Perspectives: Pay-raise passions
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As another controversy swirls over pay raises, this time involving the Pennsylvania Supreme Court ruling that the Legislature could not repeal salary increases for judges, we are in danger of losing sight of the forest for the trees. As we seek to fix the pay-raise mess, assessing the costs and benefits to our institutions of government is far more important than the squabble over dollars and cents.
Ken Gormley is president-elect of the Allegheny County Bar Association and a professor at Duquesne University School of Law; Kim Berkeley Clark is current president of the county bar association and administrative judge of the Family Division, Court of Common Pleas; Robert V. Racunas is immediate past president of the county bar association and director of Neighborhood Legal Services.
There are two puzzle pieces that can't be overlooked. First, we desperately need to deal with judicial pay; the cat-and-mouse game over judges' salaries must come to an end. Second, we must protect judicial independence.
We, and the Board of Governors of the Allegheny County Bar Association, representing more than 6,400 judges and attorneys in this region, are loathe to choose sides in political battles, and we do not endorse plaintiffs or defendants in cases. In the pay-raise dispute, we decline to sift through the hundred-page pay-raise opinion to take a position on complex legal points over which reasonable people -- including lawyers and judges -- can differ.
Yet a cornerstone of the bar association's 136-year history is the belief that a highly qualified and independent judiciary is essential to the stability of our democracy. Attracting and retaining the best possible judges in Pennsylvania and ensuring that they are insulated from the winds of politics is an essential part of our mission.
The golden nugget that has been overlooked in the pay-raise hoopla is that there finally is a mechanism in place to end the political tug-of-war. The provision reinstated by the state Supreme Court's recent decision establishes a formula -- for the first time in Pennsylvania history -- to determine when and to what extent judges should receive pay raises. It ties judicial salaries, now and in the future, to the pay scale established by Congress for federal judges.
The positive aspect of this formula is that judges and justices no longer have to go hat in hand to Harrisburg, begging for pay increases every five or 10 years. Politics is removed from the equation, leaving the matter to Congress (which has been notoriously slow and frugal when it comes to bumping up judicial salaries).
Even if the Pennsylvania Supreme Court had reached a different decision in this case, the bar association still would favor a politics-free formula, like the one now in place, to establish pay scales. Linking state judicial salaries to levels established in Washington eliminates the unseemly ritual of Pennsylvania judges lobbying for pay raises in the state Capitol.
The Pennsylvania Supreme Court faced an admittedly difficult choice in this case. It was hardly a secret that the public and the voters were extremely displeased with the legislative pay raise. Yet the Pennsylvania Constitution, in Article V, Section 16(a), clearly forbids any reduction in the compensation of judges, once enacted into law. This provision dates to 1791. It was designed to prevent legislators or the public from threatening judges with pay cuts if they rendered decisions deemed objectionable or unpopular.
Unlike legislators and governors who live and breathe in the political stratosphere, judges are not supposed to be political creatures. They sit in offices and courtrooms surrounded by law books, where they must protect our most important rights, liberties and property interests. Judges are supposed to reach decisions by reading the laws and the Constitution. They are not supposed to make rulings based on which voices shout the loudest.
The test is not whether we disagree with the results in any particular case (or if the justices themselves disagree, as they did on the pay-raise issue). The American system of government is premised on judicial independence. Permitting outside pressure and threats to dictate the outcomes of cases would bring our system to its knees.
The debate over judicial salaries is nothing new. Nor is it limited to Pennsylvania. Recently, Chief Justice John Roberts of the U.S. Supreme Court spoke of the need to increase judges' salaries periodically to ensure that top-notch attorneys sit on the bench and render the decisions that affect our lives, our families and our most- cherished rights.
In Pennsylvania, except for cost-of-living increases, there has been no judicial pay raise in 11 years. Judges should not have to face a Hobson's choice, every decade or so, each time the issue of their pay comes up.
Our system cannot survive unless we continue to remind ourselves, as we teach our children, that we must show respect for those judges who hold within their hands our most sacred liberties. We can disagree with their holdings and express our disagreements forcefully. Indeed, that is the essence of a democratic society.
But if we are able to dictate the results judges must reach, hanging threats of pay cuts and lost jobs over their heads like a sword of Damocles, we will have destroyed the delicate balance in our constitutional system that the judicial branch was created to protect.
First Published September 22, 2006 12:00 am