August 2010:
Judicial Pay Fight Revived in Appeal to High Court

Washington Watch | August 2010
By Bruce Moyer

The economic calamities of the past two years have set back efforts in Congress to raise the pay of federal judges. Hard times have put the brakes on attempts to make judicial pay stay apace even with inflation. What seemed like warranted and fair financial relief for judges through a substantial pay hike five years ago doesn’t possess quite the same appeal today. A faltering economy and a weak job market have combined to make the guarantee of a lifetime district judgeship with a starting salary of $174,000 sound pretty good.

Even interest on Capitol Hill in trying to fix the broken judicial pay-setting process, without directly spending a penny more for judicial salaries, has waned. A meritorious bill introduced by Sen. Dianne Feinstein (D-Calif.) to streamline the path for federal judges to receive cost-of-living pay adjustments has failed to get off the ground. The bill, the Federal Judicial Fairness Act (S. 2725), would apply the same automatic annual cost-of-living adjustments to judicial salaries as applied to civilian federal employees under the General Schedule.

The problems over judicial pay haven’t ended there. Last year, Congress repeated its practice of withholding an annual cost-of-living adjustment for themselves and for federal judges. It was the sixth time since 1995 that Congress had withheld the annual adjustment mandated by the Ethics Reform Act. Ironically, that law, which Congress passed in 1989, was intended to create more consistency in the judicial and legislative pay-setting process. However, not long after the law started to be implemented in the early 1990s, Congress began to feel the heat of public disapproval of automatic pay raises. In response, Congress set aside those raises—as well as the same ones federal judges would have received—in 1995, 1996, 1997, 1999, 2007, and again this year.

In 2001, 19 federal judges who had been denied the first four of those pay adjustments appealed to the Supreme Court, claiming that the denial of those adjustments violated the promise of undiminished compensation under the Constitution. In that case, Williams v. United States, the judges contended that the Federal Circuit Court of Appeals erred in overturning the U.S. Court of Claims’ decision to award back pay to the judges for the raises withheld. Ultimately, in 2003, the Supreme Court denied certiorari in the appeal, but not without a vigorous dissent filed by Justice Stephen Breyer, joined by Justices Anthony Kennedy and Antonin Scalia.

Fast-forward to today. Two months ago, on May 14, 2010, seven current and former judges filed a similar request for review with the Supreme Court, raising many of the same arguments presented in Williams. In fact, in their pleadings in the case—Peter H. Beer et al. v. United States, No. 09-1395—the judges acknowledged that they cannot win unless the Court overturns Williams and its doctrinal reliance on the “vesting” of the pay adjustments. But the judges are also aware that the nine members of the current Supreme Court may be more receptive today
than the Court was in 2002. The three justices who filed the stinging dissent in Williams remain on the court today, joined by at least three—and soon to be four—justices who did not take part when review in Williams was denied in 2002. In 2007, one of the justices, Chief Justice John Roberts, called the situation that allowed the continued erosion of judicial pay a constitutional crisis.”

The appeal filed by the seven judges in the Beer case revives the debate over the meaning of the Compensation Clause in Article III of the Constitution, in which the framers specified that federal judges “shall, at stated Times, receive for their services, a Compensation, which shall not be diminished during their Continuance in Office.” Believing that judicial review by the Supreme Court is warranted, on June 14, the Federal Bar Association filed an amicus brief in support of the judges’ petition for review, which was joined by four other bar associations: the Federal Circuit Bar Association, American Intellectual Property Law Association, Customs and International Trade Bar Association, and the Bar Association of the District of Columbia’s Patent, Trademark and
Copyright Section.

The central argument of the amicus brief contends that the appeal presents an issue of vital importance to the American constitutional system—the realization of the constitutional vision of independent judges who serve for life without diminished compensation. The Supreme Court’s decision on whether or not to accept the case for review could come some time later this year. Check the FBA website for further information about the case, including FBA’s amicus brief and other documents. 

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.

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