October 2011

 

Hard Choices and Difficult Issues: The Judiciary Considers Its Financial Future

This month, The Third Branch spoke in-depth with Judicial Conference Executive Committee Chair, Chief Judge David B. Sentelle, and Budget Committee Chair, Judge Julia Gibbons, about what the Judiciary faces in the upcoming fiscal year.

Judge Gibbons, as chair of the Budget Committee, you recently chaired an unprecedented 5-hour meeting of all Conference committee chairs, and, Judge Sentelle, you were there with the entire Executive Committee. Can you talk about why you met and what you hoped to accomplish?

Gibbons: In September, Judge Sentelle and I led a cost-containment “summit” of chairs of Judicial Conference committees and members of the Budget Committee and the Executive Committee. The current budget situation facing all federal entities is placing the Judiciary in an untenable situation that could result in the loss of hundreds, maybe thousands of court staff. This is best illustrated by what is happening in FY 2012. A best-case appropriations scenario for the Judiciary for FY 2012 may be a freeze at the FY 2011 enacted level. The outlook for FY 2013 and beyond is not much better. We asked all participants to consider an array of long- and short-term cost-containment ideas generated through court unit executives, as well as by the Judiciary’s system of advisory groups and councils. The goal of this summit was to identify long-range cost-containment initiatives that would help to mitigate funding cuts to the courts and avoid the further loss of staff.

Sentelle: The Executive Committee participated in the summit to demonstrate our total commitment to this costcontainment initiative. It is absolutely critical that all aspects of Judiciary expenses be examined and, where it is possible and practical, be reduced. We are not just the Third Branch of government, we are also citizens and taxpayers. As stewards of the funds provided us by Congress, we must do our part to help fix this country’s fiscal problems, but do so in a way that does not impact the delivery of justice.

Judge Gibbons, you mention long-term cost containment as a way to mitigate budget problems in FY 2013 and beyond, but what about our more immediate needs for FY 2012?

Gibbons: Unfortunately, FY 2012 will begin with uncertainty. The Judiciary will operate for a few months under a continuing resolution while Congress hopefully completes action on our appropriations bill. Although we are doing everything possible to convince Congress to provide us with adequate funding, the outlook is not promising. As I said earlier, the best we can likely expect from Congress is a hard freeze in appropriations.

Sentelle: Even at a freeze in appropriations, the courts would still face the loss of hundreds of on-board staff. To help mitigate the impact of these budget reductions on the courts, at its August meeting the Executive Committee approved $76 million in “quick hits” to be used in the interim FY 2012 financial plan to help bridge the gap between available appropriations and requirements. Without these quick hits, the across-the-board reductions to court allotments would have been several percentage points higher resulting in the loss of more on-board court staff. But this is just a start.

Cost-containment is always key, but is there an added urgency this year?

Gibbons: There is a great urgency because, overall, our FY 2012 House bill funds the Judiciary 2.1 percent, or $143 million, below the FY 2011 enacted level. The Salaries and Expenses account, which funds court operations, is funded at 4.3 percent ($213 million) below FY 2011. I stress that the House is not reducing our funding because they think we do not need the money. We continue to be a priority, as evidenced by the fact that the overall FY 2012 funding allocation for our appropriations subcommittee was 9.4 percent below the FY 2011 level and yet they only reduced the whole Judiciary by 2.1 percent.

If the House level were ultimately enacted into law, the courts would face the possible loss of thousands of on-board staff through a combination of attrition, furloughs, and forced reductions in staff.

The Senate bill is $169 million higher overall for the Judiciary, and $180 million higher for the court’s Salaries and Expenses account. This is a much better funding level for the courts than the House bill, but is still 0.7 percent below the FY 2011 funding level, and still is not sufficient to fund fully all on-board court support staff.

While we do not expect the House level to be enacted, we also know that Congress is in a budget-cutting mode. We fully expect the Judiciary to feel a significant impact in FY 2012 and in the foreseeable future.

What was on the table at the summit?

Sentelle: Nearly every aspect of court administration—staffing, technology, facilities, chambers, and even judges— was examined for ways in which to cut or contain future costs. We started with a list of areas where cost savings might be realized immediately. The Conference committees looked at their specific areas of jurisdiction and the discussion cut across committee jurisdictions. For example, changes to the current work measurement formulas used to adjust court staffing were discussed by the Judicial Resources Committee, with input from the Budget, Court Administration and Case Management, and Executive Committees.

Gibbons: And jointly, the committees agreed that the best way to contain staffing costs would be to accelerate the development of the next round of work measurement formulas that will incorporate best practices, shared services, benchmarks, and efficiency incentives. But that’s just one example of the crosscommittee thinking that occurred during the summit.

Is this the fi rst time the Judiciary has instituted this level of cost-containment?

Sentelle: While the scope of our budget summit was unprecedented—we’ve never gathered as many chairs and committee members in one room to discuss initiatives—this is not the first costcontainment push by the federal Judiciary. In 2004, one of my predecessors as Executive Committee chair, Chief Judge Carolyn Dineen King (5th Cir.), was given the responsibility by Chief Justice William H. Rehnquist to identify the factors that were driving costs and what could be done to control them or cut them. At the time, the Judiciary’s FY 2004 final appropriations were insufficient to support on-board court staff. Reductions were made in personnel nationwide, and it was obvious that policy and operational changes would be needed for the Judiciary to maintain staffing and live within its budget in the future.

Can you give some examples of the cost-containment measures that will be implemented now?

Gibbons: In addition to the updates in work measurement formulas, we agreed to pursue several other cost-containment initiatives. We are very interested in encouraging and increasing the use of shared services and in exploring how national contracts can reduce costs. We hope to eliminate rental costs for unused and underused space and to relocate probation and pretrial services offices from leased space to courthouses, where feasible. We urged every circuit to adopt a written policy for providing staff to senior judges and also urged affected committees to examine staffing standards for recalled judges. And we have several ideas for reducing defender and panel attorney costs. That is a sampling of topics under discussion.

Sentelle: Cost-containment isn’t just contraction. For example, we will be encouraging courts to expand the use of telephone interpreting program for certain proceedings. Last fiscal year, telephone interpreting saved the Judiciary over $1.1 million by reducing the need for interpreters to travel. We also support the identification of low-risk compliant offenders for early termination of probation, to allow probation officers to focus their attention on higher risk offenders.

What was the outcome of the meeting? Did the Judiciary get the results it needed?

Gibbons: The discussion certainly headed us in the right direction. We asked for—and got—many new, creative ideas on how to fulfill our mission in a less costly manner. It isn’t necessarily what we want to do; but what we have to do to mitigate the impact of budget cuts on court operation.

Sentelle: It set a good point from which to begin contingency planning efforts. We have a commitment from the program committee chairs to discuss and reach agreement on whether to pursue each of these initiatives.

What is the next step?

Sentelle: Not all measures can be implemented immediately, and in some instances the changes will be gradual. Some of the long-term measures will take effect over several fiscal years. Some costcontainment measures agreed upon at the summit meeting must be considered through the normal decision-making channels of the committees and the Judicial Conference. Program committees will be discussing these initiatives at their upcoming meetings.

Gibbons: We hope that those initiatives that are agreed to by the committees and the Conference can be incorporated into the FY 2013 financial plan and FY 2014 budget request. We also hope to use the results of this summit to fashion a new cost-containment strategy for the Judicial Conference to consider at its March 2012 session. Whatever our strategy, we need to keep in mind that we have a limited opportunity to exert some control over our future and to avoid a potential extensive loss of on-board staff in the courts.

Do you have any closing remarks on the budget situation or cost containment?

Gibbons: I want to assure you that the Budget Committee, the AO, and our key judge contacts will make every possible effort to obtain the maximum level of resources from Congress. But that is out of our control and will be an uphill battle. We can, however, control many of our expenses, which is why cost containment is so important to the entire Judiciary.

Sentelle: As judges, we need to demonstrate leadership on this issue. We need to be supportive of our colleagues and our staff as they implement programs that save money. And we need to challenge each other when tough decisions need to be made. We do not expect this round of cost containment to be easy. Hard choices will need to be made about difficult issues. Unfortunately, the status quo is no longer an option for us.