12 The Professional Lawyer 1 (A.B.A., Fall 2000).
Ronald D. Rotunda [FNa1]
Copyright © 2000 by American Bar Association; Ronald D. Rotunda
Boston law firms--hardly the most expensive legal market--now pay
new associates from $125,000 to $140,000 annually. [FN1] The New
York office of the law firm of Coudert Brothers pays its first year
associates $125,000 plus a bonus of $10,000 to $40,000. [FN2] Salaries
for first year associates in many Washington, DC firms is now $155,000.
[FN3] The typical first-year associate is about 25 or 26 years of
age and graduated from law school in May 2000. Second and third-year
associates, such as those who join these firms after having clerked
a year or two for a federal judge, earn more.
In 1999, 17 of the 20 top-grossing firms in the Washington, DC,
metropolitan area had profits per partner of at least $500,000.
And, as one big-firm partner noted, "that's the take for the
average partner." [FN4] In the meantime, federal district judges,
whose age, experience, and accomplishments make them more akin to
partners than young associates, earn $141,300 per year.
In the summer of 2000, Congress considered a proposal in the Judiciary
Appropriations Act of 2001 to repeal the restrictions on judges
receiving honoraria. [FN5] This ban dates back to the passage of
the Ethics Reform Act of 1989. Section 501(b) precludes all federal
employees, including judges, from receiving honoraria (subject to
various exceptions) from non-governmental sources for activities
outside their official duties. [FN6] In the fall of 2000, after
the news media and commentators sharply criticized the proposal
to repeal the restrictions on the grounds that it would "undermine"
the integrity of federal judges, the bill was withdrawn. [FN7]
Proponents of the proposed honoraria reform bill argued that federal
judges' salaries severely lag behind private sector and even some
public sector jobs, and that it is unreasonable to forbid judges
from accepting the same modest honoraria for speeches that are often
paid to law professors, public interest lawyers and others. Opponents
of the proposal argued (often stridently) that honoraria create
an appearance of impropriety and open up another avenue of corruptly
influencing a judge.
The proposed honoraria reform bill raises two issues that are
independent but often treated as interdependent. First, whether
or not Congress increases federal judges' pay, should the judges
be able to accept pay for certain types of outside work? Second,
should Congress increase the pay of federal judges? The 1989 Quadrennial
Commission on Executive, Legislative and Judicial Salaries considered
these two issues connected--if the government disallows outside
income it should increase salaries. [FN8] However, the two issues
should not be linked. There are good reasons why Congress should
increase judicial salaries and also separate reasons why Congress
should change the rules governing outside income.
There is also a third, related, issue: should Congress, in effect,
reduce the salary of federal judges by forbidding them from accepting
reimbursement for reasonable out-of-pocket expenses when they voluntarily
attend seminars sponsored by universities, bar associations, and
other non- profit institutions? For decades judges have accepted
these reimbursements and attended seminars, but there are now very
active efforts to change the law in this area.
First, let us turn to the question of judicial salaries.
In the 15 years from 1958 to 1973 there were *4 only six resignations
from the entire federal bench. [FN9] That has changed. In the last
seven years, the resignation rate has increased 700%, to 42 judges.
[FN10] Commentators and exit interviews of federal judges single
out the low salaries as the culprit behind many of these resignations.
Congress should raise the pay of federal judges. Moreover, to
prevent judicial salary decisions from being held hostage to the
pay of other federal employees, Congress should build in an automatic
cost of living increase.
Our Constitution guarantees that the compensation of federal judges
"shall not be diminished during their Continuances in Office."
[FN12] The purpose of this pledge is not to advantage judges as
individuals. Rather, its purpose is to protect judicial independence.
As the Supreme Court has explained:
[T]he prohibition against diminution was not to benefit the judges,
but, like the clause in respect of tenure, to attract good and competent
men to the bench and to promote that independence of action and
judgment which is essential to the maintenance of the guaranties,
limitations, and pervading principles of the Constitution and to
the administration of justice without respect to persons and with
equal concern for the poor and the rich. [FN13]
We now know that the federal government's monetary policy can
cause (or prevent) inflation. Inflation is a silent tax that operates
to reduce the salary of federal judges, contrary to the spirit of
the constitutional guarantee. Since 1969, and measured in terms
of purchasing power, judicial salaries have declined by more than
23%. [FN14] I do not contend that the Constitution necessarily demands
that judicial salaries be automatically adjusted for inflation.
Rather, I argue that, even if Article III does not mandate automatic
cost of living increases as a matter of constitutional law, [FN15]
still, as a matter of policy and fairness, judicial salaries should
be adjusted for inflation automatically.
The entire judiciary budget constitutes only two-tenths of one
percent (0.2%) of the annual budget of the Federal Government; the
salaries of Article III judges constitute only seven percent (7%)
of this annual judiciary budget, or 0.014% of the federal budget.
[FN16] The 23% decline in real salary is therefore 0.00322% of the
federal budget. Thus, we are talking about an amount of money that
is a very small percentage of the federal budget but a very large
percentage (23% decline in purchasing power) of the compensation
of each federal judge.
Automatic Cost of Living Increases. Congress should enact legislation
that automatically increases judicial salaries with the cost of
living. An automatic inflation increase, like the cost of living
automatically in place for social security payments, will keep the
judicial salary question out of politics. Judicial salaries would
no longer be linked to Congressional salaries. This programmed increase
will also fulfill the spirit of the constitutional guarantee that
federal judicial remuneration must not be diminished.
In 1989, Congress enacted the Ethics in Government Act, which
included a broad ban on outside income for judges. Congress also
increased judicial pay. The understanding was that this ban would
be coupled with a commitment to adjust judicial salaries for inflation,
a promise that Congress has not kept. [FN17] Since then, in most
fiscal years, Congress had denied the promised cost of living adjustment
to judges (even when giving adjustments to General Schedule federal
employees). [FN18] Obviously, Congress should make good on its pledge.
College Tuition Vouchers. In addition to a general salary increase
and a built-in cost of living guarantee, there is another important
way that Congress can offer needed protection to federal judges.
The empirical evidence demonstrates that a primary concern of federal
judges is that the salary reduction that they accept when they become
federal judges makes it substantially more difficult for them to
afford to send their children to college. [FN19] The judges are
willing to accept substantially lower pay than they would earn in
the private sector, and they are willing to give up vacations abroad,
country club memberships, and so forth. But they do not want to
deprive their children of a college education. [FN20]
For substantially less than a general salary increase, Congress
can give to federal judges a nontransferable voucher to pay for
the cost of college tuition and related expenses for their children.
If the children attend college, the judge would be able to make
use of the voucher. When the judge's last child leaves higher education,
the tuition voucher would become worthless.
This voucher program should not constitute an unconstitutional
"reduction" in salary, because all judges would receive
the same remuneration--the statutory wage plus a non-transferable
voucher to pay for higher education for their children. If they
have no children who are attending a university, they still would
receive the voucher but it would be of no value to them. To use
a current buzzword, this salary supplement will be "targeted."
And, it will alleviate a major apprehension that all federal judges
have--how to pay for higher education. That will make it easier
for Congress to retain federal judges, who, as noted above, are
leaving the bench in record numbers.
OUTSIDE INCOME FROM ORGANIZATIONS NOT INVOLVED IN MATTERS BEFORE
Now, let us turn to the second issue, the limitations on the outside
income of federal judges. When Congress enacted the present law
restricting outside income of federal judges, it based that judgment
on the conclusions of the special Quadrennial Commission that it
had created by statute to study the problem. The Commission recommended
the restrictions on outside income of legislators and then added
the judiciary as an afterthought, not in a response to any specific
problems that it had uncovered. It said:
If Congress allows substantial increases for all branches to take
effect while it also abolishes honoraria *5 for its own members,
it is appropriate that honoraria be abolished in all three branches.
This would leave judges free to receive outside compensation for
continuing activities such as writing scholarly texts or sustained
law teaching since such activities are excluded from the definition
of honoraria, and usually do not conflict or appear to conflict
with their official duties. [FN21]
The principle, "if it ain't broke, don't fix it," did
not apply here. The Commission merely asserted, in a conclusory
fashion, that if Congress abolished honoraria for its own members
(the Commission had ample findings to support this recommendation),
then "it is appropriate" that it should extend that ban
to the judiciary.
The Commission made findings that are based on the straightforward
fact that legislators enact laws passing out subsidies to the people
or groups who give them honoraria. Congresspersons render constituent
services. It is appropriate for Congresspersons to act as ombudsmen,
i.e., to approach the bureaucracy on behalf of their constituents.
Similarly, we expect both the bureaucrats and interest groups to
lobby Congress when it sets the budgets for these federal agencies.
Those findings simply do not apply to the judiciary. One does
not buy access to a federal judge. Anyone can secure such access
by filing a complaint or by being sued. Judges do not engage in
constituent services, but legislators do. Judges do not cajole the
bureaucracy on behalf of voters, but legislators do. Judges do not
control the budgets of the agencies and departments, but legislators
do. Judges do not vote on subsidies, but legislators do. Judges
may not engage in ex parte conversations with the people who appear
before them, but legislators may. Judges, unlike legislators, do
not enact legislation; instead, they rule on specific parties and
Consider two cases. In the first one, a transportation trade group
invites the chairman of the senate or house committee with jurisdiction
over the Department of Transportation to a dinner, and then pays
him $3,000 to give a speech to the group over whom he has legislative
authority. One might be concerned that the trade group may be perceived
as buying special access to the legislator. It is quite a different
matter if a non-profit law school pays a judge $3,000 to spend a
day or two judging moot court, in the case where the law school
has no litigation that is pending or even expected to be pending
before the judge. The law school is simply not buying any special
access. It is paying the judge because law schools find it less
difficult to persuade judges to judge moot court if the law schools
pay for their time.
Remember, other law already prohibits judges from sitting on cases
where they have an interest in any of the parties. Moreover, other
law already requires judges to fully disclose their honoraria for
outside speeches and similar work. [FN22] If any litigant still
has an objection, she can then move to disqualify the judge.
Congress understood these distinctions when it debated the matter,
and, consequently, the legislative history reflects the differences
in nature between federal legislators and federal judges. The federal
legislators discussing this issue on the floor of the House and
Senate continually referred to abuses by "Members of Congress"
as the impetus for reform. These floor debates demonstrate that
Congress was principally concerned that the receipt of honoraria
by Members of Congress had created the appearance of influence buying.
Speakers throughout the debates refer to "Members of Congress"
in explaining why the honorarium ban was necessary. [FN23] For example,
at one point a congressman noted that "the elimination of honoraria
will have a beneficial impact on the public's perception of the
integrity of Congress as an institution." [FN24] Another congressman
noted that the statute addressed "the underlying sources of
abuse in the current income system for public employees, in particular
for Members of Congress." [FN25]
Similarly, the Report of the Bipartisan Task Force, issued after
the Act was passed, also indicates a primary concern with the receipt
of honoraria by Members of Congress. In describing the background
of the ban the report states that "substantial payments to
a Member of Congress for rendering personal services to outside
organizations presents a significant and avoidable potential for
conflict of interest." [FN26] The Report described how the
increase in Members' honoraria income in recent years "has
heightened the public perception that honoraria is [sic] a way for
special interests to try to gain influence or buy access to Members
of Congress." And it noted the "growing concern that the
practice of acceptance of honoraria by Members ... creates serious
conflict of interest problems and threatens to undermine the institutional
integrity of Congress." [FN27] The law binds judges as well
as legislators, even though one cannot find any members of Congress
displaying any concern with a judge receiving honoraria that is
fully disclosed, from law schools or other groups having no litigation
before the judge.
The following year, a Presidential Commission echoed this distinction
between the judicial and the legislative branches. The Report of
the President's Commission on Federal Ethics Law Reform, often called
the Wilkey Commission, concluded in its report, "To Serve With
Although we are aware of no special problems associated with receipt
of honoraria within the judiciary, the Commission--in the interest
of alleviating abuses in the legislative branch and in applying
equitable limitations across the government--joins the Quadrennial
Commission in recommending the enactment of legislation to ban the
receipt of honoraria by all officials and employees in all three
branches of government. [FN28]
The Wilkey Commission recommended banning a practice even though
its investigation uncovered "no special problems" involving
In United States v. National Treasury Employees *6 Union, [FN29]
the Supreme Court declared this law, the Ethics in Government Act,
was unconstitutional to the extent that it applied to lower level
federal executive branch employees. The National Treasury case did
not decide the issue involving federal judges because that was not
before the Court. However, some of the reasoning that the Court
used is applicable to the current restriction. The trial court,
the D.C. Circuit, and the Supreme Court all agreed that the ban
on these executive branch workers from receiving honoraria was unconstitutional.
The federal statutory ban did not prohibit federal employees from
speaking but it did prohibit them from receiving any compensation.
Nonetheless, the Court agreed that this ban on pay restricts free
speech. "Publishers compensate authors because compensation
provides a significant incentive toward more expression. By denying
respondents that incentive, the honoraria ban induces them to curtail
their expression if they wish to continue working for the Government."
[FN30] Or, as Samuel Johnson once remarked, in his typical pithy
way: "No man but a blockhead ever wrote, except for money."
[FN31] The Court concluded that this ban on compensation imposed
a significant burden on expressive activity, and this kind of burden
is the type that abridges speech under the First Amendment.
FIRST, the Court relied on the fact that the findings did not
show that there was any problem that needed to be corrected. The
Court stated: "As both the District Court and the Court of
Appeals noted, the Government has based its defense of the ban on
abuses of honoraria by Members of Congress." [FN32] Yet, the
statutory ban went much further than that, covering lower level
executive branch workers. Although the Court may, nonetheless, uphold
this restriction as applied to federal judges, [FN33] the fact remains
that the factual findings never uncovered a problem that needed
to be corrected as to federal judges.
SECOND, National Treasury concluded that the government had an
interest in assuring that federal officers did not misuse or appear
to misuse power by accepting compensation for their unofficial and
nonpolitical writings and speaking activities. The Court, however,
noted that the federal prohibition was not narrowly tailored to
serve that governmental interest.
This reasoningalso applies to judges, because the present ban
is not narrowly tailored to solve any demonstrated problem. Other
law already prohibits judges from taking money from companies, groups
or individuals who may appear before them in litigation. This other
law requires full disclosure of this compensation so that people
may judge for themselves whether there is any improper influence.
[FN34] It should not appear to a reasonable person that a judge
is misusing her power if she accepts compensation for judging moot
The federal law imposes limits on what federal judges may receive
in compensation from writing or teaching (they can receive approximately
$20,000 year annually), [FN35] and it prohibits them from receiving
any honoraria for participating in the moot court problems of law
schools because judging moot court is neither writing nor teaching.
This ban has made it more difficult for law schools to attract judges
for their moot court programs.
The law schools expect the judges to go on a busman's holiday--to
help the students learn about oral advocacy by judging a hypothetical
case and treating the students as they would treat the lawyers who
appear before them. The law schools invite the judges to visit the
school, read the briefs, prepare for and judge the oral arguments
and, typically, deliver some remarks at a banquet. All this takes
time, and normally we would expect people to get paid for their
work. That, after all, is what happens in a market economy.
Those who oppose judges being paid for moot court work raise points
that are not really on target. One Congressman recently said: "If
Supreme Court justices can't get by on their salaries without talking
to special interest groups [for fees], they should resign."
[FN36] Or, as a former federal judge argued, judges should not accept
"even a $1,000 honorarium from some group that has an interest
in litigation that comes before his court, [because] the appearance
is going to be that something was transacted." The "appearance
of these matters is almost as important as the substance."
One can readily agree with those statements and still wonder why
they are on point. Law schools are not "special interest groups"
and they do not lobby judges. The money used to pay the judges to
attend and judge moot court and engage in similar activities comes
from people who are now often derisively called "dead white
males." It is university money, or sometimes given by foundations
or bar associations. [FN38] By its very nature, it does not affect
federal judges because law schools are not usually litigants. If
a law school or bar association were involved in federal litigation,
other law already requires the judge to refuse the honorarium or
recuse him or herself from the case. [FN39]
Nonetheless, opponents insist that judges who receive reasonable
amounts for spending their time judging moot court, create a perception
that they "stand beholden to people who pay them honoraria."
[FN40] The assumption apparently is that if the University of Illinois
pays a judge $2,000 to spend two days at the law school to meet
with students and to judge the moot court competition, that will
corrupt the judge, but if the same university pays the judge $2,000
to teach a seminar for one day, that will not corrupt the judge.
Perhaps a bureaucrat could understand this rationale.
The opponents' argument does not justify a broad ban that applies
even if the school is not a litigant before the judge and has no
interest in litigation. As stated above, if the school were such
a litigant, other law already prevents judges from accepting money
from the school. Under these circumstances one cannot conclude that
this law restricting judicial compensation is narrowly tailored
to serve the governmental interest.
*7 THIRD, the government in National Treasury claimed that the
law's prohibition was a reasonable response to the threat that honoraria
posed to operational efficiency. The Court rejected this rationale
because it was undermined by the text of the law, the exceptions
found in the law, and the applicable regulations. This conclusion
is also true of the law governing judicial recusal.
The present law, like the law governing the executive branch officials
in National Treasury is inconsistent. The law allows judges to accept
payment for speeches, and there is no limit for any particular speech,
but there is a yearly limit for payments from all sources. The law
excludes payment for non- teaching activities but allows payment
for teaching. [FN41] It restricts payments from groups--such as
non-profit law schools--even when there is no chance that the payments
could affect the judge's legal opinions. The legislative history
of the law does not explain the reason for the various exceptions,
but that is because that history shows that there was no evidence
that the law was in response to any alleged threat. Once the framers
of the law decided to include legislators they simply added judges
as an afterthought, a codicil.
The result of these restrictions and exceptions has created a
complex world that only a tax accountant could love. For example,
the ethics regulations governing judges treat a lecture as teaching,
for which a judge can be paid, but they also consider payment for
a speech as an honorarium. An ethics opinion advises judges that
a stipend for a single lecture is compensation for teaching and
cannot be treated as an honorarium. However, because it is "teaching"
the judge must receive prior approval. [FN42]
If the judge gives a speech and then the sponsor (a non-profit
institute) presents the judge with a "decorative table clock"
in connection with his or her speech, is that a compensation for
teaching, in which case the judge would need to secure prior approval
before giving the speech, or is it an "honorarium," which
the judge may not accept? That looks like teaching, advised a judicial
ethics opinion, but that interpretation creates another problem:
what if the judge does not seek prior approval, because the judge
did not know, prior to the presentation, that the institute would
present the gift? Then (the opinion advises) the judge need not
secure prior approval, because the judge would not have known beforehand
that he or she would receive a clock.
But does the judge have a duty to inquire about the clock ahead
of time? (No pun intended). The ethics opinion did not reach that
issue. And, if the lecture is not considered "teaching,"
is the clock a "gift" that is "without commercial
value"? [FN43] Everything that costs money has some commercial
value, but the decorative clock is not like shares of IBM, which
have liquid market value. On the other hand, a watercolor by an
artist may have market value even though it has no liquid market
One might ask what all this has to do with the judge's authoring
of opinions in cases? Will acceptance of the clock--even one worth
a few hundred dollars-- impugn the judge's integrity? After all,
by hypothesis, in these cases the nonprofit institute is not a litigant
or otherwise involved in any cases, and the award of the clock,
whether one knows about it (or should have know about it) in advance,
will not affect the case because there is no case.
These distinctions have little to do with judicial integrity;
they are just about interpreting a law that Congress applied to
judges as an afterthought, without real reflection.
Congress, thus far, has been unsympathetic to the salary plight
of the judiciary. Congress has refused to enact an automatic cost
of living increase for judges even while giving other federal employees
a cost of living adjustment. It has not even thought of providing
for college tuition vouchers for judges. It has made it more difficult
for law schools to train the next generation of lawyers by imposing
severe limits on the schools' ability to pay judges for their time,
even when that compensation is fully disclosed and has no affect
on the judge's rulings.
That is not enough. Now some Congressmen have proposed to prevent
nonprofit institutions from inviting judges to attend seminars at
no cost to the judge. We must remember that these institutions are
not involved in any litigation before the judge, they are not-for-profit,
and that "dead white males" or other deceased benefactors
are typically the source of the funds. The deceased have no interest
in any litigation that can come before the federal courts. The deceased,
after all, are deceased and have more important matters on their
For years, the ethics rules have specifically allowed judges to
accept reimbursement of expenses for law-related activities subject
to the time constraints imposed by the judges' judicial duties and
subject to various other restrictions found in the judicial code.
For example, the judge must disclose all reimbursements in public
reports--sunlight is the best disinfectant. The expenses must also
be "reasonable" and limited to the actual costs of travel,
food, and lodging. In circumstances where it is "appropriate
to the occasion," the judge's spouse or relative may also receive
For years, bar associations and law schools have invited judges
to attend seminars or conferences. Sometimes the judges teach; sometimes
they listen; sometimes they do both. The hosts appreciate the give
and take that judges can bring to the seminars and they know if
they do not pay the expenses, the judges are unlikely to be present,
for the host would be asking the judge to give up both her time
and her money. For years, no one objected to the host institutions
reimbursing the judge's reasonable expenses, and no one has uncovered
any corruption or abuse.
Times have changed. Now there are objections because some groups,
such as George Mason University's wellknown *8 Law & Economics
Center, have invited judges to its programs and provided reimbursement.
Speakers to the George Mason program--which has been holding such
seminars for 13 years--have included luminaries like Nobel laureates
Paul Samuelson and Milton Friedman.
The attendees to this Judicial Institute have included judges
like Justice Ruth Bader Ginsburg. Justice Ginsburg later wrote of
her "enduring appreciation" for the seminars that she
attended "for advancing both learning and collegial relationships
among federal judges." [FN45] Another judge wrote, "Despite
the reading load, I enjoyed every minute!" Said another, "The
whole thing was an intellectual feast." And said a third, "I
don't understand how I functioned before I had statistics and basic
The ethics rules require the judges to disclose their attendance,
so we know that, in a three-year period, 239 judges took 539 trips
to seminars (less than one trip a year for these judges) where the
money came from foundations (more dead white males) or from universities.
The universities, in some cases, secure some of their donations
from businesses. [FN47] The judges are never told which companies
have given the money to the foundations or universities. Hence,
as one federal appellate judge noted, "I can't be influenced
by something I don't know." [FN48]
Still, the attacks on judges attending these seminars have been
shrill. One editorial proclaimed that judges should "limit
their travel to such places as Detroit or Jersey City in the middle
of the winter." [FN49] One wonders why a change in the locale
of the seminar has any relationship to the integrity of federal
judges. If it is ethical for a federal judge to hear Professor Samuelson
give a lecture on the market economy in Petersburg, Alaska, why
would it be unethical if the location were changed to St. Petersburg,
Florida? If judges can attend a seminar in Jersey City in the winter,
could they attend the same seminar in Salt Lake City in the winter
(or, would attendance be limited to judges who did not care to ski)?
Present law allows these seminars in summer or winter, but Congress
is now thinking of changing that law. It is considering a proposal
that would forbid judges from accepting reimbursements of the costs
of participating in these seminars. Instead, Congress would give
the Federal Judicial Center the authority to approve the event.
This Center would then pay the judges' expenses to the approved
events. Under this system, the Federal Judicial Center would be
constrained by its own limited budget, and it (rather than the individual
judges) would decide which discussion groups, colloquia, symposia,
or seminars are permissible. [FN50]
Those who object to these seminars claim that the speakers will
improperly influence or brainwash the judges, as if these judges
are babes in the woods. Jack Weinstein, Senior Judge for the Eastern
District of New York attended the George Mason Law & Economics
Center for Judges and now sits on its Judicial Advisory Board. No
one who has ever appeared before Judge Weinstein would ever think
that any course could reprogram him. Ditto for Justice Ruth Bader
Ginsburg. The judges who attend these seminars, after all, tend
to be distinguished practitioners who now are federal judges in
the last third of their career and who chose to attend these seminars
Moreover, it should not be wrong for judges, living in a market
economy, to take courses in market economics. Law students take
classes in economic analysis of law and similar courses. Lawyers
take continuing legal education courses in these same subject areas.
Should not judges be able to learn what the lawyers and their law
clerks already know?
Congress should increase the salary of judges to take into account
the increased cost of living. Thereafter it should provide for automatic
cost of living increases in order to keep future adjustments for
inflation out of politics and not held hostage to the question of
salary raises for members of Congress. Congress should also fund
higher education tuition vouchers for judges, thereby removing a
major source of concern that has led to an increased rate of resignations
from the federal bench.
In cases where there are no realistic dangers of impropriety,
Congress also should remove the increasingly Byzantium restrictions
on judges' outside income so that judges can be compensated for
their moot court activities. The present restrictions make it more
difficult for law schools to train their students. That is why this
proposal is independent from the proposal regarding salary reform:
its real purpose is not to help the judges; it is to help the law
schools train future lawyers. Hence this change should go into effect
even if Congress raises judges' salaries.
Finally, Congress should not reduce the judges' effective income
and that is why Congress should not enact new legislation to prevent
judges from being reimbursed for expenses in connection with their
attendance at seminars and other educations functions that meet
the extensive requirements of existing law. When attendance is not
otherwise inappropriate (e.g., the university or other sponsor is
not a litigant before the judge) and the expenses are reasonable
and fully disclosed, the judges should be able to accept reimbursement
from these private groups like law schools and bar associations.
[FNa1]. Ronald D. Rotunda is the Albert E. Jenner, Jr. Professor
of Law at the University of Illinois College of Law.
[FN1]. Judith Kelliher, High Associate Pay Begins to Take Its Toll,
THE NATIONAL LAW JOURNAL, October 18, 2000.
[FN2]. Margaret Cronin Fisk, Minds on Their Money, NATIONAL LAW
JOURNAL, September 27, 2000, reprinted in, http:// www.law.com/cgibin/gx.cgi/AppLogic+FTContentServer?
[FN3]. Kathleen Maxa Frank, How Much Is Too Much? The Stunning Rise
in Associate Salaries, The Washington Lawyer, at 25 (Oct. 2000).
[FN4]. Claudia MacLachlan, It's a Wonderful Life, LEGAL TIMES, June
26, 2000 (emphasis added).
[FN5]. H. R. 4690, 106th Congress, 2nd Session, 2000 H.R. 4690;
106 H.R. 4690, introduced, June 19, 2000.
[FN6]. Ethics Reform Act of 1989, Pub. L. No. 101-194, 601(a), 103
Stat. 1760, codified at 5 U.S.C. App. 501(b) (1994).
[FN7]. See, e.g., McConnell's Mischief, THE TENNESSEAN, Sept. 19,
2000, at 12A, which illustrates the typical, shrill complaint: "The
whole idea strikes at the heart of judicial independence."
(The author, Senator Mitchell McConnell, was one of the supporters
of the effort to remove the ban on judge's receiving pay for engaging
in such work as judging moot court.)
[FN8]. FAIRNESS FOR OUR PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL
COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL SALARIES 28-31
[FN9]. FAIRNESS FOR OUR PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL
COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL SALARIES 28 (Dec.
[FN10]. Tony Mauro & Sam Loewenberg, Who Really Wants to Lift
Ban on Fees?, LEGAL TIMES, Oct. 10, 2000.
[FN11]. FAIRNESS FOR OUR PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL
COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL SALARIES 28 (Dec.
1988) ("almost all of the departing judges noted financial
considerations as a factor in their decision.").
See also, Charles Lane, Appellate Judge Silberman Leaves Full-Time
Service, Washington Post, Oct. 28, 2000, at A7. Judge Silberman
said "he hopes to spend more time with his family and to earn
more money from teaching." He was quoted as saying, "Since
Congress won't give us the pay raise it promised, I'd rather take
my compensation in leisure time."
[FN12]. U.S. Constitution, Article III, § 1.
[FN13]. Evans v. Gore, 253 U.S. 245, 253 (1920).
[FN14]. Hatter v. United States, 185 F.3d 1356, 1360 (Fed. Cir.
1999), superceded in part, 203 F.3d 795 (Fed. Cir. 2000) (en banc),
cert. granted, 2000 WL 795172 (2000).
[FN15]. This question is the subject of several court opinions.
Atkins v. United States, 556 F.2d 1028 (Ct. Cl. 1977), cert. denied,
434 U.S. 1009 (1978) held that Article III of the Constitution does
not mandate that judicial salaries be automatically adjusted for
inflation. The Constitution, said the Court of Claims, affords no
protection from an indirect, nondiscriminatory lowering of judicial
compensation such as inflation. The Court of Claims, in rendering
this opinion, also ruled that the One-House Veto in the Salary Act,
which was before that court, is constitutional. Subsequently, the
Supreme Court invalidated all One-House vetoes. Immigration &
Naturalization Service v. Chadha, 462 U.S. 919, 958 (1983) (citing
United States v. Will, 449 U.S. 200 (1980), held that the federal
laws of 1976 and 1979--but not the federal laws of 1977 and 1978--stopping
or reducing previously authorized cost-of-living increases for federal
judges, violate the Constitution's prohibition against diminishing
judges' pay. Williams v. United States, 48 F. Supp. 2d 52 (D.D.C.
1999), granted the plaintiff judges' motion for summary judgment,
denied the defendant government's cross-motion, and found that the
plaintiffs were entitled, under the Ethics Reform Act of 1989, to
Employment Cost Index adjustments to their salaries, which had vested
when the law was enacted, in any year in which General Schedule
employees received such adjustments.
[FN16]. Hatter v. United States, 185 F.3d 1356, 1360.
[FN17]. E.g., Al Eisele, No Honoraria for Judges, The Hill (Capitol
Hill Publishing Corp) Sept. 30, 2000, at 39.
[FN18]. Hatter v. United States, 185 F.3d 1356, 1361 (Fed. Cir.
1999), superceded in part, 203 F.3d 795 (Fed. Cir. 2000) (en banc),
cert. granted, 2000 WL 795172 (2000).
[FN19]. E.g., Judge Robert M. Duncan, quoted in FAIRNESS FOR OUR
PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL COMMISSION ON EXECUTIVE,
LEGISLATIVE AND JUDICIAL SALARIES 26 (Dec. 1988): "I was unable
to foresee how I could afford to send my youngest daughter to the
university of our choice."
See also, Hatter v. United States, 203 F.3d 795 (Fed. Cir. 2000)
(en banc), cert. granted, 2000 WL 795172 (2000), Declaration of
A.J. McNamara, § 3, Joint Appendix at 45-46, United States
v. Hatter, No. 99-1978 (U.S. Supreme Court). Judge McNamara's Declaration
stated that he considered the absence of the social security tax
deduction from the judicial salary in calculating his ability to
pay for college education of his four children. Congress changed
the law, and judges now must pay social security taxes. See Tax
Equity & Fiscal Responsibility Act of 1982, Pub. L. no. 970248,
96 Stat. 324, and the Social Security Amendments of 1983, Pub. L.
No. 98-21, 97 Stat. 65. The affect of these amendments (as applied
to certain judges during a specific time period) is in now litigation
before the U.S. Supreme Court.
[FN20]. As Judge A. Leon Higginbotham, Jr., Third Circuit, said:
"I don't feel badly if judges cannot afford country clubs.
Society can survive with that. But for all of us as judges, we know
that the passport of opportunity for us was education; the ability
to attend the best universities in this person and then go out and
make a contribution to hopefully improve the quality of life. And
judges today are confronted with the real problem as to whether
they can provide for their children the type of educational opportunities
which they had."
Quoted in FAIRNESS FOR OUR PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL
COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL SALARIES 26 (Dec.
[FN21]. FAIRNESS FOR OUR PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL
COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL SALARIES 26 (Dec.
1988), at p. 30.
[FN22]. Code of Conduct for United States Judges, Canon 6(C), Public
Reports, reprinted in 175 F.R.D. 364, 378 (1998). In fact, the title
of Canon 6 is: "A Judge Should Regularly File Reports Of Compensation
Received For Law-Related And Extra-Judicial Activities." The
actual text of the rule goes beyond mere reporting.
[FN23]. See, e.g., 135 Cong. Rec. H8756 (daily ed. Nov. 16, 1989).
[FN24]. 135 CONG. REC. at H8763 (emphasis added).
[FN25]. 135 CONG. REC. at H8767.
[FN26]. 135 CONG. REC. at H9256.
[FN27]. 135 CONG. REC. at H9257.
[FN28]. TO SERVE WITH HONOR: REPORT OF THE PRESIDENT'S COMMISSION
ON FEDERAL ETHICS LAW REFORM (Mar. 1989), at pp. 35-36 (emphasis
[FN29]. 513 U.S. 454 (1995).
[FN30]. 513 U.S. at 469 (footnotes omitted).
[FN31]. J. BOSWELL, LIFE OF SAMUEL JOHNSON LL. D. 302 (R. Hutchins
[FN32]. 513 U.S. at 472.
[FN33]. The Court offered dictum that supports this prediction.
The Court said, by way of dictum, 513 U.S. at 473, that "Congress
reasonably could assume that payments of honoraria to judges or
high-ranking officials in the Executive Branch might generate a
similar appearance of improper influence. Congress could not, however,
reasonably extend that assumption to all federal employees below
grade GS-16, an immense class of workers with negligible power to
confer favors on those who might pay to hear them speak or to read
[FN34]. E.g., Code of Conduct for United States Judges, Canon 6,
reprinted in 175 F.R.D. 364, 378 (1998).
[FN35]. E.g., Inappropriate Pay, INTELLIGENCE JOURNAL (Lancaster,
PA.), Sept. 22, 2000, at A-18. The law also allows the judge to
accept transportation and lodging to attend conferences and seminars.
One who believes that one can buy a federal judge by giving him
free dinner (on the condition that he attend a seminar) already
believes that the judiciary is too corrupt for salvation.
[FN36]. Washington in Brief, WASHINGTON POST, Sept. 15, 2000, at
p. A9, quoting Rep. David R. Obey, D., Wisconsin.
[FN37]. The speaker was Abner J. Mikva, former White House Counsel
to President Clinton, former Congressman, and former judge on the
D.C. Circuit, quoted in, Charles Levendosky, Federal Judges Should
Earn More, But Not This Way, SEATTLE POST-INTELLIGENCER, Oct. 1,
2000, at G1.
[FN38]. Tony Mauro & Sam Loewenberg, Who Really Wants to Lift
Ban on Fees?, LEGAL TIMES, Sept. 18, 2000, at A1, noting that in
1989, the last year before the ban took effect, Justice Scalia earned
$37,000 in honoraria, and "except for a $2,000 honorarium from
the American Enterprise Institute, all honoraria reported by Scalia
that year were from colleges, universities, and bar organizations."
The American Enterprise Institute is a nonprofit, nonpartisan Washington,
DC think tank not involved in any litigation.
[FN39]. Code of Conduct for United States Judges, 175 F.R.D. 364
(1998). See Canon 6 & commentary, in 175 F.R.D. 364, 378 (1998).
Canon 6 deals with judicial compensation received for law-related
and extra-judicial activities and related reports and disclosure.
For further discussion, see RONALD D. ROTUNDA, LEGAL ETHICS: THE
LAWYER'S DESKBOOK ON PROFESSIONAL RESPONSIBILITY § § 61-1
to 61-1.8 (ABA, West Group, St. Paul, Minn. 2000).
See also, e.g., § 3.4-3(a), providing that a "judge who
teaches at a law school should recuse from all cases involving that
educational institution as party." GUIDE TO JUDICIARY POLICIES
AND PROCEDURES--THE CODE AND CONDUCT VOLUME (vol. II) (U.S. Govt.,
loose-leaf binder, June 15, 1999), at V-39. Id. at § 4.1(b),
at V-57. Also, the judge "need not recuse because an amicus
brief is submitted by law professors from the school with which
the judge is associated, unless the specific circumstances case
reasonable doubt on the judge's impartiality." § 3.4-3(d)
Id. at V-40.
[FN40]. Statement of Senator Pat Roberts, chairman of the Senate
Ethics panel, quoted in, The Record (Bergen County, NJ), Oct. 4,
2000 (AP wire services).
[FN41]. This allowance for teaching has deep historical roots. Justice
Joseph Story was a chaired professor at Harvard while remaining
a Supreme Court Justice. See, RONALD D. ROTUNDA AND JOHN E. NOWAK,
JOSEPH STORY'S COMMENTARIES ON THE CONSTITUTION (Carolina Academic
Press, Durham, N.C. 1987), at introduction. See also, Justice Antonin
Scalia, Letter to the Editor, LEGAL TIMES, Oct. 2, 2000.
[FN42]. Committee on Codes of Conduct, Advisory Opinion No. 86 (July
15, 1991, revised, Jan. 16, 1998), in GUIDE TO JUDICIARY POLICIES
AND PROCEDURES-- THE CODE AND CONDUCT VOLUME (vol. II) (U.S. Govt.,
loose-leaf binder, June 15, 1999), at IV-191.
[FN43]. Committee on Codes of Conduct, Advisory Opinion No. 88 (June
20, 1992, revised, Jan. 16, 1998), in GUIDE TO JUDICIARY POLICIES
AND PROCEDURES-- THE CODE AND CONDUCT VOLUME (vol. II) (U.S. Govt.,
loose-leaf binder, June 15, 1999), at IV-199-201.
[FN44]. Canon 6 (A), (B), (C), Code of Conduct for United States
Judges, reprinted in 175 F.R.D. 364, 378 (1998). See also, ABA Model
Code of Judicial Conduct, Canon 4(H) (1990), reprinted in THOMAS
D. MORGAN & RONALD D. ROTUNDA, SELECTED STANDARDS ON PROFESSIONAL
RESPONSIBILITY 651 (Foundation Press, 2000). State and federal rules
of judicial ethics are derived from the ABA Model Judicial Code.
[FN45]. Quoted in, Congress Dumbs Down Judges, WALL STREET JOURNAL,
Oct. 24, 2000, at A26.
[FN46]. George Mason University, Law & Economics Center, Institute
for Judges 2001 (brochure, September 2000), at 13.
[FN47]. The Pay and Perks of Federal Judges, TAMPA TRIBUNE, Oct.
3, 2000, at 6.
[FN48]. Judge Ralph Guy, Jr., quoted in, Congress Dumbs Down Judges,
WALL STREET JOURNAL, Oct. 24, 2000, at A26.
[FN49]. The Pay and Perks of Federal Judges, TAMPA TRIBUNE, Oct.
3, 2000, at 6.
[FN50]. Senators John Kerry and Russ Feingold proposal would budget
$2 million for expenses. Given Congress' failure to keep judges
salaries adjusted for inflation, one should not expect this figure
to be adjusted for inflation, even if Congress initially appropriates
the full $2 million. Consequently, the Federal Judicial Center would
not only be the censor, deciding which judges may be reimbursed
for which conferences, but it will most likely be deciding how to
divide up this pot of money that, in inflation-adjusted terms, is