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to repeal the restrictions on the grounds that it would "undermine" the integrity of federal judges, the bill was withdrawn.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.

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. [FN11]

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 THE COURT

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 cases.

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 Honor":
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 the Judiciary.

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 court.

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." [FN37]

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 value.

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.

JUDICIAL SEMINARS

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 minds.

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 reimbursement [FN44]

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 economics." [FN46]

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 voluntarily.

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?

CONCLUSION

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? pagename =law/View&c=Article&cid=ZZZ5XKOXLDC&live=true&cst=2&pc=0&pa=0&s=News&ExpIgnore= true&showsummary=0.

[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 (Dec. 1988).

[FN9]. FAIRNESS FOR OUR PUBLIC SERVANTS: REPORT OF THE 1989 QUADRENNIAL COMMISSION ON EXECUTIVE, LEGISLATIVE AND JUDICIAL SALARIES 28 (Dec. 1988).

[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 Atkins).
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. 1988).

[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 added).

[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 ed. 1952).

[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 their articles."

[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 steadily decreasing.