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Hope is beginning to dim that Congress will pass a pay hike for federal judges this year — despite some early legislative successes and behind-the-scenes lobbying by Chief Justice John Roberts Jr. A 29 percent salary increase passed both the House and Senate Judiciary committees with the backing of civic groups and editorial writers nationwide. But soon after the Senate committee’s Jan. 31 vote, political and budget distractions slowed the momentum to the point where one Senate staffer now says passage of the raise probably depends on “what other bill we can attach it to” before the August recess. And if not then, its fate may be decided in the mad scramble of a post-election session of Congress at the end of 2008. One complication that has taken some wind out of the sails is the batch of last-minute amendments to the legislation tacked on by senators. Judges are upset about the amendments, though the add-ons are apparently not deal-breakers at this point. Senators, keen on imposing on judges some of the same ethical rules they themselves live with, approved amendments that would sharply limit travel reimbursements and teaching fees that judges can receive, and would ban honorary memberships worth more than $50 a year that are given as gifts by clubs and other organizations. That ban would wipe out at least 14 honorary memberships reported by five Supreme Court justices on their 2006 financial disclosure forms. The Senate bill would also adjust the so-called Rule of 80 — which requires a judge’s age plus years of service to total 80 before he or she can retire at full salary at age 65 — to a Rule of 84. The amendments have put advocates of the raise in the awkward position of laboring to propel the legislation forward while at the same time trying to strip it of these noisome provisions. Roberts has apparently been less active in the lobbying effort in recent weeks. “We’ve gotten further along than ever on this, but there are so many potential problems, no one is sure if it will all come together or not,” says one person involved in negotiations.

James Duff, who as executive director of the Administrative Office of the U.S. Courts is the point man for the salary campaign, says, “We continue to work with the leadership to get this crucial legislation passed in this session.” Duff declined to comment on the controversial amendments, but he made the views of the Judicial Conference known in strongly worded letters to Senate Judiciary Committee leadership before the vote in January. The $2,000-per-trip limit on travel reimbursements, lodging and teaching fees, proposed by Sen. Russ Feingold (D-Wis.), is a “harmful and unnecessary amendment,” Duff wrote, one that will hamper important educational contacts between judges and law schools. “There is simply no reason to minimize these important activities that provide enormous benefit to the public, the bench, and the bar,” wrote Duff, who also serves as secretary to the Judicial Conference, the policy arm of the judicial branch. Depending on how far the law school is from the judge, this $2,000 limit, if enacted, could jeopardize moot courts and teaching engagements that have been a staple of off-the-bench judicial activities for decades. “Anything that attenuates the connection between judges and the legal community has to be terribly misguided,” says Duke Law School Dean David Levi, himself a former federal judge. “We want to have a unified legal profession, and we all have so much to learn from each other.” It won’t take much to reach $2,000, Levi says, for travel and lodging for a judge and spouse. “We want to be able to treat judges like any other distinguished visitor.” The American Law Deans Association protested the pending bill in a letter sent to Senate Majority Leader Harry Reid (D-Nev.). Feingold, in explaining the amendment, said in the Senate report on the bill that while exchanges between judges and law students are valuable, judges “should not create the appearance that they are profiting from their public positions.” Feingold also said large payments for law school lectures or visits are “excessive,” especially if the pay raise is enacted. Feingold’s amendment would also forbid judges outright from being reimbursed for attending the kind of educational seminars that have been characterized by critics as “junkets” sponsored by groups with an ideological objective of influencing the judiciary. These seminars, Feingold said, create the appearance that “wealthy interests may be using their deep pockets to win influence over, or gain favor with, judges.” Duff said the ban was unnecessary, because since 2006, the Judicial Conference has enforced a new policy that allows judges to attend such seminars but with greater transparency about sources of funding. “Those procedures are working, and there is no need to regulate further judges’ educational opportunities,” Duff wrote. As for the amendment pushed by Sen. John Kyl (R-Ariz.) that would, among other things, impose the same $50 cap on honorary memberships that senators abide by, Duff said its wording is “extraordinarily broad” and will eliminate honorary memberships traditionally offered to federal judges by local business and social groups as well as bar groups and inns of courts. In the Senate report on the legislation, Kyl stated, “Justices and judges have accepted club memberships valued at several thousand dollars from organizations such as the Del Paso Country Club, the Washington Golf & Country Club, the Coral Ridge Country Club, the Robert Trent Jones Golf Club, and others.” That statement is borne out by Supreme Court justices’ publicly available financial disclosure forms. Five of the nine justices report receiving honorary memberships. Roberts noted in his report that he used his honorary membership in the Robert Trent Jones Golf Club in Gainesville, Va., valued at $12,000, only once in 2006 for dining. Four justices indicated they are honorary members of the University Club in D.C. David Conroy, the club’s general manager, says the pending legislation is “a matter of concern for us.” Noting that the club’s first president in 1904 was then-Secretary of War William Howard Taft, who later served as chief justice, Conroy says, “For us, Supreme Court justices are a very important part of our 104-year history.” The Washington Golf & Country Club in Arlington, Va., which was listed by several justices, notes on its Web site that it has been called the “Playground of Presidents” and counts among its members “members of the House and Senate, Supreme Court justices, and other ranking governmental figures.” An advisory opinion of the Judicial Conference’s Committee on Codes of Conduct stated 10 years ago that federal judges could accept honorary memberships, so long as they ascertain that the club is not involved or likely to be involved in litigation in federal court, and that the offer was not made to exploit their judicial position, to persuade others to join, or to enhance the private interests of the club. FLIGHT OF THE CONCORDS The Supreme Court often opens its sessions by swearing in new members of its bar — a ritual that is routine and usually forgettable for all but the lawyers involved and their families. But at one recent session, four lawyers who were sworn in symbolized a milestone — and an irony — that was years in the making. The lawyers were graduates of Concord Law School, the first fully online law school in the United States. As high court rules require, they have been lawyers in good standing for three years. The four are members of the California Bar, the only state bar that allows students from unaccredited, non-classroom “correspondence” schools to sit for its bar exam. The irony is that soon after Concord opened nearly 10 years ago, Justice Ruth Bader Ginsburg was openly critical of the school and the concept of “distance learning” for law schools. In a 1999 speech at Rutgers Law School in Newark, Ginsburg said she was “troubled” by Concord, adding that, “The process inevitably loses something vital when students learn in isolation.” Having Concord alumni sworn into the Supreme Court bar March 17, with Ginsburg watching, was a moment to savor, says Concord Dean Barry Currier. Far from being upset with Ginsburg, Currier says, “I don’t know if she understands this, but she really helped make the school.” Publicity generated by her criticism introduced the school to a broader public, and a wide range of students have been applying ever since, Currier says. Concord has about 1,500 students, Currier says, many of them nontraditional career changers, at-home parents, and the like — people who for financial or family reasons can’t drop everything, move near a physical law school, and enroll full-time. Through interactive online classes, Concord students learn the law over four years. Ginsburg’s worries have not been borne out, Currier says, citing student satisfaction surveys that give Concord high marks for student-faculty engagement, even though it is online. Currier is also not losing sleep over the fact that American Bar Association accreditation is out of reach for Concord because of rules requiring substantial face-to-face classroom time — rules he hopes will change as the success of the school becomes better known. The four Concord grads sworn in were: • Larry David of Pasadena, Calif., a former businessman with a general law practice who also handles domestic violence cases pro bono. • Dentist Michael Kaner of Newtown, Pa., currently a consultant on risk management and forensic dentistry. • Ross Mitchell of West Newton, Mass., a computer consultant who is now promoting online education and multijurisdictional practice of law. • Sandusky Shelton of Clio, Calif., a retired telecommunications manager who now takes court-appointed juvenile dependency cases. “Having our graduates sworn in at the Supreme Court symbolizes the fact that we have attracted people to our school who are highly qualified and passionate about becoming lawyers, and for the best reasons,” Currier says.

Tony Mauro can be contacted at [email protected].

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