A Meeting of the Branches

Two New Year's days ago, Chief Justice John Roberts Jr. said in his annual report that the failure to raise judicial salaries had reached the level of a "constitutional crisis." This January, Roberts toned down the rhetoric, but today Justice Anthony Kennedy kicked it back up again, telling a congressional committee, "We are at a crisis" over judicial pay. "We are losing our best judges, we can't attract them, we can't retain them."

Kennedy spoke at the Court's annual budget hearing before the House Appropriations Subcommittee on Financial Services and General Government. It was a genial affair, with Kennedy and colleague Clarence Thomas exchanging pleasantries and compliments about harmony between the branches of government. And oh yes, the Court's budget was well-received: $88 million, up $10 million from last year mainly because of the ongoing, much-delayed renovation of the Court's 73-year-old building. "I can't tell you that I'm pleased with the progress," Kennedy growled as he told the committee that the project is running about 16 months behind, with completion now projected for September 2009 or later.

The table-pounding came when Kennedy was asked about judicial salary increases, which have made some progress through both houses but is still not a done deal. It is a "constitutional duty," Kennedy said, to maintain the general excellence of the judiciary. "If we don't get relief, there will be an exodus of judges," lured by tripled salaries and challenging work in arbitration and private practice. Kennedy also decried proposals to tie salary increases to stricter limits on how much money judges can earn or be reimbursed when they teach or give speeches.

"It doesn't make much sense," Thomas added, for federal judge salaries to be capped at a level that some first-year associates are able to earn. Thomas, too, said judges should be allowed to teach — "a wonderful way to think about the law" — and should not be limited even further than they are already in what they can earn in teaching positions.

As he has in the past, Rep. Jose Serrano, D-NY, the subcommittee chair, pressed the justices on the dearth of minority law clerks, first raised as an issue 10 years ago this month. Though numbers are uneven from term to term, overall significantly more minorities are being hired than before. "We're conscious about it," said Kennedy, telling Serrano that law schools have been doing a "very good job" of encouraging more minority students to seek clerkships. "A clerkship with us is a ticket" to top opportunities after completion, he acknowledged.

Thomas said he, for one, casts his net for clerks more widely than than the law schools at Harvard, Yale and Stanford. "There are Jackie Robinsons everywhere," Thomas said, noting that his four clerks for next term are graduates of the law schools at Rutgers, Creighton, George Washington and George Mason universities, respectively. "It is as outstanding a class as I've ever had," Thomas said.

Neither justice responded to Serrano's request for statistics on the number of minority clerks the Court has hired.