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The crusade by federal judges to increase their pay took one step forward and one step back last week. On Feb. 13, representatives of the American Bar Association and the Federal Bar Association went to the Supreme Court to present Chief Justice William Rehnquist with a report detailing how judges’ buying power has eroded over the years. Rehnquist last month called for a 9.6 percent raise for all federal judges, and lobbyists close to the issue say the Bar report could boost the judiciary’s legislative efforts. Then, three days later, the U.S. Court of Appeals for the Federal Circuit slapped down an attempt by a class of judges to recover cost-of-living increases from the 1990s. The Federal Circuit, by a 2-1 vote, reversed a trial judge who had ruled in favor of the judges, holding that Congress acted consistently with the Constitution in 1994, 1995, 1996, and 1998 when it blocked raises that federal judges would otherwise have received under a 1989 law. Article III of the Constitution prohibits Congress from reducing judges’ pay “during their continuance in office.” A key question before the appeals court was whether Congress had actually reduced judicial salaries or had merely prevented an increase from occurring. The ruling is unconnected to judges’ continuing attempts to persuade Congress that they deserve raises. Nonetheless, the Feb. 16 ruling by Judge Raymond Clevenger III, joined by Judge Arthur Gajarsa, leaves a sting. In the majority ruling in Williams v. United States, Clevenger said that Congress acted legally when it chose on four occasions to reverse the effects of the 1989 Ethics Reform Act, which banned honoraria but tried to ensure annual cost-of-living increases for judges. The Federal Circuit majority said it was bound by a 1980 Supreme Court decision that, according to the majority’s interpretation, held that as long as the judges didn’t actually start working for the higher pay, the new rates didn’t “vest” and could still be cancelled by Congress. In a lengthy and sharply worded dissent, Senior Judge S. Jay Plager wrote that the earlier opinion didn’t govern the case at hand. He argued that the court should honor the “political bargain” worked out by Congress in 1989 when it abolished honoraria but tried to give judges automatic raises to compensate for that. Plager voted to affirm a ruling by Senior Judge John Garrett Penn of the U.S. District Court for the District of Columbia. Currently, federal district judges earn $145,100 a year; circuit judges earn $153,900; associate justices of the Supreme Court earn $178,300; and the chief justice makes $186,300. While those wages are significantly higher than the average American makes, Rehnquist and the legal groups point out that attorneys in the private sector — in some cases ones right out of law school — make a good deal more than judges. Kevin Forde of Chicago’s Kevin M. Forde Ltd., the lead attorney for the class of judges, says his battle isn’t over. In a statement, Forde said, “We are disappointed by the decision … . The plaintiffs believe the District Court and the dissenting judge on the court of appeals are correct. The plaintiffs intend to seek review by the entire Court of Appeals for the Federal Circuit and by the Supreme Court, if necessary.” Stuart Schiffer, acting head of Justice’s Civil Division, declined comment. Reporter Jonathan Ringel contributed to this article.

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