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Allow nonpartisan commission to set salaries for judges

    When Albany leaders left town last June they left undone a number of issues. One of those was giving judges a muchdeserved raise. The stalemate over pay reform pits leaders’ raw power against the health of our courts and our state constitution. Even as other firestorms engulf the Capitol, Albany must stop its tug-of-war over judicial pay and pass Chief Judge Kaye’s reform plan now, or risk damaging our independent judiciary and our entire system of government.
    The League of Women Voters agrees with New York’s major business leaders, academics, and the state Bar Association that pay reform is urgently needed. New York’s judges have waited longer for pay fairness than all other judges in America — nearly nine years since their last raise in 1998. Since then, New York’s judicial pay has sagged to a pathetic 48th nationally, adjusted for cost-of-living, while most other salaries, in and out of government, have risen to keep up with infl ationary costs. The resulting squeeze on judicial pay threatens to chase veteran judges from the bench and diminishes the quality of our courts that are a model of innovation and efficiency.
    Albany’s worst kept secret is that judicial pay is tied to salaries for the other branches, who use the lure of raises to extract political concessions from each other. The trades vary with time, but the game stays the same: Whether in exchange for tax policy, charter schools, New York Racing Association, budgets or campaign finance reform, the executive and legislative branches hold judicial pay hostage because they can. Constitutionally, the judiciary is the weakest branch of government, so our justice system makes an easy victim.
    Chief Judge Kaye is right that the nonpartisan commissions she advocates should set salaries objectively and transparently, like other states do, without hostage-taking or deal-making. Judge Kaye’s plan would ensure we attract and retain the best talent for judicial service and preserve judicial independence by insulating courts from political fights in which they don’t belong. Policy decisions and pay decisions should rise or fall on their own separate merits.
    Nonpartisan commissions would fix fair salaries for all three branches of government, ending Albany’s tired game of tying policy to pay. Though it’s fashionable to reply that pay reform for the other branches should come only after a raft of political reforms, that reply misses the whole point of reform. Albany needs campaign finance reform so policy decisions can turn on merit, without the appearance of undue influence. That is especially true for salaries of high constitutional officers.
At the same time, only if pay decisions stand on merit rather than a knot of political deals, can taxpayers know that officials aren’t overpaid or underpaid. Only if pay decisions and policy decisions are de-linked can voters be sure that officials faithfully serve the public and not themselves. Only then, can government’s three branches work independently as our constitution commands, free of coercion based on pay.
BARBARA BARTOLETTI
Albany
The writer is legislative director for the state LWV.     

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So far, there is no evidence to support Kaye’s contention that judges will be quitting in droves if they don’t get raises. These aren’t jobs that people who’ve been schooled in the law take in order to get rich; they’d join fancy law firms or chase ambulances if that’s what they wanted. In fact, a lot of judges are refugees from such highpaying jobs, and are less deterred by the relatively inferior pay as they are attracted by the idea of being a judge — such prestige! — and of serving the public. The value of both is something that is, well, priceless.

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CAPITOL
Judge rejects linking gov’t pay raises
BY SAMUEL MAULL The Associated Press

    A state judge said Tuesday that lawmakers violated the separation of powers doctrine by linking legislative and judicial pay and that four of his colleagues could proceed with their lawsuit to get pay hikes.
    At the same time, state Supreme Court Justice Edward Lehner dismissed that part of the judges’ lawsuit that said the Legislature, in effect, violated the law against cutting judicial pay by failing to adjust their salaries for inflation.
    The lawsuit named Gov. Eliot Spitzer, the Senate and the Assembly. While ruling that the four judges could proceed against the lawmakers, Lehner dismissed Spitzer from the case on the ground that the governor had immunity on this issue.
    The judge observed that all parties agree that the plaintiffs need and deserve a raise, which would be their first since 1999. He also noted the lawmakers, who also have not had a pay boost in nine years, wanted one, too, so they tied fatter checks for judges to a raise for themselves.
    The legislators’ proposal to give themselves raises was blocked by Spitzer because the governor wants them to act on campaign finance reform, Lehner said.
    Depriving a coequal branch of government a pay adjustment when there is no dispute about it “does raise an issue as to whether the two other branches have abused their power and thus unconstitutionally interfered with the independence of the judiciary,” the judge wrote in his 19-page decision.
    Lehner found that the four New York City judges had “set forth sufficient facts to warrant denial of defendants’ application to dismiss” the claim for violating the separation of powers doctrine.
    Tom Bezanson, who argued the case for the four judges — two from Family Court and one each from Civil Court and Criminal Court — said he was “delighted” and called the ruling “a watershed decision for the separation of powers.”
    The lawyer said Lehner found that was subject to “the ravages of inflation,” so the judge did not uphold the plaintiffs’ claim that the 27 percent drop in the judges’ purchasing power since 1999 was the Legislature’s fault.
    Dan Weiller, a spokesman for Assembly Speaker Sheldon Silver, would not comment on the decision except to say Silver supports raises for the judges.
    Senate Majority Leader Joseph L. Bruno’s office did not immediately return a telephone call for comment.
    New York’s highest-paid state judge makes $156,000 a year. Lehner said judges’ pay had been so ravaged by inflation in the last nine years that a first-year associate at a large New York City law fi rm would have to take a pay cut to become the state’s chief judge.
    The judge said the plaintiffs had withdrawn a claim that the governor and Legislature “unlawfully impounded” $69.5 million they allocated in the budget for judicial salary increases.

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Injustice to judges
First published: Thursday, February 7, 2008

We can sympathize with the four state judges who have gone to court to win an overdue pay raise for themselves and their colleagues. We only wish it hadn't come to this. The Assembly could resolve this matter overnight if Speaker Sheldon Silver, D-Manhattan, wanted to. Why he is standing in the way?
Last year, New York's chief judge, Judith Kaye, made a strong argument for increasing judicial salaries, which have fallen far below their federal counterparts since 1999, the last time New York's judges got a raise. But New York has a disgraceful tradition that ties pay raises for legislators to those for judges. Lawmakers are fearful voters will react angrily whenever they raise their own salaries, so they seek cover by giving judges a pay raise at the same time.
This system penalizes judges, who, unlike legislators, work full time and face an increasing caseload. Judge Kaye rightly wants to break the linkage by establishing a commission that would recommend pay raises for judges, and others, free from the political arena.
Gov. Spitzer supports a separate pay raise for judges, and so does the Senate, which has passed both Judge Kaye's recommended legislation and another measure that severs the link between pay increases for judges and legislators. But not the Assembly.
So the judges have sued Mr. Spitzer, the Senate and the Assembly, on the grounds the linkage of pay raises for legislators and judges violates the separation of powers doctrine in the state constitution, and that by denying judges a raise, the Legislature has, in effect, cut judges' pay by failing to address inflation.
On Tuesday, State Supreme Court Justice Edward Lehner of New York City opened the way for the judges to pursue their lawsuit. But he removed Mr. Spitzer from the list of defendants, on the grounds he has has immunity on this issue, and he rejected the judges' claim that the Legislature has cut their pay by failing to approve cost-of-living increases.
Mr. Spitzer never belonged in this suit anyway, given his support for a separate pay raise for judges. Nor does the Senate. Judge Lehner should have placed the burden of defense squarely where it belongs, on Speaker Silver's shoulders.
ISSUE:A judge says a lawsuit over judicial pay raises can proceed.THE STAKES:The issue should be resolved on its own, as a matter of fairness.

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George Will
Raise judges’ pay to improve quality of judiciary
George Will is a nationally syndicated columnist.

    On New Year’s Day, Chief Justice John Roberts, pursuant to his duty to report annually on the condition of the federal judiciary, issued a short and persuasive plea. It was lost in the cacophony of political news.
    Besides, why worry about the judiciary? We have Alexander Hamilton’s assurances, from Federalist 78, that the judiciary is “the least dangerous” branch of government. Having “neither force nor will, but merely judgment,” it “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”
    Few passages from the Federalist seem as anachronistic today. Almost all social controversies seem to lead to the judiciary, and often up to the Supreme Court. So Roberts’ report on the condition of the judiciary should interest a country selecting its next president, who, if he or she serves two terms, will fill about half the 875 seats on the federal bench. Now more than ever, but probably less today than tomorrow, the judicial branch is central to governance.
    Roberts’ report recounts accompanying a Russian judge walking among Arlington National Cemetery’s white headstones, at one of which the Russian placed a wreath honoring Chief Justice William Rehnquist, who had lent moral support when, during the transition from communism, Russia’s legislature was impeding judicial reforms. “When foreign nations discard despotism and undertake to reform their judicial systems,” Roberts wrote, “they look to the United States judiciary as the model for securing the rule of law.” The problem, Roberts believes, is that we are not paying enough to acquire judicial competence commensurate with the importance of courts in our system.
    Last year the House Judiciary Committee voted 28-5 for a significant but only partial restoration of what has been lost: The bill would have increased judicial pay to what it would be if judges had received the same cost-of-living increases that other federal employees have received since. The Senate Judiciary Committee was considering similar legislation when last year’s session ended.
    The denial of annual increases, Roberts wrote, “has left federal trial judges — the backbone of our system of justice — earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.” The cost of rectifying this would be less than .004 percent of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary — and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector — from the practicing bar — and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.
    Upon what meat hath our judiciary fed in growing so great? The meat of modern liberalism, the animating doctrine of the regulatory and redistributionist state. Courts have been pulled where politics, emancipated from constitutional constraints, has taken the law — into every facet of life.
    In the 1930s the Supreme Court, coming to terms with New Deal politics, put aside the idea that the Constitution created a federal government of limited, because enumerated, powers. As politics permeated economic and other spheres of life hitherto ordered by private arrangements, the judiciary was drawn into the ordering of life under metastasizing laws. There is no longer any living memory of life before the federal government slipped the leash of constitutional limits on its scope of action, and stopped acknowledging any practical limits to its competence. Since the New Deal, under the Great Society expansion of the political sphere, the trend intensified. As James Q. Wilson has written, New Deal liberalism was concerned only — only! — with who got what, when, where and how; liberalism in Lyndon Johnson’s hands became concerned with who thinks what, who acts when, who lives where and who feels how. Conservatives regret this development but must come to terms with its imperatives, one of which is:
    The enlargement of the judiciary’s role by the regulatory state requires compensation of the judiciary commensurate with its ever-expanding importance. That importance, although regrettable, is a fact, and so is this: You get the quality — and the perspective — you pay for.