Balkinization  

Tuesday, January 02, 2007

Constitutional crises and the eyes of beholders

Sandy Levinson

Today's New York Times has an article indicating that Chief Justice Roberts made "judicial pay the sole topic of his second annual report, issued on Sunday, declaring that the failure by Congress to raise federal judges’ salaries in recent years has become a “constitutional crisis” that puts the future of the federal courts in jeopardy." I note for the record that I was chastised earlier for declaring ourselves to be enroute to a "constitutional crisis" because a patently incompetent and quasi-delusional Commander-in-Chief was quite likely to make decisions in Iraq that would only dig us more deeply in the Iraq quagmire. My critics pointed out that it could not, by definition, be a "constitutional crisis" because Mr. Bush, however incompetent and delusional he may be, nevertheless, thanks to our Constitution, continues to possess all legal powers attached to being Commander-in-Chief, which includes, of course, the power to make disastrous decisions that will result in the further pointless loss of lives both American and Iraqi. Fair enough.

But then what should we say about a Chief Justice who suggests that it is a "constitutional crisis" if Congress takes advantage of its constitutional prerogatives to refuse to raise the salaries of federal judges? As it happens, I agree with him that pay raises are long overdue, but not necessarily for members of the US Supreme Court, frankly, who have cushy jobs and are treated like kings and queens. The judges who deserve the raises are especially the district judges, though I am also sympathetic to the plight of appellate judges who, unlike their "superiors" in Washington, cannot exercise control over their docket and thus reserve ever more time for interesting travel, attendance at conferences (where they will be fawned over, unlike "inferior" judges who tend to be treated like more-or-less human beings).

So, if John Roberts can be cited as authority for the rather freewheeling use of the term "constitutional crisis," then I respectfully submit that the continued habitation of the Whte House for another 750 days by George W. Bush (who would be succeeded, should anything happen to him, by the even more egregious Dick Chaney) is a far better candidate for that term than the fact that the Chief Justice had to take an 80% pay cut to join the Supreme Court.

Happy New Year.

Comments:

I'm just curious if all those Scalia, etc. bashers will back off a bit now. The AP article today noted that several prominent Democratic senators agreed that the low pay for federal judges threatened judicial independence and that it must be raised. Scalia's perspective is hardly the necessary result of some right wing greed or the like. I wonder if any of the posters from the previous thread will recant?
 

I wasn't a commenter there, but Mr. Scalia's judicial antics, hardly limited to prostituting his putative principles in 2000's infamous 5-4, do not endear him to me.

How does a Gordon-Gekko-manque moment from Roberts make Scalia an iota less bashable?
 

It is well recognized that it is difficult impeaching a judge or justice for his performance (or nonperformance). But it is easy for a judge or justice to resign if he/she is dissatisfied with his/her compensation.

On the issue of judges and justices being fairly compensated, there seems to be some suggestion that perhaps better candidates decline such positions because of the big bucks they can make in private practice. But there continue to be many candidates for these positions. Perhaps the lure is less the compensation than the power and prestige that can last a lifetime for SCOTUS justices (or up to 70 years of age for judges). And they can't be easily fired (as noted earlier). The hours are pretty good and they are well staffed. No more of the competition that takes place in even the prestigious law firms and kowtowing to clients. Wearing robes with those in their presence in awe of their elevated presence. People rising and sitting as directed during entrances and exits. They must have good senses of humor as their jibes and jokes get laughs, especially from the lawyers present.

Sounds like a good job. So where is the constitutional crisis?
 

I should perhaps be clear tht I neither oppose pay raises for federal justices nor professional athletes. I simply note that neither need the pay raise to support their families, as most families in the United States are supported. Perhaps Congress should pass a bill indexing pay raises for all government officials earning twice or more the national averages to increases in the average pay of persons in the 30th percentile of the earnings scale.
 

I wonder if any of the posters from the previous thread will recant?

I don't think I have any recanting to do, but I am absurdly pleased by the fact that Justice Roberts made the same argument I suggested in the previous thread: that judicial pay has declined relative to what it was in previous years.

Perhaps Congress should pass a bill indexing pay raises for all government officials earning twice or more the national averages to increases in the average pay of persons in the 30th percentile of the earnings scale.

Someone correct me if I'm wrong, but isn't the pay of district court judges legally required to be the same as the pay for members of Congress? Is this "tie" good or bad? Assuming it's good, will Congress increase its own pay in order to accomplish Justice Roberts's goal?

Finally, let me suggest an alternative to a pay increase. I propose that we increase the size of the judiciary, especially at the district court level. This will reduce the workload of the individual judges, which should give them more leisure time as an alternative to higher pay. It will also speed up the judicial process in those courts.
 

There actually is something of a constitutional issue here, though I think "crisis" is an exageration. Federal judges are not to have their pay cut, and inflation does cut your pay if you don't get cost of living adjustments.

This wasn't originally much of an issue back when we were on the gold standard, but with fiat currency and inflation, simply keeping the nominal pay rate constant amounts to the sort of cut which is constitutionally prohibited.
 

Our resident Libertarian is at it again. Brett, do you seriously contend that a modern economy can or should do without fiat money and operate on the gold standard? Or is this simply an idle observation?
 

What I seriously contend is that the Constitution clearly states that judges shall "receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

When a rate of inflation higher than zero is maintained as a matter of deliberate policy, and the nominal rate of pay of judges is not accordingly boosted to compensate for this, then the compensation of the judges IS being diminished during their continuance in office, in defiance of the Constitution.

Having a fiat currency is relevant because it makes the rate of inflation a deliberate policy choice, something fairly difficult to achieve under a gold standard.
 

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