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Federal judges, who for years have quietly seethed over missed pay raises, may be gaining momentum in their push for higher salaries and structural changes in the judicial compensation system. Judges and their allies in the bar are hopeful because of a confluence of factors: skyrocketing law firm salaries that now have many young associates earning more than federal judges; a doubling of the president’s salary to $400,000 a year; and single-party control of Congress and the White House. Chief Justice William Rehnquist, who has flagged the issue for years in his annual report on the judiciary, is about to go a step further. On Tuesday he is scheduled to make a rare appearance before the press when the American Bar Association and the Federal Bar Association present him with a joint white paper on judicial salaries. The issue, simmering for more than a decade, is complex — touching on delicate relations between the legislative, executive, and judicial branches. It has also launched several lawsuits by judges who claim that Congress has violated the Constitution’s guarantee that judicial pay would never be reduced. The U.S. Supreme Court is set to hear one of those cases, United States v. Hatter, next week. But most of the action on the judges’ pay issue will likely occur across the street at the Capitol. That’s where judges and their supporters will have to work hard to convince a skeptical Congress to raise salaries or change the system that links judges’ pay to that of lawmakers. Right now, U.S. district judges earn the same as senators and representatives — $145,100. Circuit judges and Supreme Court justices make more, topping out at Chief Justice Rehnquist’s salary of $186,300. Judges’ raises are “kind of a hard sell,” says John McMickle, a former Republican counsel to the Senate subcommittee that oversees the courts. McMickle points out that members of Congress may not be sympathetic to judges’ salary concerns, in part because they earn the same wages as judges but must maintain homes in both Washington and their districts. McMickle, 32, recently left the Hill to join the Washington, D.C., office of Winston & Strawn, which lobbies for the Federal Judges Association. He says he understands well one of the judges’ chief arguments for a pay raise: “There is some problem when I can make more starting here [as a fifth-year associate] than the judges.” Indeed, the salary surge at big law firms has fueled judges’ demands for a raise. In his most recent year-end report, Rehnquist on Jan. 1 suggested that, in the 1990s, 54 judges left their lifetime positions for better-paying jobs. That, says former U.S. District Judge Edward Cahn, is a primary reason he gave up his seat on the Eastern District of Pennsylvania bench to become of counsel at Blank Rome Comisky & McCauley, a 400-lawyer firm based in Philadelphia. “I never reached my peak earning years,” says Cahn, who was appointed in 1975 at age 41. “You have to live like a lawyer, but you get paid like a judge,” Cahn, who served until 1998. Living like a lawyer, Cahn says, includes paying expensive tuition at good schools for his children — something that was difficult when he was on the bench. Cahn won’t say what he earns now, but he notes that in his first year at the firm he paid more in taxes than his six-figure judicial salary. Acknowledging that judicial pay can’t ever match that of private practice, Cahn recommends a $175,000 salary for judges. In Rehnquist’s year-end report, he urged Congress to give the judges a 9.6 percent raise. That would bump district court judges to $159,300 and circuit judges to $168,900. Salaries of associate justices on the Supreme Court would go to $195,416, and the chief justice would earn $204,185. Rehnquist’s request represents the cost-of-living increases that the judges have missed since a 1989 law was supposed to have granted judges raises every time Congress gave one to career government employees. That law also banned honoraria for judges — thus stripping popular judges from making outside income through paid speeches. But judges view the 1989 law as a broken promise. The government has relied on a 1982 law that says Congress must specifically vote for any judicial pay raise. As a result, judicial pay raises have effectively been tied to those of lawmakers, who feel political pressure not to raise their own salaries. The judges argue that’s not fair. Members of Congress generally benefit from Washington’s revolving door — leaving public service to lucrative jobs in the private sector. While judges, of course, can always leave the bench for private practice, Rehnquist argues that early departures fly in the face of the Constitution’s aim to establish an independent and stable judiciary. Even if they can’t persuade Congress to fix the problems of the 1989 law, the judges could win their raises through a case pending in the U.S. Court of Appeals for the Federal Circuit. In Williams v. United States, a group of judges claim that the government’s interpretation of the law violates the Constitution’s guarantee that judicial pay will never be “diminished.” The joint report expected this week from the ABA and the Federal Bar Association will likely support some of Rehnquist’s previous proposals: that members of Congress unlink their salaries from those of judges and that there be an overhaul of the compensation system of judges, members of Congress and executive branch staffers. An ABA government affairs counsel who asked not to be named is hopeful that the judges can get some relief out of the 107th Congress. “We have a unified government,” the lawyer says, noting that Republicans control both the White House and Congress. “If we get Congress to embrace this legislation,” the lawyer adds, “we’ll have a wonderful chance to get the president to sign it.” The ABA lawyer adds that the new presidential raise — from $200,000 to $400,000 — may ease pressures on salary increases throughout the government. Other changes, particularly in the Senate Judiciary Committee, could help the judges’ effort. Iowa Republican Charles Grassley, a frequent critic of federal courts’ efficiency and a skeptic on judicial pay increases, no longer heads the Administrative Oversight and the Courts subcommittee. Alabama Republican Jeff Sessions is expected to take over the panel. As a former U.S. attorney, Sessions is familiar with federal judges and may be more sympathetic to their argument. Yet, Sessions has also been tough on the courts, last year opposing the confirmation of a Federal Circuit nominee because he thought the court’s caseload didn’t warrant another judge. Sessions has not made up his mind regarding judicial pay raises, according to a spokesman. Likewise, the Judicial Conference of the United States — the policy-making arm of the federal courts — has yet to make a formal recommendation on the subject of pay raises, according to David Hansen, an 8th Circuit judge who chairs the conference’s committee on the judicial branch. The Judicial Conference is set to meet next in March, at which time it could discuss the issue. Hansen concedes that judicial pay will always lag behind, but believes it’s time that judges got a raise. “We’re not saying judges ought to be paid what a senior partner at a big law firm makes,” he notes. He says judges are pleased for their law clerks, many of whom leave their stint in public service for salaries that rival the judges’ own wages. But, he adds, “I’d be less than frank if I say [judges'] morale hasn’t been affected.”

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