Judicial Salary Restoration

Testifying On The Hill

Justice Stephen Breyer testified at a House Judiciary Committee hearing in support of judicial salary restoration. During his testimony, Justice Breyer held up a sample of existing executive branch vacancy announcements to demonstrate the large number of those positions that are "delinked" and classified with compensation packages higher than congressional and judicial salaries.

Congress adjourned for the year without taking final action on the federal judicial salary restoration initiative. Right through the very last few days of the session, extensive efforts focused on adding the pay bill that was reported out of the House Judiciary Committee (H.R. 3753 as amended) onto the final Omnibus Appropriations bill. The leadership of both the House and Senate were actively engaged in this effort, with the approval of the chairs of both Judiciary Committees.

Encouraging progress on our initiative was achieved early in December when the House Judiciary Committee reported out by a substantial 28 to 5 vote a complete substitute amendment for H.R. 1638. The substitute provides a substantial pay restoration for federal judges, delinks judges' salaries from congressional salaries, repeals Section 140, which required that Congress approve Judicial COLAs annually, and authorizes future annual pay adjustments at the level received by General Schedule employees.

The Senate Judiciary Committee began but was unable to finish its deliberations on the pay legislation and amendments to it before the end of the session.

These legislative advances were led by Judge D. Brock Hornby, chair of the Conference Committee on the Judicial Branch, with extraordinary effort by judges, legal organizations and other advocates of the Judiciary, who all played a vital role for congressional support and action. In February, Supreme Court Justice Anthony Kennedy appeared before the full Senate Judiciary Committee at a hearing on Judicial Security and Independence, focusing on the concerns of federal judges about low salary levels and how the problem of inadequate pay has become a threat to judicial independence. Justice Kennedy detailed how the real compensation of federal judges has diminished substantially over the years compared to inflation and has fallen even further behind the gains in the average wages of American workers. He also recounted problems with the recruitment of potential nominees and retention of most talented and experienced judges due to the pay issue.

	New Act Improves Security For Judges Important court security measures are included in the Court Secruity Act that Congress passed in mid-December 2007.   Court Security Improvement Act of 2007 "The adequate security of federal judges and their families has been a long-term issue and concern," said Administrative Office Director James Duff. "This bill will make much needed improvements in the way in which the federal Judiciary is protected." Thanks go to: Senator Harry Reid (D-NV), Senate Majority Leader Senator Patrick Leahy, Senate Judiciary Committee chair Senator Arlen Specter (R-PA), ranking minority member, Senate Judiciary Committee Senator Richard Durbin (D-IL) Senator Edward Kennedy (D-MA) Senator John Cornyn (R-TX) Senator Orrin Hatch (R-UT) Senator Charles Schumer (D-NY) Senator Susan Collins (R-ME) Representative John Conyers (D-MI), House Judiciary Committee chair Representative Lamar Smith (R-TX), ranking minority member, House Judiciary Committee Representative Bobby Scott (D-VA) Representative Louis Gohmert (R-TX)

In April 2007, Supreme Court Justices Stephen Breyer and Samuel Alito testified before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property on "Judicial Compensation and Judicial Independence." Both Justices provided details on the erosion of the real compensation levels of federal judges, the impact that the declining value of judges' pay is having on the morale and retention of judicial officers, and how the situation may adversely affect the health of the Third Branch. They also discussed how recent statutory changes in the pay structure of the executive branch have created substantial and growing disparities between the potential compensation various departments and agencies can offer their employees and the current pay level limits of Members of Congress and federal judges.

The Senate introduced the Federal Judicial Salary Restoration Act of 2007 (S. 1638) with Senate Majority Leader Harry Reid, Minority Leader Mitch McConnell, Senate Judiciary Committee Chairman Patrick Leahy, and other Judiciary Committee member Senators Orrin Hatch, Dianne Feinstein, Lindsey Graham, and Edward Kennedy, as co-sponsors. The original lead sponsors of the bill (H.R. 3753) were House Judiciary Committee Chairman John Conyers and Dan Lungren, joined by House Majority Leader Steny Hoyer, Minority Leader John Boehner, Howard Berman, Mike Pence, Mel Watt, Spencer Bachus, Adam Schiff, Judy Biggert, Debbie Wasserman Schultz, and Louie Gohmert. Many additional members of the Senate and the House also support the pay restoration legislation.

The pay restoration initiative will continue to be a highest priority issue for the Judiciary and the Administrative Office until it is achieved.

Securing Adequate Funding

Explaining Funding Needs

Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, and AO Director James C. Duff presented the Judiciary's fiscal year 2008 budget needs to the Senate Appropriations Subcommittee on Financial Services and General Government.

Fiscal Year 2007 Full-Year Continuing Resolution. The Judiciary achieved a major success with the funding levels it ultimately obtained for the fiscal year 2007 funding cycle. After the 109th Congress adjourned without passing a spending bill, the incoming 110th Congress opted for a continuing resolution covering the entire year. This action essentially froze spending for most federal agencies at fiscal year 2006 funding levels.

Faced with the prospects of a hard freeze for fiscal year 2007, AO staff, in coordination with Judge Julia Smith Gibbons, chair of the Judicial Conference's Budget Committee, and judges around the country, mobilized to convince Congress of the devastating impact a hard freeze would have on the federal courts. These efforts proved successful. The Judiciary ultimately received nearly a 5 percent appropriations increase overall for fiscal year 2007, while most federal agencies were held to flat funding. The courts were able to address critical workload needs including backfilling some of the positions that were lost in recent years due to funding constraints.

In fiscal year 2007, the Defender Services program was able to fund base program requirements and provide a cost-of-living adjustment to the non-capital panel attorney rate, from $92 to $94 per hour, and to the capital rate, from $163 to $166 per hour. Funding was sufficient in the Court Security program to fund nearly 4,000 court security officers, pay Federal Protective Service charges for perimeter security at courthouses, and purchase high-priority security systems and equipment for court facilities.

Fiscal Year 2008 Funding. The Judiciary's funding success continued into fiscal year 2008. All federal agencies began the year operating under a continuing resolution. In December 2007 Congress passed an 11-bill omnibus spending measure that provided fiscal year 2008 funding for the Judiciary. Overall, the Judiciary received a 4.5 percent appropriations increase over 2007, including $25 million designated as emergency funding to address workload needs associated with increased immigration enforcement. Congress also authorized a cost-of-living adjustment for judges for 2008. The Judiciary received an excellent funding level given the well publicized differences between Congress and the White House over 2008 spending.

Congress provided a 3.2 percent appropriations increase, including $14.5 million in emergency funds to address immigration-related workload. This level, along with higher than anticipated fiscal year 2007 carry forward and fiscal year 2008 fee collections, will allow those court units experiencing workload increases—primarily district clerk and probation and pretrial services offices—to continue to hire additional staff in fiscal year 2008.

The Defender Services account increase included $10.5 million in emergency funds for immigration-related workload. Congress also approved a $6 increase to the non-capital panel attorney rate to $100 per hour, and a $4 cost-of-living adjustment to the capital rate to $170 per hour. Although Congress did not approve the Judiciary's request to increase the non-capital rate to $113 per hour, given the current budget climate in Congress, the increase from $94 to $100 that was approved is progress in obtaining higher pay for panel attorneys.

Court Security received full funding. Congress approved a pilot project requested by the Judiciary to have the U.S. Marshals Service assume perimeter security functions, currently performed by the Federal Protective Service, at a limited number of primary courthouses.

Congress also approved a provision that grants the Judiciary the same tenant alterations authority the executive and legislative branches have to contract directly with vendors for projects costing under $100,000 in lieu of contracting through GSA.

Court Security/Redaction Authority

In December 2007, the President signed into law the Court Security Improvement Act of 2007. This law contains a number of important Judicial Conference-supported court security provisions. Notably, it requires the Director of the U.S. Marshals Service to consult with the Judicial Conference regularly regarding the security requirements of the Judicial Branch. This provision enhances the Judiciary's participation in the policies and procedures of the U.S. Marshals Service as they pertain to court security. The law also extends until 2011 Judicial Conference authority to redact certain sensitive information from the financial disclosure reports of federal judges—giving the Federal Judiciary time to convince Congress that such authority should be made permanent. Additionally, the law creates a penalty for the filing of a false claim or the slander of title, which should curtail this pernicious practice.

	Congressional outreach efforts resulted in appropriation marks better than most executive branch agencies; and, cost containment helped realize lower than historical growth rates.

The Court Security Improvement Act of 2007 also contains a Judicial Conference- supported provision that gives magistrate judges Federal Employees Group Life Insurance (FEGLI) coverage comparable to that of Article III judges. Unfortunately, at the last moment, bankruptcy judges and territorial judges were not included in this "FEGLI fix" because of strict House of Representatives pay-as-you-go (PAYGO) budget rules requiring an identified offset for this mandatory spending. Despite this temporary setback, the Administrative Office will aggressively pursue a more favorable resolution of this unfair treatment in the second session of the 110th Congress.

Other provisions of the law include allowing judges to use their courthouses as their home of record for purposes of obtaining drivers licenses and other forms of identification, eliminates one judgeship for the Court of Appeals for the District of Columbia, and creates one judgeship for the Court of Appeals for the Ninth Circuit. The Judicial Conference took no position on the District of Columbia Circuit judgeship, but it has identified a need for additional judgeships for the Ninth Circuit. Finally, the law contains a modification to the authority of senior judges to participate in the selection of magistrate judges that is inconsistent with Judicial Conference policy. Specifically, it provides that senior judges who carry a 50 percent workload can participate in court management proceedings such as the appointment of court officers and magistrate judges, rulemaking, and other administrative matters.

Several judges helped bring to Congress's attention the need for this law. Judge Hornby, submitted a statement to the Senate Judiciary Committee at a February 2007 hearing on "Judicial Security and Independence." Judge David B. Sentelle, chair of the Committee on Court Security, testified at the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security hearing on this topic in May 2007, as well. Both judges noted how several attacks on judges, their families, and court employees revealed security gaps that have caused all judges to be concerned for their safety and well-being. This new law is designed to improve the security of federal judges and their families.

Courthouse Construction

Once Congress completed work on the FY 2007 appropriations bills in February 2007, the General Services Administration designated funding for four courthouse construction projects in Buffalo, NY; Salt Lake City, UT; Jackson, MS; and Fort Pierce, FL; and five repair and alteration projects in Albuquerque, NM; Milwaukee, WI; New York, NY; Brooklyn, NY; and New Bern, NC; with a small additional amount for a courthouse already under construction in Springfield, MA.

The 2007 funding levels reduced the Judiciary's FY 2008 request to six courthouse construction projects in Jefferson City, MO; Savannah, GA; San Antonio, TX; Mobile, AL; Rockford, IL; and San Jose, CA. The President's FY 2008 budget, proposed prior to the final FY 2007 funding decisions, included only partial construction funding for the Buffalo, NY project, which was fully funded a month later with FY 2007 funds, and for two courthouse repair and alteration projects in Las Vegas, NV and New York City, NY. In a final FY 2008 omnibus appropriations bill, Congress was able to provide funding for two of the requested courthouse construction projects (Jefferson City, MO and Rockford, IL) and for the two repair and alteration projects in the President's budget.

Federal Courts Improvement

In spring 2007, the Director, on behalf of the Judicial Conference, transmitted to Congress over 30 legislative proposals to implement Judicial Conference positions. This Congress, they were separated into a civil and criminal packages that would improve judicial administration and court operations. AO staff conducted numerous briefings about the courts improvement legislation for House and Senate Judiciary Committee staff to answer questions about the proposals.

In addition, the AO transmitted on behalf of the Conference a proposal to amend the Higher Education Act of 1965 to make fulltime federal defenders eligible for cancellation of Perkins student loans over five years, which is the same forgiveness presently extended to U.S. attorneys.

Judgeships

During the first session of the 110th Congress, 39 nominees for Article III judgeships were confirmed—six court of appeals judges, and 33 district court judges. As of January 2008, there were a total of 43 judicial vacancies—14 in the U.S. court of appeals, and 29 in the U.S. district courts. Although the total number of vacancies has stabilized over the last few years, the numerous judicial vacancies on specific courts continue to be a serious concern.

Article III Judgeships

At the direction of the Judicial Conference, Director Duff transmitted to Congress the Conference request for the creation of additional judgeships. The proposal would add 13 permanent and two temporary judgeships to the courts of appeals, 38 permanent and 14 temporary judgeships to the district courts, convert five existing temporary judgeships to permanent positions, and extend one temporary judgeship for an additional five years.

During the first session of the 110th Congress, the Senate passed legislation to create and extend certain temporary district court judgeships. The bill, S. 1327, would address judgeship needs in the Eastern District of California, the Northern District of Ohio, and the Districts of Hawaii, Nebraska, and Kansas. The House did not act on the legislation. The Chairman of the Senate Judiciary Committee has expressed a strong interest in addressing judgeship needs more comprehensively during the second session of the 110th Congress.

Bankruptcy Judgeships

The Conference's latest bankruptcy judgeship recommendations to Congress seek two permanent judgeships and one temporary judgeship for the Eastern District of Michigan and one temporary bankruptcy judgeship for the Northern District of Mississippi. They also would convert to permanent status one of the temporary judgeships in each of the following districts: Southern District of Georgia, Southern District of Illinois, Eastern District of Michigan, and the Western District of Tennessee.

Other Legislation

The Judiciary also has considerable interest in several introduced bills that could significantly affect its operations but that were not passed during the first session. However, judges, Director Duff, and Administrative Office staff worked to raise awareness throughout Congress of the Conference's positions on these relevant issues.

Cameras in the Courtroom

	Conference Opposes Cameras On behalf of the Judicial Conference, Judge John R. Tunheim told the House Judiciary Committee that cameras in courtrooms could impair a citizen's ability to receive a fair trial.

Bills that would permit the use of cameras in all federal courts in civil and criminal cases were actively considered in both the House and Senate. In October 2007, the House Judiciary Committee reported favorably a bill that would give the presiding judge in a proceeding in the Supreme Court, courts of appeals, and district courts the discretion to permit electronic media coverage of any court proceeding over which that judge presides. Electronic media coverage would be barred if the presiding judge, or a majority of the judges participating determine, that such coverage would violate the due process rights of any party.

The Senate Judiciary Committee began consideration of a similar cameras bill, S. 352, in December 2007. It adopted an amendment making some of the same changes that were made in the House and adding provisions. Identical bills were introduced in the House (H.R. 1299) and Senate (S. 344) that would require the Supreme Court to permit television coverage of all open sessions unless it decides, by majority vote, that allowing such coverage would constitute a violation of the due process rights of one or more parties. In December 2007, the Senate Judiciary Committee reported S. 344 favorably without amendment.

The AO on behalf of the Judicial Conference wrote to members of both the House and Senate Judiciary Committees to convey its strong opposition to the legislation because it would allow the use of cameras in the trial courts and change the present policy of allowing a court of appeals to first determine whether to permit cameras in that circuit. AO staff conducted numerous briefings with congressional staff regarding the Judiciary's views.

Foreign Intelligence Surveillance

The role of the Judicial Branch as a check on the Executive Branch has been a central question in the past year's congressional debate on foreign intelligence surveillance legislation. In August 2007, after a particular ruling by the Foreign Intelligence Surveillance Court (FISC), Congress amended the Foreign Intelligence Surveillance Act (FISA) with a six-month sunset, during which Congress debated a more permanent revisions to FISA.

Four bills were proposed in 2007, one each from the House and Senate Intelligence Committees, and one each from the House and Senate Judiciary Committees. Each took different approaches to questions of case and controversy, the role of the FISC in various kinds of surveillance activities, and remedies for third parties whose rights are implicated by surveillance procedures. All of the bills, however, included some version of the Judicial Conference proposal that the FISC be permitted to meet en banc, which will allow that Court more flexibility in addressing certain kinds of situations.

This discussion will continue in 2008.

Bail Bond Fairness Act

The Bail Bond Fairness Act — opposed by the Judicial Conference — would prohibit federal courts from imposing conditions of bail other than appearance in court. This bill had been unsuccessfully proposed for over 10 years in the House and Senate, before the House Judiciary Committee passed it in 2003. In 2007, the House Judiciary Committee again took up the bill. Representatives of the Conference and the Department of Justice spoke in opposition to the bill at a hearing in June.

Nonetheless, the bill passed that Committee again, as well as the full House, on voice votes. In December 2007, the Senate Majority Leader and the Ranking Republican on the Senate Judiciary Committee co-introduced the bill in the Senate.

Action by Congress brought the bill closer to passage than it has ever come before, and the Judiciary's strong arguments in opposition continue.

Criminal Sentencing

Perhaps one of the most significant shifts in Congress last year has been a change in the focus of the discussion on criminal sentencing. The policy focus in the House and Senate Judiciary Committees has been, if anything, away from criminal sentencing and toward re-entry and rehabilitation and, exploring the efficacy of mandatory sentencing. In the meantime, Congress has not taken any action to oppose the Supreme Court's continuing guidance in outlining the advisory nature of the Sentencing Guidelines.

Whistleblower Legislation

Both the House and Senate reported bills that would enhance the protections provided to federal employee whistleblowers, but the two houses did not reach agreement on a final bill before the first session adjourned. The bills include provisions that would eliminate the exclusive jurisdiction of the United States Court of Appeals for the Federal Circuit to review whistleblower claims. Final decisions of the Merit Systems Protection Board (MSPB) regarding these claims would be reviewed either in the Federal Circuit or in an appropriate regional court of appeals. A letter expressing the Judicial Conference opposition to the provision permitting dispersed review of final decisions of the MSPB was sent to the House and Senate leadership and chairs of the respective committees.

Social Security Disability Review

Over the past several years, the Judiciary has monitored Social Security Administration (SSA) proposals to change the administrative review process for disability claims. In commenting on the changes proposed in 2005, the Judicial Conference supported efforts to improve the efficiency of the administrative process for the review of disability claims but opposed changes that would eliminate a claimant's right to request review of an administrative law judge's (ALJ) adverse decision by the Appeals Council, or another administrative entity with comparable authority, prior to seeking relief in federal district court.

SSA implemented new procedures on August 1, 2006 in the Boston region and expanded the reach of those changes in late 2007. Under those procedures, the claimant would not have the right to request review of an adverse ALJ decision by the newly established Decision Review Board as is allowed with the existing Appeals Council. The Judiciary continued its dialogue with SSA expressing its concerns that elimination of the Appeals Council could significantly increase the number of SSA cases filed in the district courts.

These procedures would also be implemented nationwide. The comment period on the proposed rule closed at the end of December 2007.

Habeas Corpus

Chapter 154 of title 28, United States Code, which was established as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides for expedited federal capital habeas review when a state establishes that it has provided death row petitioners with qualified, competent, adequately resourced, and adequately compensated counsel in state post-conviction proceedings. Under AEDPA, the decision to "certify" states as entitled to expedited federal procedures was to be made by the federal courts. The USA PATRIOT Improvement and Reauthorization Act of 2005 shifted the certification determination from the federal Judiciary to the Attorney General of the United States, subject to de novo review in the U.S. Court of Appeals for the District of Columbia Circuit.

On June 6, 2007, the Department of Justice (DOJ) issued proposed regulations to implement the certification procedures. In a letter to the DOJ in August, the Judicial Conference urged DOJ to revise the proposed regulations to clarify the obligations of the state governments seeking the benefits of chapter 154 review and to provide guidance about the criteria to be considered by the decision-maker. Otherwise, the Conference noted that certification could be permitted in cases where a state has not in fact provided counsel services sufficient to enable federal court litigation to proceed fairly within the expedited timeframes required under chapter 154. As of December 2007, DOJ had not published the final regulations.