I am writing in response to your invitation to submit the views of the American Bar Association on three bills currently under consideration by the Subcommittee on Courts, Intellectual Property and the Administration of Justice: H.R. 1620, the Judicial Discipline and Impeachment Reform Act of 1989; H.R. 1930, relating to the work performed by senior judges; and H.R. 2181, judicial compensation reform. We appreciate the opportunity to comment on this legislation. At the last annual meeting of the Association this past August, the Board of Governors adopted policy on H.R. 1930 as follows: Be it Resolved that the ABA agrees that while a While we certainly agree that requiring a senior judge to perform 25% of the work load of an active judge is reasonable, we are strongly of the belief that in the spirit of comity and judicial independence, any such requirement should be set by the Judicial Conference. Hon. Robert Kastenmeier Page 2 We wish to emphasize the lack of any serious existing problem in the senior judge system. We believe that the situation has been greatly exaggerated in the media. One is faced with the widespread impression that federal judges are assuming senior status, drawing full salaries including all pay adjustments, and not working. That is not the case. In 1984, Congress amended 28 U.S.C. $371 to provide a statutory authorization for a more comprehensive and rational spectrum of age and years-of-service criteria for the retirement of federal judges. Article III judges are appointed for life and entitled to the salary of the office. Judges who meet the "Rule of 80" may retire from full active judicial service, but make themselves available for assignments within their own circuits, or upon designation, to assignments elsewhere. The overwhelming majority of judges who elect senior status continue to work, in effect donating their services vastly beyond the 25% requirement proposed in B.R. 1930. The impression of non-working judges is simply not supported by the facts. Information provided by the Judicial Conference of the United States on the demographics of the so-called "inactive" senior judge population reveals just how badly the situation has been distorted. Of the 50 senior judges in this category, seven are not physically able to perform judicial functions and retired on disability. of the remaining 43, only three are less than 70 years old, with 24 between the ages of 80 and 100. As for the "working" senior Article III judges, the federal bench relies heavily on their services, not only to reduce the enormous case backlog in the system, but also to keep the system functioning on a day-to-day basis. Senior judges are routinely assigned, and uniquely capable of handling, complex civil cases and lengthy criminal cases which wreak havoc on court dockets. Last year alone, senior judges conducted 2,554 trials, terminated 28,243 civil and criminal cases, and participated in 7,665 appellate oral arguments. Their work equaled the output of at least 80 active service judges, saving the federal judicial system $45 million. This is not a record of idle senior judges. The senior judge system has proven to be an invaluable resource to an over-burdened federal judiciary. We are concerned that the remedy being proposed will exacerbate the harm it is designed to cure, and may create the possibility of serious damage to the federal judiciary. On behalf of the American Bar Association, I applaud your leadership in adressing the inadequacy of compensation paid to federal judges. The Association enthusiastically endorses H.R. 2181. The gravity and urgency of the pay problem has escalated to the level where it now threatens our entire system of justice. The compensation paid to Justices of the Supreme Court and judges of the Circuit Courts of Appeal and District Courts is neither fair, nor commensurate with the great responsibilities these public servants bear. Most of the men and women who are serving in this capacity are making extraordinary financial sacrifices in order to remain on the bench, and many who should aspire to the bench are finding the financial sacrifices involved in assuming a federal judgeship too great and are not making themselves available. The critical effect compensation is having on the ability of the federal government to attract and retain judges was documented in two recent surveys by the American Bar Foundation (ABF). Copies of the surveys are enclosed. These studies clearly indicate that a crisis is looming in the federal judiciary. The first graphically illustrates the critical effect compensation is having on retaining federal judges. · 81% of the active judges feel that their salary is * 95% feel that their compensation is not appropriate. * 85% of those who plan to leave the bench early indicated that compensation was the most important factor in that decision. What this survey indicates is not only that compensation is the factor that produces the highest level of dissatification among federal judges, but that the depth of the dissatisfaction over compensation is staggering. Over a quarter of the 443 responding active judges reported that they intend to shorten their term of service. Those most likely to leave are judges between the ages of 53 and 57 with 5 to 8 years of experience on the federal bench. The federal judiciary would be devastated if such an exodus of experienced jurists were to occur. Hon. Robert Kastenmeier Chrm, Subcommittee on Courts Page 4 The second survey by the ABF documents the impact of compensation in attracting highly qualified candidates to the bench. The information developed from the responses of the chairmen of 77 state merit selection commissions in 34 states and the District of Columbia indicates that: * 62% of the commissioners who have interviewed 90% of the commissioners said that compensation 61% said the pay levels caused sitting judges to I am sure that I need not emphasize that compensation is not the primary motivation for those who serve on the federal bench. However, the opportunities available in the private sector to those persons of the highest talent serving as federal judges are extraordinary and extraordinarily tempting. Those highly-qualified, experienced judges we would like to see remain in public service now have options available which, in many cases, are irrestible. I know that I need not review for you the unfortunate history of the quadrennial pay-setting process. You are well aware that the system has not operated as intended and that all three branches have suffered. The continuing failure to provide adequate judicial compensation seriously affects the ability of the government to attract and retain the highest caliber of individuals as judges; the efficient, productive and effective management of judicial resources; and the public's confidence in our justice system. H.R, 2181 would go a long way to restoring the loss in compensation that federal judges have endured over the last three decades. - H.R. 1620 the Judicial Discipline and Impeachment Reform The American Bar Association has long supported the creation of a process by which the misconduct and disability of judges can be evaluated and action taken to correct instances in which the fair and effective administration of justice is impaired. Consistent with that policy, the Association supported the enactment in 1980 of the Judicial Conduct and Disability Act. Hon. Robert Kastenmeier Page 5 Following the receipt of your request for comment on B.R. 1620, I circulated the bill to all interested ABA entities. I have received no indication of disagreement with Title I, the technical amendments to the 1980 law, which are being proposed in the legislation. With regard to Title II, our Standing Committee on Federal Judicial Improvements has informed me that it is reviewing the proposal. As soon as an official policy is developed, I will forward it. Enclosure Sincerely yours, Hanchay L. Stanley Chauvin, Jr. 0094A |