Before U.S. Solicitor General Donald Verrilli first joined the
Obama administration as an associate deputy attorney general in
2009, he was a partner at Jenner & Block, where average profits
in 2008 were a robust $835,000 per partner, according to The American Lawyer. U.S. district court judges that year earned
$169,300; federal appeals court judges made $179,500. Verrilli
took a huge pay cut to serve in the Justice Department, most
recently earning $165,300 as solicitor general, according to
charts at the federal Office of Personnel Management. But
Jenner's profits were up to $1.55 million in 2011, so if
Verrilli eventually decides to return to his old firm he'll have
a featherbed landing. Federal judges, meanwhile, have been stuck at the same pay since 2009: $174,000 for trial courts, $184,000
for circuit courts. Lifetime tenure was supposed to assure the
independence of the federal judiciary, but for an increasing number of judges the gap between judicial pay and private practice makes the opportunity cost of sitting on the bench too
high to bear.
The only reason I'm singling out Verrilli and his former
firm is that the solicitor general is counsel of record in a new
cert petition asking the U.S. Supreme Court to review an October
2012 appellate decision mandating raises for federal judges. In
that ruling, known as Beer v. United States, a majority of the
en banc Federal Circuit Court of Appeals held that under the
Constitution's Compensation Clause, Congress may not deny
federal judges the cost-of-living adjustments they were promised
in a 1989 law revamping judicial ethics rules. The cert petition
puts Chief Justice John Roberts in a peculiar position: The
Chief Justice has been an outspoken champion of judicial raises,
but the Justice Department argues that the Federal Circuit's
decision in Beer contradicts Supreme Court precedent.
The background of the Federal Circuit ruling, as I've explained, is incredibly complicated, not least because of the
Supreme Court's 1980 ruling in U.S. v. Will that Congress has
the right to block raises for judges. Suffice it to say that the
Federal Circuit majority concluded that the precise, automatic
raises promised in the 1989 ethics law were different from the
ad hoc pay raises addressed in the Supreme Court's Will ruling.
Because federal judges were explicitly promised specific
cost-of-living raises in the 1989 law, according to the Federal
Circuit majority, those raises became part of the
constitutionally protected ground on which judges expected to
stand.
The Justice Department's cert petition, filed Friday,
asserts that Beer contradicts the high court's holding in Will
and contravenes at least four acts of Congress. When lawmakers
passed the 1989 law, they relied on the Supreme Court's "clear
holding that future judicial salary increases could be prevented
from taking effect if Congress timely determined that blocking
legislation was appropriate," the petition said. "The decision
below, however, treats the 1989 act as an irrevocable commitment
to give annual pay increases to sitting federal judges in
perpetuity, regardless of budgetary constraints." The cert
petition argues that the Federal Circuit ruling amounts to an
invitation to every federal judge -- and, for that matter, every
federal official whose salary is linked to judicial pay -- to
sue the United States for damages. (The Beer decision applied
only to the small group of current and former judges who brought
the suit, but, as we've reported, a class of federal judges
brought a follow-up suit in December to extend the Federal
Circuit's reasoning to the entire judiciary.)
Interestingly, three of the Federal Circuit judges who voted
to protect judicial raises said in a concurrence that the
Supreme Court should take the case -- but only so the justices
can reverse the court's precedent in Will. There's a chance that
the Beer plaintiffs won't oppose cert but will similarly argue
that it's time for the court to readdress the vexing problem of
judicial pay.
Christopher Landau of Kirkland & Ellis, who represents the
judges in the Beer case, declined to comment.
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