New 4th Circuit Nominee & Judicial Pay

We’re pleased to see that there’s a new nominee to the U.S. Court of Appeals for the Fourth Circuit. Yesterday, President Bush named G. Steven Agee to a Virginia seat on the court. Elected in 2003 to the Virginia Supreme Court by a bipartisan voice vote in the state legislature, Agee has the support of both Virginia senators – including Democrat Jim Webb – behind his 4th Circuit nomination.

That support is expected to facilitate his confirmation. Skeptics will counter that Senate Judiciary Chairman Patrick Leahy has turned the slow walk (often no walk) of judicial nominees into a fine art since the Democrats regained control of the Senate. But given that the support of home state senators – in this case, bipartisan support – is the touchstone of Leahy’s confirmation test, it’s hard to fathom how he could justify doing anything other than expeditiously processing Agee’s nomination.

The seat to which Agee has been named was vacated when J. Michael Luttig, one of the federal bench’s brightest intellectual stars, resigned to become general counsel for Boeing. The relatively low pay of federal judges was one of the factors leading to the loss of this brilliant jurist, which brings us to our second topic. This week, two current and one former U.S. Supreme Court Justices made the case for a substantial increase in the pay of federal judges.

In an interview Tuesday, retired Justice Sandra Day O'Connor emphasized that new law firm associates just out of federal judicial clerkships typically make more money than the judges they worked for. And yesterday, Justices Anthony Kennedy and Clarence Thomas testified on Capitol Hill, with this account by Tony Mauro of the Legal Times:

"The table-pounding came when Kennedy was asked about judicial salary increases, which have made some progress through both houses but is still not a done deal. … ‘If we don't get relief, there will be an exodus of judges,’ lured by tripled salaries and challenging work in arbitration and private practice [said Kennedy]. Kennedy also decried proposals to tie salary increases to stricter limits on how much money judges can earn or be reimbursed when they teach or give speeches. ‘It doesn't make much sense,’ Thomas added, for federal judge salaries to be capped at a level that some first-year associates are able to earn. Thomas, too, said judges should be allowed to teach … and should not be limited even further than they are already in what they can earn in teaching positions.”