last week. “It’s the right thing to do.”

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Kopf, a George H.W. Bush appointee who sits in Lincoln, Neb., urged his fellow judges to evade the shutdown by designating all their staff as essential and exempt from furlough.

“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 [federal public defenders]) be declared ‘essential?’” the judge asked.

“Such an order would set up an inter-branch dispute worth having….[Congress] could do nothing, in which event Congress loses its ability to destroy the judiciary [by] failing to pass a budget. Or, Congress could go batshit and the judiciary and Congress could have it out,” he said.

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Such exasperation is even creeping into judicial rulings.

When lawyers for the House urged Judge Amy Berman Jackson to keep a case demanding Operation Fast and Furious-related records from Attorney General Eric Holder moving forward during the shutdown, the judge said lawmakers could cool their heels, just like others with claims pending against the government.

“While the vast majority of litigants who now must endure a delay in the progress of their matters do so due to circumstances beyond their control, that cannot be said of the House of Representatives, which has played a role in the shutdown that prompted the stay motion,” Jackson wrote.

Even before the shutdown, the judiciary shed nearly 2,700 support staff positions over the past two years. Funding for drug testing and electronic monitoring of pre-trial detainees had also been slashed by 20 percent, and federal defenders were under orders to take about 15 days of unpaid furlough in the past year.

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The cuts have caused delays in criminal and civil cases. Even the posting of judges’ orders has slowed, with many federal court clerk’s offices looking largely empty compared with a few years ago.

Sequestration cut $350 million, or about 5 percent, from the judiciary’s budget in the past fiscal year, bringing it to about $6.6 billion annually.

Judges themselves are effectively exempt from furlough because the Constitution says their salaries — currently $174,000 for district court judges — cannot be reduced.

For the past two weeks, the federal courts have essentially operated on fumes, using funds from filing fees and so-called no-year appropriations to pay salaries and keep the lights on. Court budget personnel now predict that money will run out on Thursday or Friday of this week. After that, work deemed essential will continue, but there will be no way to pay employees, contractors or utilities until Congress passes legislation including temporary or year-long funding.

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The chief judge of the U.S. District Court located just blocks from the Capitol building said that the shutdown’s funding lapse, piled on top of two years of tight budgets and staff reductions, has prompted his colleagues’ frustration level to rise.

“I have to say it’s fairly high,” Judge Richard Roberts said in an interview with POLITICO Friday. “Court budgets have essentially been slashed to the bone, with us losing nationwide thousands of judicial employees performing very important tasks…We’re being told to furlough where we’re already cut to the bone.”

Back on Capitol Hill, earlier complaints had drawn some skepticism.

At a Senate Judiciary subcommittee hearing in July, Sen. Jeff Sessions (R-Ala.) suggested some of sequestration’s impacts on the courts were being exaggerated.

“Congress voted and [the] American people seem quite comfortable with the idea that we can reduce spending for a little while around here instead of having steady growth and they’re not panicked, and I know we have stories that there’s not enough copy paper in a clerk’s office somewhere. Well, I would say…you need a new clerk. It’s like those school people that would require the students to bring in toilet paper because they can’t find enough money to do that, or fix their roof. That’s a mismanagement to me.”

Sessions said electronic filing systems should allow the courts to shed some clerks, but he acknowledged that the sequester did force some cuts more abruptly than made sense, particularly to federal public defender services.

“You’ve been asked…to take reductions more rapidly than smart people would ask you to take it,” he said.

Now, with the shutdown taking its own toll on the system, House Judiciary Committee Democrats staged a forum on Capitol Hill last week to draw attention to what they portrayed as a crisis in funding for the courts.

The Judiciary Committee’s top Democrat, Rep. John Conyers of Michigan, called the impact of the cuts and the shutdown on the courts “grave and growing each day.”

“Justice delayed is often justice denied,” Rep. Hank Johnson (D-Ga.) warned. “And with the cuts under sequestration coming on top of other cuts, we are at the point where we are delaying justice.”

“We don’t want to go to hyperbole but would you say we are near collapse as it relates to our justice system?’ Rep. Sheila Jackson-Lee asked at the session.

“I hate to say the word collapse, but it’s very close to that,” American Bar Association President James Silkenat replied. “If the hurdles remain in place, that is exactly what will happen.”

Meanwhile, judges — who, as lawyers, are accustomed to choosing their words carefully — have been all but shouting from the rooftops that a grave situation faces the courts if sequester cuts imposed in the last fiscal year continue into this one.

“A second year under sequestration will have a devastating, and long lasting, impact on the administration of justice in this country,” the chief judges of 87 federal courts wrote in an August letter to congressional leaders.

Several judges said the courts are getting squeezed because of what could amount to a flaw in the Constitution: the judiciary is supposed to be an equal branch of government, but — unlike the executive and legislative branches — lacks any real leverage over its own budget.

“We don’t exert the kind of control to keep up resources to match the need,” said Roberts, a Clinton appointee. “We don’t have ultimately any authority to set appropriations Congress decides on. We do not necessarily get to decide what the White House sends to [the Office of Management and Budget] and to Congress. We can’t go out and stir up constituents to do talking for us. Structurally, there’s a bit of an imbalance.”

Appeals Court Judge Julia Gibbons, who oversees the judiciary branch’s budget committee, said the judiciary has moved to contain costs in several ways in recent years. However, she said the judicial branch lacks some of the options other government agencies have to deal with funding cuts.

“We have no control over our own workload. It comes to us,” she said in an interview Friday. “We don’t operate any optional programs or activities that we can eliminate or sharply reduce. Everything we do is either constitutionally or statutorily mandated. We differ a great deal from other entities in that respect.”

While the budget woes generally mean delays in court cases that already take years to resolve, Gibbons said some of the cuts like those in pre-trial services present danger to the public. “We are not able to give the level of supervision to these dangerous offenders that is required to ensure public safety,” she said.

One side effect of the sequester and shutdown is that, eventually, they could slow the flow of criminal cases into the courts. For now, the Justice Department insists, FBI agents and prosecutors have been deemed essential and are working during the shutdown.

In many ways, the most serious impact at the Justice Department comes from the sequester. The FBI has said if sequester cuts continue at the current level, FBI offices will close for about 10 days next year with agents put on unpaid furlough.

“Unless something is done to relieve us of the burden of sequestration I can say that FBI agents, prosecutors will be furloughed,” Holder said late last month. “Now, what the number of days will be we’re still in the process of working that through, but sequestration at the level that we had to deal with in the past fiscal year will necessarily result in furloughs.”

Meanwhile, many civil cases the Justice Department defends the government against each year — ranging from discrimination lawsuits to personal injury claims to Freedom of Information Act suits — are being put on hold until the shutdown ends.

“We will certainly make sure that national security is protected on the criminal side. Our lawyers, our investigators will still be in the field. But on the civil side and a whole range of other thing that the Justice Department is entrusted to do, we will not do the job that the American people expect of us,” Holder said late last month.

Out-of-work federal employees remain covered by ethics laws during the shutdown, so it’s hard for furloughed lawyers to take on private work, even pro bono.

DOJ went so far as to issue an advisory saying that the safest kind of outside employment, ethics-wise, would be “sales positions at a retail store or food service positions at restaurants.”

Gibbons, who was appointed to the federal bench by President Ronald Reagan and elevated to the appeals court by President George W. Bush, said she was reluctant to condemn all of Congress for the judiciary’s budget issues. She said House and Senate Appropriations Committee leaders had proposed increases for the current fiscal year of 5.4% to 7.4% for the judicial branch, but that continuing resolutions and massive government-wide budget bills often end up cutting the courts’ allocation.

Kopf, the judge who suggested Congress be told to “go to hell,” declined an interview request, saying he only speaks to non-profit journalism outlets.

Gibbons, a Tennessee native who sits on the Cincinnati-based 6th Circuit, wouldn’t endorse Kopf’s combative words. But she said the sense is growing among federal judges that the judicial branch is at a crossroads.

”Judges generally try not to use intemperate language, but certainly, we are very, very, very concerned about the judiciary’s future,” she said. “There is a grave, grave concern and, yes, people are really, really, really worried.”