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In his annual report on the judiciary issued Jan. 1, Chief Justice John Roberts Jr. said the continued failure of Congress to raise judicial salaries had reached the level of a “constitutional crisis.” The job of selling Congress on the urgency of pay raises will fall in part to James Duff, the mild-mannered new director of the Administrative Office of the U.S. Courts. In addition to running the sprawling federal judiciary, Duff’s job includes working with Congress, which appropriates $6 billion each year to make the courts run — and to pay the judges. Roberts recruited Duff from the D.C. office of Baker, Donelson, Bearman, Caldwell & Berkowitz, but from 1996 to 2000, he was a familiar figure in judicial circles and on Capitol Hill because he served as administrative assistant to the late Chief Justice William Rehnquist. In his first press interview since starting the job last July, Duff spoke on Jan. 3 with Legal Times Supreme Court correspondent Tony Mauro at his office overlooking the U.S. Capitol about the judicial-pay issue and other challenges facing the judiciary.
• On Judicial Salaries • In the blogosphere, Roberts was taking hits last week for labeling the salary deficit a constitutional crisis. But Duff says the case for using that phrase is strong. “I don’t think the chief overstated it at all,” says Duff. “It’s certainly being felt that way in the judicial branch.” The Constitution itself says little about federal judges, except for two provisions: life tenure, and a bar against reduction of their salaries. Both, says Duff, are “pillars of judicial independence,” and both are “directly in play” because of the current level of pay for judges. Judges have long argued that when Congress does not even give them cost-of-living adjustments — none was given last year, or in several years during the 1990s — it is, in effect violating the salary-reduction provision of the Constitution. Real earnings of judges have declined by nearly 25 percent since 1969, Roberts pointed out. But the impact of salary on the life-tenure provision of the Constitution is emerging as a strong argument as well, Duff says. Judges are leaving the bench at a higher rate than ever before — 17 in the past two years alone — obviously shortening their tenure. Beyond that, at a more subtle (though equally ominous) level, Duff expressed concern that the purpose of life tenure might be thwarted in other ways by salary concerns. The Framers wanted judges to serve for life to insulate them from political and other pressures. But Duff worries what will happen if the public begins to perceive judges not as lifelong jurists, but as lawyers who don black robes as one step on a career path that leads back to the private sector. Will the public start to worry that judges are pulling punches or coloring their decision-making to curry favor with potential employers? “We’re not there yet, by any means,” Duff cautions. “We’ve never had the American public worry about that issue, and we don’t want to introduce it as a concern.” Raising judicial salaries is the way to ensure it never becomes a problem, he suggests. • On Campaigning for the Pay Raise • Roberts and other justices have been vocal and visible in speaking out about salary and other issues in recent months, and Duff thinks that has been a good thing. But don’t expect to see 1,000 lower federal judges giving speeches or lobbying Congress en masse in coming months. “Judges are not inclined to do that sort of thing, and I understand their hesitancy,” says Duff. “Part of the function of the Administrative Office is to work with Congress on issues like this.” But Duff expects some judges on the Judicial Conference, the judiciary’s policy-making body, to testify before Congress, and bar and other groups will make their views known. The first task will be to ask Congress to enact last year’s proposed cost-of-living increase; it died late last year, when Congress delayed its own raises, but may return when the federal minimum wage is hiked. Duff knows judicial pay raises are a tough sell in Congress, but he thinks the time has finally come when it is imperative. He was encouraged when new Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) issued a statement that applauded Roberts’ call for a pay increase and also linked it to preserving judicial independence. Currently, the chief justice’s salary is $212,100, with associate justices receiving $203,000. Appeals court judges are paid $175,100 annually, and district judges receive $165,200. • On the Judiciary’s Budget • The court system is operating under a continuing resolution that holds spending to last year’s levels, the result of logjams in Congress that held up the budget requests of many departments. When the courts were under a continuing resolution in 2004, 1,500 workers were laid off, and Duff is concerned that the number could go even higher this year if the situation persists. But he is hopeful that early in the new term of Congress, it will enact new spending bills for the judiciary. In the meantime, however, Duff is acting on his own to tighten the budget belt. He froze new hiring soon after he arrived, and the Judicial Conference has acted to cap rent increases on court and other facilities. As the first new director of the courts in 20 years (Leonidas Mecham was his predecessor), Duff also says, “It’s a natural time to examine the structure of the office and to look for ways, big and small, to streamline spending and procedures. We are taking budget constraints seriously,” he adds. • On Judicial Independence and the New Congress • In recent years, Republican leaders of Congress have kept up a drumbeat of criticism of the courts that prompted justices ranging from Roberts to Sandra Day O’Connor to Antonin Scalia to Ruth Bader Ginsburg to push back. They were displeased by proposals to create an inspector general as a check on judicial ethics and discipline and to bar judges from citing foreign law, among other things. Does Duff expect these issues to fade in the Democratic Congress? He is diplomatic in response. “I don’t think they will go away, but they may not get as much of a forum as they did in the last Congress.” Duff also won’t join in the glee that some judges have expressed privately about the fact that Rep. F. James Sensenbrenner Jr. (R-Wis.) is no longer chair of the House Judiciary Committee. (He’s been replaced by Michigan Democrat John Conyers Jr.) Sensenbrenner was the driving force behind many of the issues that federal judges found most irritating in recent years. “I’ve developed strong working relationships with members of both parties and look forward to working with the new Congress,” Duff says. Duff also notes that the judiciary has “really stepped up” on its own to address some of the issues raised in recent years by imposing new rules on public disclosure of judicial seminars and improving methods by which judges detect conflicts of interest that should trigger recusals. “It bolsters our allies in Congress when we show that the judiciary can and has and will manage its own affairs,” Duff says. • On His Own Transition From Private Practice • Duff’s salary as head of the administrative office is pegged to that of a federal district judge, now set at $165,200. In 2005, according to listings in The American Lawyer magazine, the profit per partner at Baker, Donelson was $400,000. So how has the transition from private practice been for the 53-year-old Duff? His answer was to raise his right foot, displaying an Adlai Stevenson-style hole in the sole of his shoe. “I don’t wear these shoes when it rains,” he laughs. More seriously, he says, “I enjoyed my work at Baker, Donelson very much. But it is such an honor to be part of this institution. I’m overwhelmed by the support the judges have shown me since I began. I’m very encouraged by it.”
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