I have read that your Subcommittee on Courts has before it a proposal to make senior federal judges ineligible for future pay raises unless they carry the equivalent of one quarter of the caseload of an active judge. Apparently the proposal grows out of the notion that senior federal judges do not perform significant judicial duties. I am writing because I feel so strongly that the proposed bill is iniquitous and its apparent factual premise utterly untrue in my own experience. I am a lawyer in private practice in New York. The kind of cases I handle make my visits to the federal court house infrequent. But during the years 1971-76 I served as an Assistant United States Attorney for the Southern District of New York. For two years, 1973-75, I held the post of Chief Appellate Attorney, which gave me responsibility for all of the criminal appeals from the Southern District to the United States Court of Appeals for the Second Circuit. In those years I was in the Court of Appeals weekly, if not daily. I learned of the importance of senior judges to the work of the Court of Appeals as soon as I started as an Assistant U.S. Attorney. At my first oral argument, in the fall of 1971, the legendary Judge Harold R. Medina presided. He addressed me throughout as "Sonny", perhaps because I was twenty-six years old and Judge Medina, who had been on the federal bench nearly twenty-five years, was then eighty three. Similarly, the first reported case I argued (462 F.2d 275) was heard in 1972 by a panel consisting of Justice Tom C. Clark of the Supreme Court of the United The Honorable Robert W. Kastenmeier Page 2 States (retired), Senior Circuit Judge J. Edward Lumbard, who until recently had been Chief Judge, and Judge Irving R. Kaufman. As you no doubt know, Judge Lumbard, after more than thirty years as a Circuit Judge, still sits on the Court regularly at age eighty-seven; Judge Kaufman, forty years on the federal bench, does likewise. Justice Clark died at the age of seventy-seven in 1977, but he was sitting on the Court of Appeals here by designation when he died. It was during my two years as Chief Appellate Attorney, when I grew to know the Court and understand it a little from constant attendance and daily attention to its opinions, that I came to realize that in a very real sense the senior circuit judges were the Court. An obvious reason was that, depending on the year, the number of active circuit judges was virtually matched by the eight senior circuit judges: Judges Medina, Lumbard, Henry J. Friendly, Leonard P. Moore and Paul R. Hays of New York; Judges J. Joseph Smith and Robert P. Anderson of Connecticut; and Judge Sterry R. Waterman of Vermont. Each of these senior circuit judges had spent at least ten years in active service on the Court, providing a depth of knowledge and experience which the active circuit judges as a group had simply had no time to match. Each of the senior circuit judges was of the first rank, and one of them, Judge Friendly, had no equal on any court anywhere. The senior circuit judges also appeared to share equally in the business of the Court with the active circuit judges. While no doubt precise statistics are available, I can tell you from my own knowledge that the senior circuit judges sat regularly, and many of them appeared to carry caseloads equivalent to an active judge's. Thus, my experience teaches that senior judges will more than do their share of the work without the goad of the 25% minimum caseload proposal now under consideration. Its proponents might respond that such a minimum would not affect hardworking senior judges and thus could do no harm. But that rejoinder misses the crucial point. First of all, federal judges, like other people, age at different rates and in different ways. Some of the judges of the Second Circuit have not lived to the age Judge Medina had reached when I first appeared before him. However, although full of energy and sharp as a tack, he could only hear the oral arguments because a special loudspeaker, installed on occasions when he attended, was The Honorable Robert W. Kastenmeier Page 3 always turned up full blast; for everyone else's ears the noise was literally painful. Judge Medina stopped sitting when he was about ninety, not, I am sure, from personal inclination but doubtless rather from the sense of duty with which people of his strength of character confront the consequences of great age. Do the sponsors of this measure feel that it is really necessary to recognize his thirty years of distinguished active service to the judiciary and the country by effectively docking his pay because now, housebound at one hundred one years of age, he is not carrying a 25% caseload? Federal judges, particularly in urban areas, are miserably compensated to begin with and cannot put much money aside; allowing them to participate, as they face the anxiety and extra costs of old age, in what are at best "cost of living" or "catch up" pay raises is no indulgence. Second, would we ever want a system which put economic pressure to sit on judges who by reason of age were better off on the sidelines? I would submit that the social cost of one such judge exceeds the money the present proposal would save. Indeed, one of the historical reasons for the present retirement system for federal judges was the damaging impact of aging judges who clung to the federal bench because they could not afford to retire. Next month marks the two hundredth anniversary of the federal judiciary. Congress should not inaugurate the commencement of the third century with a law designed to chisel old people who have strong claims both to our respect and to our gratitude. JDG: gr Sincerel cely. John John D. Gordan, III United States Court of AppEALS DISTRICT OF COLUMBIA CIRCUIT WASHINGTON, D.C. 20001 GEORGE E. MACKINNON UNITED STATES CIRCUIT JUDGE September 28, 1989 Honorable Robert W. Kastenmeier Dear Congressman Kastenmeier, Your pending provisions on senior judges, when I last saw it, did not recognize that senior judges serving on the Sentencing Commission constituted judicial service. If the bill is still the same, you might want to consider the appropriateness of such a provision. Thank you for your letter of September 11, 1989, in which you discuss the subject of Senior Federal judges and denying them judicial salary increases if they do not perform a certain amount of judicial work. It is true that the issue of senior judge work has arisen in the Congress. Earlier in the year, there were many press stories about whether judges who do no judicial work should receive a substantial pay raise. Many of the stories were overstated, exaggerated and erroneous, including those about you and Judge Godbold being "do nothing" judges. This public debate, however, had an extremely deleterious effect on the possibility of an across-the-board judicial pay hike. In order to save the pay raise proposal for the judicial branch, but also to send a message to Senior Federal judges who perform little or no work, I introduced (with Carlos Moorhead) a bill addressing the issue. As my explanatory floor remarks (enclosed) reveal, my political goal was to stimulate discussion and debate about the subject, while being balanced and fair. In my opinion, Senior Federal judges who are serving in a prominent public capacity, such as yourself and Judge Godbold, should not be penalized under any new statutory regime. Nor should disabled Federal judges who are in the twilight of their careers and are no longer able to fulfill their responsibilities. The one group of Senior judges (very small in number) who should be excluded from a pay raise is composed of individuals who are in good health but do not wish to work any longer, perhaps merely wanting to maintain the title. These few cases have justified the Subcommittee inquiry. We have communicated directly with Chief Justice Rehnquist on the subject, and he has expressed support for legislation. We will hopefully be able to craft an acceptable compromise. In closing, I appreciate your reminder of the valuable role that Senior judges have played in the Federal judicial system during the past several decades. My goal is to increase the |