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  • Ron Branson
    http://blogs.wsj.com/law/2012/10/06/judges-rule-for-judges-on-pay/ October 6, 2012, 7:18 AM Judges Rule for Judges on Pay By Brent Kendall Refereeing a
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      October 6, 2012, 7:18 AM

      Judges Rule for Judges on Pay

      By Brent Kendall

      Refereeing a remarkable dispute between the judiciary and Congress, a divided federal appeals court ruledlate Friday afternoon that lawmakers violated the Constitution by blocking cost-of-living salary increases for federal judges.

      The U.S. Court of Appeals for the Federal Circuit acknowledged the case presented it with a direct conflict of interest. Judges aren’t supposed to participate in cases in which they have a personal or financial interest, but here, the appeals court said it had no choice. If every federal judge were disqualified, there would be no tribunal to hear the plaintiffs’ claims, it said.

      At issue were claims by six current and former federal judges who said Congress violated the Constitution’s Compensation Clause when it blocked promised salary adjustments for several years.

      The clause says judges’ pay “shall not be diminished during their continuance in office.” Intersecting with that provision was a 1989 federal law that promised judges automatic cost-of-living adjustments in concert with other federal employees.

      The appeals court sided with the judges in a 10-2 ruling , saying that Congress can’t now back away from that promise.

      “All sitting federal judges are entitled to expect that their real salary will not diminish due to inflation or the action or inaction of the other branches of government,” Chief Judge Randall Rader wrote for the court. “The judicial officer should enjoy the freedom to render decisions — sometimes unpopular decisions — without fear that his or her livelihood will be subject to political forces or reprisal from other branches of government.”

      The appeals court said the case implicated basic separation-of-powers principles. “The judiciary, weakest of the three branches of government, must protect its independence,” Judge Rader wrote.

      The two dissenters, Judges Timothy Dyk and William Bryson said the court’s ruling “has much to recommend it as a matter of justice to the nation’s underpaid Article III judges,” but nevertheless was incorrect. The dissenters said the plaintiff judges should lose under the precedent set by a 1980Supreme Court ruling that said Congress could block or reduce future judicial salary increases so long as they hadn’t already taken effect.

      “The Supreme Court may distinguish its own opinions by limiting them to their facts or choose to overrule them, but that is not an option for this court,” the dissenters wrote.

      The state of judicial pay has been a thorny issue for federal judges for several years. Chief Justice John Roberts famously said in a 2006 year-end report that the failure to raise judicial pay had “reached the level of a constitutional crisis.”

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      Comment by Ron Branson:

      The above is so full of holes, I can hardly restrain myself from exposure here.

      The first issue is the argument on the Separation of Powers Doctrine. I often hear this quoted as to why one branch of government cannot interfere with another branch. This is totally a reverse of the proper application of the doctrine. I was told by the California Legislature that due to the Separation of Powers Doctrine, they could not get involved in a matter that involved judicial corruption. Hogwash.

      Our Founding Fathers created the three branches of government exactly for the purpose that each be a check upon the another. The danger arises when the three branches act in unison with one another against the People, which is precisely what has happened today.

      They created an bulky inefficient government. This is why they created a divided Congress of the lower House and an upper House.

      Each side of Congress was is to independently determine one another 's proposition before it can became law. Then it goes to the President to consider a veto. Can you imagine if the President said, "I can't get involved in laws, because that is a Legislative function?" No, you can't. The President must determine independently whether he will veto the laws passed by both Houses of Congress.
      The job of the President is to interfere with the Legislative process, if necessary.

      Likewise, it is the job of the Legislative Branch to step in and interfere as a check and balance against the Judicial Branch. The Judiciary admits to a conflict of interest, being it involves their own aggrandizement, and rightly so. It is for this very reason that salary increases of judges must be left to the Legislature.

      Personally, were I involved in the writing of the original Constitution, I would have contended for a specific defined dollar amount to be paid in salary to each member in Congress, and to the Judiciary, and the President. This would certainly prevent the fooling around with our defined coined money of account. For instance, let's say, Congressmen would be paid $1,500 per year in 1787 currency. Now if Congress inflated the money of account, they would cut their salaries, because after two hundred years of inflation they would still only receive only $1,500 per year salary. And so with the Judiciary.

      This measure would prevent the Judges from ruling in favor of a fractional banking system, as they would be cutting their own throat. I once saw a cartoon of a lady in a bookstore looking up at a book entitled, "Understanding Inflation." It was on sale for only $200 dollars while supplies lasted.

      The next issue I would like to take on is the argument that depriving judges of salary increases is a violation of the U.S. Constitution in decreasing their pay. It is true that federal judges are not to have their pay decreased during their time of service. The very reason was to prevent the Legislature punishing the federal judges for their unpopular decisions. So if we follow this reasoning, the judges are arguing that "inflation" is a type of judicial punishment for their services.

      But the principle of "inflation" is not only non-constitutional, but also unconstitutional, as it changes a standard set forth in the 1792 U.S. Coinage Act passed by Congress, and such inflation can only the unconstitutional rulings of the federal judiciary.

      Who, beyond federal judges, can be blamed for not enforcing the supreme law of the land? This reminds me of the Menendez Brothers Case in which the two Menendez brothers murdered their parents with a shotgun, and then claimed that they were entitled by law to financial benefits because they were now orphans. Federal judges cannot be heard to complain about their demise which they directly participated in bringing about.

      What's more, the federal judiciary here is directly defying their own 1980 U.S. Supreme Court determination that says "Congress could block or reduce future judicial salary increases so long as they hadn't taken effect."

       Here we have the federal judiciary defying its own rulings for obvious selfish reasons, their own pay. But salary increases are a Legislative function, not a judicial function. The Separation of Powers Doctrine to which these judges appeal forbids their passing laws period. This goes certainly for conflictatory laws that give themselves a raise.

      If indeed judicial salary increases has created a national constitutional crisis, as indicated by Chief Justice John Roberts, it is a national crisis of these judges own making. They made their bed, let them sleep in it. Besides, I frankly find it hard to come to tears over their $200,000 received annually. Most of us are bankrupt and out of work, and we would love to receive only one-tenth of the salaries of these judges.

      Ron Branson