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Federal judges ask Supreme Court to hear case on their pay

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By Amanda Becker
Monday, June 28, 2010

Legal professional organizations are lining up to support a group of federal judges who have asked their colleagues on the Supreme Court to consider whether Congress can deny them cost-of-living salary increases.

On the surface, the case is about whether Congress can usurp a federal law that mandates annual judicial salary increases when it sees fit, but the plaintiffs have crafted their argument in the larger context of how the framers of the Constitution intended to protect the judicial branch from political influence.

The American Bar Association, the largest voluntary professional membership organization in the country, filed a friend-of-the-court brief on June 16 that asks the justices to consider whether salary erosion has resulted in "judicial pay that is now so low that it seriously compromises the independence that life tenure was intended to ensure, and is insufficient to attract and retain well-qualified jurists."

Separate supporting briefs were filed the same week by a coalition of bar associations, the International Municipal Lawyers Association and the Federal Judges Association.

Annual judicial compensation ranges from $160,080 for a bankruptcy or magistrate judge to $213,900 for the Supreme Court justices. But as the ABA brief points out, those salaries are dwarfed by those earned by judges' contemporaries in other legal realms. Government lawyers at the Internal Revenue Service and the Securities and Exchange Commission, for example, have the potential to earn larger paychecks than most judges. At top law schools, senior professors take home an average of $330,000 a year and deans even more. The average law firm partner makes $264,000, with annual compensation at the largest firms surpassing $1 million.

Even federal judges' entry-level clerks can walk away and "earn more in salary and bonuses in their first year in private practice than the federal judges for whom they clerked," the ABA brief states.

"Over the last 50 years, the ABA has spoken out forcefully whenever judicial pay has been ravaged by inflation and fallen to inadequate levels," said President Carolyn Lamm of the association's decision to weigh in on the case.

The plaintiffs in Beer et al. v. United States are seven current and retired federal judges from jurisdictions in the District of Columbia, California and Louisiana who have asked the Supreme Court to reconsider a prior decision made by the U.S. Court of Appeals for the Federal Circuit in Williams v. United States that said Congress had the authority to withhold judicial pay raises dictated by the Ethics Reform Act of 1989.

That law put limits on the kinds of outside income federal judges could earn but protected their salaries from inflation by establishing a system of automatic salary adjustments.

The judges' petition notes that in the decade following the enactment of the law, there were five years during which no cost-of-living adjustment was made to judicial salaries. Only once did Congress invoke the exemption for "serious economic conditions" to justify no adjustment. In the other years, it relied on language in appropriations legislation to block increases to judicial pay while allowing cost-of-living adjustments to the salaries of other federal employees.

In 2001, the same year the Federal Circuit panel ruled on the Williams case, Congress passed a law that automatically blocked future judicial salary adjustments unless they were specifically approved by an act of Congress. The failure to approve such an act in 2007 added a sixth year during which federal judges went without cost-of-living salary adjustments.

The Beer case moved quickly through the district and appeals courts in the District because the plaintiffs do not dispute the facts in Williams. Rather, the judges' petition states that the lawsuit is a "vehicle to overturn it" that argues that the "delicate" issue of "whether Congress can withhold self-executing and non-discretionary judicial salary adjustments previously established by law should be resolved by this Court, not a divided panel of the Federal Circuit."

With Williams, the Supreme Court elected not to hear the judges' appeal over the dissent of justices Stephen G. Breyer, Antonin Scalia and Anthony M. Kennedy, all of whom are still on the court. In that dissent, the justices bring up the compensation clause in the Constitution, which says the salaries of federal judges "shall not be diminished" during their time on the bench.

"When a case presents a serious Compensation Clause question ... we should hear and decide it," Breyer wrote at the time.

"That sends a pretty strong signal that they were concerned about the issue," said Christopher Landau, a Kirkland & Ellis partner who is representing the judges.

Statements made since indicate the issues raised by Beer are near and dear to the justices' hearts. Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have expressed concern over the "crisis" in judicial pay -- if either joins with the justices who dissented in Williams, it would be enough votes to allow the court to hear the case.

"I am afraid that today's eroding federal judicial salaries will lead, sooner or later, to less capable judges and ultimately to inferior adjudication," Alito testified before Congress in 2007. "If this comes to pass, the function of our courts as the guardians of the rule of law will be undermined."

The court will decide whether it will hear the case next term after the government files its response, which is due July 16.


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