Bench Memos

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Judicial-Pay Bill in Jeopardy?


The judicial-pay bill (S. 1638) reported out of the Senate Judiciary Committee last week would raise the salaries of federal district judges to $218,000 (from $169,300), of federal appellate judges to $231,100 (from $179,500), of associate Supreme Court justices to $267,900 (from $208,100), and of the Chief Justice to $279,900 (from $217,400).  Unfortunately for the many fine justices and judges who would be rewarded with a pay raise, I hear that the bill’s prospects of enactment, at least in its current form, may be jeopardized by one or more of its ancillary provisions:


1.  The bill includes (in section 10(a)(2)) the provision pressed by Senator Russ Feingold that would effectively cripple or kill judicial-education programs that are not run by government bureaucrats or bar-association activists.  Specifically, the provision would permit federal judges taking part in judicial-education programs (i.e., programs “a significant purpose of which is the education of United States federal or state judges”) to accept reimbursement for (or a gift of) travel, lodging, and other travel-related needs only for those programs run by the government or by bar associations.  


Curiously, although the provision is being sold as an anti-boondoggle measure, it applies only to judicial-education programs and wouldn’t limit, say, gifts of golf trips or other flat-out junkets.  Even more curiously, as I discussed in my essay “George Soros’s Two Left Hands,” a primary victim of the legislation would be the academically rigorous programs in economics, philosophy, and history offered by the George Mason University Law and Economics Center.  As I’ve previously written:


The fact that various federal courts of appeals and state court systems have enlisted George Mason to provide the academic content for their annual conferences speaks powerfully to the quality and integrity of its programs.  Further, the Judicial Conference of the United States has emphasized that there is a “compelling need” for “continuing education of judges in law, science, history, economics, sociology, philosophy, and other disciplines”—education that the sources that the Feingold amendment would permit are ill-equipped to provide. 


(I will note that Senator Kyl, whose apparent support for this provision I lamented some weeks ago, now vigorously opposes this provision.)


2.  The bill includes (in section 10(a)(1)) a general bar on a judge’s accepting “in connection with a single trip or event” travel, food, lodging, and outside earned income of a combined value of more than $2000 and (in section 10(c)(1)) an aggregate calendar-year limit of $20,000 on such trips or events.  Those caps are up from a single-trip limit of $1500 and an aggregate limit of $5000 in a previous version, and therefore should have a somewhat less severe effect on the availability of federal judges to teach off-campus seminars sponsored by law schools and to serve as moot-court judges.


It’s worth noting that the provision would have a severe effect on a judge’s ability to take part in, say, a foreign seminar sponsored by an American law school (or a foreign university).  The $2000 limit can be waived (under section 10(b)) only if the Department of State approves the trip as “promot[ing] the rule of law or developing legal systems in foreign countries.” 


The $2000 limit would also appear to apply, say, to a one- or two-week course (which would seem to be a single event) taught by a judge serving as an adjunct professor, whether on the law school’s campus or elsewhere.


3.  The bill (in section 4) would raise the retirement requirements for judges.  A Rule of 84 (rather than the current Rule of 80)—age plus years of service—would govern pension qualification.


4.  The bill (in section 6) would reduce the pension of retired judges who received earned income in an amount that exceeded their salary at the time of retirement. 


5.  The bill (in section 7) would bar judges from accepting honorary club memberships.


I don’t mean by pointing out these provisions to be implicitly opining that each is necessarily objectionable.  My purpose, rather, is to report on them (I haven’t seen a full account anywhere else) and to note that some or all of them may complicate passage of the bill.

Tags: Whelan


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