Judicial Nominations: Getchell, Nominee to the Fourth Circuit, Withdraws

According to The Virginian-Pilot, E Duncan Getchell withdrew his name from being considered as a nominee for a seat on the Fourth Circuit Court of Appeals.

Getchell recognized that political reality would prevent his nomination from being confirmed.

‘Recent press reports indicate that despite the support I have received, the Senate Democratic leadership will not allow a hearing to go forward and so, after prayerful consideration, I have determined to withdraw my name from consideration.’

I disagree that the Senate Democrats are to blame. In reality, the finger of accusation must point to the President.

Fed. Govt.: President George Bush Issues 2008 Federal Employees’ Pay Schedule; Federal Judges Receive COLA

President George Bush issued Executive Order 13454, which provides the pay schedule for federal employees for 2008. The recent appropriations bill provided for cost of living adjustments for several classes of federal employees.

One group is the one for federal judiciary (see schedule 7 of Executive Order 13454) (amounts in chart are in dollars).

Judicial position	Annual Salary in 2007	Annual Salary in 2008	% Increase
Chief Justice of the U.S.	212,100	217,400	2.5
Sup. Ct. Associate Justices	203,000	208,100	2.5
Circuit Judges	175,100	179,500	2.5
District Judges	165,200	169,300	2.5
Judges of Int’l Trade Court	165,200	169,300	2.5

 

Also in Executive Order 13454, Members of the U.S. House of Representatives and U.S Senate will receive $169,300 in 2008, an increase from $165,200 in 2007.

Contrary to Chief Justice John Roberts, I feel that the federal judicary is already well compensated (click on the federal judiciary tag in the right column for my previous posts on the federal judiciary pay issue).

U.S. Judiciary: Columnist Opposes CJ John Roberts’ Judicial Pay Raise Proposal

Law professor Scott Baker, in a Los Angeles Times column, disagrees with the need for a pay raise for the federal judiciary, as proposed by Chief Justice John Roberts.

Professor Baker provided three reasons for his opposition:

• no evidence that higher pay produces better judges,
• there is no reason to believe that the highest paid attorneys would be the best judges, and
• there is no marked difference in judicial behavior between judges with a government service background and judges from corporate law firms

Professor Baker’s column makes excellent points, especially now as he notices the economic pressure facing the nation.

In a time of strained budgets, both Democrats and Republicans need to make hard choices on spending priorities. Federal judges earn six figures. Why choose to pay judges more — as opposed to equally deserving, lesser-paid federal employees such as park rangers, members of the military or FBI agents — if it ultimately makes no difference to how well the judges perform their jobs?

I, too, oppose exorbitant pay raises for judges. I feel that if judges make too much more, they will not be able to relate to the lives of the middle class litigants that may appear before them. Go to the federal judiciary tag in the right column for my posts on the subject of the judicial pay raise proposal.

U.S. Judiciary: Chief Justice John Roberts Issues 2007 Year-End Report

John Roberts, Chief Justice of the United States, issued a 2007 year-end report on the judiciary.

Unlike last year’s report, which focused solely on judicial pay, this year’s report is fairly standard.

The Chief Justice emphasized three points in the report. First, the system and process of the United States judiciary serves as a model for the rest of the world.

In addition, the Chief Justice urges the people of the United States to appreciate the quality of the United States Judicial branch of government.

Finally, the Chief Justice establishes goals for 2008:

• improve communications with the Executive and Legislative branches,
• ensure that federal judges maintain the highest standards of integrity, and
• seek salary increases for federal judges [Note: See my posts on this issue in the federal judiciary category in the right column.]

In the appendix to the report, the Chief Justice provides an explanation of the workload of the judiciary. I will focus on the Supreme Court’s workload.

	2005	2006
Filings	8521	8857
In forma pauperis	6846	7132
Paid docket	1671	1723
Cases:
argued	87	78
disposed	82	74
signed opinions	69	67

Judicial Nominations: President, Senate Must Reach Consensus on Potential Nominees

The Washington Post wrote another editorial concerning judicial nominations.

The reasoning of the editorial board of the Post is regardless how a nomination is decided, once a name is submitted, the process should go forward (presumably towards confirming the nominee).

I reject this reasoning. If the Presidential nominee selection process is flawed, yet the President still submits a nominee to the Senate, then the nomination process in the Senate should not start at all.

The people of the United States must always remember that judges have lifetime terms. Thus, the Senate has an obligation to consider carefully every judicial nomination. This includes the decision to refuse to consider Presidential judicial nominees.

The Post’s editorial summarized the circumstances surrounding President Bush’s Fourth Circuit nominees for Virginia and Maryland.

Virginia

Senators John Warner (R) and Jim Webb (D) evaluated nominees and presented President Bush with five people that they would both support for nomination to the Fourth Circuit (for the Virginia seat). President Bush nominated Richmond lawyer E. Duncan Getchell Jr., who was not on their list. This decision did not please the Senators from Virginia. [Note: Mr. Getchell was on the list of Senators John Warner (R) and former Senator George Allen (R). According to the Virginian Pilot, since Allen lost to Webb, Getchell's name was removed from the list.]

The Post’s editorial board wisely stated that the Senate would not give the nominees a confirmation hearing.

Maryland

I wrote about the nomination of Rod Rosenstein in this post. In summary, President Bush nominated Rod Rosenstein, U.S. Attorney for Maryland, for a judicial post on the Fourth Circuit, despite the objections of Maryland’s Senators.

For a smooth judicial nomination process consensus between the President and the Senate must occur before the President submits a nominee to the Senate.

Moreover, I do not consider it a priority to fill the five vacancies. Ten of fifteen seats (66%) are filled, balanced between Democratic and Republican appointees.

There is no need to upset the balance, especially since President Bush is entering his final year in office.

U.S. Judiciary: House Passes Consolidated Appropriations Bill; Bill Includes 2008 COLA for Judges

[Update 12/19/07: The Senate has also approved H.R. 2764. Click here for the roll call vote.]

The U.S. House of Representatives passed its consolidated appropriations bill (H.R. 2764). Included in the measure is a cost of living adjustment for Justices and Judges in 2008.

SEC. 305. Pursuant to section 140 of Public Law 97-92, and from funds appropriated in this Act, Justices and judges of the United States are authorized during fiscal
year 2008, to receive a salary adjustment in accordance with 28 U.S.C. 461.

There is no provision for a judicial base pay increase (there is no language from H.R.3753 or S.1638). [Note: See my previous post for more information on these bills.]

U.S. Judiciary: Congress Must Maintain Its Power Over Judicial Pay Increases

 

I disagree with the editorial of The Washington Post concerning federal judicial pay. The bill being considered in the House of Representatives, in particular, contains an unjustified squandering of Congressional power over the federal treasury.

I feel the Congress must jealously guard its power of the purse (U.S. Constitution, Article I, section 8). There are two bills being considered in the Congress: one in the House or Representatives (H.R. 3753) and the other in the Senate (S.1638). Both bills propose a substantial increase in judicial pay.

However, H.R. 3753, section 4, proposes to repeal the law requiring a specific authorization from Congress to increase judicial pay (Public Law 97-92, section 140). [Note: For more information on P.L. 97-92 and other laws regarding judicial pay, see a Congressional Research Service report on the issue.]

Federal judges must not compare their salaries with highly paid corporate lawyers. The fact is relatively few lawyers earn that income. The Empirical Legal Studies blog explains this point for the Juris Doctor class of 2006.

The sample includes–in order of size–private practice (55.8%), business (14.2%), government (10.6%), judicial clerks (9.6%), public interest (5.4%), and other (2.8%). Half of the graduates make less than the $62,000 per year median–but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.

 

 

If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right–i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

Moreover, highly paid corporate lawyers must be on call 24 hours a day to attend to the needs of their clients. Judges have the power to set their own schedule. Furthermore, as I wrote in a previous post,

Judge Richard Posner of the Seventh Circuit Court of Appeals argued that a salary increase for judges is not necessary as other perquisites are not included in the base salary (the value of the federal pension, health insurance benefits, ability to earn outside income).

Given the distribution of salaries provided by the Empirical Legal Studies blog, contrary to the argument of Chief Justice John Roberts, many good judges can come from lawyers who are not paid extraordinarily large salaries.

While both bills being considered in Congress are unacceptably expensive, the House bill unjustifiably cedes its power over the spending of federal taxpayer-provided funds.

U.S. Judiciary: Maryland Senators Have Right to Reject Nomination of Rosenstein

A federal judge has lifetime tenure. As a result, the selection process for judges cannot be treated as a mere prerogative of the President. Regardless, this is the consistent view of The Washington Post’s editorial board.

A Washington Post editorial seems to argue that nominee Rod Rosenstein should become a Fourth Circuit judge just because President George Bush nominated him.

Yet Maryland Democratic Sens. Barbara A. Mikulski and Benjamin L. Cardin are portraying Mr. Rosenstein as a carpetbagger. The senators criticized President Bush’s nomination Nov. 15 of Mr. Rosenstein to the U.S. Court of Appeals for the 4th Circuit because they claim Mr. Rosenstein lacks “a lengthy history of state legal experience in Maryland and strong Maryland roots.” The senators also argue that Mr. Rosenstein is doing such a good job as U.S. attorney that he should be kept in that post rather than moved to the court.

Neither of these arguments is persuasive. Federal appeals court judges rule almost exclusively on the basis of federal law — not state and local law — so experience in the local bar or local courts would have little, if any, impact on their ability to perform the job. And punishing Mr. Rosenstein by denying him a judgeship because of an outstanding performance as U.S. attorney is perverse. In fact, the office has stabilized under Mr. Rosenstein and counts among its ranks senior lawyers who would be capable of taking charge.

The editorial notes that the two Maryland senators informed Bush of their objection to Mr. Rosenstein before Bush submitted his name to the Senate.

Ms. Mikulski and Mr. Cardin signaled early on their opposition to a Rosenstein nomination, a message that Mr. Bush chose to ignore.

As I have stated in a previous post, the simple fact of being nominated for a judge position should not guarantee confirmation.

Judicial positions are for a lifetime, thus the Senate should conduct exacting scrutiny of each nominee. The Senate should exercise its power to reject nominations (even stalling nominations), if necessary.

The President and Senate, to ensure a smooth judicial nomination process, should agree to acceptable nominees before nominations are submitted for the Senate’s consideration.

Fed. Judiciary: Leslie Southwick Receives Seat on Fifth Circuit Court

The New York Times (link) reported that Leslie Southwick’s nomination to the Fifth Circuit Court of Appeals was confirmed by the Senate (59-38).

Representative Barbara Lee (link) issued a press release (link) criticizing Southwick’s confirmation.

U.S. Judiciary: Senate Judiciary Committee Will Hold Meeting to Consider Bill to Raise Judicial Salaries

According to Govtrack.us, the Senate Judiciary Committee will hold a business meeting to consider S.1638, a bill which would increase salaries for federal judges.

The meeting will be held in Dirksen-226 on Nov 15, 2007 at 10 a.m.