Mr. President, I have heard a number of speeches from my colleagues on the floor today, both while presiding and in the last few moments, that call on President Obama for Presidential leadership to help us reopen the government, address our serious long-term fiscal issues, and move us forward.
I want to note for the folks who might be watching that the President is at this very moment sitting with the leadership of the Republican caucus in the House of Representatives. Tomorrow morning, I believe, he has invited the Republican Members of this body to the White House for conversation.
I think we agree. One of the core challenges we face as this Federal shutdown goes into, I believe, its 10th day is discerning exactly why the Federal Government is still shut down. When initially taken over the cliff into the shutdown, it was to prevent the implementation of the Affordable Care Act. That is what a number of Senators said on this floor was their purpose. Now, many days and many unintended and unexpected harmful consequences later, we are told what this was really all about was to force the President to negotiate.
I serve on the Budget Committee. We passed, more than 200 days ago, more than 6 months ago, a budget on this floor, and we have tried to go to conference on that budget now 21 times.
Yet each time it was blocked, objected to by a small number of Senators from the other party.
Frankly, my expectation, my hope is that we will return to a rational rules-following process here, reopen the government, not default on our national debt, and begin those serious negotiations, those Budget Committee negotiations that are long overdue to deal with the very real challenges that are facing our country.
I wanted to speak today about one of the consequences of shutting down our Federal Government. We see new ones every day, and we hear about them on the Senate floor. As the days drag on, we hear more and more about the impacts of the shutdown, sometimes with surprise, sometimes with regret, sometimes with outrage.
There is a lot on the line, and we have heard a lot about what the shutdown means for the various functions of the executive branch and of the legislative branch. I have heard colleagues come and speak about the Nuclear Regulatory Commission, about the FDA, about its impact on higher education, its impact on families, and its impact on small businesses. I have heard many folks come to this floor and comment on how the executive branch and its functions that affect communities and families all over this country are affected by the shutdown.
We have heard from our constituents who are trying to reach Senators and are trying to seek our help with a variety of Federal services. They are frustrated that the legislative branch is largely shut down, but there is another branch to our three-branch coordinate government. Absent from this debate and discussion is how the shutdown is affecting the judicial branch of our government.
When the Federal Government shut down 10 days ago, the Federal court system was initially seemingly largely unaffected because they had enough funds in reserve to remain open for 10 business days–a period that will come to an end early next week.
On Tuesday the Federal judiciary of the United States will run out of the reserve funds it has been using to stay open. The big question is, What happens then?
The chief judge of the bankruptcy court for the District of Delaware, my home State, told me:
“We are really in an uncertain situation, particularly when it comes to employees. I am fearful for them and how they are going to be able to pay for rent and mortgages, and provide food and day-care for their families.”
This is uncharted territory for our Federal judiciary. When the money runs out, Federal, circuit, and district courts will each be on their own, much like each Senator who has to choose which of his employees or her employees are essential, deemed vital, and need to stay, and which should be furloughed and stay home, uncertain whether they will be paid. Each district court and circuit court will figure out on its own how to keep the lights and which employees will keep working without a salary.
As the chair of the Senate Judiciary Subcommittee on Bankruptcy and the Courts, I have heard from a number of Federal judges this week who are frustrated by the amount of time they are spending trying to figure out what the shutdown means for their courts and their employees rather than doing the job for which they were confirmed, which is to judge cases.
This is an enormous distraction, a profound waste of time. This is not advancing our core objective, which should be growing our economy, strengthening our country, confronting the fiscal challenges in front of us, and working together to achieve some principled compromises in the Congress of the United States. In my view, Federal judges should be deciding cases, not deciding how to keep their courthouses running during this Federal Government shutdown. This needs to end. It could end literally today in a matter of minutes if Speaker Boehner would bring to the floor and allow a vote on a bill sent over from this Senate more than 10 days ago that would allow the Federal Government to reopen.
The judicial branch is not another Federal agency. It is not a program that can be suspended or a benefit that can be delayed. It is a branch. The Federal court system was created in our Constitution as the third pillar of our democracy. It is an independent branch of government whose fundamental mission is being undermined by folks, some of whom claim to love and to rigidly interpret the Constitution. Yet the consequences for our constitutional order of this senseless shutdown, I am afraid, will soon become clear in the days ahead.
The Subcommittee has heard from a number of Federal judges and clerks this week. I must warn you there are a lot of unanswered questions there. The path forward is murky. The central question in the courts–as it was here in Congress and in the executive branch–is who is considered “essential.” Is it the people directly involved in the resolution of cases or are the staff who support that process also expected to work without pay?
Here is the type of question our judiciary was dealing with today instead of resolving disputes or working on long-term cost-saving measures. Evidence in our Federal courts these days is typically presented electronically to jurors rather than handing out photocopies, which is great as long as the technology is working in the courtroom. Case files are processed electronically these days as well. But what if there is a problem? What if the technology doesn’t work and a trial is disrupted? At what point does a technological glitch become a legitimate due process issue? If the courtroom technology can’t get an upgrade to fix a bug, will it result in a costly mistrial? The Constitution and the Sixth Amendment guarantee criminal defendants a right to a speedy trial. What happens when our courts can’t live up to that Sixth Amendment guarantee because of this ongoing Federal shutdown?
The problem is equally severe in civil and bankruptcy matters. With the DOJ’s Office of the U.S. Trustee in shutdown status, the number of trustee attorneys in Delaware has been cut from seven to two. This can dramatically slow the bankruptcy process and leave real jobs and real lives hanging in the balance as cases are unresolved and as resolutions don’t move forward.
This raises another fundamental question. At what point in this ongoing senseless shutdown does our civil justice system fail to live up to America’s promise as a free market economy grounded in the rule of law?
When an investor anywhere in the world looks to make a bet on a new company, a new idea, that investor will obtain certain rights in exchange. Those rights may include a share of equity or a priority right in the event of liquidation. What gives those rights meaning is ultimately a highly functioning, impartial, and reliable court system. That historically has been one of our great advantages competitively in the world economy. Our courts, even while plagued by persistent vacancies, lack of new authorized judgeships, and the sequester, continue to perform this vital function. Without these courts, these rights mean nothing. Without the reliable enforcement of these rights, there is no more new investment, no more new job creation, and no more new ideas successfully brought to market. We are not the only country in the world competing for investment capital and for ideas. When we undermine our civil courts, we are being hostile to those very investors who could help get our economy back on track.
The Federal shutdown is already slowing the resolution of civil cases involving the Federal Government. Clerks at district courts around the country have confirmed to my subcommittee that the Department of Justice is requesting continuances broadly and across-the-board and trying to juggle the demands of their caseloads with the constraints of this reckless shutdown. Think about it. Social Security appeals, civil forfeiture cases, business disputes, consumer protection cases, Medicare fraud cases, incidents of employment discrimination–they are all being pushed to the background. This shutdown is bringing new meaning to Dr. King’s famous words: “Justice too long delayed is justice denied.”
Only this morning I heard from the head of Delaware’s district court, Chief Judge Gregory Sleet. He said, in essence–no insult intended, but his observation was that Congress is letting our country down. The subcommittee also spoke with a district court clerk yesterday who said–and I thought this was particularly striking–he was glad he was nearing retirement so he could escape the dysfunction of the Federal Government and our ongoing, seemingly routine manufactured crises.
This shutdown is exacerbating what is a more profound problem–a disregard for the upkeep of our Federal judiciary. More than 90 Federal judgeships are vacant. There are 39 vacancies that are deemed “judicial emergencies.” We need to do more to support and sustain the staffing, quality, and future investment that is required to make our Federal courts work as well as they possibly can.
I wish to make a point or two in conclusion. First, one of the essential questions every district court and circuit court will face is which of its employees are essential. After all of the cuts of the sequester and all of the burdens and challenges facing our Federal Government, aren’t all the employees of our Federal judicial system, this separate branch, essential? The chief judge for the Third Judicial Circuit of the United States believes so, and I agree with him. This morning he announced that nearly “all functions, with few limited exceptions, are essential ….. .”
I join the chief judge of the Third Judicial Circuit and urge other circuits to follow suit and to recognize that this independent third branch of our constitutional order is essential.
Last, this shutdown has dragged morale in our courts and our court system to a new low. We in Congress are blessed with a record number of attorneys who serve in Congress. It is my hope that this body recognizes the unique value of our Federal court system.
Our democracy cannot afford to furlough justice. We cannot shut the doors to our courthouses. It is my hope that Speaker Boehner, following the conversation unfolding at the White House, will come back and put to the vote an action that will allow the courts and this country to get back to work.