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Rep. Jose Serrano (D-N.Y.) says he is always “a little uncomfortable” about justices of the Supreme Court coming to his subcommittee, hat in hand, so to speak, to lobby for the Court’s budget before a coequal branch. But that did not keep the congressman from doing some lighthearted lobbying of his own March 13 when Justices Anthony Kennedy and Clarence Thomas appeared before him to testify about the Court’s $88 million budget for the 2009 fiscal year. When and if the Court rules on whether Republican presidential candidate John McCain can become president even though he was born in the Panama Canal Zone, Serrano said, he’d appreciate it if the justices would also resolve whether someone born in Puerto Rico — like himself — could become president. Kennedy made no promises, but offered an alternative. “You can come to the Supreme Court,” Kennedy said brightly, apparently because there is no constitutional requirement that justices be “natural born” citizens, as there is for presidents. “The president is kinda cool” to the idea, the liberal Democrat from the Bronx surmised with a smile. Serrano chairs the House Appropriations Subcommittee on Financial Services and General Government, which oversees the Court’s budget. That was the kind of easy repartee that prevailed at the genial hearing, an always-interesting annual encounter between the legislative and judicial branches. After some testy years when members of Congress, mainly Republicans, were lobbing verbal grenades at the judiciary, the mood was friendly and Kennedy was able to tell the committee that relations between the branches are “simply excellent.” Thomas, who said he never thought relations had soured in the first place, said he was “very optimistic” about “rebuilding and actively improving” the ties between the branches. The only time a voice was raised came when Kennedy was asked, as he usually is, about the problem of low judicial salaries. “We are at a crisis” over judicial pay, he said. “We are losing our best judges, we can’t attract them, we can’t retain them.” The salary issue has made some progress in both houses, with both the Senate and House judiciary committees approving bills that would boost the salaries of judges by nearly a third. It is a “constitutional duty,” Kennedy said, to maintain the general excellence of the judiciary. “If we don’t get relief, there will be an exodus of judges,” lured by tripled salaries and challenging work in arbitration and private practice. Kennedy also decried proposals to tie salary increases to stricter limits on how much money judges can earn or be reimbursed when they teach or give speeches. “It doesn’t make much sense,” Thomas added, for federal judges’ salaries to be capped at a level that some first-year associates are able to earn. Thomas, too, said judges should be allowed to teach — “a wonderful way to think about the law” — and should not be limited even further than they are already in what they can earn in teaching positions. As he has in the past, Serrano also asked pointed questions about the dearth of minority law clerks, first raised as an issue 10 years ago this month. Though numbers are uneven from term to term, overall significantly more minorities are being hired than before. “We’re conscious about it,” said Kennedy, telling Serrano that law schools have been doing a “very good job” of encouraging more minority students to seek clerkships. “A clerkship with us is a ticket” to top opportunities after completion, he acknowledged. Thomas said he, for one, casts his net for clerks more widely than the law schools at Harvard, Yale, and Stanford. “There are Jackie Robinsons everywhere,” Thomas said, noting that his four clerks for next term are graduates of the law schools at Rutgers, Creighton, George Washington, and George Mason universities. “It is as outstanding a class as I’ve ever had,” Thomas said. Neither justice responded to Serrano’s request for statistics on the number of minority clerks the Court has hired.
NEW RULES The budget hearing was not the only event that displayed the interplay between the judiciary and Congress. The Judicial Conference on March 11 adopted for the first time binding procedures governing how complaints of judicial wrongdoing are handled. Most would agree that it was pressure from Congress that was the initial trigger for the judiciary’s comprehensive look at its secretive and inconsistent procedures. “The whole process has been good for the judiciary,” said Thomas Hogan, chief judge of the U.S. District Court for the District of Columbia and chairman of the Judicial Conference’s executive committee. Speaking at a press conference in the press room of the Supreme Court, Hogan acknowledged that “judges hate change more than lawyers,” but said the conference recognized the need for better disciplinary procedures. The conference approved the new procedures unanimously, he said. “There were no standards,” added Ralph Winter, senior judge on the U.S. Court of Appeals for the 2nd Circuit and chairman of the committee that will oversee implementation of the rules. The new rules provide a “step-by-step analysis” of how and when complaints of misconduct should be investigated, resolved, and made public. “They tell chief judges when they can initiate a proceeding, and when they must,” Winter said. The rules call for creation of circuit committees of three or more judges to investigate significant complaints in which there is “a genuine conflict” over what happened. As under previous policies, complaints will be made public only when a judge is sanctioned. Winter also said a mechanism is provided for the first time to enable an investigation of a complaint against a judge in one federal circuit to be transferred to another circuit when the judge’s home circuit perceives a conflict of interest. “I expect there will be more transfers” as a result, Winter said. Members of Congress were pressuring the judiciary to increase consistency and transparency, some even threatening to pass a law creating an inspector general who would investigate complaints against judges. The late Chief Justice William Rehnquist responded in 2004, hoping that improved self-regulation would stave off congressional interference. He named Justice Stephen Breyer to head a committee that reported critically on flaws in the way some complaints had been handled in the past. Breyer said after the meeting he was pleased with the Judicial Conference vote, which adopted in one form or another all the recommendations of his committee. “The implementation of these new rules is a very good thing for the federal judiciary and for those who use the federal courts,” he said in a statement. Hogan confirmed that Breyer himself did not attend the closed-door conference session. But he joked that the justice’s presence was felt because Breyer’s brother, Charles, a district judge in the Northern District of California, attended as a member of the conference. “Sounds just like him,” Hogan said. As usual, the conference, which includes representatives from federal courts and circuits across the country, met in private. Asked if anything that occurred at the closed meeting could not have taken place in public, Hogan said, “No, I don’t think so,” though he added that if the meeting had been held in public, the candor of participants would have been “hampered greatly.”
AT, NOT FOR, THE SUPREME COURT The Judicial Conference is presided over by Chief Justice John Roberts Jr. It met last week, as it usually does, at the Supreme Court, and when its work was done, it lunched in one of its ornate wood-paneled conference rooms. But when the conference adopted its new judicial misconduct procedures, it went almost without saying that the new rules don’t apply to the Supreme Court itself. The conference does not set policy for the nation’s highest court, an axiom that Judge Ralph Winter confirmed at the post-meeting press conference. As far back as 1993, the National Commission on Judicial Discipline and Removal, a precursor to current reform efforts, noted in its final report that the Judicial Conference “has been understandably reluctant to assert authority over members of the Court,” though it did not explain exactly why. Still, the commission politely went on to say, “It may be in the Court’s best interest, as contributing to the public’s perception of accountability, to devise and adopt some type of formal procedure for the receipt and disposition of conduct and disability complaints. The commission recommends that the Supreme Court may wish to consider the adoption of policies and procedures for the filing and disposition of complaints alleging misconduct against justices of the Supreme Court.” Now 15 years later, there is no evidence that the Court has established any such procedures. Court officials declined comment.
Courtside is an occasional column on developments, large and small, at the Supreme Court. Tony Mauro can be contacted at [email protected].

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