Congress began its five-week recess Thursday on the heels of some disappointing news. Lawmakers have reached a “seemingly intractable impasse” on government spending, increasing the odds of a government shutdown in October. The sequester has already crippled our federal courts, which make up less than one percent of the overall budget. At the same time, an overwhelming number of judicial vacancies threaten to hinder court functioning even further. The inability of the executive and legislative branches to reach agreement on matters such as funding and nominees highlights their growing tendency to use the courts as a pawn in their broader political battles.
Our courts are currently operating under the sequester, which slashed our federal court budget this year by $350 million. A recent Senate Judiciary Committee hearing highlighted how the sequester is hindering even basic federal court functions, such as pretrial and probation services, and courthouse security. Some jurisdictions may even suspend hearing civil trials.
But it is the already underfunded federal defenders, who represent defendants who cannot afford to hire a lawyer, who are being hit the hardest. This year, the federal defender budget will be reduced by $52 million, or roughly 10 percent. Federal public defenders may be furloughed for as long as four weeks, making it almost impossible for indigent defendants to receive timely representation. Money for federal defender offices is set to be slashed by another 14 percent in 2014, further threatening the constitutionally protected right to counsel.
But the federal courts are not only starving for money, they are starving for judges. The federal district courts are facing an unprecedented level of judicial vacancies. For the past five years, the average annual number of empty federal district court slots, where the overwhelming majority of matters are heard, was above 60 seats—the first time this has happened in more than 20 years. In 2012, caseloads were higher than any year from 1992–2007. Increased caseloads mean increased delays.
Unfortunately, our federal courts, which were designed to be outside of politics, have become entrenched in partisan battles. Slashing court budgets and refusing to confirm judges for petty political advantage is now standard practice. Chief Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit argues “is not hyperbole’” to describe the dire budget situation as a looming constitutional crisis. “We are not there today,” he said, “but every day we get closer to that point.”