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As chair of the Judicial Conference Committee on the Judicial Branch for the last three years, Judge Barefoot Sanders (N.D. Tex.) has led the Judiciary's effort to obtain a cost-of-living adjustment for federal judges. He formulated strategies, organized judges meetings, called upon members of Congress, and talked with the media by phone. Sanders' term as chair has ended with a success passage of the first COLA for judges since January 1993. A member of the committee for the past seven years, Judge David Hansen (8^th Cir.) has taken over as chair of the Judicial Branch Committee. In an interview earlier this month with the staff of The Third Branch Sanders offered his perspective on what it took to obtain the salary adjustment that has eluded judges for the past four years.

Q: Can you account for the apparent change in climate that resulted in Congress providing its members, judges, and Executive Schedule officials their first cost of living (COLA) salary adjustment in four years?

A: A substantial reason for the change was the support of the Chief Justice for the legislation and the work of the Judicial Branch Committee, along with numerous individual judges, and associationsthe Federal Judges Association, the Bankruptcy and Magistrate Judges Associations, the Federal Bar and American Bar Associations. I think, also, that our emphasis on the bipartisan nature of our effort helped change the climate.

Q: Does Congress' action suggest to you that the Ethics Reform Act's annual COLA mechanism will again be allowed to work?

A: There has been considerable discussion along these lines. I was quite encouraged by Speaker Gingrich's statement to the effect that annual COLAs ought to be the rule, as provided for in the Ethics Reform Act, without a lot of controversy. I believe that there are a number of members of Congress, senior members particularly, who feel this way. This is not a guarantee for the future but it is a hopeful sign. Of course, 1998 is an election year. If Congress allows a COLA for members, judges, and senior executives in 1998 (for FY 1999) as it should, that will be a very good portent for the future.

Q: What will happen if judges are again denied annual COLAs?

A: I think we'll just have to see. I don't like to assume bad news. If we're denied a COLA next year, we'll have to review the situation then. That will be up to the Judicial Branch Committee and my successor as chair, Judge David Hansen (8th Cir.), who is very wise in the ways of the Hill.

Q: The President's salary has not been adjusted since 1969. Does this present a problem for future judges' pay increases?

A: I don't think it is a problem for COLAs for the time being. But the President's salary acts as a ceiling on any substantial increases in congressional and judicial salaries. For instance, the Chief Justice's salary certainly is not going to exceed the President's, and neither is the Speaker's nor the Vice President's and so on. There is a problem in that the failure to adjust the President's salary compresses the salaries of others in government. I think the President's salary ought to be substantially increased. It has been nearly 30 years since that was last done. If we doubled the President's salary, that probably would not take care of the cost-of-living increase since 1969, the year of the last increase.

When we compare the salaries of the President, members of Congress, and judges with the income of attorneys in the private sector and with other professionals, it is obvious that public service is not sufficiently recognized, at least in monetary terms.

Q: Your committee made at least two recommendations to the Judicial Conference on judges' compensation in the course of the year. Can you tell us about the committee's actions and the resulting Conference policy?

A: Initially, we recommended to the Conference that the Judiciary seek a cost-of-living increase in the amount of 9.6 percent, which would make up for the cost-of-living increases denied in the last four years. We also recommended that the Conference endorse repeal of section 140 of P.L. 97-92, which is an outmoded mechanism requiring specific congressional approval of a COLA for judges, in addition to the normal appropriation process. We further recommended that the Conference approve legislation delinking judicial salaries from those of members of Congress, placing us instead in what's called the General Schedule for federal employees. The Conference endorsed all these recommendations.

As the year wore on it became increasingly clear that we were not going to obtain delinkage or the 9.6 percent catch-up. So in September 1997, we recommended to the Conference that it go on record as supporting a cost-of-living increase not for only the Judiciary, but also for members of Congress and for senior executives. We did that because we were encountering considerable feeling on the Hill that judges were interested only in themselves. And while judges salaries were our only responsibility, and we weren't trying to meddle in anyone else's business, we did want it understood that we favored cost-of-living increases across the board for all of those who'd been denied COLAs since 1993.

Q: The 1989 Ethics Reform Act called for the creation of a Citizens' Commission on Public Service and Compensation to replace what was known as the Quadrennial Salary Commission. What happened to the Citizen's Commission?

A: The Quadrennial Salary Commission was the backdrop for the enactment of the Ethics Reform Act. That act created a Citizens' Commission on Public Service and Compensation. The Citizens' Commission has not functioned. Many of the appointments to it have not been made. The appropriations for the commission have lagged. In fact, I'm not sure there are any appropriations for the commission to function. It is not a workable situation. The commission needs to be replaced. The Judicial Branch Committee did not try to examine what should replace it. I have not polled the committee members, but I think they believe that there should be something with a considerable amount of prestige, some group that could speak with authority, and say that a pay increase in a specific amount is something these folks-that is, Congress and judges and senior executives-deserve.

That would not completely solve the problem, of course. Sooner or later the question of a pay increase will always come to Congress. But the more prestigious the commission, the more it is separated from the government, and more independent the people making the recommendation, the more weight the recommendation will carry with the public and the Congress.

Keep in mind that a pay increase is a separate matter from the annual COLA.

Q: During the 1st session of the 105th Congress, legislation was introduced (H.R. 875 and S. 394) to amend the current mechanism for adjusting judges' pay and to provide a catch-up pay adjustment. What was the result of this legislation?

A: Those bills were duplicates. They included those matters approved by our committee and endorsed by the Conference. As you know we didn't get what the Conference endorsed. We got a 2.3 percent COLA, just like members of Congress and senior executives. It is important that the annual COLA become a habit and not an occasional thing.

A major purpose of the bills was to garner bipartisan support for a pay adjustment. The idea was that bipartisan support, particularly from members of the Judiciary Committees in both the House and the Senate, would demonstrate to other members of Congress that there was a significant push for the legislation. H.R. 875 was sponsored by Representative Henry J. Hyde (R-IL) and co-sponsored by Representative John Conyers (D-MI), the chair and ranking minority member, respectively, of the House Judiciary Committee, and nearly 100 other House members. S.394 was sponsored by Senator Orrin G. Hatch (R-UT), and co-sponsored by Senator Patrick J. Leahy (D-VT), chair and ranking minority member, respectively, of the Senate Judiciary Committee, and by over 25 senators. This broad support generated a change in the climate and helped to fix Congress' attention on the need for a COLA, not just for judges but across the board.

A major problem was that delinkage and repeal of section 140 are not widely understood. Those are subjects that must be pursued another time.

Q: Can you give us an overview of how your committee was working to secure the pay adjustment while Congress was considering this legislation?

A: The committee worked through all the constituent groups that I mentioned. Their work and assistance was really essential. With these groups, the judges on our committee, and the help of other members of the federal Judiciary throughout the country, we went to work obtaining sponsors and co-sponsors of those bills. That, in turn, generated the interest in a COLA.

Q: In the end, judges received a 2.3 percent cost-of-living adjustment. Does this meet your expectations, and what are your expectations for fiscal year 1999?

A: The 2.3 percent represents a modest achievement. We wanted more. We hoped we would get more. The significance of the 2.3 percent COLA, I believe, is that we broke the freeze on COLAs. Denying COLAs was becoming a matter of routine for Congress; there is some prospect now that granting COLAs will become routine.

As for our expectations for next year, that is difficult to read. Judge Hansen and the committee will be dealing with that. As I have said, Judge Hansen is wise in the ways of the Hill and has very seasoned judgment.

Q: What is your sense of the reaction of the public and the media to Congress' decision to authorize a COLA for top government officials?

A: There's not been any significant adverse reaction. I base that on what I have observed and on what I have heard from judges throughout the country. There was some immediate media reaction, more favorable than unfavorable.

But the COLA is now old and cold news. After all, we are in a society where many many people are accustomed to cost-of-living increases. I believe that the amount of public opposition to the COLA was exaggerated.

Q: What are your reflections on your tenure on the Judicial Branch Committee?

A: It has been a very busy and enjoyable time. The members of the committee are outstanding. We've had major support from the Administrative Office and the staff there, particularly from Director Leonidas Ralph Mecham. Of course, the most important help on the COLA came from the Chief Justice. He outlined the necessity for a pay adjustment in early January of this year and worked on the legislation all through the year. He communicated with the leadership of the House and Senate and other members. His support elevated the importance of the COLA legislation.

I do want to mention that the Judicial Branch Committee deals with many other subjects in addition to COLA legislation. All committee members share the work on those projects.

Serving on the committee has been a great experience.

ABA, AJS Advocate Judicial Independence

Two national organizations, the American Judicature Society (AJS) and the American Bar Association (ABA), are coming to the aid of what they see as an increasingly embattled Judiciary.

The AJS recently held the first meeting of its Center for Judicial Independence Task Force. Members discussed political attacks on judges. "The issue of judicial independence is at the heart of our democracy," AJS immediate past president Robert M. Kaufman told the task force. "It is at the core of our constitutional protections on the one hand, and at the core of public confidence in the objective decision-making of our courts on the other." The task force called for a national, citizen-driven effort to educate Americans about the importance of an independent Judiciary. The 22-member task force includes former U.S. Senator Howell T. Heflin, who also served as a chief justice of the Alabama Supreme Court, and former Representative Robert W. Kastenmeier, who chaired the National Commission on Judicial Discipline and Removal. According to a recent AJS survey of 165 midwestern judges, 73 percent said there had been widespread attacks on the Judiciary in recent years in their states or jurisdictions, while 87 percent thought they were under increasing pressure to be directly accountable to public opinion. Task force member Benjamin Civiletti, U.S. Attorney General under President Carter, warned that, "Without independent judges, decisions that guaranteed our most cherished rights never could have been made."

Meanwhile, the ABA has formed a Special Committee on Judicial Independence that will study issues associated with attacks on judges. According to the committee's chair, William S. Sessions, a former U.S. district court judge and FBI director, "There is a substantial need for engaging the public and the legal profession to bring about a better understanding of what judges and courts do generally, and specifically about the rule of law and the role that judges play." The committee will work for non-political selection of judges, including promotion of the ABA's preference for merit selection of judges. The committee also hopes to raise public awareness of the importance of judicial independence and will act as a clearinghouse for information in the area. Sessions said the committee plans a multifaceted approach toward public education, which will include talking to television and print media, and preparing educational materials for students in grade school through law school to clarify the importance of judicial independence. The committee also will examine the manner in which judicial independence is guaranteed, such as compensation and benefits, courthouse conditions, and security and staff assistance. The 11-member committee includes Judge Norma L. Shapiro (E.D. Pa.), and former White House counsel and U.S. circuit judge Abner Mikva.

105th Congress' First Session Productive for Judiciary

While the first session of the 105th Congress brought federal judges their first cost-of-living adjustment in four years, several other significant legislative measures also received consideration. Both houses conducted oversight hearings on judicial "activism" and judicial resources, and legislative hearings were held on the Federal Courts Improvement Act of 1997, the Alternative Dispute Resolution and Settlement Encouragement Act, the controversial Judicial Reform Act of 1997, and the Judicial Conference proposal to create 18 additional bankruptcy judgeships. Congress passed bills to extend certain temporary district court judgeships created by P.L. 101-650 and to create a commission to study the courts of appeals.

Judicial Operations

Courthouse Construction

The fiscal year 1998 budget submitted by the President requested no General Services Administration funding for new courthouse construction or repairs and alterations because of a nearly $700 million shortfall in GSA's Federal Buildings Fund. As a result, the FY98 Treasury Appropriations Act did not contain funding for courthouse construction. However, for several years buildings have been funded through direct appropriations, not from the Federal Buildings Fund.

H.R. 2294, The Federal Courts Improvement Act

Judge Phillip M. Pro (D. Nev.) testified for the Judicial Conference before the House Judiciary Subcommittee on Courts and Intellectual Property on H.R. 2294, the Federal Courts Improvement Act. The bill contains 30 separate provisions that amend the law on a wide range of issues relating to the Judiciary, including federal court jurisdiction, the authority of judicial officers, and personnel and administrative programs. The House committee is expected to take action on the bill early in the second session.

H.R. 2603, Alternative Dispute Resolution and Settlement Encouragement Act

The House Judiciary Subcommittee on Courts and Intellectual Property held a hearing on H.R. 2603, Alternative Dispute Resolution and Settlement Encouragement Act, a bill that would require each judicial district to institute a court-annexed arbitration program. At this hearing, Chief Judge D. Brock Hornby (D. Me.), chair of the Conference Committee on Court Administration and Case Management, testified that the Conference supports alternative dispute resolution but believes each district should be free to employ the type of alternative dispute resolution program that will be most effective in that district.

H.R. 1252, Judicial Reform Act of 1997

The House Judiciary Subcommittee on Courts and Intellectual Property held a hearing on H.R. 1252, Judicial Reform Act of 1997, and reported the bill with amendments to the full Judiciary Committee for consideration in the second session of Congress. H.R. 1252 is a multipart bill, which includes proposals to provide that a three-judge court hear certain applications for injunctions, to allow peremptory challenges of judges in civil cases, and to transfer for resolution complaints of judicial misconduct to a circuit other than that where the complained-against judge sits. Yet another provision gives the presiding judge authority to allow media coverage of appellate court proceedings. Chief Judge Henry A. Politz (5th Cir.) and Judge Ann Claire Williams (N.D. Ill.) testified on behalf of the Judicial Conference in opposition to parts of H.R. 1252. In an effort to make the bill more acceptable to the Judiciary, provisions were added that would delink judicial salaries from those of members of Congress and repeal section 140 of P.L. 97-92.

H.R. 1544, Federal Agency Compliance Act

The House Judiciary Committee reported out H.R. 1544, the Federal Agency Compliance Act, although the bill did not reach the House floor for consideration during the first session. The bill would prevent federal agencies from pursuing policies of unjustified "non-acquiescence" of precedents established by federal judicial circuits. At a House hearing, Judge Stephen H. Anderson (10th Cir.) testified that the bill conforms to a recommendation of the Judicial Conference in the Long Range Plan for the Federal Courts, published in December 1995.

Ninth Circuit Split

As part of the Commerce, Justice, State and the Judiciary Appropriations Act, Congress created a Commission on Structural Alternatives to Federal Courts of Appeals to study the alignment of circuit courts of appeals. The Chief Justice will appoint five commission members who will then report findings and recommendations regarding the current circuit court alignment to Congress within one year. Earlier in the session, the Senate had voted to split the Ninth Circuit Court of Appeals into two circuits but deferred that action pending the report of the study commission.

S. 598, Disclosure of Court-Appointed Attorneys Fees

Senator Pete V. Domenici (R-NM) introduced S. 598, which amends 18 U.S.C. § 3006A(d) to make information about the amounts paid to court-appointed lawyers under this section available to the public upon the court's approval of the payment. The text of S. 598 was added as an amendment to the Judiciary's FY98 appropriations bill, which was enacted into law.

Judicial "Activism"

Several congressional hearings were held that addressed judicial "activism" during the first session of the 105th Congress. The House Judiciary Subcommittee on Courts and Intellectual Property, chaired by Representative Howard Coble (R-NC), held an oversight hearing on judicial misconduct and discipline in May. The Senate Judiciary Subcommittee on the Constitution, Federalism, and Property Rights, chaired by Senator John Ashcroft (R-MO), held hearings on judicial "activism" in June and July. Generally, the hearings were divided between individuals testifying on judicial decisions with which they disagreed, and witnesses explaining the importance of judicial independence.

Judicial Resources

P. L. 105-53

Legislation passed the House and Senate to extend certain temporary judgeships created in 1990 by P.L. 101-650. The enacted legislation also provided for the permanent reauthorization of funding for 20 court pilot arbitration programs established by P.L. 100-702, and it transferred a judgeship from the Eastern District of Louisiana to the Middle District of Louisiana. President Clinton signed the bill into law October 6, 1997.

S. 678, The Federal Judgeship Act of 1997

The Judicial Conference transmitted a request to Congress for the creation of 12 permanent and 5 temporary courts of appeals judgeships and 24 permanent and 12 temporary district court judgeships early in 1997. S. 678, a bill to create the judgeships, was introduced in the Senate by Senator Patrick J. Leahy (D-VT). Judge Julia S. Gibbons (W. D. Tenn.), chair of the Conference Committee on Judicial Resources, testified before the House Judiciary Subcommittee on Courts and Intellectual Property on the reasons underlying the judgeship request. However, no bill has been introduced in the House and no action has been taken on S. 678.

H.R. 1596, The Bankruptcy Judgeship Act of 1997

The Judicial Conference asked Congress to create 18 bankruptcy judgeships. In the House, the request was introduced as H.R. 1596, which passed. The Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing on the House-passed bill but took no further action. Judge David R. Thompson (9th Cir.), chair of the Conference Committee on the Administration of the Bankruptcy System, testified on the measure at both the House and Senate hearings. Senator Charles E. Grassley (R-IA) has requested information on judges' travel from the 14 courts requesting bankruptcy judgeships.

H.R. 875, S. 394, Judicial Compensation

H.R. 875, a bill to adjust, and provide a procedure for the future adjustment of, the salaries of federal judges was introduced in the House by Representatives Henry J. Hyde (R-IL) and John Conyers (D-MI). The bill collected 89 co-sponsors, but did not move out of the House Judiciary Subcommittee on Courts and Intellectual Property. Provisions from H.R. 875 to repeal section 140 of P.L. 97-92 and delink judges' salaries from those of members of Congress were incorporated into H.R. 1252, the Judicial Reform Act. S. 394, a similar pay adjustment bill introduced by Senator Orrin G. Hatch (R-UT) attracted 26 co-sponsors, but did not move out of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts. The joint House-Senate conferees on the Treasury, Postal Service and General Government Appropriations Act of 1998 rejected an amendment offered by Hatch, which would have delinked judges' pay from that of members of Congress and also repealed section 140.

Criminal Justice