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November 01, 2012

President, Congress face fiscal cliff, sequestration during lame duck

ABA president cites devastating effect of potential cuts

Now that the 2012 election is over, President Obama and the 112th Congress have turned their attention to the lame duck congressional session that convened Nov. 13.

Negotiations began immediately on how to avoid the looming “fiscal cliff” facing the country if no action is taken on a number of urgent economic issues.

At the top of the list are mandatory funding reductions, known as sequestration, that are required to go into effect Jan. 2 under the Budget Control Act of 2011 unless Congress enacts a plan to reduce the federal deficit by $1.2 trillion. Although some programs such as Social Security and veterans benefits are exempt from the cuts, approximately 1,200 budget accounts would be affected, resulting in a 9.4 percent reduction in non-exempt defense discretionary funding and an 8.2 percent decrease for non-exempt non-defense programs.

The across-the-board cuts “will weaken national security, hamstring our system of justice and ruin any opportunity our nation has for timely economic recovery,” ABA President Laurel G. Bellows said in a statement issued in October.

Bellows requested the assistance of state and local bar leaders to emphasize to their senators and representatives the devastating impact that sequestration would have on the entire justice system, maintaining that basic government functions that keep our streets safe, enforce our laws and maintain access to justice are vulnerable.

According to Bellows, sequestration would cost federal law enforcement agencies 3,700 agents and U.S. marshals and put the United States in the vulnerable position of having to choose what kinds of serious crimes to prevent. In addition, state and local law enforcement assistance programs, juvenile justice programs and efforts to combat sexual and domestic violence would be scaled back even further than they already have been. Also on the chopping block, she said, would be youth violence prevention programs, funds to hire prosecutors and defenders at the state and local level, Legal Assistance for Victims programs, and efforts to monitor child predators.

The Second Chance Act, a law promoting public-private partnerships to help former inmates successfully re-enter their communities, also would see reduced funding. As a result, education, jobs and skills training, mental health and substance abuse counseling, and housing services would be limited for the more than 650,000 prisoners released each year in the United States.

She also emphasized that grants to the Legal Services Corporation (LSC), which helped more than 2 million low-income people in 2011 gain civil legal assistance, would be dramatically reduced.

Also in jeopardy, Bellows said, would be a basic tenet of American justice – the accessibility of the courtroom. Bellows emphasized that deep cuts to the judiciary’s budget will require a reduction in force of 5,400 federal court employees nationwide, including law clerks and probation officers, and major cuts in court security.

“Sequestration would slow the administration of justice and put greater strain on an already overburdened justice system,” Bellows said, explaining that “withering court funding when our economy is emerging from the worst economic disaster since the Great Depression would cause costly delays that would sap resources and prevent businesses from investing in their communities.”

In a Nov. 14 letter to President Obama, Bellows asked that the judicial branch be exempted from the sequestration, maintaining that “no other cuts will adversely affect the core functions of a coequal and independent branch of government” and that “failure to exempt the judiciary would require the political branches to renege on their obligation to provide sufficient funding for the federal judiciary.”

She also asked the president to urge Senate leaders to schedule, during the lame duck session, up-or-down votes, at a minimum, on the 15 judicial nominations pending on the Senate calendar that were reported by the Senate Judiciary Committee with no or minimal opposition. Despite the modest progress make in reducing the vacancies earlier this year, there are still are 83 vacancies that need to be filled. If there are no confirmations during the lame duck session, there will be more than 90 vacancies when the 113th Congress convenes.

“A significant and lasting reduction in the number of vacancies on the federal bench will require your administration and the Senate to engage in a concerted, sustained and cooperative effort,” Bellows wrote. She urged the president to redouble efforts to make the prompt filling of judicial vacancies a priority for the rest of his term in office, to submit a nomination to the Senate for every outstanding vacancy in a timely fashion, and to make a special effort to promptly nominate individuals for vacant judicial seats that have been classified as judicial emergencies by the Administrative Office of the U.S. Courts.              

Immediately after the election, President Obama and House and Senate leaders pledged to work together to enact a fiscal year 2013 budget that would avoid sequestration and address tax provisions, including expiration of the two-year extension of tax cuts originally enacted during the Bush administration and a temporary Social Security payroll tax cut, new taxes going into effect under the new health care law, and reversion of the Alternative Minimum Tax thresholds to 2000 tax year levels.

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