An Awkward Plea
By ANN ALTHOUSE
The New York Times
February 17, 2007
It’s hard to ask for a raise, especially when you’re a judge. Look at poor Justice Anthony Kennedy supplicating before the Senate Judiciary Committee on Valentine’s Day. With stilted locutions — “it’s frankly most awkward for me” — he staked out pedantic points about the constitutional scheme of separation of powers, and lumbered toward a conclusion that federal judges need to make more money.
His theory worked the theme of “excellence”: unless the pay is good, excellent judges will leave the bench, excellent lawyers and law professors will not accept appointments, and if the judges aren’t excellent, they won’t be independent, as the Constitution contemplates. (Unfortunately, the Constitution also contemplates the justices’ having to beg Congress for a raise, or Justice Kennedy wouldn’t have found himself straining through that theory.)
Senator Arlen Specter acted as though he found this all very enlightening. When you come before us, you appear on television, and you’re educating the public, he said. But I don’t think Kennedy’s excellence theory had actually impressed him. It was more that he perceived a segue to the subject he wanted to drag onto center stage.
He had just reintroduced his bill to require the Supreme Court to televise its oral arguments, and he wanted to talk about cameras in the courtroom: think of the profound educational effect of showing the oral arguments; you justices are already going on TV all the time to explain your notions; people get their information through TV, so you ought to let them see the room, see how you operate.
Earlier, Justice Kennedy had brushed off Senator Patrick Leahy, who had convened the hearing by going on about those terrible hotheads who denounce the judiciary, call for impeachment and even threaten violence against judges. Justice Kennedy sounded unperturbed: there should be a public debate about what the Constitution means — it’s the people’s Constitution — and it might be nice if everyone were rational and respectful, but we’re used to the “hurly-burly, rough and tumble” of democracy.
For Justice Kennedy, the real threat to the judiciary is the low pay.
But Senator Specter’s Congressionally imposed cameras stirred up the justice. It would change the “collegial dynamic.” Justice Kennedy portrayed the justices’ interaction with the attorney at oral argument as almost a private undertaking. The justices, who haven’t yet talked with each other about the case, “are using the attorney to have a conversation with ourselves,” he said. He quickly added: “And with the attorney.”
He took a stern tone: “This is a dynamic that works.” He pinched his fingers together as if he could forcibly squeeze the Congress out of the Supreme Court’s domain. He paused a long time, trying, it seemed, to contain his emotion and find the proper attitude.
He went with abject pleading: “Please, Senator, don’t introduce into the dynamics that I have with my colleagues the temptation — the insidious temptation — to think that one of my colleagues is trying to get a sound bite for the television. We don’t want that.” He had come to beg for more money to reach some idealized form of independence understood as a matter of excellence. And now, here he was fending off the intrusion of the dreaded cameras into his precious collegial conversation. Isn’t part of this independence deciding when to let everyone watch them?
Needing to present himself as an excellent judge, Justice Kennedy couldn’t say anything intemperate. Think of what he didn’t say.
If the pay is low, the judges will be the kind of people who don’t care that much about money. They might be monkish scholars, or they might be ideologues who see in the law whatever it is they think is good for us. Justice Kennedy could say that judicial work is satisfying in ways that have nothing to do with money. He couldn’t say that we can’t trust people who don’t care enough about money.
We need judges who are the kind of solid, common-sense lawyers who factor money into their decisions. These are the same people who take the kind of conventional law-firm jobs that pay a good salary and require the greatest sacrifice to leave.
Low judicial pay should trouble us not because the judges will somehow lack “excellence.” It should trouble us because the law will be articulated by ideologues and recluses.
Ann Althouse is a law professor at the University of Wisconsin and writes the blog Althouse. She is a guest columnist this month.
The New York Times
February 17, 2007
It’s hard to ask for a raise, especially when you’re a judge. Look at poor Justice Anthony Kennedy supplicating before the Senate Judiciary Committee on Valentine’s Day. With stilted locutions — “it’s frankly most awkward for me” — he staked out pedantic points about the constitutional scheme of separation of powers, and lumbered toward a conclusion that federal judges need to make more money.
His theory worked the theme of “excellence”: unless the pay is good, excellent judges will leave the bench, excellent lawyers and law professors will not accept appointments, and if the judges aren’t excellent, they won’t be independent, as the Constitution contemplates. (Unfortunately, the Constitution also contemplates the justices’ having to beg Congress for a raise, or Justice Kennedy wouldn’t have found himself straining through that theory.)
Senator Arlen Specter acted as though he found this all very enlightening. When you come before us, you appear on television, and you’re educating the public, he said. But I don’t think Kennedy’s excellence theory had actually impressed him. It was more that he perceived a segue to the subject he wanted to drag onto center stage.
He had just reintroduced his bill to require the Supreme Court to televise its oral arguments, and he wanted to talk about cameras in the courtroom: think of the profound educational effect of showing the oral arguments; you justices are already going on TV all the time to explain your notions; people get their information through TV, so you ought to let them see the room, see how you operate.
Earlier, Justice Kennedy had brushed off Senator Patrick Leahy, who had convened the hearing by going on about those terrible hotheads who denounce the judiciary, call for impeachment and even threaten violence against judges. Justice Kennedy sounded unperturbed: there should be a public debate about what the Constitution means — it’s the people’s Constitution — and it might be nice if everyone were rational and respectful, but we’re used to the “hurly-burly, rough and tumble” of democracy.
For Justice Kennedy, the real threat to the judiciary is the low pay.
But Senator Specter’s Congressionally imposed cameras stirred up the justice. It would change the “collegial dynamic.” Justice Kennedy portrayed the justices’ interaction with the attorney at oral argument as almost a private undertaking. The justices, who haven’t yet talked with each other about the case, “are using the attorney to have a conversation with ourselves,” he said. He quickly added: “And with the attorney.”
He took a stern tone: “This is a dynamic that works.” He pinched his fingers together as if he could forcibly squeeze the Congress out of the Supreme Court’s domain. He paused a long time, trying, it seemed, to contain his emotion and find the proper attitude.
He went with abject pleading: “Please, Senator, don’t introduce into the dynamics that I have with my colleagues the temptation — the insidious temptation — to think that one of my colleagues is trying to get a sound bite for the television. We don’t want that.” He had come to beg for more money to reach some idealized form of independence understood as a matter of excellence. And now, here he was fending off the intrusion of the dreaded cameras into his precious collegial conversation. Isn’t part of this independence deciding when to let everyone watch them?
Needing to present himself as an excellent judge, Justice Kennedy couldn’t say anything intemperate. Think of what he didn’t say.
If the pay is low, the judges will be the kind of people who don’t care that much about money. They might be monkish scholars, or they might be ideologues who see in the law whatever it is they think is good for us. Justice Kennedy could say that judicial work is satisfying in ways that have nothing to do with money. He couldn’t say that we can’t trust people who don’t care enough about money.
We need judges who are the kind of solid, common-sense lawyers who factor money into their decisions. These are the same people who take the kind of conventional law-firm jobs that pay a good salary and require the greatest sacrifice to leave.
Low judicial pay should trouble us not because the judges will somehow lack “excellence.” It should trouble us because the law will be articulated by ideologues and recluses.
Ann Althouse is a law professor at the University of Wisconsin and writes the blog Althouse. She is a guest columnist this month.
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