Sequestration was bad enough. Court budgets were slashed to the bare minimum, setting the "wheels of justice" to permanent slow-motion. Fees for appointed attorneys were slashed and deferred, just to keep the budget from collapsing. Justice delayed, justice denied, and a bare-minimum court system barely struggling to meet speedy trial demands became the status quo.
Imagine how the courts feel now, with the shutdown ravaging the rank-and-file of the government in general, not to mention the courts, which have constitutionally-mandated duties, including a duty to handle criminal cases in a timely manner. The courts stretched their funds to last through Thursday, and perhaps Friday, but after that?
Senior U.S. District Judge Richard Kopf of the District of Nebraska's answer is simple: "Tell Congress to go to hell."
Everyone is Essential Plan
If courts are already on a bare-minimum plan in the age of sequestration, doesn't that mean that every employee is essential?
That's exactly what Judge Kopf is arguing. He urges all courts, instead of head-counting and determining essentiality on a person-by-person basis, to declare everyone essential. Doing so would force a showdown with Congress: if they don't challenge the courts, everyone left gets paid after the shutdown ends and Congress loses the ability to destroy its constitutionally-equal third branch via budget cuts.
Or, in the alternative, "Congress could go bats**t and the judiciary and Congress could have it out." (Judge Kopf even cited Urban Dictionary to define the mildly profane term. Like we said: our new favorite judge.)
One of our other favorite outspoken judges, Chief Judge Alex Kozinski of the Ninth Circuit, has also declared the entire staff essential, stating, "As judges rely on their personal staff, as well as officers and employees of the court, to perform functions necessary and essential to the continued resolution of cases, all such staff are hereby ordered to report to work during their normally scheduled hours," reports Courthouse News Service.
The ABA Journal reports that the Second Circuit has also made a similar declaration.
While the showdown with Congress has a great Western movie feel to it, other judges are not so sure about the plan. According to the ABA Journal, some are arguing that judges are bound by the law, as Congress writes it, and as such, should make the essential employee determinations.
Have you been impacted personally by the Federal shutdown? Are you furloughed, or in fear of being furloughed? Do you think that Judge Kopf's proposed Shutdown Showdown would not only be a great idea, but might make for good television? Join the discussion on on Facebook at FindLaw for Legal Professionals.