How Appealing Extra

How Appealing Extra

Wednesday, December 19, 2007

© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

December 19, 2007

Congress Agrees to Reorganization as Part of Security Bill

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - California is in line to get a new judge on the 9th U.S. Circuit Court of Appeals thanks to a bipartisan deal endorsed by Congress this week.

Under the terms of the accord, a vacant judgeship from the D.C. Circuit Court of Appeals will be transferred to the San Francisco-based 9th Circuit, which has the highest caseload in the nation.

'It Makes Sense'
The House and Senate have included provisions that would mandate the reorganization as part of a court security bill that the Senate passed Monday and the House was expected to pass Tuesday night.

The new judgeship would go to a Californian, according to Sen. Dianne Feinstein, D-Calif. Feinstein and Republican Sen. Jon Kyl of Arizona struck the agreement on how to expand the number of judges on the 9th Circuit.

"California needs more judges," Feinstein said in a statement. "The Senate has recognized that it makes sense to take a judgeship from where it is needed least, and put it in California, where it is needed most."

The caseload per judge in the D.C. Circuit was 107 in 2006, compared with 523 in the 9th Circuit, according to Feinstein's office.

Some - 9th Circuit Chief Judge Alex Kozinski among them - hope the agreement could also lead to the end of a Senate dispute that has prevented the Bush administration from filling a vacant 9th Circuit seat.

But Feinstein appears to be standing firm on her insistence that this vacancy also should go to a Californian.

Disapproval in Idaho
Others, including Idaho's two Republican senators, Mike Crapo and Larry Craig, think it should go to a nominee from Idaho, which only has one judge.

The argument centers solely on Judge Stephen Trott, who took senior status in 2006.

Trott has kept his chambers in Boise and he counts himself an Idaho-based judge. But Feinstein and others note that the former U.S. attorney for Los Angeles was considered a Californian when President Reagan nominated him to the 9th Circuit.

The White House initially nominated an Idahoan, N. Randy Smith, to replace Trott but Feinstein blocked the move. Smith was later nominated and confirmed to fill another seat on the 9th Circuit.

Kozinski said Tuesday his main priority was to fill the vacant seat, regardless of which state the judge comes from.

"I'm hopeful that this will solve the logjam," he added, in reference to the developments in Washington.

But Kozinski stressed that he has no information as to whether a deal has been discussed among the senators.

Commenting on the bill adding the new judgeship, Kozinski said that "having another judge would be most welcome" in view of the large caseload.

Scott Gerber, a spokesman for Feinstein, stressed that the legislation transferring the judgeship from the D.C. Circuit was totally unrelated to the dispute with the Idaho senators.

No deal has been agreed to, he added.

The new judge would be the 29th on the court, although the position would become effective only after President Bush leaves office in January 2009.

The White House has not revealed whether Bush will sign the legislation, but there has been no threat of a veto.

The underlying Court Security Improvement Act has been languishing in the Senate months because of objections made by Sen. Jeff Sessions, R-Ala., about a provision that would expand the role of senior district court judges.

On Monday night, the Senate finally passed the bill and the House moved to adopt the same legislation Tuesday.

The issue of judicial safety has gained momentum in recent years after the murder in 2005 of the mother and husband of U.S. District Judge Joan Humphrey Lefkow of Chicago.

The bill also increases sentences for witness tampering.

Sen. Patrick J. Leahy, D-Vt., chairman of the Senate Judiciary Committee, said Tuesday he was glad to have fulfilled his promise to pass the bill before the end of the year.

"The Senate has waited far too long to enact this legislation to protect those who guard justice in our court system," he added.

Sunday, December 16, 2007

© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

December 17, 2007


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Congress may be offering federal judges a major pay raise for the first time in 16 years, but lawmakers are also embracing a plan to deter senior judges from taking high-paying jobs in the private sector.

The House Judiciary Committee approved a bill last week that will bump up salaries of all federal judges by a whopping 31 percent.

But another provision in the bill would penalize any judges at retirement age who leave the bench for a high-paying job by reducing the amount of pension they receive.

It's an idea that isn't universally welcomed by former judges, even though some sitting judges have endorsed it during negotiations with lawmakers, according to sources familiar with the discussions. The U.S. Judicial Conference is yet to announce its position.

On the other side of Capitol Hill, some senators also appear to be responsive to the idea.

Sen. Dianne Feinstein, D-Calif., has introduced an identical version of the bill, which the Senate Judiciary Committee debated but did not vote on Thursday.

A district judge would earn $218,000 if the bill passes Congress.

The legislation would dispose of the link between the pay of district judges and members of Congress, and judges also would receive an automatic cost-of-living adjustment each year, which they haven't had in the past.

District judges earn just over $166,000, slightly more than the base salary of a first-year associate at a big law firm.

A number of judges have cited that figure in recent months when announcing that they are leaving the bench. Over the last two years, 17 judges have resigned, according to the Administrative Office of the U.S. Courts.

In order to put a stop to that practice, which lawmakers believe is diluting the quality of the judiciary, the legislation comes with a built-in deterrent.

Under a provision suggested by Rep. Lamar Smith, R-Texas, judges would lose a dollar of their pension for every two dollars they earn above their old salary if they leave the bench, down to a baseline of 33 percent of their judicial pay.

That would affect only judges who retire after 65; judges who leave the bench before 65 get no pension.

The bill before Congress also requires senior judges to work more for their pay.

They have 25 percent of an active judge's workload, but under the House bill, that would increase to 33 percent.

The legislation has won the backing of some House Democrats, including Los Angeles Rep. Howard Berman, a leading sponsor of the bill.

"The federal judiciary is not a steppingstone to a high-paying career," Berman said last week. "It's supposed to be a capstone. So we have created a disincentive."

Among the high-profile judges to leave the bench in recent years were J. Michael Luttig, of the 4th U.S. Circuit Court of Appeals, and Paul G. Cassell, a district judge in Utah.

Another was Attorney General Michael Mukasey, who was a federal judge in New York for 18 years before becoming a partner at a firm in the city on hitting retirement age.

In testimony before Congress earlier this year, Supreme Court Justice Anthony Kennedy also mourned the departure of U.S. Chief Judge David F. Levi of California's Eastern District in Sacramento, who announced in January that he was leaving to become the dean of Duke Law School.

In 2005, nine judges left the bench - the most ever in a calendar year - with five going to California-based arbitration service JAMS, Kennedy told lawmakers.

Dickran M. Tevrizian, a federal judge in Los Angeles for 21 years, joined JAMS earlier this year.

Although Tevrizian welcomes the pay raise, he lambasted Congress for the pension plan, saying judges deserve a full pension in return for the years they forgo private-sector earnings.

"That's ludicrous," he said of the plan last week. "It penalizes judges. It doesn't help them."

Tevrizian pointed to the fact that first-year associates can earn as much as judges even though "they don't know where the courthouse is."

"It's a crime judges are not paid more," he added.

Cassell, a law professor at the University of Utah, publicized the issue when he left the bench earlier this year.

He outlined his concerns about judicial pay in a letter to President Bush.

Cassell said recently that, because he served for only 5½ years, he won't get a federal pension.

He welcomed the bill before Congress, describing it as a "fair approach" to resolving the problem.

"It's good government legislation," he added.

Although the bill passed the House Judiciary Committee, it could face more of an uphill struggle in the Senate, judging by the reception it received last week.

Several committee members raised concerns about the proposal.

Sen. John Cornyn, R-Texas, a former state judge, said he would "question the wisdom" of reducing pensions.

He noted that members of Congress often go on to high-paying jobs after leaving office without losing their pension rights.

Another Republican, Sen. Jeff Session of Alabama, said the legislation could cause a "ripple effect" across the federal government, with other employees perhaps seeking equally sizable raises.

The bill will be on the agenda the next time the committee meets, which may not be until January.