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Foreword by Spencer Williams vi Acknowledgments ix 1. The Decline of the Dollar 1 2. Litigation 5 3. Ninth Circuit Committee on Judicial Salaries and Benefits 13 4. Two Objectives 17 5. The Federal Judges Association is Formed 23 6. A Decade of Achievement: 1982-1992 29 7. Next On the Agenda: Issues, Deliberations, Solutions 35 8. Administrative Matters 39 9. Communication and Connection 43 10. Circling the Wagons 49 Appendix 1. Honor Roll of Past Plaintiffs 55 Appendix 2. Federal Judges Association Constitution 57 Notes 59 Foreword

It is the true office of histo1y to represent the events themselves, e together with the counsels, and to leave the obse1vations and conclusions thereupon to the liberty he Federal Judges Association has completed and fawl ty of eve1yman's judgment. seventeen years and ten months of very - SIR FRANCIS BACON T "active" duty when, on January 1, 2000, it , entered the twenty-first century. While this is a mere heartbeat in history, it amounts to a significant period when measured against a human life, its passage often eroding the memory of even the recent past's most important events. The philosopher George Santayana once said that "Those who cannot remember the past are condemned to repeat it." With this warning that ignorance of the past deprives successive generations of ways to deal with their own, often similar problems, the Board of Directors of the Federal Judges Association has funded its second history, THE FJA IN THE TWENTIETH CENTURY.I From the early 1970s through the mid-1980s, this nation experienced the greatest threat in its history to the quality and independence of the federal judiciary as uncontrolled inflation reduced the compensation of federal judges. Congress refused to make adjustments for these losses, even though other federal employees received offsetting salary increases, as did most other public and private employees, including union members, members of the legal and medical professions, and even state court judges. This obstinacy caused an unprecedented increase in resignations from the federal bench and seriously prejudiced the judiciary's ability to attract and retain highly qualified men and women for

1 This history incorporates, extends and thus supersedes the FJA's previous publication, A DECADE OF ACHIEVEMENT, 1982-1992. vii judicial service. The failure to remedy this problem inevitably raised a more serious question: Acknowledgments could a weakened and subservient federal judiciary fulfill its critical role as a co-equal branch of our government? Although many government officials, judges, attorneys, and members of the media and the public were concerned about this growing threat, little progress was made in reversing the trend until a group of federal judges, ignoring the disapproval of some of their peers and resistance from within the official structure of the judiciary, decided to take action. Their efforts began in 1976 or the early part of this history-the first with the filing of the first in a series of lawsuits decade-most of the source material is in that ultimately resulted in the United States Funpublished documents such as letters and Supreme Court's holding in 1980 that Congress's memoranda. Judge Irving Hill's thoroughly rescission of judicial pay increases had been researched work, "A Narrative History of the unconstitutional. Shortly thereafter, a nucleus of Ninth Circuit Committee on Judicial Salaries and these litigators decided to explore the feasibility of Benefits and a Summary of Its Accomplishments" forming an association of federal judges. This (1990, unpublished) provided much information, endeavor led to the formation of the Federal as did some documents furnished by Kevin Forde. Judges Association as a volunteer, grass-roots I relied on oral-history interviews with Judge organization of Article lII judges devoted to Spencer Williams and Judge A. Clifford Wallace, warding off future threats, from whatever source, as well as on the collected files pertaining to the to the quality and independence of the federal Federal Judges Association in Judge Williams's judiciary. office. I conducted telephone interviews with The board is aware that the quality and Judge Hubert Will, Kevin Forde, and William independence of the federal judiciary might at Weller. The manuscript was carefully reviewed­ some future time again be placed in jeopardy, under pressure of deadline-by Judge Williams, either by design or by a neglect of sources within Judge Will, Judge Hill, and Judge Hall, and by or without the government. The board intends Kevin Forde and Bill Weller. Bradley B. Williams that this history will inspire the judges serving at reviewed and Philippa Brunsman edited this part that future time to also take whatever steps are of the manuscript. necessary and appropriate to protect and, if Much of the material for the second part of necessary, to restore the federal judiciary to its the history-1992-2000-was gleaned from the rightful position as a highly qualified, association's newsletter, In Camera, edited by independent, co-equal branch of government, not Spencer Williams. Judges W. Earl Britt, Diana for the sake of the judiciary, but for the Murphy, Alan H. Nevas, John M. Walker, Ann preservation of our nation. Claire Williams, and Stanley Brotman contributed information by letter and in telephone Spencer Williams conversations. Judge, Federal District Court, Thanks are due to all these and to others who Northern District of California graciously offered their knowledge and help. •

viii ix 1. THE DECLINE OF THE DOLLAR The Federal fudges Association was inco1porated May 15, 1982, the culmination of a long struggle over e judicial compensation. -THE HONORABLE SPENCER WILLIAMS

or the federal judiciary in the 1970s, it was the worst of times. While the United FStates struggled to extricate itself from the Vietnam War and the government's executive branch became mired in the Watergate scandal, the enormous rise in inflation throughout the decade brought consistently lower real income to those with fixed salaries. Among them were the federal judges. Reduced purchasing power was not the only difficulty for judges; survivors' benefits were so low as to be insignificant, and communications, especially on salaries and working conditions, between Congress and the judiciary were waning visibly in the early 1970s. (Relationships between individual judges and their representatives usually remained friendly, but there was little perception on the part of Congress, as an institution, of the judiciary's difficulties.) The inflationary spiral that began in the early 1970s affected salaries insidiously. By 1980 the Consumer Price Index had risen to almost two and a half times the level of 1967 dollars-the base point for the index. This meant that by 1975, for example, judges' salaries, which had remained stationary, represented just a little more than half-before taxes-of their 1970 purchasing power. Inevitably, judges, few of whom had ever before resigned, began leaving the bench in record numbers-an unheard-of twenty-four in the 1970s. Concern escalated with the fear that, as the

1 success. In 1973 they were rejected outright by gap widened between the income of lawyers and "shall not be diminished" during AB.A Chief Backs judges' Suit of judges, fewer legal practitioners would Congress; in 1976 increases became law by default that top their term in office. By not erasing On Pay; Calls Congress Unfair' be attracted to the bench. when n either house brought the recommendations to a vote. The subsequent outcry, however, the effects of inflation, they said, For one thing, judges found themselves caught the government was in effect PHILADELPHIA,Feb 13: The criticizing Congress for obtaining a pay raise in a peculiar bind: because members of Congress "diminishing" their salaries.- president of the American Bar had traditionally linked judicial salaries to their "through the back door," resulted in an Association expressed strong own, the judges suffered when legislators failed amendment to the Federal Salary Act to require - Lesley Oelsner, support today for the 44 Federal a recorded vote of approval in both houses. to act for fear of the public outcry that might New York Times, judges who sued the United States House and Senate refused approval in 1980. arise if they boosted their own pay. February 13, 1976 this week for a pay increase, Senators and representatives were certainly Judges did receive a nominal 5 percent increase saying that "Congress has been so aware of the decrease in purchasing power­ in 1975, when the Executive Salary Cost-of­ unfair it invites this test." their salaries had also remained stable. Congress Living Adjustment Act was passed; yet problems The bar president, Lawrence E. had attempted to deal with the problem in remained with even these inflation-fighting Walsh, once a Federal judge, said 1967, when it passed the Federal Salary Act. This adjustments, known as COLAs. Sensitive in the that the judges were justified provided for a nine-member Commission on extreme to its constituents' criticisms, Congress because it would focus public Executive, Legislative, and Judicial Salaries to be balked at raising its own pay, even on a COLA attention on their plight. appointed every four years, thus becoming known basis, thus denying a raise to judges because of "The courts aren't that tender," as the Quadrennial Commission. Beginning in linkage. In fact, this insistent linkage brought he said. "They're (sic) been used 1968, the commission routinely found that top into question the independence of the judiciary. many times for attention." ... federal officials were underpaid. "Present salary As James Madison wrote in The Federalist, No. 51, Mr. Walsh made his comments levels are not commensurate with the importance 1788: "The great security against a gradual in and after a news conference of the positions held," stated the commission concentration of the several powers in the same here as the A.B.A.'s annual report that year. "They are not sufficient to department consists in giving to those who business meeting began. support a standard of living that individuals administer each department the necessary The judges, represented by qualified for such posts can fairly expect to enjoy. constitutional means and personal motives to former Supreme Court justice ... We should expect the compensation of those resist encroachments of the others." Arthur). Goldberg, filed their suit to whom we entrust high responsibilities and The judges found the congressional Wednesday in the United States authority in government to bear some reasonable recalcitrance particularly galling, since members Court of Claims in Washington. relationship to that received by their peers in of Congress were much less restricted than the judges were in using outside sources of income to Federal District Court judges are private life." offset the ravages of double-digit inflation. now paid $42,000 and Federal According to the Federal Salary Act, the Court of Appeals judges $44,625, Quadrennial Commission was to submit its salary Support for the judges came from other segments of society, including journalists as a result of a pay increase recommendations to the president, who would and members of the bar. Editorials proclaimed that granted last Oct. 1 to raise their then accept, reject, or modify them and send his federal judges were highly trained professionals, salaries 5 percent from 1969 findings to Congress. These recommendations generally in the prime of their lives; many had levels. would become law, unless either house of made substantial financial sacrifices when they Essentially, the judges contend Congress disapproved them (until 1985, when a were appointed to the judgeship; most had family that Congress and the President joint resolution became necessary). The responsibilities that dictated a certain amount of were constitutionally obligated to Quadrennial Commission, finding federal officials financial security. "The spate of resignations from increase the salaries by a much to be underpaid, regularly recommended the federal bench for economic reasons-and the higher percentage to offset the increases. After 1968 the increases were just as inability of recent presidents to find qualified impact of inflation over the last regularly disapproved. replacements-is a forceful argument for giving few years. Although the 1968 commission's recommended increases were cut by President Lyndon B. federal jurists a raise that compensates for the six They based this contention on years without one," wrote the Los Angeles Times the Constitution, which says that Johnson, his reduced figures were accepted by Congress. But in succeeding years, proposals by on June 9, 1976. compensation of Federal judges the commission for salary increases achieved little The American Bar Association added its voice to 2 3 those advocating salary increases. Lawrence E. Walsh, president-elect of the association in 1974, 2. noted that the sacrifice requfred to take a judgeship would discourage the best candidates LITIGATION for the bench. "I can't think of anything more important, if we want to improve the system of justice in this country, than good judges," he emphasized. The judges, both of the supreme and Inflation bred disillusionment among the inferior courts, shall hold their judges, and discouragement degenerated into offices during good behavior, and outrage. e shall, at stated times, receive for Where could they turn? they asked themselves. their services, a compensation, which Wasn't the excellence of the judicial system at shall not be diminished during their risk? Wouldn't some meritorious members of the . ell, sue them!" said District Judge continuance in office.,, bar refuse to accept appointment to the bench? Spencer Williams of California. After To some, the quality of justice itself seemed - ARTICLE 111,SECTIO N 1, hearing judges' concern about salaries threatened. W UNITED STATES CON STITUTION ever since coming onto the bench in 1971- "They were all talking about it"-he finally asked, why not litigate? That idea had occurred to other judges, some of whom began seriously to consider it. In 1974 Williams mentioned it to Judge William Campbell of Illinois, who agreed to look over the complaint Williams drafted. Campbell also had the draft vetted by a professor at Harvard Law School, who agreed: "It has a lot of merit." The draft complaint alleged that Congress, by failing to increase judicial salaries since 1969 despite record inflation, violated Article Ill, Section 1, of the Constitution, which requires that judges receive "a compensation, which shall not be diminished during their continuance in office." The question was whether the Constitution-and the Founding Fathers who wrote it-referred to an actual salary figure or to purchasing power measured in terms of real income. Williams talked to Joseph Cotchett, then on the Board of Governors of the California State Bar, about whether the bar should bring a lawsuit. But there was a question about the bar's having the standing to sue, and Williams decided to file the suit himself and bring in other judges as plaintiffs. The next problem: where to file the suit. If Williams filed in state court, the suit would be moved to federal court, where all the judges might be disqualified because any federal judge would be affected by the suit. But California State 4 5 Supreme Court Justice Stanley Mosk provided the he said, recalling his days as an attorney for Clara County, California, and for solution. "In those days," Williams remembers, organized labor. "That's a good suit. I'll do it, pro twelve years as county counsel. In "Stanley Mosk used to come over and have lunch bono." He recruited Harvard Professor Stephen 1967 Governor Ronald Reagan at the dining room in the Federal Building in Breyer to join the team, and Kevin Forde, former appointed him secretary of San Francisco. I talked to him about it, and he Jaw clerk of Judge Campbell and past president of California's Human Relations told me about the Rule of Necessity: If every the Chicago Bar Association. Both assisted Agency; he served in that position judge is disqualified, then no judge is disqualified, Goldberg as Of Counsel. It was to be the last time from 1967 to 1970. He re-entered because it is more important that an issue be Goldberg argued a case in court. "He was superb private practice in Sacramento and litigated than abandoned. My research proved ... brilliant!" remembers Forde. San Jose and in 1971 was Mosk to be correct, and so we decided we would Forty-two judges joined Atkins and Williams in appointed district judge for the file our suit in the Court of Claims." the suit, which was filed on February 11, 1976. Northern District of Californ ia. He is This decision provoked a fierceklebate within Thirty-seven others filed suit in Louis C. Bec11tle, et married to the former Kathryn the federal judiciary, ranging from the propriety al. vs. United States of America with the same Bramlage of Santa Barbara, of one branch of government's suing another to complaint, and the two suits were consolidated. California . the fear that plaintiffs in the case might be Both alleged that between 1969 and 1975, the real judge Irving Hill paid tribute to disqualified in all government litigation. The income of federal district judges fell from $40,000 Williams as head of the newly Chief Justice was heard to say the suit would to $27,510 because of inflation, and that the formed Federal judges Association embarrass the judiciary and the Supreme Court. continuing failure of the president and Congress in 1982, citing his abundant energy to provide appropriate salary adjustments to offset . Spencer Williams, Organizer and Members of Congress took umbrage. All in all, it and administrative skills. "In every First President of the Federal was an act of some courage for a sitting judge to inflation violated Article III of the Constitution respect judge Williams did the job and seriously threatened the independence and judges Association, 1982 -1987 be a plaintiff. superbly," Hill wrote. Certainly quality of the federal bench. Nevertheless, Campbell and Williams persuaded Williams made the needs of the "Spencer Williams, enthusiast, numerous judges to sign on as plaintiffs. Williams A second count was added in March 1976, judges well known in Washington, evangelist, organizer, led us from agreed to be the "flak catcher" as the first-named stating that the action by the U.S. Senate (without to such a point that a fellow judge idea to reality," wrote then-FJA plaintiff, but, as it turned out, he wasn't. "I was the concurrence of the House of Representatives) from the Northern District, President Betty Fletcher in 1991 . talking to Clyde Atkins," Williams recalls, "whom in disapproving a pay raise requested by President returning from Washington, told Williams took the lead in fou nding I had met during a seminar in Florida-he was Richard M. Nixon in 1974 was an illegal, one­ him, "Back there they refer to you the Federal judges Association and from there. I asked him to join in the suit. He house veto, and was thus unconstitutional. as Spencer Hoffa!" But this allusion became its first president in 1982. It didn't want to, saying his name would be in the Plaintiffs contended that it was an attempt by the to the Teamsters' jimmy Hoffa did ~wasonl yo one f many activities in a paper and the publicity would be disastrous for Senate to exercise power reserved to the president nothing to deter Williams from productive and successful career. him. But I said he'd be at the bottom-that my in Article II of the Constitution. Nor did the pursuing first the formation, then A graduate of the University of name would go first, then the other judges would passage of a resolution by one house constitute the avowed goals of the FJA. Californ ia at Los Angeles, Williams be listed by seniority. I'd take the flak." Atkins the enactment of legislation. This count was Although he has had many served in the Pacific with the United finally agreed, but the Court of Claims demurred. added at Goldberg's insistence. "This has successes in his long career, States Navy during the Second In a case with multiple plaintiffs, it said, the happened so many times," he explained, "and it Williams considers the highlight of World War as a main-battery fire­ plaintiffs have to be listed in alphabetical order. has never been challenged." The issue had been his professional life to have been control officer on the heavy cruiser The case was named C. Clyde Atkins, et al. v. The raised in previous immigration and agricultural the award given him at the First benefits matters. It was worth the try. USS Chester. After the war he United States of America, and Atkins went down in National Conference of Article Ill attended Boalt School of Law, from history. Senator Charles Percy of Illinois filed an judges in 1986-a hand-printed which he graduated in 1948, and Next came the question of finding counsel. affidavit with the Court of Claims in support of scroll recognizing his leadership in entered private practice in San Jose, The judges knew that former U.S. Supreme Court redress for what he called "the serious problem of the formation of the Federal judges California. In 1950 he volunteered Justice Arthur Goldberg, who by then was retired, low judicial salaries." He had lost hope that Association . for active duty with the navy judge was committed to protecting the best interests of Congress would provide relief, but he stated Adjutant General's office during the the federal judiciary. "Would you represent us?" clearly the difficulty he was having in persuading Korean conflict. Williams asked. Goldberg agreed to take a look at successful attorneys to leave their private practice Williams served for three years as the complaint. Over lunch with Williams in for the bench. "During the past seven years," he deputy county counsel of Santa California, he studied the papers. "Hit the bricks!" wrote, "twelve individuals who were my first 7 6 choice as candidates for federal District Court and another tack. Judges Are Entitled to Their f the Constitution made no mention Court of Appeals judgeships decided that while As mentioned earlier, in 1975 Congress had Day in Court or provisions for inflation. they were extremely desirous of serving on the authorized COLAS. But a funny thing kept Not so. federal bench, they could not accept such a happening on the way to the pay raises that Early vocal critics of a group of U.S. Dist. judge Thomas D. position at the current salary level." should have resulted-Congress would attempt to federal judges suing the government Lambros of Cleveland has done The judges took careful cognizance both of prevent the adjustments from taking place by some homework. for a pay raise a~ebeginning to hedge on their initial statements. public response and of reaction in the legal rescinding them after the commencement of the He found in excerpts from "The The Washington Star, which first community. In a letter to the plaintiffs, Campbell succeeding fiscal year. In fiscal years 1976, 1977, Debates in the Federal. Convention characterized the suit as a "bizarre noted that editorial comment had been mostly 1978, and 1979, it was the same story: Congress of 1 787," which formed the manifestation of official favorable or neutral-neutrality being the was afraid of the heat that would be turned on if Constitutio.n, quotes to support the contention that the authors of the fatheadedness," has now admitted agreement that there was need for a salary it raised its own salaries, and judicial salaries, of document were very aware of to overreaction. increase but taking no position on the judges' course, were linked to those of Congress. inflation. In an editorial on March 11, the suit. The New York Times, for example, "wrote two "Wait a minute," Judge Thomas Platt thought No less a figure than Constitution Star concluded: "But if the judges' well-researched stories which appeared in papers to himself in his library in New York. "You can't grammarian Gouvernear Morris suit be thought mischievous, even around the country courtesy of the Times's wire rescind these raises; they have become law by said: "The value of mqney may not subversive of the dignity of their service, then followed with a favorable editorial." virtue of their having been linked to the general only alter but the state of society high office, the greater mischief is The American Bar Association strongly urged schedule providing COLAs for all federal may alter. The amount of salaries congressional. Congress has Congress to enact a salary increase for judges. employees." So the judges sued again. must always be regulated by the condoned an unacceptable "Today attorneys are making substantially more Platt talked to Campbell, who brought in Judge manners and the style of living in a depreciation of judicial pay; indeed than the salary of federal judges," noted John A. country." it has permitted the pay of federal Hubert Will of Chicago, a plaintiff in Atkins. Will Sr., .. . If constitutional evidence is, al fall Sutro, chairman of the American Bar agreed to spearhead the efforts, and the two tri judges to below that of in fact, against the judges in their many state judges . ... Association's Standing Committee on Judicial decided to enlist the support of four other judges Selection, Tenure, and Compensation in 1976. in different parts of the country. Kevin Forde fight against inflation, there are The suit, originally brought by 44 other facts that should support their . "Judges won't- or generally can't- aCCEl,flta signed on as counsel, and Richard Prendergast, an U.S. District and U.S. Appeals Court claims in the arena of reason. federal appointment unless they have other experienced member of the Atkins team, joined judges, has now been joined by an The Senate judiciary Committee, additional 37 judges. sources of income." him. Demonstrating the national scope of the late last year, recommended the Their contention is simply that Local bar associations joined in the chorus of case, separate complaints were filed in four cities creation of 52 new federal inflation has diminished the income support. Four New York Bar groups held a press around the country: Spencer Williams led off in judgeships. of federal district judges from conference asserting that judges were not paid San Francisco, Jack Gordon and Fred Cassibry in Their recommendation is $40,000 a year to a.bout $27,510 enough. New Orleans, Hu Will and Bill Campbell in supported (by] the ever-increasing and from $42,299 to $29,230 for Williams sent a number of questionnaires to Chicago, and Tom Platt in New York. Since the case load upon existing judges, appeals court judges. judges all over the country asking for information cases were all the same, the Department of Justice compounded by the Speedy Trials Adrian A. Spears, chief judge of about their general financial circumstances: in wanted them all in one place. After New York Act. the U.S. Western District of Texas in order to support their families, did they rely on attorneys declined to handle the case because they So, at some future date, there San Antonio, is one of the original outside income, such as having another job or a feared conflict claims, Chicago seemed the logical will be new federal judgeships to be group of judges in the suit. spouse who worked? Or were they dipping into choice, being the home of plaintiffs Will and filled. The judges base their claim on savings? Many replied affirmatively. Campbell and of lawyers Forde and Prendergast. But what about the more than Article 111,Section I of the 40 vacancies that now exist? But in 1977 the Court of Claims rejected the So in February 1978, thirteen district judges Constitution tl'lat provides judges of Over 40 federal judgeships are joined with Hu Will in Chicago in Will v. United the United States Courts "shall. .. case, and a petition for certiorari was denied by unfilled because enough qualified at stated times, receive for their the Supreme Court. This was not the last the States. See Appendix 1 fo r the list of plaintiffs. attorneys can't be found to take the services a compensation which shall Court was to hear of the one-house-veto issue. This action challenged the constitutional posts .... not be diminished during their Several years later the Court, in l.N.S. v. Chada validity of statutes passed in 1976 and 1977 continuance in office." [462 U.S. 919 (1983)] ruled that the one-house­ rescinding the cost-of-living raises. Forde drew up - Dick Merkel, Congressional opponents of the veto device was illegal. The Atkins plaintiffs were pleadings, motions, and briefs, "every one of San Antonio Express-News suit, one of whom went so far as to ahead of their time on that question. which was reviewed by Bill Campbell and myself," suggest the judges be impeached The Atkins case failed in 1978. But the judges recalls Will. "Some were also looked at by Spencer for their action, claim the framers of weren't ready to give up; instead they tried Williams, Tom Platt, Jack Gordon, and others." It 8 9 reluctantly, agreed to accept an increase, although proved to be worth the trouble-the district court Still, he did not think this disparity granted summary judgment for plaintiffs on the figure remained substantially lower than the could last forever. August 29, 1979. fee that would normally go to attorneys in cases .He attempted to change the When the judges filed another action in 1979 of such magnitude. situation by approaching first Chief pertaining to the validity of similar statutes passed And besides, Forde and Prendergast had justice Earl Warren, then Chief Justice in 1978 and 1979, the district court granted arranged to have the money deposited to the Warren Burger. Both justices made summary judgment for plaintiffs January 31, 1980. plaintiffs' account while the federal government little progress in persuading Congress. From the government's point of view, a great determined how it should be allocated among the Will particularly remembers going deal of money was involved and a broad judges. During that time, it earned enough money to see the then Speaker of the House, precedent was being established; the United States at the then interest rate of 16.9 percent to pay the Thomas P. "Tip" O'Neill, as part of petitioned the Supreme Court for a hearing. The attorneys' fees . a group who wanted to see judicial Court considered the problem of disqualification Success in the Will cases did more than add ,, salaries increased. "I can't -do any­ of itself due to self-interest, and cited Pollack: dollars to paychecks; the litigation provided a thing for you," said O'Neill. And "Although a judge had better not, if it can be strong and visible rallying point on which judges added, "But you ought to remember avoided, take part in the decision of a case in of different philosophical persuasions could come that God helps those who help them­ which he has any personal interest, yet he not together nationwide, and it produced a grand selves. And if you help yourselves, only may but must do so if the case cannot be victory that boosted morale all around. you'll help us." "I read you loud heard otherwise." It was the same, now-familiar and clear," replied Will. He was ready for action. Hu£>ert Will of Will Rule of Necessity on which the Atkins plaintiffs But Chief Justice Burger wanted had relied. to try again to work with Congress. Senior District iudge· Hwbert L:W ill, The Court decided that Article III, Section 1, Nortneri:i District of lllinhis, received The judges waited another year, promotes an independent judiciary free from the i 992 Edward' J. Dev.itt ,Distin­ then filed the Atkins case. When control by the executive and legislative branches. guished Service to Justice ,Award in that was rejected, several judges It affirmed in part and reversed in part, holding May 1992. The, award r:efognized filed suit in various cities; the suits that in two of the years the statute became law his long-fight_Jor an ind~per:idemt were eventually combined into Will judiciary and cappeg a notable - after the scheduled increases had taken effect and v. United States. At last judge Will . therefore diminished the judges' compensation. In can~erthat ir:icluded; ser;Vice with tile had some action. the other two years, the law became effective Securities ESichange Commissio.n and The favorable result of the suit, the Departmen_t of Justice, military before the beginning of the fiscal year and did not the formation of the Federal Judges service with the. Offke· of St r(ltegic diminish the compensation. It was, perhaps, only Association, and the many successes Services in 'the European t.heater · a partial victory, but it was an auspicious one. On that the association orchestrated during the Second World War, January 14, 1981, judgments were entereR_~­ rewarded Will's efforts to improve private practice ih Chicago, and fhirty, totaling, with interest, $7,331,700.15. the quality of life of the federal years of illustrious judicial service. A third suit challenged the fiscal 1981 judiciary, thus attracting and His concem for judicial indepen­ limitation; judgment was entered on January 28, retaining some of the most dence, which finally took the form of 1981, for $1,186,503.80. Judgments for all the ., competent men and women.

participatio~in the Atkins and W ili Will cases added up to nearly $8.5 million. In fact, Will liked to remember Winston suits and the formation of_the Federal Will actions produced the greatest increase in Churchill's adage: The best test of Judges Association, began when he judges' salaries in decades. the quality of a society is the quality went on the bench in 1961 . The two- · In the aftermath of the case, the disposition of of its justice. And Will's addendum: thirds cut in pay he would have to the attorneys' fees caused something of a ripple. The quality of justice depends upon take as a judge, compared with his Forde and Prendergast set their fees so low that the quality of the judges. pay as a lawyer in private practice, the plaintiff judges protested. "That verdict is On December 9, 1995, Hubert L. gave him pause. With a wife and worth millions," Williams told Forde. "Forde and Will lost a six-month battle with "fo ur children who wanted to ·go to Prendergast have simply been superb," wrote Will cancer. He stayed in touch with college, was he.making a mistake? to his fellow judges, "and we are deeply in their the FJAstruggle over judicial His former law partners thought so. debt." There was negotiation. Forde finally, compensation until the end.

10 11 3. NINTH CIRCUIT COMMITTEE ON JUDICIAL SALARIES There is, however, a limit at which e forbearance ceases to be a virtue. AND BENEFITS - EDMUND BURKE, 1769

udicial despair," District Judge Irving Hill called it. By 1978 he believed that the morale of federal judges was at an all-time Jlow. Beyond the financial problems, judges were facing increasing public and congressional hostility, largely because various Supreme Court and lower court decisions had alienated different segments of the population. Hill cites "the cases on school desegregation, expansion of the rights of criminal defendants, one-man, one-vote, and separation of church and state." Moreover, judges felt that the Judicial Survivors Annuity System was entirely inadequate, and this was a cause of great dissatisfaction. "You can live on a judge's salary, but you can't afford to die on one,'' said Judge William H. Mulligan of the Second Circuit Court of Appeals when he resigned from the bench, referring to the plight of Terry West, the widow of Judge R. Blake West of New Orleans. When Judge West died at the age of forty-seven after six years on the bench, Mrs. West found the monthly $550 she was receiving from the Judicial Survivors' Fund to be altogether insufficient for herself and her four children. "I went to work as a saleswoman in a local store," she wrote in a letter in 1982. "The children "' worked both part and full time, we used the entire proceeds from Blake's life insurance, and after two years sold the family home. I hope the judicial survivors' plight will be remedied so that no able attorneys, which the federal bench needs so much 12 13 now, would ever be deterred from accepting one Circuit committee to study the problems of salaries of the nation's most honored positions." and benefits, emphasizing that an improvement Added to that problem was the perception by the in benefits might have the better prospects of the judges that they were voiceless, even powerless, in two and should therefore be undertaken first. their own defense. It was time, thought Hill, to Within a month, Browning had put the take action. Having been a plaintiff in the rejected suggestion before the Ninth Circuit Judicial Atkins case, he decided to try something other Council, obtained its approval, and appointed a than litigation. committee: Hill, Wallace, and Judge Samuel First he wrote to the Administrative Office of Conti. The Ninth Circuit Committee on Salaries the United States Courts (AO), which was charged and Benefits, as it was called, devised a list of with various administrative duties pertaining to benefits to be sought and set up goals for itself: to the judiciary. The AO was created in 1939 to act find which committee of the Judicial Conference as secretariat for the Judicial Conference of the of the United States-if there were such a United States, a policy-making body of the federal committee-handled such matters, so as to bring judiciary. Its duties included performing fiscal about a national effort or create a national forum; and business services; gathering statistics and to ask the AO for a list of congressional benefits, preparing reports on administration of the courts; with the idea that members of Congress might and acting as liaison between the judicial system like to add to their own benefits; to ask the AO for and Congress, individual judges, professional staff help for the committee; and to initiate organizations, and other government agencies. It discussion with Chief Justice Warren Burger. advised on legislative strategies, received proposals Hill quickly determined that no Judicial directed to the Judicial Conference, and offered Conference committee was considering salary or testimony to congressional hearings. benefits for the judiciary. The AO, on request, Thus it was to the director of the designated a young staff lawyer, Stafford Ritchie, Administrative Office, William Foley, that Hill as support and liaison for the Ninth Circuit directed his letter in April 1978 proposing committee. He provided invaluable help. But the consideration of group insurance coverage for AO declined to fund a consultant on self­ annuities for spouses as well as group dental insurance, as the Ninth Circuit committee had insurance. A few days later he wrote again, requested. suggesting a voluntary deferred taxation plan like In 1979 the AO also disseminated the summary the IRA and Keogh plans available to the private of compensation and benefits for federal judges sector. When these efforts produced no apparent Ritchie had prepared at the request of the Ninth enthusiasm-the AO replied that new legislation Circuit committee and submitted to Hill for would be required and suggested that Hill consider suggestions and expansions. This brought the obtaining insurance from a private organization­ paucity of benefits to the startled notice of those Hill realized no immediate help would be judges who had been too busy to pay attention. forthcoming from the Judicial Conference. The contrast between the benefits shown on the "Why not organize ourselves?" was his reaction. books and the program proposed by the His next step was to call on the chief judge of committee focused the interest of many judges on his own circuit, James Browning. He dispatched a the need for a national organization. letter in June. Unbeknownst to Hill, Ninth Circuit The three Ninth Circuit judges agreed that a Judge Clifford Wallace had written to Browning at major effort should be put forth to ask for help about the same time on the same subjei=t. Both from the Judicial Conference of the United States. proposed that Browning appoif1t a new Ninth Initially they tried for a subcommittee, but the 14 15 request was turned down because a subcommittee did not fit within the existing committee system. 4. They realized that the goal would have to be the creation of a new JCUS committee, which would Two OBJECTIVES work solely for improved salaries and benefits. In this they expected to encounter few problems. They were mistaken. Eventually we came to the conclusion that we needed to have an e organization at the national level within the fudicial Conference structure, and an organization outside of the fudicial Conference structure eanwhile, the Ninth Circuit Committee that would make an effort to collect on Salaries and Benefits, at its second the political power necessmy to M meeting in November 1978, formulated accomplish our objectives. a second goal: a national judges' association. - THE H ONORABLE ]AMES R. BROWNING Irving Hill, Clifford Wallace, and Samuel Conti had already discussed the implications of having two groups-the Judicial Conference of the United States committee and a national judges' association-devoted to the same objectives. The two groups, they decided, would have the same goal but different functions. The JCUS committee would collect information, study proposals, and formulate legislation. The judges' association would then relay the message to individual members of Congress. "We must organize ourselves," Hill told a meeting of federal judges at the Palm Springs seminar, provoking a lively discussion and eliciting much support. Further backing for both

the committee's goals came at another s~minar, this one held at Key Biscayne early in 1979. Hill and Ninth Circuit Judge Eugene Wright of Washington talked about the work of the Ninth Circuit committee, specifically about the proposed JCUS committee and the possibility of a judges' association. Most of the judges at the meeting indicated their approval of both. Out of that meeting came additional encouragement: Chief Judge Clement Haynsworth of the Fourth Circuit rallied aid from other circuit chief judges: Judge Damon Keith of the Sixth

16 17 [ Circuit committed himself to the idea of a judges' substitute for both the committee and the r lJ.S. Judges Want Lobby; Burger expressed similar sentiments in a . association, and District Judge Harry Wellford, association. The judges found this idea Against Proposal . letter last week to all federal judges. president of the Sixth Circuit District Judges unsatisfactory. Though "well-intentioned," he said, · WASHINGTON-A group of federal Association, brought along that body in support . Before he could overcome his reservations and a Federal· Judges Association wo~ld judges wants the judiciary to set up Other judges went home from the meeting and agree with the judges, Burger had a long tradition "in the long, rura . '. . obstruct, rathe·f its own private lobby tci work for spread the word among their colleagues. District to consider. Historically, it had always been the than advance" judges' interests. higher salaries and fringe benefits­ judges' associations in the Fourth, Fifth, and Sixth Chief Justice who had spoken for the judiciary. But Judge Williams said last week that tt;Je group was movir:ig ahead and is proceeding with the plan - circuits passed resolutions aligning themselves ln the 1920s, under Chief Justice William Howard despite the "strong disapproval" .of with its plan. "A whole- bunch of with the Ninth Circuit proposals, especially with Taft, the Judicial Conference took on something , Chief. Justice Warren E. Burger.. checks'' had already arrived from the idea of forming a national judges' association of the role of an instrument of legislative The judges are frustrated by the enthusiastic judges, he said .. and taxing themselves for a legislative clearance. Taft regarded lobbying-making seeming inability of their. officially "We feel we shoufd be involved sanctioned organization, the Judicial representative. "recommendations for the betterment of the because we have wiwes and children i Confer.ence of the United States, to On the other front, progress toward formation general system of the federal judiciary"-as a who are going to. suffer" if benefits convince Congress of judges' plights. of a new JCUS committee was so slow as to be power of the judiciary provided for by the aren't imp.roved, judge Williams And they are proposing, a more nearly undetectable. Hill, Wallace, and Conti "separation of powers" doctrine. Early Judicial said. He emphasized, however, that . his group was attempting to hardsell group, to be called the decided that formation of a judges' association Conferences had contacted Congress to request 1 buttress the role of the judicial Federal j.udges Association, which should await the appointment of the new JCUS new salary appropriations , among other things. would be modeled on a successful committee by the Chief Justice, so that the JCUS Conference, not usurp it. "We're Thus, historical precedent had long provided that group ot California state judges. would be fully informed at all stages about the not at cross purposes with, anyone," the Chief Justice and the Judicial Conference Judge Williams said. "We think the U.S. District Judges Spencer association's activities. By the summer of 1979, would represent the judges as a group . chief justice is doing a terrific job." Williams and Samuel Conti of with no word from the JCUS-Chief Justice Other judges organizir:ig the California launched the idea in a Warren Burger was still saying informally that he And, in truth, Burger himself had publicly group are Fred ]. Cassibry ar:id jack May 29 letter to all federal judges. did not want a "union" that would discredit the called for higher pay and benefits for judges. In N. Gordon of Louisiana; Thomas C. The [sic] request that interested Circuit his 1976 annual report, he had written, "The judiciary-the three Ninth committee Platt Jr., of N,ew·York; Laughlin E. judges contribute $200 and list gross inequity toward salaries of federal judges, judges had mapped a strategy to dramatize the Waters and Irving Hill of California; those congressmen they would merits of both bodies to the Chief. in common with 12,000 other high-level federal and William]. Campbell and Hubert "feel comfortable in contacting" Burger promised to attend the Ninth Circuit officials, continues .... At the same time, retired L. Will of Illinois. about judicial benefits and "other conference in Sun Valley in July, and he agreed to federal judges have received only a 5 percent judicial matters." Though the group has been on an informal meeting with the wives of the judges increase since 1969, in common with active judges. the drawing bo.ard for several years, Informed of the plan.ilil a June 5 just before a meeting of the judges themselves . At its official launching was· postponed letter from Judge Williams, Chief By contrast, all other retired federal employees meeting , Voula Waters, wife of Judge Laughlin until after the Supreme Court's Justice Burger expressed his "strong the have received a 69 percent increase in their (Lock) Waters California, a December decision in a pay case disapproval." TMichigan)-to form an organizing committee, but difficulties kept appearing, and obstacles waylaid them. For example, before forming a judges' organization, the committee wanted the Chief Justice's approval and the formation of the JCUS committee; but the first was not forthcoming and the second was a long time in the making. When the new JCUS committee at last came into being in November 1979, the organizers decided they also needed its blessing. That never happened­ Chairman Kaufman remained adamantly opposed. And finally, concerned that news of a judges' lobby being organized might influence the Court in the Will case, the organizers decided to wait for that decision. Meanwhile, in April 1980, Sam Conti circulated at his own expense a questionnaire to all Article III judges, asking if they were prepared to pay organization dues of $150 annually. Three hundred judges said they were, and some even sent money. In December 1980-the month the Will decision came down-the Sixth Circuit proposed a Federal Judges Alliance. Although this never went

,_ 23 22 '- association? Williams readily agreed. far, it served to add further pressure and indicate in court administration, activities support. Williams rolled up his sleeves and promptly that includ~dbe ing chairman of The stage was now set for all these activities to secured the cooperation of Dan Huyett of Governor Jimmy Carter's come together, and the curtain rose on the actual Pennsylvania, Patrick Kelly of Wichita, Diana Commission on Judicial Processes; formation of the Federal Judges Association. Murphy of Minnesota, and Waters, among others, truste~of the Institute for Court At Spencer Williams's suggestion, a meeting of to serve on the organizing committee. To generate Management; director of the the Will plaintiffs was held on January 22, 1981, further support, Williams wrote letters, talked to National Center for.State Courts; in conjunction with a Ninth Circuit Judicial members of the bar, accepted Hill's suggestion chairman of the American Bar Workshop. Its purpose was to discuss attorneys' that they meet with the officers of the California Association Commission orH fees to be recommended for the Will case and to Judges Association to learn from their successful National Institute of Justice; and determine what steps should be taken to forestall operation, and pinpointed an antitrust seminar in president of the American any future recurrences of the problem of August 1981 for federal judges at the University of Judicature Society. Michigan School of Law as the place for rallying judicial salaries. Several judges who were not Will Hall was thus well prepared to support. plaintiffs, including Jim Browning, were also rationali.ze and streamline the work invited to attend. The Chief Justice, still strongly opposed to the of the ·FJA,setting up committees The need for a national judges' organization formation of a judges' association, set out to and establishing the network loomed overwhelmingly. After the Will decision, squelch the proposed "rallying" effort. Mark system that was to be so effective in Congress seemed even more recalcitrant although, Cannon, Warren Burger's administrative assistant, Robert H. Hall, Second getting information to Congress. He ironically, the senators and representatives indicated to Williams that the entire seminar President of the Federal judges received awards for his significant eventually received an increase in their own might be canceled if he persisted with his efforts, Association, 1987-1989 contributions as lawyer, professor, salaries as an indirect result of the judges' and Judge Milton Pollack of New York, chairman judge, .author, and supreme court litigation. The Chief Justice was not making of the seminar, was advised of the Chief Justice's Robert H. Hall, United States District justice, and as a national leader in progress, either. As Hu Will wrote, "No chief displeasure. In addition, some judges were told Judge, Northern District of Georgia, court modernization efforts. justice in our history has been more zealous in that Burger might withhold reimbursement for · took over as second president of His achievements for the Federal this regard [communication with Congress] than their travel expenses if they attended a judges' the Federal Judges Association in Judges Association capped the Chief Justice Burger. But it is beyond the capacity association organization meeting. (As it turned 1987 and served until 1989. As one notable accomplishments of his of one person or even a handful of judges or AO out, however, he did not do so.) of the founding directors of the career. On his death in 1995, the staff to communicate effectively with over five Williams and his committee nevertheless associatio.n, he had worked hard for FJA passed a resolution honoring his hundred Senators and Representatives." pressed on with their plans, believing that an its establishment, then its viability. outstanding contribution to the Judges were still pointing out that "if we are after-hours meeting would be constitutionally There was still much to be done. federal judiciary. not able to recruit and retain the best qualified protected and could not be considered by Hall was born in Georgia and men and women, the quality of the federal bench Congress as a prohibited use of tax funds for grew up there, obtaining a B.S. will suffer." But Congress wasn't listening. political purposes, which reportedly was one of degree from the University of "I see no recourse," wrote Lock Waters, "other the Chief Justice's concerns. "We were told we Georgia and an LLB. from the than to form an organization, hire our own could not use the law school facilities for our University of Virginia. He had spent lobbyist, as thousands of other reputable entities after-hours meeting," Williams recalls, "but Judge his working life in his home state do-both public and private-and develop a Charles Joiner, a member of the school faculty, with the exception of military rational program." arranged for a large lecture hall for our use. We service during the Second World Apparently, it was up to the Will litigants to were also told we could not pass out notices of War-m oving from positions in the our proposed meeting during seminar hours; so Georgia Attorney General's Office to launch the enterprise. During the meeting in San Diego, the suggestion of forming an independent Sam Conti and I had notices printed and passed the Court of Appeals of Georgia in them out during the luncheon break, off the Jaw 1961, then to the Georgia Supreme association of federal judges to monitor judicial salaries came up. When general agreement of the school property. We really fel t like full-fledged · Court in 1974, before being union organizers!" appointed to the federal bench in concept seemed apparent, Hill suggested that, since Williams had with others spearheaded the At the after-hours meeting, which was attended 1979. But his activities gave him a by eighty-four judges, Williams discussed the nationwide outlook and experience successful salary litigation, why should he not chair a committee to study the feasibility of an concepts behind the proposed Federal Judges 24 25 Association, while Joiner brought those of the as competition, Williams drew on his naval Sixth Circuit's Alliance. The Alliance had included experience in the Second World War. In the war lawyers; the Federal Judges Association would not . in the Pacific, the navy had two fleets-the Third (The Alliance subsequently voted its full support and the Fifth. The Third, under Admiral William for the FJA.) A long discussion-punctuated by F. "Bull" Halsey, was the high-speed carrier task Hill's statement that "I don 't want you to think force that made lightning strikes against the that Judge Williams is some kind of radical; he enemy. The Fifth Fleet, under Admiral Raymond served on Ronald Reagan's cabinet when he was A. Spruance, acted as support arm for the governor of California!"-resulted in an bombardment and seizure of Japanese-held islands overwhelming vote to proceed. as American forces leapfrogged across the Pacific. Williams remembers that several people later The two fleets were made up of the same ships gathered in his recreational vehicle, having fortified manned by the same personnel; only the missions themselves with takeout food from Denny's. "Sam and the commanders were different. Conti and Betty Fletcher were there," he recalls, Similarly, the Federal Judges Association and "and Diana Murphy and Jack Gordon and some the Federal Trial Judges were two separate bodies others. We sat and talked about how we were that had basically the same membership but going to approach the thing ." would carry out different functions by "putting "We were regarded as something like on different hats." The FJA would act as the high­ revolutionary heroes," admits Diana Murphy , "to speed task force concentrating narrowly on be admired but not to be emulated." compensation and benefits, unhindered by having Williams and Joiner subsequently met with to seek approval of any third party. The Burger in his chambers at the Supreme Court in Conference of Federal Trial Judges, on the other Washington, D.C., and, while the Chief politely hand , would work on a broad spectrum of judicial heard them out, he did not relent in his concerns in concert with the ABA. opposition to the formation of a judges' The board of the Federal Trial Judges, association. Williams took advantage of the trip to encouraged by this similarity as well as by the meet with William (Bill) Weller, head of the enthusiastic backing of judges Robert Hall of Administrative Office's Legislative Affairs Office. Georgia, Shane Devine of New Hampshire, and When he told Weller his committee would Jim Noland of Indiana, unanimously endorsed the abandon the effort if it proved impossible to sign formation of the proposed Federal Judges up 190 judges, Weller said that, while he did not Association. Another mark in the win column . disagree with the Chief's policy decision, the Since enough judges had now indicated presence of an association of federal judges their willingness to join, sixteen of them-the independent of "the establishment" could be organizing committee and some volunteers- helpful to the success of the judiciary's legislative met at Chicago's O'Hare Hilton in May 1982 and program. "I was greatly encouraged by these adopted Articles of Incorporation, drafted by comments," explains Williams, "and resolved to Kevin Forde and Rich Prendergast, which had hang in there until we reached our goal." In fact, been filed in Illinois by Williams, Hu Will, and the goal was reached just a few months later, the two lawyers. The official date of the formation when over two hundred judges had joined . \ of the association is May 15, 1982. The sixteen The final event that convinced the committee attending judges became directors; Williams was to proceed was Williams's meeting on January 22, elected president, and Solomon Blatt, Jr., Thomas 1982, with the Board of Directors of the American C. Platt, and Betty B. Fletcher became vice­ Bar Association's Conference of Federal Trial president, secretary, and treasurer respectively. Judges, which was held in Chicago in conjunction The other directors were judges Henry Bramwell, with the midwinter meeting of the ABA. Fred]. Cassibry, Walter J. Cummings, Ralph B. Apprehensive that the group might regard the FJA Guy, Jr., Charles S. Haight, Jr., Robert H. Hall, 26 27 Daniel H. Huyett, Charles W. Joiner, Diana , Grass-Roots Judges Incorporate Murphy, John F. Nangle, Laughlin Waters, and . Their Group 6. Hubert Will. A "grass-roots" group of jud9es The directors hailed from all across the United A DECADE OF formed last year has .incorporated as States-from Michigan to Louisiana and from the Federal ].udges ASsociation. New York to California. They also spread all along the political continuum from liberal to ACHIEVEMENT: Originally begun so that judges conservative. "It reminded me of the American could discuss ·issues that concern As I move about among my brothers Revolution," muses Forde. "Many of them had them and then reacb out personally 1982-1992 and sisters across this broad land, I few viewpoints in common, but they had a cause.'' to congres?men about tbose issues, 0 am constantly impressed with the the association now intends to The FJA Constitution stated specifically that quality of mind and character that before any position contrary to that of the Judicial "worR in coordination and the political process has brought to Conference would be taken by the FJA, every cooperation" with the Chief Justice the federal bench. effort would be made to reconcile the two. This, it of the United States, fhe Judicial. was hoped, would persuade the still-reluctant he purpose of the Federal Judges -T HE H ONORABLE BETIY B. FLETCHER Conference, the American Bar Association, as stated in its Constitution, is Association, and other legal Chief Justice to offer some approval of the new organization, or at least to maintain a benign T"to seek the highest quality of justice for organizations, says its new neutrality. While some thawing of his position the people of the United States." It would do this president, Judge SpencerWilliams in two major ways: by preserving the ability of the of the Northern District of was noticed, and Justice Lewis F. Powell wrote a gratified Judge Williams that the Chief Justice did federal judiciary to attract and retain the best Californ ia. not speak for a unanimous court, the Chief did qualified people for the judicial service, and by "The Judicial Conference is the not express final tacit approval until he himself preserving the independence of the judiciary from official voice" for federal judges, attended the FJA's Congressional reception on intrusion, intimidation, coercion, or domination Williams said. ''But we feel we can Capitol Hill on May 17, 1984. from any source. be very helpful." Initially, the overriding need was that of adequate Officers elected in addition to compensation. But salary was only one problem: Williams are judges Solomon Blatt, survivors' benefits, fair travel reimbursements, Jr. of the District of South Carolina, health coverage, and sabbatical leaves were also . vice president; Thomas Platt, Jr. of crucial. the Eastern District of New York, Lock Waters explored the possibilities and secretary; and Betty Fletcher of the costs of hiring a legislative representative in Court of Appeals for the Ninth Washington, and, after the board had considered ·Circuit, treasurer. several possibilities, Hu Will suggested the name - Martha Middleton, of Herbert Hoffman of Virginia. Having just American Bar Association journal, retired as director of the Washington Office of American Bar Association, Hoffm September 1982 the an had outstanding qualifications and many contacts within the Beltway. Mindful of his charge to maintain a low-key approach, Hoffman took on the job for a year, then retired. Former Congressman Charles Wiggins, then practicing law in Washington D.C., agreed to come on board as Hoffman's replacement. Wiggins proved an effective representative, but was appointed to the bench in 1983. He recommended as his replacement Thomas Railsback, a former Illinois congressman who had 28 29 been the leading Republican on the House a bankruptcy court structure issue, "but also that She has also been actively involved Judiciary Committee. Railsback was been a source of the Chief Justice. Your association's responsible in the American Bar Association's of significant successes for the FJA for many years and tactful efforts to help Members of Congress work on ethics. along with his assistant, Michael Herman. The better understand this issue certainly were First as treasurer, and as a Constitution of the Federal Judges Association effective; indeed they may well have been the member of the Executive decreed that the Executive Committee, consisting most important factor." Committee of the Federal Judges of the officers and certain elected directors, would Since talking to people in Congress continued Association beginning with its transact most of the association's business. As to be a fundamental method of finding solutions, founding, Fletcher's loyal support the procedures have evolved, this has usually been the FJA Committee on Network was established in has been decisive, and her accomplished by way of telephone conferences. 1987 by the FJA's president, Robert Hall, and accomplishments as pr.esidelilt The board of directors, now made up of chaired by Diana Murphy . At least one judge in continued the success of the representatives from each circuit, meets every two each state was on the Network Committee. The association in obtaining justice for years to establish policy. And every four years, the association assembled a card file listing the t he judiciary. association sponsors a meeting of all Article III members of essential committees of Congress and judges, both members and nonmembers. which federal judges knew them and could talk to An important aspect of the FJA's success had to them. "We had more match-ups than we be growth of its membership-getting nationwide imagined!" wrote Judge Owen Panner of Oregon. support was critical. Among the many who The information thus acquired was held by the Betty B'. Fletcher, Fourth ""' actively sought new members, the efforts of Network judges, who passed the word when President of the FJA,. 1.9.91-1993 Walter Cummings, chief judge of the Seventh Congress was contemplating some action in Circuit, stand out. Showing both leadership and which it might be of help for judges to talk to the Testifying b~fore'tfueKastenmeie r _-; courage in the face of the opposition of the Chief member concerned. "We don't have the money to Commission:·c;n judicial-Discipline . Justice and others, Cummings repeatedly and finance or contribute to campaigns," explains ·and Remova l; Betty· Fletcher.,.United :, publicly urged the judges in his circuit to join the Williams. "We don't have the numbers to be an States circuit judge of t~eNfntn association. At annual judicial conferences he important vote. All we can do is give information Circuit and third pr.esideiit of fhe would frequently stand up and say, "You ought to to a member that may persuade them on a vote. Federal Judges Association, decfored join the FJA!" And it's been working very successfully." th~tthe inderenae i7ice of,, tfle jydjcial Also making a strong bid, Bill Campbell sent a branch is_? .furidamental. coricept The Network developed the means to reach ins.ured oy the United States . letter in 1981 urging membership in the FJA to all every senator and member of the House. "It's -Constitution. It was a co.ncept that judges of the U.S. Court of Appeals, Court of been one of our most valuable resources," was basic to tl:ie fom1ation of the Claims, Court of Customs and Patent Appeals, declared Murphy, who was president of the FJA U.S. District Courts, and U.S. Court of from 1989 to 1991, "the aspect of our work which association in 1982; it has be~Aa, · International Trade. Hu Will circulated another guidin5') pfincipi'e ever since;, ancf involves the largest number of members." F.letcher devoted time and effort to ;, persuasive letter to all Article III judges. By 1983, Wallace considers the Network to have been more than three hundred judges had signed up. the association's most effective tool. "Williams see that the message wa~being heard: · On another front, the opposition was being told me that the FJA was the mailbox," he recalls. brought around, as strong efforts to communicate "He had the people who could get the Fletcher graduated tror:n 'st~nford with Chief Justice Warren Burger continued to be information to the legislators and educate them ~n,iversityanc( obtained · a 1:11.Jrorn the University of Washington. She made, efforts that had begun with James Browning on the issues. If the legislator knows the judge was appointed to the Ni.nth Circuit and Clifford Wallace and were continued by and has confidence in him or her, there is more Spencer Williams, Charles Joiner, and others. By likelihood of having a listening ear." in 1979 after twenty-thre~y~arsof private practice in Seattle. She has 1984 the Chief was sending-through Bill Weller­ By the end of its first decade since its founding, served as president of the Seattle- expressions of appreciation for the support of the the Federal Judges Association had made Federal Judges Association. "I express not only considerable gains, mainly thanks to the work of King County Bar Association~and in 1990 was selected as the Bar my gratitude and appreciation," Weller wrote its officers and the spreading of information by its Association's Outstanding Judge. after the FJA had supported and contributed members. Improvements in survivors' benefits, mightily to the Judicial Conference's position on health insurance, travel allowances, tax-deferred 30 31 plans, and increased deductions all on the FJA's the attempts to form the FJA, the aid of Bill Expert Witnesses constitution and the rights of program were among the steps taken on behalf of Weller in the Administrative Office proved individuals from the effects of those federal judges. In 1984 a salary increase was given invaluable, providing both encouragement and "Chief.Justice William Rehnquis.t has ill humors designed by inen. Now to all Article III judges (Section 2207 of Public Law mailing lists. The encouragement helped keep the been very supportive of· judges . our independent judic;ia'iy is the 98-369), and in 1989 the ethics pay legislation organizers on the track, while the lists kept judges generally and of our association;" ' subject of ill' humor.'" . .; finally or so it was thought at the time secured around the country informed and optimistic. oqserves former president _Ea,r'I. More specifically, the Judicial ' w: fair compensation for them. After the association 's formation, President Britt. "He has spoken out ~bout Conference endorsed When Frank Coffin took over as head of the Spencer Williams continued to use the lists to salaries and has appeared at our recommendations for a catch-up JCUS committee in 1983, "The first thing he did," send out periodic reports. Although he stepped Washington confer.ences." The FJA's pay adjustment of 9.6 percent and recalls Williams, "was to give me a call and ask down in 1984, Williams remains a member of the Quadrennial Conferences brou-ght de-linkage from Congress. Senate me to sit on the committee, ex officio." Since board of directors and in September 1990 accepted Judiciary Committee Chair Orrin G. the chief jus~iceto tbe White ~ouse then, the president of the FJA has sat on the the job of editing a new FJA newsletter called receptions, and his opinion · Hatch supported the pay raise and committee, maintaining a close relationship and Jn Camera. In 1990, Betty Fletcher had called for heartened everyone. de-linkage. House Judiciary good communication. "a professional quality newsletter going to our ·The officers. of"the FJA Committee Chair Henry Hyde also As it turned out, Chief Justice William membership on a regular basis." Williams took up understood from the beginning' supported the pay raise and de­ Rehnquist, who succeeded Chief Justice Burger, the challenge, creating a communication that linkage. Each introduced legislation the necessity otforging · close ti~s began to work closely with the FJA, understanding keeps the membership informed and in touch, to underscore words with actions. · with the fud!cial Branch C9mmit!ee that the association, acting independently of the which he describes as a "quarterly that comes out of the Judicial Conference, the On the other hand, Senator Howell Judicial Conference and the Chief Justice, can take three to four times a year." He keeps it short and T. Heflin underscored his Administrative Office, and other more risks than can the officials of the third light-even preparing a humor column-but public organizations. "We worked supporting legislative actions with branch of government. every issue addresses the concerns of the judiciary. words: "They make a lifetime closely with the associations of_the Still, by the end of its first decade, the The issue for June 1992, for example, contains the commitment to public service as magistrate judges, former high­ association had not cleared all the hurdles. An testimony President Betty Fletcher gave to the federal judges. They should be able ranking officials in the Exec.utive article in the Los Angeles Times (November 3 and Kastenmeier Commission on Judicial Discipline to plan their financial futures based Branch, Common -Cause,- Aational 4, 1983) raised issues about the appropriateness of and Removal in Washington, D.C. Such testimony on the reasonable expectation that and state bar associations," reports judges communicating with members of Congress itself is evidence of the prominence Congress now their compensation will at least Di~naMurphy , third. FJA'president. and forming a grass-roots organization to increase gives to the judges' viewpoint-a prominence keep even with annual cost-of-living "We made ourselves availabfe to the their influence. This prompted two senators to greatly augmented by the FJA. Ever since its increas·es." media and helpe~generate. eC:litorials. request a determination from the comptroller formation, the FJA has responded to requests from Who could not agree with that? I even appeared on the Today ·show general as to whether the judiciary were Congress to testify on important bills of interest . and participated in national cabl~. improperly using federal funds for its purposes. In to the judiciary, thereby offering a perspective television discussions." its reply, the Office of the Comptroller General backed by hundreds of judges. Such testimony has Some influeritial voices heard' the quoted an opinion from the attorney general in elevated the perception of their concerns and an message and spoke up in their turn. 1978 concluding that the relevant anti-lobbying understanding of their situation. " In 199-7, for example, American Bar. act barred the "use of official funds to underwrite A notable triumph of the association has been Association President Lee Cooper re­ agency public relations campaigns urging the its national conferences, at which federal judges visited the independence-of-judges public to pressure Congress in support of agency gather from around the country. The first took issue in a speech that also appeared views." The right of officers and employees to place in Washington, D.C., in 1986, and was on the Internet. "Alexander -·· petition Congress in their individual capacities attended by 181 judges, many of whom brought Hamilton," he said; "knew the . was preserved. The comptroller general noted that their spouses. It was the first ever national importance of an independent the FJA did not attempt to organize public gathering of federal judges and proved to be an judiciary. He noted that the courts campaigns to influence legislation and had no inspiring milestone. "Perhaps the most thrilling are the bulwarks of a limited access to federal funds. In summary, the aspect of the conference," wrote Daniel Huyett, constitution against legislative comptroller general found no evidence that the general chairman for the event, "was the encroachment, and that federal judges had been violating applicable anti­ enthusiastic spirit among those who attended, independence of the judges is lobbying appropriation restrictions. and this was most evident at the reception given equally requisite to guard the Throughout the early years of the litigation and for the United States Supreme Court."

32 33 The highlight of the second conference, in Network: How It Works 1989, came at the White House reception. 7. "Never before in the history of our country has a An idea for action, the means to reception been held at the White House for ~ccomplish·it, the benefit resu.lting : NEXT ON THE Article III judges," asserts Huyett. It was "a that is what the Federal Judges gorgeous spring day and most of the doors and Association. is about. Take fhe windows of the first floor were open." The Air AGENDA: ISSUES, Federal Thrift Savings Plan, for Force Band provided music, and wine and hors example. WheA in .1987 judges The judicial power ought to be d'oeuvres were served. Their evident success were declared ineligible for IRAs, DELIBERATIONS, - distinct from both the legislative and vindicated the stand first taken years before by ~thethr ift: plan appeared to be an executive, and independent upon men and women who had found the courage to ' alternative way for them to SOLUTIONS both, so tlwt it may be a check upon assert the rights of judges against what seemed at accumulate retirement funds. But both, as both should be checks upon times like overwhelming forces for inertia. Now judges, observed the FJA president, achievement had replaced inertia, and the next that. ~obertii ..Hall , were excluded from few years would further underscore the headway - THOMAS JEFFERSON, 1776 the plar:i. ny threat to the independence of the made by the Federal Judges Association. Hall' discussed with Tom judiciary commands our attention," wrote Railsback, the FJA coordinator, how APresident Betty B. Fletcher in her last judges could be included, and they newsletter column before turning the gavel over decided to get a rider attached to a to John M. Walker. And judicial independence plan amendment·in Congress: Bill could not be left entirely to others. "We must Burd:1ill, general counsel of the speak for ourselves"- that was the concept that Administrative Office, drafted the sparked the formation of the Federal Judges rider. Senator 'Jim Sasser agreed to Association and fueled its continuing efforts. sponsor it, and, contacted through Accordingly, they had spoken, and they the FJA network, judges persuaded celebrated some triumphs. A medium leap in other senators to pledge support. salary had come with the understanding that The .rider was attached to H.R. 5102 COLAs would keep up with inflation over the (Federal Employees Health Benefit years. The 1993 passage of amendments to the Act of 1988),. which passed both Judicial Survivors Annuities System GSAS) houses. Sixty days after the addressed the need to offer survivors' annuities president signed_the legislation, that judges could afford to purchase. Fletcher and federal judges came into the Plan. the other FJA officers had spent most of the year Working with its Washingtom assisting in its passage. Article III judges breathed ' coordinator, the Administrative a collective sigh of relief. Office, and with Congress through Besides heading off adverse legislation in the its Network of judges, the FJA bankruptcy field, the FJA helped obtain more achieved one smalf step for the, reasonable business travel allowances for judges judiciary small, but significant. on assignment. The smooth operation of the Washington representatives facilitated progress, as did the keen cooperation with the Administrative Office, the Judicial Conference Committee, and key members of Congress. These connections provided crucial support in the passage of the JSAS bill and would continue to build on their present strength. Furthermore, membership had grown to more

34 35 than 70 percent of the country's Article III judges, mandatory minimum sentences, restoring to on In 1981 , Walker joined the U.S. and the quadrennial conferences flourished judges the sentencing of the nonviolent, '' Treasury Department as assistant fruitfully-the latest one had taken place in May remorseful offender with little or no criminal secretary, with responsibility for of 1993. In addition, they had rationalized history. Walker helped passage of this "safety · Treasury policy in law enforcement, finances with the annual collection of dues. valve" provision with his testimony before the regulatory and trade,-and for Yet much remained to do. For one thing, there House Judiciary Committee's Subcommittee on management of the Customs was the problem of Section 140 of the 1981 Crime, chaired by Representative Charles J. ~Service , Secret Service, Federal Law Continuing Resolution, a routine appropriations Schumer. Enforcement Training Center, resolution. Section 140 provided that the salaries The FJA president also testified before the Bureau of Alcohol, Tobacco and of judges may not be increased without a separate Committee on Judicial Discipline and Removal, · Firearms, and the Office of Foreign act of Congress. Although the measure expired in chaired by Representative Robert Kastenmeier. Assets Control. 1982, the Comptroller General had issued Here the FJA supported the system then in place Walker was confirmed a U.S. opinions interpreting Section 140 as permanent that kept matters of judicial discipline, short of District Judge for the Southern legislation, which prevented the payment of any impeachment, exclusively within the judiciary District of New York in 1985, and in adjustments to judges, even COLAs, which had itself. 1989, was elevated to the Court of been specifically authorized by the Ethics Reform FJA officers strove valiantly to persuade · Appeals. His interest in judicial Act of 1989. FJA was determined to eliminate any Congress not to interfere with the payment of the administration is demonstrated by ambiguity by either (1) obtaining a repeal of COLAs. In 1994, they wrote letters to Senate and John M . Walker, Jr., Fifth his service as special counsel to the Section 140 or some other expression of House leadership, followed by meetings and offers President of the FJA, 1993-1995 Administrative Conference of the congressional disapproval of the Comptroller of support. The White House agreed that a raise United States, as a member of the General's opinions, or (2) obtaining a judicial was needed. A COLA for that year appeared When John M. Walker, Jr., United Budget Committee of the Judicial determination that Section 140 did not prevent promising, until a lone Congressman attacked the States circuit judge of the Second Conference of the United States, payment of COLAs. There were other challenges: COLA for members of Congress. When, therefore, Circuit, was elected fourth president and as a director of the Institute of the shift in sentencing discretion from courts to Congress decided it would not accept the COLA, of the FJA in 1993, his goal was to Judicial Administration of the United prosecutors, the effect of mandatory minimum it prevented payment to judges also. By 1995, involve as many members as possible States. sentences, seemed ominous. The passing of judges had suffered a loss in real pay of 25 percent in strengthening relatioi:iships During his tenure as FJA jurisdiction from state to federal courts continued, since 1969. De-linkage of judges' pay from that of between judges and members of president, Walker worked tirelessly worsening the persistent, relentless overload of Congress became a priority. Congress. This, he·believed, would for the association's major goals, work burdening the federal courtroom. Some be the key to continuing the Vice President E. Grady Jolly stepped up to the testifying beforJ:! Congressional judges felt the effects of unwarranted discipline plate for another turn at bat. He persuaded achievements of the FJA. committees on issues important to for dissenting opinions. Senator Thad Cochran to sponsor a bill that Graduating from Yale University Article Ill judges, such as procedures When John M. Walker, Jr., became president in would sever the tie of judges' pay to Congress's in 1962, Walker enlisted in the U.S. for judicial discipline and removal 1993, he faced a formidable agenda. Marine Corps Reserves, and pay, would repeal Section 140 to clarify that and mandatory minimum An immediate goal for Walker was to judges are entitled to the same automatic subsequently obtained the J.D. from sentencing. strengthen the association by drawing on the adjustments as other federal employees, and the University of Michigan Law would provide for a catch-up COLA. Senator School. He began his law career considerable talents and energies of its members. serving as a state counsel to the More committees, he thought, would involve Howell Heflin introduced this bill, S.1344, in as as Republic of Botswana u_nder an more members well enhancing the work of October 1995. An identical bill, H.R.2701, was Africa-Asia Public Service Fellowship. the FJA, and so he formed additional groups to scheduled for action in the House. Other FJA Then, following a period of private deal with present and future pressing issues. For officers drummed up support from the Judicial law practice in New York City and a example, the Long-Range Planning Committee, Conference's Executive Committee and Judicial stint as an assistant U.S. Attorney chaired by Diana Murphy, worked diligently on Branch Committee, and from the White House for the Southern District of New guidelines for the future, and their report is still Counsel. The FJA Network spread the word for York, he became a litigating partner guiding the FJA. judges to contact all members of Congress on this in the firm of Carter, Ledyard & Walker spent time on Capitol Hill-testifying issue. Milburn. before Congress would be one of his major Nothing, despite heroic efforts, came of it all. strategies. The 1994 crime bill offered some relief At the May 1995 annua l meeting, Walker 36 37 passed the gavel to W. Earl Britt. When Walker stepped down from the presidency, he was named 8. to coordinate Congressional relations for the association. "The FJA will continue to address the ADMINISTRATIVE pay problem with every fiber of its being," he vowed. "We plan to visit every key leader and ranking minority member of the new Congress, MATTERS the White House, the Justice Department and Clearly, this disparity between the anyone else who will listen. We will continue to salaries of the judicial and legal press for every COLA as well as catch-up pay." But professions cannot continue the FJA's relentless determination came up against e indefinitely without compromising the linkage problem at every turn: Congress the morale of the federal judiciary members feared adverse reaction to a pay raise for and eventually its quality. themselves, even if it were only a COLA, and Congress was determined to link judges' COLAs to ewly elected President Britt took over the - CHIEF )USTICE WILLIAM REHNQUIST, their own. agenda with its continuing challenges. 1996 N Should they litigate-again? He called a special meeting of the Board of Directors in October 1995 to consider the question, after Congress once more prevented payment of the COLAs. Following a spirited debate, the board decided to devote all its efforts to supporting passage of S.1344, the Heflin-Cochran bill that was still hanging fire in the Senate. On another front, Judge Barefoot Sanders, Chairman of the Judicial Conference Committee on the Judicial Branch, wrote the Comptroller General in 1995 requesting that he reconsider his opinion that Section 140 prevented payment of COLAs. But the Comptroller adhered to his original position, even thought he acknowledged that interpretation produced the unintended consequence of denying federal judges annual COLAs provided for by the Ethics Reform Act of 1989. Relief denied. Relationships with Congress remained crucial. "Judges get a cordial reception from members of Congress, both individually and when testifying before committees," declares Britt. "However, when voting time comes we don't fare well, especially on the compensation issue." On that same issue, though, the Administrative Office and

38 39 the Judicial Branch Committee joined forces with business functions, computerizing the necessary Civil_ side. Appointed a.district judge

the FJA. "Chief Justice Rehnquist was very helpful paperwork. forthe E~sternDistricf of North and quite willing to lend his influence when it Major decisions came from the Board of Carolina in 1980; he .became chief

could be of help." Directors-thirty-five judges elected at large, plus judge i,~_reeyears lat7~.

; Britt's 'admi~.istrativeexp~riences The FJA's Washington representatives played a the seven officers and the Chairman of the include· Cnairr:nan of the State/Federal Advisory Council. Every circuit elected from one significant role in the relationships with Congress. Jodicial Council of North"Carol ina; to four directors, who may serve up to two Keeping a high profile for the concerns of the J~d_ici~IConference Cbmmittee on judges meant frequent communication with consecutive, two-year terms. Britt found the board Automati.on and Technology.; Fourth members and the officers to be hard working and Ci Ku it District Judg·e Representative members and staff. In turn, the FJA cooperative, in spite of busy schedules. to _the judicial Conference ·of the U.S_. representatives kept the judges abreast of relevant Being a director has always required strong '•" He has al'.so· been active in many bills going through the legislative process, civic organizations:. FairnBill Clinton attended a raise was again denied for 1999. sparkling reception at the White Nevas and the board made two strategic House, speaking and shaRing all decisions: first, they would consider de-linkage as available hands, in spite of being on a long-term goal; for that they would work closely crutches because ·of an injury with the associations of the magistrate judges and suffered in a fall. "And the president the bankruptcy judges. said he favored our COLAs," Second, repeal of 140 would be the immediate reported Conference Chairman Lee goal. "It is inconsistent with the Ethics Reform Sarokin enthusiastically. No one had Act of 1989," Nevas insists. "We see that repeal as minded standing in the rain in the a very important accomplishment and have been line to enter the White House. working hard to do that." And while continuing This fourth conference carried to oppose the linkage, the FJA decided on a flank forward the tradition of excellence established by the previous three, attack: they would support salary increases for the held in 1986, 1989, and 1993. president and Congress. If those salaries were ratcheted up, the judges' pay-being linked-

42 43 would be pulled along. In Camera, other , provided on the hand the That year he was named as one of Meanwhile, Nevas decided to leave the political indispensable means of communication among the Assembly's ten most scene for the moment to deal with bread-and­ the judges. Throughout the years of the FJA's outstanding members. butter issues that affect the membership, such as existence, In Camera had beamed to the general His many community services benefits. Accordingly, he appointed Judge David membership the goals and accomplishments of include membership on the ~oard the president and the board of directors. Each Ezra to chair the Benefits Committee, with the of Directors, Westport United Fund; special charge to determine whether there were issue contained a letter from the president, a Directo~,Westport National Bank, ways to improve their present circumstances. If so, report from the Washington representative, and State Elections Commission, Office should they go to Congress? Should they look for sometimes a report from counsel. It also printed and Trustee, Temple Israel, group coverage as an association? articles by experts on subjects of concern to the Westport; Board. of Trustees, Tightening administrative procedures of the judiciary. "The idea is to keep in touch," Westport Library; Board of Finance, association boosted efficiency. A big change came emphasizes Editor Spencer Williams. "In Camera Westport; Board of Trustees, about when Judge Paul A. Magnuson, FJA makes information available to judges that they Norwalk Hospital; Committee on treasurer, arranged with the Administrative Office might not get elsewhere." For example, Marilyn]. · Court Administration and Case to withhold dues on a monthly basis from the Holmes, Counsel to the Committee on Codes of Management of the U.S. judicial salaries of those judges who agreed to participate. Conduct, submitted articles on researching ethical ' Conference. The idea came from Nevas, who had observed questions and recusal. covered Other columns Beginning in 1993, Nevas served similar procedures carried out by the Magistrate questions about taxes, business expenses, and Alan H. Nevas, Seventh FJA as secretary for the Federal judges Judges Association. It made budgeting easier and estate planning. Contributions have always been President, 1997-1999 Association, then became vice assured that membership would not be lost welcomed: "We accept anything," according to president, and he chaired the through inadvertence. the editor, "and fit it in when we can." "I set as my goal the repeal of crucially important Network Maintaining the membership rolls and the While the Network Committee rallied support Section 140 and de-linkage from Committee before becoming budget was critical, but the pivotal work of the for legislation, In Camera sometimes did some congressional pay," writes Alan H. president. In 1997 he took senior association depended on participation of the rallying of its own with regard to the major Nevas of his election as FjA status as a judge. individual members, and that required weaving problems facing its readers. Columns such as president in May 1997. In spite of strong threads of communication within the "Mandatory Madness" detailed specific examples his strenuous pursuit-and his association. To this end, the Network Committee of harsh sentences required by the sentencing considerable experience in politics­ had been established, and the newsletter, In it proved to be an elusive target. guidelines-such as eighteen years for an eighteen­ Camera, circulated three to four times each year. year-old girl's first offense: driving an aunt to a Nevas was born in Norwalk, Each of these two undertakings had its special drug deal meeting. The columns served as forums Connecticut, graduated from function; together they nourished the ties among where concerned judges could comment. An Syracuse Univ_ersity, and received the widely scattered membership. occasional touch of lightheartedn ess and humor his LLBfrom New York University Back in 1987, President Robert Hall had asked added to the publication's readability, and Law School. After two years in the Diana Murphy to form the Network Committee U.S. Army, he practiced law in Associate Editor Joe Kendall, who came on board [see Chapter 6], which would have a member Westport, Connecticut as a partner in August 1997, enhanced this aspect, adding judge matched with each member of Congress. with Nevas, Nevas & Rubin from thoughtful editorials as well. The committee encouraged judges to ask their 1954 to 1981 . Then he served as Besides the Network and In Camera, a third Senators and Representatives to support legislation U.S. Attorney for the District of factor has promoted close communication. The beneficial to the judges, often on a particular bill Connecticut until 1985, when he national conferences bring the members face to under consideration. Members of Congress was appointed U.S. District judge face in a truly distinguished and historic series of generally welcomed this evidence of concern, and for the District of Connecticut. events that take place every four years in many agreed to help. In mustering this kind of As a member of the Connecticut Washington. Four meetings have been held since support, the Network Committee got results. "We General Assembly 1971 to 1977, the formation of the FJA [see Chapter 6 for the were able to call the network into action on short Nevas was Deputy House Majority early ones] . By the fourth conference in May notice," recalls Murphy, "and we also learned Leader 1973-1975 and Deputy 1997, it was becoming clear that these effectively what was happening in Washington from our House Minority Leader 1975-1977. fostered rapport not only among the membership network contacts ." but also between the association and Congress, 44 45 the White House, and other parts of the Judicial Your Honor, Will You join? at the IAJ conference. He attended seminars and Conferences always drew more and Executive Branches. The conferences were, in lectures and noted the exchange of ideas about members, since members could fact, the first opportunity in the nation's history Membership in the Federal Judges how countries do things differently. The IAJ, a 41- attend at a· reduction in cost. As for representatives of the three branches of Association doubled in the years year-old nonpolitical group, has declared its goals "Qeneral Attendance Chai'rperson" government to meet together, both formally and to be safeguarding the independence of the 1988-1 999-a remarkable for the 1993 and 1 ~97conferences, informally. [See sidebar] testimony both to the need for the judicial authority as an essential requirement to Brotman tracked registrations, sent Widening their range of judicial communi­ guarantee of rights and freedom. What associatior:i and fo its effectiveness. the human ouf mailings, and contacted weekly cations, some FJA judges began participating in could be more relevant? Should the FJA join? Stanley Brotman, who took over tl;iose not yet heard from; The meetings of international scope-assemblies of responsibility for membership in The board debated-and applied for Administrative Office helpfully judges and lawyers from around the world, 1991 , recalls that in that same year, membership. As it turned out, the FJA, as the only provided mailing labels for all seminars and discussions with small groups of U.S. national association of judges, was the only the FJAestablished a home office in Article Ill judges. !n addition" every traveling judges. With the fall of the Berlin Wall organization qualified for admission. Membership Chicago and staffers Don Kasper director contacted those they knew. ·, and the virtual end of the Cold War in the 1990s, was granted October 1997 IAJ and his wife, Reggie, put in at the annual The numbers who attended the emerging nations fermented, bubbling over with meeting in San Juan, Puerto Rico, past president membership lists and records of conferences attest to the success of hope and their new freedom. Interest in the U.S. Earl Britt in attendance as an observer. In 1998 in dues payment on the computer. these strategies-in 1997 legal scene burgeoned, breeding expectations of Porto, Portugal, the FJA delegation attended its , attendar:ice totaled 600. This made it possible to review the the possibility to extend the Rule of Law into first IAJ meeting as members. . ,. B~ing\lice pr~sid~nt an.d lists periodically and update them, systems that had been inert under Communism . then contact judges who were not Perhaps not all the information disseminated at membership chairman required· "very Sometimes they had to start at ground level. "We meetings was helpful, though. Some years after he members or were behind in dues. active participation in the FJA," he · do not decide the issue of guilt or innocence," a had lectured in the Slovak Republic, Williams saw "When a new judge was recalls, ruefully-mentioning that he Chinese judge told a visiting delegation. "In our again one of the judges who had attended that also had his_regular job as judge to appointed," explains Brotman, "I system, all defendants are guilty as charged. All meeting seeking information about how to form ·do. "SO' as we greyv, we_had to would get the name and send out a we do is impose the sentence." their own association. She was pleased and expedite and tighten up procedures."·· letter welcoming that person and The Department of State, Federal Judicial Center, thankful to be able to tell him that "now we have Toward the end of the decade, a inviting them to become a member. American Bar Association and other groups began our salary tied to the legislative body!" new system ~asput in place: the · I also sent the FJA history and a sponsoring the Rule of Law Program, where "It's a great start," replied Williams, smiling, Administrative Offic~agreed to membership form ." He sometimes members of the U.S. legal community traveled "but in the long run, tying judicial salaries to withhold dl'.les m.onthly for _those sent a second and third letter. abroad to describe and explain U.S. procedures. In those of an elected legislative body may turn out ;;.judges who signed up. This assured A refined system for cpmmunicat­ 1992 Betty Fletcher and Spencer Williams flew to to be a mistake." continuity for budg,etirig purpose~· ing with judges operated under his the Slovak Republic to conduct a seminar for local Linkage could no doubt become a problem for and also made it easy to become a management: for each circuit, there judges. That same year a group of judges visiting the Slovaks, as it has been for U.S. judges. member. was a designated liaison person the U.S. requested and got a short essay on the Prod, persuade, and persevere they would, By September 1999, when whom Brotman could contact. Within history and activities of the FJA. trying to get changes through the legislature. But .. Edmund Ludwig from the DistriC:tof · each circuit, each district had its FJA ~- judges met-then met with-members of maybe there was another way-litigation had Pennsylvaniaassumeq responsibility own liaison person who would then the International Association of Judges ~AJ],an worked before. for membership, 8·15 members of be contacted by the circuit liaison. association of judges' associations representing our nation's 1, 168 Article Ill judges Sending names to these liaison thirty-five nations. "I was impressed," recalls were members of the FJA. "We persons was a continuing process. Spencer Williams, "and invited the IAJ President welcome any ideas that will raise Brotman attributes the increase Rainier Voss of Dusseldorf, Germany, and his son our membership to 98 percent," in membership to several factors: to Washington for our board meeting. We took declar'es Spencer Williams. "We significantly, the ability of the them to the Supreme Court, and at his father's ~nowthat there are always a few association to show progress in request, took his son to the holocaust museum · loners out there who won't join areas other than pay increases­ probably so he would never forget the horror that anything, no matter how much it improvement in survivors' benefits can be committed by a government out of . helps them or the cause. But we proved to be a big success-gave control. They were interested in our system where should_get all the rest, and every Article Ill judges confidence in the that just could not happen." member is encouraged to persuade FJA. And the Quadrennial In 1994 Williams went to Athens as an observer • the nonmembers to join."

46 47 10. CIRCLING THE WAGONS "It's deja vu all over again!" 0 - YOGI BERRA

t's time to circle the wagons," said Spencer Williams. They'd done it before-taken legal I action-and successfully. Therefore .. . the complaint was drafted and ready by mid-1994. Litigation was always a last resort. In an effort to avoid it, Williams proposed in the July 1995 newsletter a contract with Congress: ten years of COLAs for all federal judges costing $432 million in exchange for judicial-deficit-and-debt-reduction policies and programs that would save $15 billion. He went on to outline cost savings that might be effected in the judicial branch-a subject that should have interested Congress in its efforts to reduce the vast national budget deficit. But the suggestion apparently fell into a black hole. The FJA had considered litigation at its special board meeting in October 1995. But several bills were introduced in Congress that would alleviate the situation, and the board agreed to wait and see. Still, at the suggestion of Counsel Kevin Forde, then-President Britt appointed a committee to coordinate possible litigation and field questions from FJA members. Some judges thought a lawsuit was liable to undermine the legislative efforts being undertaken by the FJA, the Judicial Conference Committee of the Judicial Branch, and the Administrative Office. How widespread was support for litigation among FJA members? In an attempt. to assess the situation, the November 1996 issue of In Camera included a straw ballot in the mailing to its membership of Article III judges with a request for its early return.

48 49 The straw ballots came back: 124 to sue (including At the request of the plaintiffs, the FJA took no Management Committee of the 104 to sue immediately, 20 to sue if Congress official position on this matter, since it could not judicial Conference, and was the refused to act); 32 not to sue because of adverse appear as a party, and its public support of the Seventh Circuit Representative for publicity and fear of Congressional retaliation; case draw adverse reaction from the might an the judicial Task Force of the U.S. 15 sue because of "lack merit." Congress. and not to of Sentencing Commission in 1992- "Enough is enough," proclaimed one Meanwhile, the FJA had a new president-Ann 1993. respondent, while another wrote: "Our efforts to Claire Williams, inaugurated in May 1999. Judge Positions as adjunct professor of be understanding, accommodating, and Williams had a clear vision of the work to be done law at Northwestern University and nonconfrontational have gotten us exactly by the association. "The FJA serves a unique faculty member for the Federal nowhere. Let's try Plan B." On the other hand, function," she wrote. "Although the AO and the judicial Center's Orientation for "Unseemly and unjustified," wrote another judge, Judicial Conference work on all issues pertaining Newly Appointed U.S. District federal judiciary, as replying in the negative. "It just looks awful," to the our position an judges combine her expertise in law summed up the case against. independent organization provides us with the with her interest in education. She flexibility needed to bring our message directly to Meanwhile nineteen plaintiffs had joined has lectured extensively on trial Congress and the public." Spencer Williams in planning the lawsuit, advocacy and case management Williams immediately focused her attention representing every circuit, and all approved the issues for various law schools and on increasing judges' compensation in two complaint. bar associations, and is a member ways: achieving a COLA for 1999, and seeking Ann Clair Williams, Eighth FJA _ of the National Association of In the end, the "wait and see" policy proved legislation to increase presidential salary. This President, 1999-2001 fruitless, as a recalcitrant Congress again denied a Women judges, Federal Bar second strategy would take the cap off salaries Association, Illinois State Bar COLA. That made it a loss of purchasing power of all top governmental officials and set the stage Ann Clair Williams prepared for Association, lllinQis judicial Council, for the previous five years of $50,000 for district for further judicial pay revisions. With these her career in the law with a B.S. in Cook County Bar Association, and judges, $54,000 for circuit judges, and $62,000 for goals in mind, other members of the FJA pitched Education from Wayne State Women's Bar Association of Illinois. Supreme Court justices, assuming an inflation rate in to meet with officials of all three branches of University in petroit, Michigan, an Williams served as FjA Treasurer of 2.5 percent. It began to look like the judiciary government . Efforts initiated by Alan Nevas M.A. in Guidance and Counseling from 1994 until 1997, when she was last among equals of the three equal branches and followed up by Ann Williams and other from the University of Michigan, became President-Elect. She of government. judges resulted in positive editorials appearing in and a j.D. from the University of assumed the presidency in 1999. the Washington Post, Chicago Sun-Times, Chicago Notre Dame Law School. On December 27, 1997, Williams v. United "The FjA has grown tremendously Tribune, Detroit News, San Francisco Examiner, and She was law clerk to the States was filed in the U.S. District Court for the over the years," Williams asserts, other newspapers. Honorable Robert A. Sprecher of District of Columbia. "thanks to the tireless efforts of its Both of these compensation goals were the U.S. Gourt of Appeals for the The suit declared that many past presidents and other accomplished in 1999. Congress approved a 3.4 Seventh Circuit 1975 to 1976. She • The Ethics Reform Act of 1989 provides for leaders. I owe a debt of gratitude to percent COLA for federal judges and raised the served as Chief of the Crime Drug annual adjustment of federal judges' salaries; those who have made it possible for president's salary to $400,000. "Together, the FJA, Enforcement Task Force for the • Salaries were not adjusted in 1995, 1996, the FjA to fulfill its mission, and I the Judicial Conference, and the Administrative North Central Region and Deputy 1997; look forward to working with Office utilized our various strengths to advance Chief and Trial Attorney in the U.S. • Congressional resolutions withheld payment everyone in the future to preserve the interests of federal judges," declares President the independence of the federal Attorney's Office in Chicago 1976 of COLAs, thus diminishing judges' Ann Williams. judiciary. We must remain ever to 1983. Williams was appointed compensation; U.S. District judge for the Northern On the litigation front, on July 15, 1999, Judge watchful." • Section 140 of Public Law 97-92 does not bar District of Illinois in 1985 and was John Garrett Penn (District of Columbia) entered COLAs due under the Ethics Reform Act. elevated to the Seventh Circuit a memorandum opinion concluding that COLAs Cross motions and responses for summary Court of Appeals in 1999. for judges, provided for in the Ethics Reform Act judgment were filed, along with an amicus brief of 1989, were protected compensation and that judge Williams has served on the therefore, the withholding of the 1995, 1996, and Executive Committee for the amici filed by a group of bar associations 1997 COLAs was unconstitutional [Williams v. Northern District of Illinois, chaired representing more than 125,000 attorneys. Kevin United States, 48 Fed. Supp. 2d at 52 (D.C. Cir. the Court Administration and Case Forde and Richard Prendergast acted as counsel for plaintif~s. 1999)]. Judge Penn found that plaintiffs and all 50 51 Article III judges were entitled to the adjustments already under way for the 2001 Quadrennial Circuit in 1982, he was the senior for all three years, "together with all other Conference. partner ih Jolly, Miller and Milam, a benefits which should have accrued to them based The future for the Third Millennium looks small firm of twelve or so lawyers on those adjustments." (48 Fed. Supp. 2d at 65). promising; the FJA is ready. . engaged primarily in labo~ The Court also declared that Section 140 was not employment and related law. He is permanent legislation and did not prevent the an honorary member of the College payment of COLAs provided for under the Ethics of Labor and Employment Law Reform Act of 1989. Lawyers. He and his wife, Bettye, The government filed notice of appeal, and at live in Jackson. the approach of the Millennium, it looked like jolly will assume the FJA another long delay to the denouement. Also presidency in 2001 . He believes pending was a separate action for the withheld strongly in asserting the presence of 1999 COLA (Williams II) . While these cases will the FJA before Congress, the judicial not be over until the appeal process has been Conference, and the Administration, completed, the plaintiffs are confident that it will considering the organization relieve the problem once and for all and that uniquely qualified to address the further difficulties concerning judicial individual concerns of judges as compensation are over. But ... time will tell. judges and to provide practical E. Grady Jolly; Ninth FJA So now they had circled the wagons, the insights relating to the President, 2001-2003 pioneers had again found protection, which they administration of justice and the were confident would be upheld, but the work of federal court system. In his view, Grady Jolly received a Bachelor of the FJA went on. President Williams believes the . "The FJAcan speak for federal Arts degree from Ole Miss in 1959 lines of communication must remain open and judges in a way that no other and the J.D. degree from its law active, not just among federal judges but with organization can. It can present school in 1962. He joined the other officials and the public as well. The FJA · extremely valuable viewpoints and National Labor Relatio11s Board in board therefore approved establishing a web site observations, as well as opinions, Winston Salem, North Carolina, on the World Wide Web, and board members that otherwise would not be heard where he was involved primarily in provided regular updates at every circuit and would be lost from the public the litigation arising from the efforts conference and at Federal Judicial Center discourse." jolly hopes to see the of the unions to organize the J.P. Educational programs. Other challenges must be FJA become a stronger influence in Stevens textile mills. In 1964, he met. policies that relate directly and became an assistant United States Looking back, it is clear that the massive efforts indirectly to the independence of Attorney for the Northern District of by FJA judges in 1999 have thus brought further the judiciary as an institution, and Mississippi in Oxford, where, concrete evidence to validate the formation and in policies that affect individual among other matters, he was continuation of the FJA-the evidence being the federal judges seeking to maintain involved in the prosecution of lawsit win, the new COLA approval, and the the fairest, most ethical, most criminal civil rights cases. Joining increased presidential salary. This was no longer competent, and most respected the Justice Department in deja vu-it was the shape of things to come. As judicial system in the world today. Washington, D.C. in 1967, he Diana Murphy put it, "It is hard to understand worked in the General Litigation now that in the beginning many judges found it Section of the Tax Division, unseemly for judges to ask for anything or to litigating matters collateral to tax organize themselves in an independent way. We cases in state and federal courts proved them wrong." throughout the country. After two In May of the year 2001, E. Grady Jolly will years he returned to Mississippi and assume the FJA presidency, and planning is began private practice in Jackson . When he was appointed to the Fifth

52 53 Appendix 1

HONOR ROLL OF PAST PLAINTIFFS

ATKINS BECHTLE C. Clyde Atkins* Louis C. Bechtle William Becker* Edward Becker Lloyd H. Burke* John Biggs* Oliver Carter* Luther Bohanon Fred Cassibry* Ray Broderick Samuel Conti William Campbell* Howard Corcoran* Thomas Clary* Walter E. Craig* Ralph Freeman* Jesse W. Curtis Leonard Garth Peter T. Fay James Gordon* Warren Ferguson Myron Gordon Robert Fifth* Peirson Hall* Roger D. Foley* L. Higginbotham Charles B. Fulton* Julius Hoffman* Floyd R. Gibson Damon J. Keith William P. Gray* Morris Lasker George L. Hart* Alfred Lluongo* A. Andrew Hauk Lawrence Lydick* Irving Hill* Albert B. Maris* James L. King Abraham Marovitz Samuel King Wade H. Mccree Thomas Lambros Edward]. McManus Joseph S. Lord* William Mehrtens* Malcom M. Lucas C.A. Nuecke William J. Lynch* Clarence Newcomer Walter R. Mansfield* Edmund Palmieri* Thomas MacBride John W. Peck* Frank]. McGarr Martin Pence James B. Parsons* Joseph Perry* Robert F. Peckham* John Reynolds Norman C. Roettger Ed Robson* Donald R. Ross Carl Rubin* Robert A. Schnacke* Edwin Steel* Collins J. Seitz* Bruce Thompson* John V. Singleton Thomas Thornton* Adrian A. Spears* James von der Heydt Robert A. Sprechar* Albert Stephens, Jr. Francis C. Whelan* Hubert L. Will* David Williams Spencer Williams Harrison Winter* Joseph H. Young 54 55 ALDISERT WILL Ruggero Aldisert Daniel Huyett, III* Hubert L. Will Appendix 2 George Barlow* Anthony Julian* William J. Campbell* Allen Barrow* Alfred Kirkland Fred J. Cassibry* FEDERALJ UDGES ASSOCIATION John Bertels* Fredrick Lacey Irving Hill* CONSTITUTION Paul Beason Fredrick Landis* Jack M. Gordon C. Stanley Blair* James L. Latchum Thomas C. Platt, Jr. George Boldt Caleb Layton, III* Spencer Williams John Breitenstein* Miles W. Lord Lloyd H. Burke* Frederick Bryan* Bernard Maynahan George B. Harris* John M. Cannella* Malcolm Muir John R. Bartels* James Carter* Edward Neaher* Henry Bramwell Latham Castle* William Nealon Mark A. Costantino* Mitchell Cohen* Bernard Newman* Edward R. Neaher* James Coolahan* Paul P. Rao* George C. Pratt he Federal Judges Association is an Walter Cummings* Scovel Richardson* independent, volun tary Association of Ronald Davies* Samuel Rosenstein* TActive, Senior, Retired, and Resigned Judges Lohn M. Davis* Nauman S. Scott WILLIAMS of United States Federal Courts established under Ben C. Dawkins* Woodrow Seals* Spencer Williams Article III of the Constitution. J. William Ditter Talbot P. Sorg* C. Clyde Atkins* The purpose of this Association is to seek J. Robert Elliott Austin L. Staley* Louis C. Bechtle the highest quality of justice for the people John Feikens Herbert Stern* Sandra S. Beckwith of the Un ited States, and pursuant thereto, Wilfred Feinberg Hubert Teitelbaum* Lucius D. Bunton, III the Association is authorized to do all things Clarkson Fisher* Thomas Thornton* William M. Byrne, Jr. reasonable and necessary to: Noet P. Fox* E. Mac Troutman Adrian G. Duplantier • Preserve and protect the ability of the federal Wallace Gourley* Lawrence Whipple* Irving Hill* judiciary to attract and retain the best Lawrence Gubow* Albert Wollenberg* Morris E. Lasker qualified men and women for judicial George B. Harris* Caleb M. Wright Thomas Platt, Jr. service. Oren Harris* George C. Young Walter H. Rice John S. Hastings* Alfonso Zirpoli* • Preserve and protect the independence of the John W. Renolds federal judiciary from intrusion, Aubrey E. Robinson intimidation, coercion, or domination Marvin H. Shoob from any source. Joseph L. Tauro • Formulate and carry out such other activities Laughlin E. Waters programs as are necessary Lee. R. West and deemed and Charles Wiggins appropriate in furtherance of its stated Henry Rupert Wilhoit, Jr. purpose. In the conduct of these programs and activities, *Deceased the Association shall work in coordination and cooperation with the Chief Justice of the United States, the Judicial Conference of the United States, the American Bar Association, the National Bar Association, the various other judges' association, lawyers' associations, and public, quasi-public, and private associations and organizations committed to this same purpose. In the conduct of its affairs the Association shall take no action or position inconsistent with

56 57 any formal action or position of the Judicial Conference of the United States unless and until Notes approved as specified in Article VI B of the bylaws. The Corporation shall be organized as a not-for­ profit organization exclusively. Its activities shall be conducted in such manner that no part of its net earnings shall inure to the benefit of any member, director, officer, or individual, and it shall engage in no business ordinarily carried on for profit. It shall not have the power to issue certificates of stock or declare dividends. In addition, the corporation shall not carry on any other activities not permitted to be carried on by a ootnotes have not been included in this corporation exempt from federal income tax history because most of the sources are under Section 501 (c) (6) of the Internal Revenue Funpublished and are in the files of the Code of 1954 (or the corresponding provision of Federal Judges Association. Also unpublished is any future United States Internal Revenue Law) . Irving Hill's "A Narrative History of the Ninth In the event of dissolution any assets of the Circuit Committee on Judicial Salaries and corporation will be donated to the American Benefits and a Summary of Its Accomplishments," Judicature Society, an Illinois not-for-profit 2 volumes (April 1990), which outlines the actions corporation whose purpose is "to Promote the of the subject committee and some of the steps Effective Administration of Justice." leading to the formation of the FJA, and which includes careful documentation. Much of the information in this history has come from the FJA files of letters, memoranda, minutes, and clippings. Published sources include the Los Angeles Times, court opinions, congressional hearings, The Recorder, Peter Graham Fish's The Politics of Federal Judicial Administration (Princeton,1973), and the FJA newsletter In Camera. Interviews were conducted in person with Spencer Williams, Irving Hill, and A. Clifford Wallace, and by telephone with Hubert Will, Kevin Forde, William Weller, John M. Walker, Alan H. Nevas, and Stanley Brotman. Diana Murphy, Ann Claire Williams, and W. Earl Britt, as well as others listed above, contributed written notes.

58 59