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There's currently a top-of-the-rec-list diary bemoaning the fact that President Obama nominated someone who used to work for a Tea Partier as US Attorney in Utah.  I'm gonna go out on a limb (not really) and guess that the diarist has never worked for a US Attorney's office or any of the smaller US District Courts, where the already overworked and underpaid civil servants have to work even longer hours (with no overtime) to cover the gaps that happen when politicians in DC haggle over nominees for a vacancy.

Since that diary was from the lens of an "outsider," I'm writing this to provide one perspective on what happens on the "inside" of an office experiencing such a vacancy, and to tell you why having a "Teabagger*" as US Attorney is better than continuing to have no US Attorney at all.

(* This is even assuming he is a true Tea Partier and not just a guy who has worked for a Tea Partier)

The US Attorney's Office (or USAO as we call them) in Utah has had a vacancy for its top job - creatively called "US Attorney" - since 2009.  The tendency around here is to view every one of these nomination processes and decisions through a political lens.  But in reality, most of the work that USAOs and District Courts do is not political.  Hell, they're too busy with the day-to-day grind of just getting through the cases assigned to them to THINK about the political implications of their decisions.

Most of the cases that go through USAOs and federal courts are cases that never make the papers.  On the criminal side, there are wire fraud, illegal possession of firearms, and drug distribution cases.  On the civil side, there's patent cases, Chapter 11 appeals, trademark infringement/unfair competition, guys who have sued the United States for conspiring with extraterrestrials to spy on them in the shower, etc.  You'll just have to trust me when I say that with most cases, you wouldn't see political implications unless you looked pretty deep.  And even when there are, the calendar is too filled with discovery teleconferences, sentencings, and trials for you to give much thought to politics.

I've never worked for a USAO personally, but I have many, many friends who have spent their careers working for the Department of Justice, either in the "field" (ie a USAO) or at "Main Justice" in DC.  It's pretty much the same for them.  Most people don't realize this, but the US Attorney's Office doesn't just decide what criminals to prosecute.  They also have civil divisions that are responsible for representing the US in civil matters.  Most of their work?  Not political.  The stuff that is?  Let's just say that those are not decisions that are made just by the US Attorneys in the field.  A friend of mine once joked that the comment most likely to elicit a collective groan from USAO staff was "I've got Main Justice on line 1."

Not that you'd ever know ANY this from the way politicians and political bloggers talk about the courts and government attorneys.  To hear them tell it, every case is about abortion, gay marriage, campaign finance, medical marijuana, or the rising power of corporations.  And every single District Judge and US Attorney makes independent, final decisions on those matters on a daily basis.

That's why whenever political haggling gets in the way of a vacancy being filled, all the civil servants who work at the courts and USAOs generally give a collective sigh of frustration, even if the held-up nominee is someone they would vote against if the vacancy was an elected position.  Having worked for federal courts and having seen how much sway home state senators have over the things, I can say that such political haggling is sadly far too common.  Both sides play this game.  The Republicans play it more than us, but it's not a one-way street.

Just for a "flip side" anecdote, there was a vacancy on the district court where I used to clerk that went unfilled for several years.  For most of the time, the poorly-kept secret was that the holdup was because one of the state's US Senators (a Democrat) was not happy with Bush's nominee.  So the district court went on with a vacancy for several years.  All of the cases that would normally have gone to the vacant judgeship had to be reassigned to the other judges on the court.  This had a number of bad consequences, affecting virtually everyone involved with the local legal system.

Most obviously, the remaining judges and their staffs had to cover for the work that the vacant judge was supposed to do.  That meant longer hours.  With no overtime.

People charged with crimes had to wait longer for trial or sentencing.  Civil litigants had to wait longer for trial.  Oh, and did I mention that all the civil servants at the court had to work longer hours with no overtime?  (Sorry to keep harping on that, but it's definitely what I remember most about it, for obvious reasons)

There was one period where the court's calendar was literally booked solid for 4 straight months.  Not one day off.  Motions and bench trials went unresolved for months and even years on end.  At one point, we had to start scheduling trials 3 years out for civil cases.  There were weeks that we quadruple-booked (no exaggeration) with proceedings in the hopes that all but 1 of the cases would settle.  When they didn't?  One of the trials had to be moved, creating yet more delays.  There were many times where we rivaled our "big law firm" friends in terms of the hours we worked, even though we got paid less than half of what they made.

Fortunately, my clerkship started only at the tail end of the "booked solid" period and I only had to work a couple BigLaw-esque weeks.  But those couple of weeks were enough.  My co-clerk hadn't been so lucky - she was a career clerk who had been around since the vacancy first opened.  She had one period where there were trials in cases assigned to her for 8 weeks in a row.  She had to beg her then co-clerk to trade for one of her cases just so she could have a week to work on motions that had been lying on the docket for over a year.  Everyone in the legal community, both inside and outside chambers, was understandably frustrated with the situation.

Same goes when a US Attorney position stays vacant.  Yes, I've seen that happen before.  The effects are analogous.  The First Assistant US Attorney and/or the head of the criminal and civil divisions (different USAOs are run differently) have to cover for the vacancy, the junior attorneys have to cover for them, etc, etc, etc.  Again, more hours and no overtime.  The effects are less obvious than with a court vacancy, but they are very real.  There's far less time for proper training and less attention to detail.  Briefs are shorter, trial preparation is laxer.  Hiring slows or stops because the chief deputy is hesitant to make long-term decisions.

From the court's perspective, when we had a long vacancy for US Attorney, the dropoff in the quality of trial preparation and briefs was subtle but noticeable after a few months passed.  The effects that had on the juries that heard cases are impossible to gauge, but I have no doubt it made a difference at the margins.  Just as worryingly, the lack of oversight resulted in less-informed decisions on who to prosecute (don't want to reveal more than that for fear of losing anon, but trust wasn't good). Those are not features you want brought out in prosecutors who have to make decisions that literally can determine life and liberty for people in the community.

Considering how deluged the civil servants (ie the judicial clerks, assistant US Attorneys, case managers, secretaries, etc that are NOT political appointees) become when they have to cover for unconfirmed presidential appointments, I'm just happy when a vacancy is filled at all.  And I'm sure the Democrats in the Utah USAO are happy too.  And they probably are praying this nomination goes through quickly, not that the nomination gets filibustered and everything has to start from scratch.

Having been in their shoes, I would feel the exact same way.

And the impact that this will have on matters that we blog about every day?  Very little.  Certainly less than would result from the additional delays, fraught nerves, and all the downstream ill effects that result from continued vacancies.  There's a reason Thurgood Marshall was fond of saying that justice delayed is justice denied.

So please, a little perspective.


UPDATE: Heh...totally didn't expect this to make the rec list.  No one tends to think much about the "grunt" attorneys who spend their life in the civil service.  Just think of us a little when you read a diary about the Justice Department and courts.  The stuff you read in the papers is NOT what we spend most of our time doing - nor do you want it to be.  Thanks everyone!


UPDATE 2: One commenter took issue with my characterization of employees of the US Courts and USAOs as overworked and underpaid.  Here was my last response, with bolding added for emphasis.  In short, I'm not complaining about my pay per se - I'm just saying we work hard, could get paid better if we simply took the offer from the highest bidder, and don't get paid a dime more for working extra hours.

What I am asking YOU to recognize is that we ARE underpaid relative to what we could be making in private practice.  Our hourly pay is way less than what we'd make if we switched to a BigLaw firm, even though the work we do would probably be valued at least as much (if not more) if it were set by the market rather than the General Schedule.  They get paid 2-3 times as much, depending on the firm, even though they work at most 1.5 times as many hours in the course of a normal week.

It's a well-known phenomenon in the legal world that has become very difficult to get the most best private practice attorneys to become judges because the top partners at BigLaw firms often make ten times as much as a federal judge.  As one of the judges I clerked for said, he can't go out on the street and complain about his salary.  But he took a HUGE paycut to become a judge 15 years ago, and is not sure he would do the same now that partners at his former firm are making 7 digit salaries.

And, more importantly, unlike attorneys at BigLaw firms, there are no bonuses that get paid if we work a certain number of hours per year, and no midnight taxi service to go home if we work late at the office.  We receive no monetary compensation for going "above and beyond."  So whenever a vacancy happens, our workload increases but our pay does not.  THAT was the point.

I'm sorry if you got the impression that I'm complaining about our pay.  I'm not.  The only thing I'm even sorta complaining about is that people don't realize how hard we work and don't give any thought to the impact that vacancies have on our workload and relative pay.  The vacancies have lots of bad downstream effects - and as I explicitly said, the effect on our workload is merely ONE of them, and not even the most important one (I would say that the delays in sentencing dates are most serious for courts, and poor oversight of prosecutorial discretion is most serious for USAOs).

Anyway, that is all beside the MAIN point I was making: Since most of the work done by both USAOs and district courts is apolitical, the main effect of leaving a vacancy open is to put additional strain (in both time and stress) on the civil servants who work at the affected office.  And that isn't good for anyone.

Originally posted to Matisyahu on Wed Aug 03, 2011 at 05:53 PM PDT.

Also republished by Progressive Messaging and The Yes We Can Pragmatists.

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