Convictions: Slate's blog on legal issues

McCain's Intemperate and Unfortunate Assessment of the Third Branch

John McCain's harsh assessment of the federal judiciary is unworthy of him.

While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base. 

There is no flaw, Congress has virtually plenary authority over the Court's appellate docket.  Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism. 

Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees.  Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power."  Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."

I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation.  To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law.  It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.

While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is  some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office. 

David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case.  Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues. 

It is poisonous to the health of the constitutional system to trash the Court  as venal politicians.  In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.

Can an Ineffective Judiciary Hear Its Own Case?

Last week, I discussed the lawsuit of N.Y. Courts vs. N.Y. Governor and Legislature.  Judith Kaye, the Chief Judge of the N.Y. Court of Appeals, has brought suit on behalf of the court system, arguing that the political branches have violated the principle of separation of powers and the compensation clause by failing to raise judicial salaries over the last nine years, a period during which the real value of those salaries declined by 25 percent.

The separation of powers argument is that if salaries do not keep up with inflation, they eventually become "inadequate," in which case the judiciary cannot perform its functions, becomes ineffective, and thus cannot check and balance the political branches.

Does the complaint prove that the N.Y. judiciary has become ineffective?  It quotes a few judges who say they are unhappy and are likely to resign because of inadequate pay.  But it does not try very hard.  If the plaintiffs are right, then they should be able to come forward with statistics that show that N.Y. judges resign before the end of their terms in increasing numbers; that N.Y. judges enjoy less respect among practitioners; that trials and appeals are taking longer; that judges are committing more errors than in the past; that judges are less likely to rule against the N.Y. government; that they are more likely to be disciplined for improper behavior; and so forth.

Why doesn't the judiciary come forward with evidence that it is ineffective?  Let's put aside the obvious PR implications of such an admission, and also the very likely possibility that, in fact, there is no such evidence of ineffectiveness.  The real problem is that if there is such evidence, it would only undermine the plaintiffs' case.  After all, if the N.Y. judiciary has become ineffective and lost its independence, why would it be appropriate for that same judiciary to resolve an interbranch dispute about judicial pay?

So here is the conundrum.  Either the judiciary is effective, in which case it cannot successfully argue that the N.Y. government has rendered it ineffective by underpaying judges; or the judiciary is ineffective, in which case it cannot persuasively claim that it should hear the case!  Heads the judges lose; tails the government wins.  If the judiciary had lost its independence to the governor and the legislature, would it really have brought suit against them, and with the expectation that one of its non-independent members would rule in its favor?

In an effort to extract themselves from this dilemma, the plaintiffs style their argument as one about the future (the judiciary "cannot long remain an independent and co-equal branch of government ... if judicial compensation is permitted to decline by virtue of inflation").  So the argument is not that the real decline in pay has rendered the judiciary ineffective; it is that, at some point in the future, the decline in pay will render the judiciary ineffective.  For that reason, the pay raise should occur now.  But why shouldn't the government be able to put off any pay raise until the date, which may be years from now, when the judiciary is not yet ineffective but closer to being so than it is today?  Without a theory about the minimum salary level that is necessary to ensure that the judiciary is effective (and the plaintiffs conspicuously lack such a theory) and evidence that this point is imminent (and the plaintiffs provide no such evidence), the N.Y. courts lack grounds for granting themselves relief.

When the Judiciary Brings a Lawsuit, Who Gets To Hear the Case?

By way of Dan Slater, we learn that Chief Judge Judith Kaye and the New York state court system she leads have brought suit against the legislature and governor of New York. The complaint argues that the legislature and executive have violated the principle of separation of powers—violated judicial independence—by failing to provide "adequate" compensation for judges.

The strangely coy complaint doesn't actually tell us what New York judges' salaries are. But they are easy to find. In 2007, trial judges earned $136,700; intermediate appellate judges earned $144,000; and high court judges earned $151,200. The nationwide medians for state judges for that year were $128,953, $139,694, and $143,669, respectively. So in nominal terms, New York judges do reasonably well compared with other state judges. They make well above the median family income of around $60,000 (in New York) and are lodged comfortably in the right tail of the income distribution.

The complaint makes a number of arguments. The cost of living in New York state is about 25 percent above the national average; taking the cost of living into account, New York trial judges are ranked 48^th or even 49^th (this source ranks them 42^nd). New York judges used to be among the most highly paid, but they haven't received any salary increase since 1999, and since then inflation has devoured about 25 percent of their salaries. But under what principle of law do New York judges have to be paid more than judges in other states? Or for that matter, why shouldn't they be 50^th? Someone has to be 50^th! The complaint has a distinctly Lake Wobegon-ish air: If judges in all states have to be paid above average in order to preserve their judicial independence, then all judicial salaries will rise inexorably toward infinity. That, or the laws of mathematics will have to be struck down.

The complaint notes that other New York employees have received salary increases, and so today many earn more than judges. New York judges also earn less than many lawyers, deans, professors, and other people in the legal profession in New York, including some first-year associates at law firms. New York judges used to earn the same amount as federal district judges but now earn $30,000 less (of course, federal judges also think they are underpaid). And everyone in New York appears to agree that judges deserve pay increases, even the governor and legislative leaders; but bills to increase pay have been tied up, and meanwhile the legislature has managed to spend millions of dollars on pork projects.

All of this seems lamentable and bad policy, maybe, but a violation of separation of powers? How exactly? The complaint harps on the threat to judicial independence, but how would a modest (by legal standards) salary interfere with judicial independence? No one argues that the legislature has threatened to deprive judges of adequate salaries unless they rule in certain ways, or that the failure to raise salaries is payback for some unpopular ruling. The more alarming scenario is one in which judges set their own salaries by adjudicating lawsuits brought by other judges.

The complaint also argues that by refusing to grant cost-of-living increases to judges, while granting them to virtually all other state employees, the political branches have engaged in discrimination. The complaint cites a Supreme Court case that struck down a discriminatory tax that fell on federal judges; here, we have a failure to grant judges cost-of-living raises that were given to others. The argument here is really a Compensation Clause argument that failing to give judges cost-of-living raises is equivalent to reducing their salaries, in violation of that clause, but oddly the argument seems to be that such a failure is a violation only when other state employees do receive cost-of-living raises. I suspect that the plaintiffs presented this argument as a discrimination claim because there is plenty of law already that says failing to raise a salary to keep up with inflation is not the same as reducing a salary; but it doesn't seem like discrimination unless one can show that judges were not already overpaid relative to employees back in 1999, when they were among the best-paid in the nation. And how would one show that?