Samuel Lowenberg - Independent Journalist biography articles articles

Who Really Wants to Lift Ban on Fees?

Scalia's Frustration Seen as Factor For Reinstating Judges' Honoraria

Legal Times  September 18, 2000


On Capitol Hill, it became known as the "Keep Scalia on the Court" bill.

At chance meetings and cocktail parties with lawmakers, their staff, and federal judges, Supreme Court justices and other court officials would complain early and often about the 1989 law that barred federal judges from accepting honoraria for their public appearances. Congressional staffers learned that Antonin Scalia, in particular, was angry about the loss of what he saw as legitimate extra income for underpaid judges.

For Scalia, the honoraria ban was one of several factors that caused him to muse aloud from time to time about leaving the Court.

To hear knowledgeable sources tell it, Scalia's frustration, as much as anything else, was the trigger for inclusion, deep in a Senate appropriations bill, of a now-public provision lifting the ban on honoraria for the judiciary. The measure, introduced by Sen. Judd Gregg (R-N.H.), at the request of Sen. Mitch McConnell (R-Ky.), has passed the Appropriations Committee but faces an uncertain fate.

It is one of those provisions for which, once public, no one wants to take credit. McConnell released an April 27 letter from Chief Justice William Rehnquist in support of lifting the ban that led some to conclude that the legislation was Rehnquist's doing.

But on Sept. 14, Rehnquist released an unusual statement whose purpose seemed to be to make it clear that ending the prohibition on honoraria was not his idea.

"Earlier this year, Senator McConnell's staff contacted my office regarding legislation the Senator planned to introduce to lift or ease the ban on honoraria for federal judges," Rehnquist said.

"Although my firm belief is that judges' pay should be increased across the board, I responded to Senator McConnell's request by my letter of April 27."

click here for Justice Scalia's letter responding to the article

Even some rank-and-file federal judges wanted to make it clear last week that allowing honoraria was not their idea and won't do anything to alleviate their need for salary increases. District judges, who are paid $ 141,300, and most appeals judges, who are paid $ 149,900, are not deluged with lucrative speaking requests, some said last week. Associate justices make $ 173,600 and the chief justice is paid $ 181,400.

"Except for a few appeals judges like (9th Circuit Judge Alex) Kozinski or (7th Circuit Judge Richard) Posner, no one but the Supreme Court would benefit from that legislation," says one prominent appeals judge who requested anonymity. "Scalia's the only one who talks about it, and I've heard him talk about it quite a bit." Scalia declined to comment on his role in the issue.

Even Rehnquist's original letter notes that easing the ban on honoraria would be of limited help, benefiting "if not all judges, at least those who are offered such opportunities."

Scalia's interest in the issue is understandable. In 1989, the last year before the ban took effect, Scalia earned $ 37,000 in honoraria according to his financial disclosure form-more than any other justice.

Public interest groups who heard of the legislation last week complained that lifting the ban would expose judges and justices to improper influence from trade associations or other groups with stakes in cases before them.

But 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. Ethics guidelines for judges make it unlikely that justices would accept honoraria from anyone else, court officials say.

Interestingly, most justices reported no income from honoraria that year. The late Justice Harry Blackmun, who said he was reimbursed for travel and lodging expenses for several appearances-reimbursement is still permitted now- added pointedly, "Although honoraria were offered at a number of these engagements, I accepted none."

Current law does allow justices and other federal officials to earn $ 21, 195 for teaching and other forms of outside work or writing.

Salary Unrest

The flap over honoraria is the latest sign of long-simmering unrest within the federal judiciary over salaries. Judges are increasingly frustrated when they see their law clerks depart for private practice with salary offers that exceed their own pay from the very start.

"Such disparity harms the ability of the judiciary to retain and recruit the most capable lawyers from all socioeconomic classes and geographical areas, particularly in high cost-of-living urban areas," Rehnquist said in his April letter.

Forty-two judges, an unusually high number, have left the federal bench since 1993, although money may not be the reason for all of them.

Cost-of-living adjustments promised when the honoraria ban was enacted have been few and far between, despite lobbying by the judiciary. Efforts to " delink" judges' pay from the politically hot issue of pay for members of Congress have not succeeded. And exacerbating the judge's anger over the honoraria ban is the fact the Supreme Court itself found it an unconstitutional First Amendment violation as it affects executive branch employees. That decision came in 1995 in United States v. NTEU.

The honoraria controversy, some fear, may set back systemic changes in judges' pay.

"If the issue here is judicial compensation, that should not be addressed by tinkering with changes in honoraria rules but directly, head-on," says Sen. Patrick Leahy (D-Vt.). Ending the ban would be "a bad idea," Leahy says.

But Senate Judiciary Chairman Orrin Hatch (R-Utah) said through a spokeswoman that he supports lifting the ban because he thinks it will help keep the best judges on the bench.

Many judges think their best hope for relief may come from litigation, not legislation. In a case pending before the U.S. Court of Appeals for the Federal Circuit, California federal Judge Spencer Williams has sued the government, claiming its failure to give judges cost-of-living adjustments amounts to a constitutional violation. The Constitution, as a way of protecting the independence of the judiciary, bars Congress from diminishing their salaries while in office.

The Williams case was argued before a three-judge panel of the Federal Circuit in June.

A win for Williams could bring judges a one-time bonus of accumulated back pay and at least a gradual rise in salary from current levels.

----by Sam Loewenberg and Tony Mauro


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