Five Reasons to Be Sanguine About the End of the Shutdown
We’re not going to weigh in on the politics of the end of the shutdown, but now that it’s over, we’ll highlight several reasons why we’re glad it is — points the left, right and center should agree on:
1. Federal defenders will now be paid. The pressure of this job is immense, and we know from news stories and surveys that a certain number of these staffers are being treated improperly. Having to face undesirable working conditions is only made worse when there’s no paycheck to bring home. (An earlier version of this post included law clerks and judicial assistants here; we have confirmed that in the lower courts, law clerks and assistants were not paid but are still waiting to hear back from SCOTUS about theirs.)
2. Other employees critical to the success of the judiciary and related agencies will now be paid. To offer but a few examples, federal court reporters, per MSNBC, were paying proofreaders out of pocket to help polish transcripts. That will end. Support staff in the U.S. Marshals Service, some of who support the teams protecting federal judges and justices, will once again receive paychecks. Meanwhile, the Chertoff Group hasn’t gotten back to us on the status of their erstwhile, or possibly ongoing, SCOTUS contract.
3. One silver lining? Now might be the time to get serious about finding ways to exempt the judiciary from the inevitable future shutdowns. Responding to a question on this last month from Law360, Senate Judiciary Committee Chairman Chuck Grassley said, “We ought to be having a[n automatic] continuing resolution at least for the judicial branch if we don’t have a continuing resolution for all of government.” That’s not a terrible idea, given the unique role the branch plays, and I’d rather the Committee be focusing on this than, say, a hearing on “rogue” judges that’s coming later this month. There’s an all-government CR idea, but if that fails, an Article III carve-out would be wise.
4. Federal court business throughout the country can get back to(wards) normal. A resumption in appropriations ends the uncertainty regarding deadlines, hearing dates, deposition schedules and more. (Would be nice if there were more judges to do the judging, but that didn’t happen.) Relatedly, our FOIA lawsuit against the State Department over documents related to the justices’ travel abroad was supposed to have a JSR on Oct. 24; that was continued, so we now expect one to be filed next month, after which we should begin receiving documents.
5. As of yesterday afternoon, the judiciary has gotten back to posting judges’ 2024 financial disclosure reports and periodic transaction reports online. At the point when they had stopped doing this (four weeks ago), they had only uploaded 49.9% of the 2024 FDRs, 1,183 out of roughly 2,369 judges (plus another 26 yesterday). Even if more judges are asking for redactions given the rise in threats against them, we’re talking 10% tops, and even so, it doesn’t take six months to redact “Rotary Club officer” or “Cuyahoga County rental property.” The delay is unacceptable – and contravenes the 2022 Courthouse Ethics and Transparency Act, which requires disclosures to be posted by mid-August.