No one seems to have thought of it at the time, but the pay raise Congress gave judges last February may have doomed whatever chance Sen. Orrin G. Hatch (R-Utah) had for a seat on the Supreme Court.
The Constitution, in Article One, Section Six, says that no member of Congress, during the term for which he was elected, shall be named to any office "the emoluments whereof shall have been increased" during his term.
A strict reading of that language would mean that Hatch, in the Senate when Supreme Court justices got a $6,000 salary increase to $110,000 a year, is not eligible to take a seat on the high court until 1989, when his term -- and Ronald Reagan's -- ends.
Hatch spokesman J. Paul Smith said yesterday that neither Hatch nor his staff were aware of the problem when the Senate allowed the pay raise to take effect. "We're having our guys look into it," Smith said, to see if the problem could be fixed.
Justice Department officials said yesterday they, too, were looking into the matter, which applies to any member of Congress whether the member voted on the raises or not.
Hatch and U.S. appeals court Judge Robert H. Bork are seen by many as leading candidates for the high court should a vacancy occur -- Bork for his stature in the legal community, Hatch for his presumed ability to be confirmed by a Democratic-controlled Senate in the waning days of the Reagan administration.
As of yesterday, none of the four oldest justices -- liberals William J. Brennan Jr., who is 81, and Thurgood Marshall, 79 next month, or moderates Lewis F. Powell Jr., who will be 80 in September, and Harry A. Blackmun, 79 in November -- has indicated any intention of leaving the court.
But, given their ages, a retirement could occur at any time.
As the 1988 election year approaches, it seems certain that Reagan will face increasing difficulty if he needs to fill a high court vacancy, with March-April likely to be the outside deadline.
It was commonly thought that Hatch, who has made no secret of his interest in the job, would be a better candidate as the election approached because he would garner some Senate votes as a matter of traditional senatorial courtesy. But the constitutional issue involved may end such speculation.
A similar case arose in 1937 when Sen. Hugo L. Black (D-Ala.) was nominated after he had voted to increase Supreme Court justices' retirement benefits. The Supreme Court turned aside a legal challenge, saying the lawyer who tried to block the appointment had no standing to do so.
In 1981, a federal court in Idaho, for the same reason, threw out a suit along the same lines filed by Sen. James A. McClure (R-Idaho) against the appointment of Rep. Abner J. Mikva (D-Ill.) to the U.S. Circuit Court of Appeals for the District of Columbia.
The last time Congress confronted the issue was in 1973, when President Richard M. Nixon, shortly after the "Saturday Night Massacre," nominated Sen. William B. Saxbe (R-Ohio) to be attorney general. Saxbe was in the Senate when Cabinet salaries were raised from $35,000 to $60,000. A special bill had to be passed to rescind the raise for the attorney general's office.
Then-acting attorney general Bork testified that the special bill would take care of the problem, but 10 senators, including now-Majority Leader Robert C. Byrd (D-W.Va.) voted no on constitutional grounds.
In the Hatch matter, however, it is unconstitutional to reduce the salaries of any federal judge, including justices.