Bill Would Penalize Judges Leaving for High-Paying Jobs

GOVERNMENT • Dec. 17, 2007
Bill Would Penalize Judges Leaving for High-Paying Jobs
By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Congress may be offering federal judges a major pay raise for the first time in 16 years, but lawmakers are also embracing a plan to deter senior judges from taking high-paying jobs in the private sector.
The House Judiciary Committee approved a bill last week that will bump up salaries of all federal judges by a whopping 31 percent.
But another provision in the bill would penalize any judges at retirement age who leave the bench for a high-paying job by reducing the amount of pension they receive.
It's an idea that isn't universally welcomed by former judges, even though some sitting judges have endorsed it during negotiations with lawmakers, according to sources familiar with the discussions. The U.S. Judicial Conference is yet to announce its position.
On the other side of Capitol Hill, some senators also appear to be responsive to the idea.
Sen. Dianne Feinstein, D-Calif., has introduced an identical version of the bill, which the Senate Judiciary Committee debated but did not vote on Thursday.
A district judge would earn $218,000 if the bill passes Congress.
The legislation would dispose of the link between the pay of district judges and members of Congress, and judges also would receive an automatic cost-of-living adjustment each year, which they haven't had in the past.
District judges earn just over $166,000, slightly more than the base salary of a first-year associate at a big law firm.
A number of judges have cited that figure in recent months when announcing that they are leaving the bench. Over the last two years, 17 judges have resigned, according to the Administrative Office of the U.S. Courts.
In order to put a stop to that practice, which lawmakers believe is diluting the quality of the judiciary, the legislation comes with a built-in deterrent.
Under a provision suggested by Rep. Lamar Smith, R-Texas, judges would lose a dollar of their pension for every two dollars they earn above their old salary if they leave the bench, down to a baseline of 33 percent of their judicial pay.
That would affect only judges who retire after 65; judges who leave the bench before 65 get no pension.
The bill before Congress also requires senior judges to work more for their pay.
They have 25 percent of an active judge's workload, but under the House bill, that would increase to 33 percent.
The legislation has won the backing of some House Democrats, including Los Angeles Rep. Howard Berman, a leading sponsor of the bill.
"The federal judiciary is not a steppingstone to a high-paying career," Berman said last week. "It's supposed to be a capstone. So we have created a disincentive."
Among the high-profile judges to leave the bench in recent years were J. Michael Luttig, of the 4th U.S. Circuit Court of Appeals, and Paul G. Cassell, a district judge in Utah.
Another was Attorney General Michael Mukasey, who was a federal judge in New York for 18 years before becoming a partner at a firm in the city on hitting retirement age.
In testimony before Congress earlier this year, Supreme Court Justice Anthony Kennedy also mourned the departure of U.S. Chief Judge David F. Levi of California's Eastern District in Sacramento, who announced in January that he was leaving to become the dean of Duke Law School.
In 2005, nine judges left the bench - the most ever in a calendar year - with five going to California-based arbitration service JAMS, Kennedy told lawmakers.
Dickran M. Tevrizian, a federal judge in Los Angeles for 21 years, joined JAMS earlier this year.
Although Tevrizian welcomes the pay raise, he lambasted Congress for the pension plan, saying judges deserve a full pension in return for the years they forgo private-sector earnings.
"That's ludicrous," he said of the plan last week. "It penalizes judges. It doesn't help them."
Tevrizian pointed to the fact that first-year associates can earn as much as judges even though "they don't know where the courthouse is."
"It's a crime judges are not paid more," he added.
Cassell, a law professor at the University of Utah, publicized the issue when he left the bench earlier this year.
He outlined his concerns about judicial pay in a letter to President Bush.
Cassell said recently that, because he served for only 5½ years, he won't get a federal pension.
He welcomed the bill before Congress, describing it as a "fair approach" to resolving the problem.
"It's good government legislation," he added.
Although the bill passed the House Judiciary Committee, it could face more of an uphill struggle in the Senate, judging by the reception it received last week.
Several committee members raised concerns about the proposal.
Sen. John Cornyn, R-Texas, a former state judge, said he would "question the wisdom" of reducing pensions.
He noted that members of Congress often go on to high-paying jobs after leaving office without losing their pension rights.
Another Republican, Sen. Jeff Session of Alabama, said the legislation could cause a "ripple effect" across the federal government, with other employees perhaps seeking equally sizable raises.
The bill will be on the agenda the next time the committee meets, which may not be until January.

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