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In a rare appearance Wednesday before the Senate Judiciary Committee, Supreme Court Justice Anthony Kennedy made an impassioned plea for increasing judicial salaries and against allowing cameras in the Court. The failure of Congress to give federal judges meaningful raises in recent years is “threatening the excellence of the judiciary,” Kennedy said, adding that the traditional linkage between the salaries of judges and members of Congress “has hurt the judiciary very badly.” The Judiciary Committee says Kennedy’s appearance marked the first time “in modern history” that a sitting justice has testified before the committee on legislative matters. As for cameras in the Court, Kennedy said more than once, “We don’t want it!” to the committee, whose ranking Republican, Sen. Arlen Specter of Pennsylvania, introduced a bill last month that would require cameras at Court proceedings. “Please, senator,” Kennedy continued, pointedly urging the Senate not to introduce the “insidious temptation” for justices to shape their comments and questions from the bench into catchy sound bites. Kennedy has made similar points in the past, but his impassioned tone before the senators reached a level he usually reserves for students he lectures about the rule of law. The topic for the hearing was billed as “judicial security and independence,” but the two-hour session ranged far and wide in subject matter. Kennedy said that when the committee first asked Chief Justice John Roberts Jr. if a justice could testify, it gave the Court “some pause.” But the justices decided it was worth doing. “This is an important time for the judiciary,” Kennedy said, making it clear that the salary issue was foremost. While recognizing “the intangible rewards of public service,” Kennedy said the current salaries are undermining the ability to recruit judges from “the finest ranks of the practicing bar.” Current pay for federal district court judges is $165,200, appeals judges are paid $175,100, associate justices earn $203,000, and the chief justice gets $212,100 a year. He angrily noted that Supreme Court law clerks often earn more than justices the first year after they leave the Court. Justice Stephen Breyer, Kennedy said, told him recently that the ability to teach was another intangible benefit of being a federal judge. But Kennedy said that, ironically, judges — whose pay used to exceed that of professors — are being lured off the bench into academia. Without mentioning his name, Kennedy cited David Levi, who announced in January that he will be leaving his post as the chief judge of the Eastern District of California to become dean of the Duke University School of Law. Committee Chairman Sen. Patrick Leahy (D-Vt.) said he had already introduced a bill calling for a cost-of-living increase for judges, and he agreed with Kennedy that congressional reluctance to give judges raises without also enacting raises for themselves should end. “The courts should not be held hostage to Congress,” Leahy said. Specter also pledged that legislation to fix the pay situation would pass in this session of Congress. Specter went on to urge Kennedy — and through him, the full Court — to see the wisdom of requiring cameras in the Court, telling the justice that “the court’s functions ought to be better understood.” But Specter also linked his campaign for cameras with his longstanding grievances about the Court’s recent run of overturning acts of Congress. Specter singled out, as he often does, the Court’s 2000 decision in United States v. Morrison, in which the Court struck down a part of the Violence Against Women Act. Allowing cameras to broadcast oral arguments, Specter suggested, might help the public comprehend rulings like Morrison. In his reply, Kennedy, with remarkable frankness, pushed back against Specter’s point, telling him that linking the Morrison case with the need for cameras was “a non sequitur . . . It doesn’t follow.” Kennedy acknowledged that the Court “probably should do more in the way of teaching” about its workings but said camera access was not the way to do it. With fervor, Kennedy said oral arguments are “a way of using the attorney to have a conversation with ourselves and with the attorney” — a dynamic that would be ruined by the presence of cameras. “We are judged by what we write,” Kennedy said, not by questioning during oral argument. Specter seemed taken aback by Kennedy’s strong resistance. If Congress did pass his bill, Specter said in a conciliatory tone, “it would be our opinion,” which could then be overtaken by “your opinion.” Specter did not explain the comment. On another subject, Specter asked Kennedy to account for the Court’s reduced docket of argued cases — 75 to 80 per term, or roughly half the number it was deciding 20 years ago. Kennedy said he was somewhat mystified himself why the Court was not agreeing to resolve more conflicts between the circuit courts of appeal. But he said the dearth in recent years of new and complex federal statutes — which often generate multiple cases — is one possible explanation for the smaller docket. Another, he said, is that “we understand the boundaries of the administrative state,” requiring fewer decisions on deference to executive agencies and other administrative law issues. Kennedy did note that the Court had recently granted review in a batch of new cases, which he said signifies that “we’re climbing back” toward a docket closer to 100 cases per term.
Tony Mauro can be contacted at [email protected].

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