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.‎