The ABA Journal reports that court administrators are in a position to insist that workers stay on the job because, eventually, they must be paid under federal law, explains senior U.S. District Judge Richard Kopf of the District of Nebraska. And, in a recent post at Hercules and the umpire titled “Tell Congress to go to hell—all federal district court employees are essential,” he urges administrators to do just that.
“Given such an order, Congress would have two choices,” Kopf points out. “It could do nothing, in which event Congress loses its ability to destroy the judiciary be failing to pass a budget. Or, Congress could go batshit, and the judiciary and Congress could have it out.”
Among those who have set the stage for a potential showdown with the legislative branch are the New York City-based 2nd U.S. Circuit Court of Appeals and Chief Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals, according to Courthouse News and the National Law Journal (sub. req.).
After a series of budget cuts in recent years, “We’re drowning,” said Chief U.S. District Judge Anne Conway of the Middle District of Florida. “We’re treading water to keep our heads up. There’s just nobody left.”
Her jurisdiction declared all employees essential Oct. 7. As of Friday, at least 24 of the 13 federal appeals courts and 94 federal district courts had made the same determination as of Oct. 11, the NLJ reports, although most have not yet addressed the issue.
In interviews with the Blog of Legal Times earlier this month, influential lawmakers from both sides of the aisle did not appear eager for a confrontation with the courts over the funding issue and the interpretation of the Antideficiency Act, which provides broad authority to continue with functions deemed essential.