Honorable Warren E. Burger September 29, 1989 Page 2 salary level of Federal judges but also to ensure that the citizenry has a high degree of confidence in our justice system. I know that you share these aspirations. Thanks also for your willingness to testify on the subject. If it is not an imposition, I would appreciate a written statement for submission into the hearing record. I always enjoy hearing from you and my door is always open. With best personal regards, I am Sincerely, RWK:mr Encl. ROBERT WĮ KASTENMEIER Subcommittee on Courts, Intellectual Property, and the Administration of Justice MAJORITY MEMBERS SACK BROOKS, TEXAS, CHAIRMAN ROBERT W KASTENMEIER WISCONSI DON EDWARDS, CALIFORNIA 匯 RICK BOUCHER, VIRGINIA HARLEY O. STAGGERS, JR, WEST VIRGOBA JOHN BRYANT, TEXAS BENJAMIN L CARDIR. MARYLAND GEORGE E SANGMESTER, ILLICIS The Honorable Whitman Knapp New York, New York 10007 Dear Judge Knapp: Thank you for your letter of September 28th, in which you express your views on H.R. 1930, a bill I introduced which relates to a pay raise for senior Federal judges who do not work. I empathize with the points you raise, and I applaud the eloquence with which you state your views. H.R. 1930 is rooted in the views of many members of the press and citizens who feel that pay raises should be reserved for individuals who work. I am a firm believer in the candid and frank flow of communications between the legislative and judicial branches of government and my bill is designed to stimulate discussion and debate. It certainly has done that. Hopefully, in the near future, the bill can be refined to meet your concerns and those expressed by others. I would like to enter your letter, with the attached letter to the New York Times, in the appendix of the printed record for the hearings we held on the bill, so that others may benefit from your views on this subject. Please accept my best wishes belatedly on your eightieth birthday. RWK:jk sincere ROBERT W. KASTENMEIER Subcommittee on Courts, Intellectual Property, and the UNITED STATES DISTRICT COURT CHAMBERS OF JUDGE WHITMAN KNAPP NEW YORK. N. Y. 10007 September 28, 1989 The Honorable Robert W. Kastenmeier U. S. House of Representatives Room 2328 Rayburn House Office Building Re: H.R. 1930 ("The Bill") My Dear Congressman Kastenmeier, Let me introduce myself by enclosing a copy of a letter I wrote to the New York Times on the occasion of my 80th birthday. It establishes my general attitude (and bias) toward the subject at hand. I should now like to accept the invitation tendered in the very thoughtful remarks with which you presented the Bill to the Congress, and attempt to initiate a dialogue on its merits. It is my respectful submission that the Bill is unwise legislation. As to any presently sitting judge who has taken senior status, respectfully submit that the Bill is unfair and unreasonable. Take my own situation as an example: On September 20, 1972 when I took the judicial oath, the income received from my profession had just about reached roughly $100,000 per annum and was suddenly reduced to $40,000. Among the factors which led me to conclude that I was not wholly irresponsible in accepting such a reduction was the statute providing among other things that, if I succeeded in rendering 10 years of satisfactory service, I would have the option of taking "senior status" which would assure the "salary of the office" for the remainder of my life, regardless of the extent of any judicial service I might be able to perform. This seemed to me a promise of security for my old age which made tolerable the rather drastic reduction in current income. I became eligible for senior status in 1982, but did not take it until November 23, 1987. In the meantime, I had presided over, among other things, the Friedman case (854 F.2d 351) and the socalled "Westies" case (839 F.2d 886). I finally took senior status after concluding that I was only kidding myself in thinking that I could keep on trying "heavy" cases and at the same time keep the rest of my docket under control; and that it was unfair to my colleagues not to step aside and permit a replacement. I was hesitant because I greatly valued the independence of action and the financial advantages the Constitution provided. As to independence, I persuaded myself (correctly I think) that my colleagues would never try to supervise or in any way interfere with my judicial conduct. As to financial advantages, it never even occurred to me that the Congress might someday repudiate the financial provisions which had been enacted for the precise purpose of inducing those in my position to make room for replacements by surrendering the constitutional guarantee that their "Compensation .... shall not be diminished during their Continuance in office." Now, when I have no possibility of retreat, along comes the Bill. I ask you, is that fair or reasonable? I have dwelt at tedious length on my own circumstances because they are the only ones I can describe with any certainty. However, there is every reason to believe that my history is typical; and that each of the 300 presently serving senior status judges could tell a substantially similar story. Are you being fair to any of them? Leaving aside the question of fairness or its lack, I respectfully suggest that the Bill, insofar as it affects presently existing senior judges, would not be beneficial to the conduct of the Nation's judicial business. Over the last half century or so there has developed the phenomenon of a group of men and women (now three hundred) who are statutorily entitled to consider themselves retired and to draw a full salary without rendering any services, but who nonetheless (without financial inducement of any sort) continue to render judicial services which are universally recognized as vital and were recently declared by the Administrative Office of the United States to be valued at 45 million dollars a year. I would guess that in order to accomplish this result the average workload maintained by these judges, including in the calculation those few who (like Judge Harold Medina of the Second Circuit who at the age of one hundred and one years has become house-bound) perform no services, must amount to over 50 percent of the load maintained on the average by active judges. What has motivated these men and women to follow this to-saythe-least unusual course of conduct? And what effect would enactment of the Bill have on such motivation? It must be recognized, of course, that motivation is intangible rather than tangible, and difficult accurately to describe. I would suggest that the motivation resulting in the phenomenon under discussion has the following components: (a) high morale among the individual judges, resulting in an almost tangible esprit de corps; (b) intense pride in the work being performed; and (c) an abiding sense of satisfaction in its performance. I would suggest high morale to be the central component; and that for reasons which to me seem too obvious to discuss - such morale (to the extent it has survived the problems to which the Chief Justice has addressed himself) would be shattered by enactment of the Bill. With the disappearance of morale, pride and satisfaction would soon go by the boards. It would be my prediction that, within five years of the Bill's enactment, existing senior judges would have become divided into two categories: (a) those to whom every cent of salary is vital; and (b) those who are not so constrained. By the end of the five years, those in the first category would have developed into a group of resentful clock-watchers whose principle preoccupation would be establishing a record of carrying a 25 (not 50) percent caseload, with little concern for the value of the work performed. Those in the second category would by then have pretty much drifted off to pursue other interests. In brief, the 45 million dollar asset that has evolved over the years would simply have vanished. If the Bill were restricted to judges who have not taken senior status the claim of unfairness would lose much force, and there would probably be no immediate effect on the conduct of the Nation's judicial business. I nonetheless suggest that its enactment (even as so restricted) would be unwise. As you aptly observed in the thoughtful remarks with which you presented the Bill to the Congress: "First, we do not want to deter judges from taking senior status." I respectfully suggest that enactment of the Bill (whether or not so restricted) would have precisely the effect of so deterring judges. if not most It would seem fair to assume that most people by the time they reach their 65th or 70th birthday have begun to worry about becoming a burden on their children in old age. It would similarly seem fair to assume that many judges have been unable to accumulate sufficient savings to guard against that disaster. It would seem to follow that most judges should think long and hard before giving up their constitutional guarantee of a life-long "salary of the office". The founding fathers apparently sympathetic with aging judges' plight have made it practically impossible to take away that guarantee without their consent. It makes no difference whether or not an active judge continues to be able effectively to perform judicial duties (or for that matter whether or not he or she ever had such ability). He or she can in no event be removed from office except after conviction by impeachment of "Treason, Bribery or other high Crimes and Misdemeanors." It follows that aging judges have ultimate control of their dockets and need not take senior status in order to keep them within manageable limits. The beneficiaries of a judge's senior status are his or her colleagues who have their workloads reduced by the appointment of a successor. Why, then, should any rational man or woman forego constitutional protection and put himself or herself at the mercy of the bureaucratic procedures created in the Bill?' I confidently assert that upon full realization of the Bill's impact very few would do so. 1 There is a tax advantage in being a technical "retiree". However, with inflation and life expectancies being what they have become, such advantage would in most situations be de minimis. |