1nc Judicial Salaries DA

Judicial branch salaries are increasing now Moyer, 15 – [Bruce, is on the Federal Bar Association government relations counsel, Federal Bar Association, “Federal Judges Score a Pay Adjustment, Quietly”, January 2015, http://www.fedbar.org/Advocacy/Washington-Watch/WW-Archives/2015/JanuaryFebruary-2015-Federal-Judges-Score-a-Pay-Adjustment-Quietly.aspx, 7/6/15]JRO

Long-standing precedent has been overturned, Constitutional history made, and the size of federal judicial salaries enlarged over the past year—largely beneath the public radar.

All of this has come about through a series of court decisions, stretching from the U.S. Court of Federal Claims to the U.S. Supreme Court, that have permitted the federal judiciary to win a long, protracted battle over its pay that centered on the guarantee of judicial independence and the Constitution’s bar against reductions in the compensation of federal judges. Most remarkably, the outcome has been achieved in the judiciary’s own

arena: the federal courtroom. There, beginning with a lawsuit in 2009 by a small group of senior-status and retired federal jurists, the federal judiciary has won a series of adjustments in its pay, as guaranteed by a 1989 law and affirmed by the Constitution.

Many members of Congress are only today waking up to the fact that federal judges have prevailed in a string of court decisions that caused their salaries to spike 14 percent from 2013 to 2014. Prior to that time, the paychecks of House members and senators were equal to those of federal district judges, although there was never a statutory link. But today the salaries of members of Congress are less. Today a federal district judge makes $199,100, while a member of Congress earns $174,000.

Decisive court decisions have struck down prior congressional freezes on judicial pay as illegal and restored federal judicial salaries to what they would have been absent the freezes. Those decisions have affected the pay of all 1,330 federal judgeships established under Article III of the Constitution, which includes those in the district, appeals, and international

trade courts, as well as the Supreme Court. The decisions also have raised the pay of many non-Article III judges, including magistrates, and those in the tax, bankruptcy, and claims courts. The Legal Path to Restoration of Prior Pay Adjustments

The judges’ initial winning lawsuit, Beer v. United States, centered on the validity of congressional actions that blocked “automatic” pay adjustments for federal judges despite a 1989 law that purported to guarantee the adjustments. (Congress, in

previously blocking the judicial pay adjustments, also blocked adjustments for themselves, largely for political reasons.) The filing of the lawsuit by the six plaintiff judges in Beer in 2009 did not mark the first time that judges had challenged freezes in their pay. Over the past three decades, judges twice before in five different federal courts had challenged the denial of automatic pay adjustments. Each time they lost. Meanwhile, efforts in Congress to secure legislative relief that restored those adjustments also fell to defeat, despite repeated campaigns by the Federal Bar Association and others, along with public appeals for higher pay by Chief Justice Rehnquist and later Chief Justice Roberts.

Continued tenacity and brilliant advocacy finally brought about a different outcome in the landmark Beer decision. There the U.S. Court of Appeals for the Federal Circuit overturned prior law and declared the pay adjustment-blocking actions of Congress unconstitutional. In reaching that decision, the Federal Circuit overruled its decision in Williams in 2000, which had relied on a 1980 Supreme Court decision denying judicial pay adjustments because the congressional blocking statutes were enacted before the adjustments were to take effect. A subsequent appeal of the Williams decision led to the Supreme Court’s denial of review, but three justices (Breyer, Scalia, and Kennedy) filed an elaborate dissent, dissecting the 1989 statute that established the annual cost-of-living adjustments and explaining why the Compensation Clause of the Constitution was violated by Congress’s actions.

Nine years later, the rationale of the Breyer-Scalia-Kennedy dissent in Williams served as the winning blueprint for the judges’ victory in Beer before an en banc panel of the Federal Circuit. (The FBA twice filed supportive amicus briefs during the Beer litigation.) Ultimately (and not surprisingly), the Supreme Court

denied review in Beer, finalizing the outcome. Since then, groups of judges have successfully brought a handful of lawsuits, applying the outcome of Beer to all Article III judges as a class and, more recently, to various groups of Article I judges.

Congress empirically blocks salary increases in response to controversial decisions --- critical to judicial independenceMiller, 6 --- Associate Professor and Chair of the Department of Government and International Relations at Clark University (Summer 2006, Mark C., Case Western Reserve University, “SYMPOSIUM: JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY: SEARCHING FOR THE RIGHT BALANCE: When Congress Attacks the Federal Courts,” 56 Case W. Res. 1015, JMP)

I. Congress's Compensation Power

There have been many instances in which Congress has used various mechanisms to attack the federal courts for decisions with which a determined legislative majority has disagreed . n30 While to my knowledge Congress has not yet deliberately defied the protections inherent in the Compensation Clause, the legislative branch has used other means to attack the courts and to

attempt to influence court decisions. Even though the Compensation Clause prevents Congress from reducing any

judicial salaries that have already vested, n31 the clause neither requires Congress to provide any annual cost of living [*1021] adjustments for federal judges nor prevents Congress from canceling future announced judicial salary increases. n32 Thus, judicial salaries have

always been a point of contention, and Congress has sometimes used judicial salaries to send a clear message to the courts. For example, in 1964, Congress increased the salaries for lower federal judges by $ 7,500 per year but increased the salaries for Justices of the U.S. Supreme Court by only $ 4,500 per year. As Schmidhauser and Berg explain, "The $ 3,000

differential clearly reflected a direct Congressional reprimand to the Supreme Court. This crude rebuff clearly stemmed from congressional dissatisfaction with several controversial decisions rendered by the Court." n33

Clearly, judicial salary issues have added to the tensions between the courts and Congress. Federal judges often feel that Congress does not provide adequate compensation for them. As Professor Paul M. Bator has remarked, "federal judges, as a group, complain more about their pay than any other group I have ever encountered." n34 There is probably a great deal of truth to the fact that federal judges feel that they are underpaid. In 2003, Judges Coffin and Katzmann noted that, "Since 1969, federal judicial salaries have lost twenty-four percent of their purchasing power." n35 Various congressional actions regarding annual cost of living adjustments for federal judges have not made federal judges feel better about their financial situations. For example, in 1995, 1996, 1997, and 1999, Congress blocked previously announced "automatic" cost of living increases for various governmental officials, including federal judges, that had been provided for in the Ethics Reform Act of 1989. n36 Congress was really attempting to prevent the automatic pay raises for its own members from going into effect, but the legislation blocked federal judicial pay increases as well as the pay raises for legislators. When federal judges sued to [*1022] recover their blocked "automatic" pay increases, the United States Court of Appeals for the Federal Circuit ruled that the proposed "automatic" pay raises had not vested, and thus, there was no violation of the Compensation Clause in the legislative actions. n37 Although the Supreme Court refused to grant certiorari in the case, Justice Breyer wrote a strongly worded dissent to the denial of certiorari, which Justices Scalia and Kennedy joined. n38 This concern with judicial salaries and other budgetary resources is not new, of course. Although he was speaking more broadly of his frustration with congressional budgeting practices, Chief Justice Warren stated in 1969 that, "It is next to impossible for the courts to get something from Congress." n39

In his annual year-end reports on the State of the Judiciary, Chief Justice Rehnquist often complained about Congress's approach

to judicial salary issues. In his 2000 Year-End Report on the Federal Judiciary, Chief Justice Rehnquist focused most of the report on what he termed, " the most pressing issue facing the Judiciary : the need to increase judicial salaries." n40 The Chief Justice went on to say,

In order to continue to provide the nation a capable and effective judicial system we must be able to attract and retain experienced men and women of quality and

diversity to perform a demanding position in the public service. The fact is that those lawyers who are qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges.

In order to continue to attract highly qualified and diverse federal judges -- judges whom we ask and expect to remain for life -- we must provide them adequate compensation. n41

In a quite lengthy discussion of the subject, the Chief Justice also noted that judicial salary issues had been discussed in thirteen of

the last nineteen end-of-year reports on the state of the judiciary. n42 In his 2002 Annual Report, the Chief Justice reiterated the same sentiment: "At the risk of beating a dead horse, I will reiterate what I have said many times over the

years about the need to compensate judges fairly." n43 Judicial salary issues remain important to the Supreme Court and to all federal judges. In his first annual report, Chief Justice Roberts also raised the judicial salary issue:

A more direct threat to judicial independence is the failure to raise judges' pay. If judges' salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life. Figures gathered by the Administrative Office show that judges are leaving the bench in greater numbers now than ever before. n44

Ensuring adequate judicial salaries key to judicial independence and rule of law --- guts global modelJustice Kennedy, 2007 – Supreme Court Justice, Harvard Law School, London School of Economics, Stanford University (Justice Anthony M. Kennedy, “Testimony of Associate Justice Anthony M. Kennedy before the United States Senate Committee on the Judiciary Judicial Security and Independence”, February 14, 2007, http://www.americanbar.org/content/dam/aba/migrated/poladv/priorities/judicial_pay/kennedystatement.authcheckdam.pdf)//TT

As I have tried to convey, separation of powers and checks and balances are not automatic mechanisms.

They depend upon a commitment to civility, open communication, and good faith on all sides. Congress has certain functions that cannot be directed or initiated by the other branches; yet those prerogatives must be exercised in good faith if Congress is to preserve the best of our constitutional traditions. You must be diligent to protect the Constitution and to follow its letter and spirit, and, on most matters, no one, save the voters, can call you to account for the manner in which you discharge these serious responsibilities. This reflects, no doubt, the deep and abiding faith our Founders placed in you and in the citizens who send you here.

Please accept my respectful submission that, to keep good faith with our basic charter, you have the unilateral constitutional

obligation to act when another branch of government needs your assistance for the proper performance of its duties. It is both

necessary and proper, furthermore, that we as judges should, and indeed must, advise you if we find that a threat to the judiciary as an institution has become so serious and debilitating that urgent relief is necessary. In my view, the present Congressional compensation policy for judicial officers is one of these matters.Judges in our federal system are committed to the idea and the reality of judicial independence. Some may think the phrase “judicial independence” a bit timeworn. Perhaps there has been some tendency to overuse the term; there may be a temptation to invoke it each time judges disagree with some commonplace legislative proposal affecting the judiciary. If true, that is unfortunate, for judicial independence is a foundation for sustaining the Rule of Law.

Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must. A judiciary with permanent tenure, with a sufficient degree of separation from other branches of government, and with the undoubted obligation to resist improper influence is essential to the Rule of Law as we have come to understand that term.

Judicial independence presumes judicial excellence, and judicial excellence is in danger of erosion. So at this juncture in the history of the relationship between our two branches my conclusion is that we have no choice but to make clear to you the extent of the problem as we see it, with the hope your Committee will help put the problem into proper perspective for your own colleagues and for the nation at large.

It is my duty, then, to tell you, Mr. Chairman, that in more than three decades as a judge, I have not seen my colleagues in the judiciary so dispirited as at the present time. The blunt fact is that the past Congressional policy with respect to judicial salaries has been one of neglect.

As a consequence, the nation is in danger of having a judiciary that is no longer considered one of the leading judiciaries of the world. This is particularly discordant and disheartening, in light of the care and consideration Congress has generally given in respect to other matters of judicial resources and administration.

The current situation, in my submission, is a matter of grave systemic concern. Let me

respectfully suggest that it is a matter Congress in the exercise of its own independent authority should address, in order to ensure that the essential role of the judiciary not be weakened or diminished. You are well aware of threats to the judiciary that history has deemed constitutional crises, such as the Court’s self-inflicted wound in Dred Scott or the ill-conceived 1937 Court-packing proposal. These were constitutional crises in the

usual sense of the term. So too, however, there can be systemic injury over time, caused by slow erosion from neglect. My concern, shared by many of my colleagues, is that we are in real danger of losing, through a gradual but steady decline, the highly qualified judiciary on which our Nation relies. Your judiciary, the Nation’s judiciary, will be diminished in its stature and its capacity if there is a continued neglect of compensation needs.

Democratic transitions will fail without Supreme Court leadershipSuto 11 --- Research Associate at Tahrir Institute and J.D. [07/15/11, Ryan Suto is a Research Associate at Tahrir Institute for Middle East Policy, has degrees in degrees in law, post-conflict reconstruction, international relations and public relations from Syracuse Law, “Judicial Diplomacy: The International Impact of the Supreme Court”, http://jurist.org/dateline/2011/07/ryan-suto-judicial-diplomacy.php]

The Court is certainly the best institution to explain to scholars, governments, lawyers and lay people alike the enduring legal values of the US, why they have been chosen and how they contribute to the development of a stable and democratic society. A return to the mentality that one of America's most important exports is its legal traditions would certainly benefit the US and stands to benefit nations building and developing their own legal traditions, and our relations with them. Furthermore, it stands to increase the influence and higher the profile of the bench. The Court already engages in the exercise of dispensing justice and interpreting the Constitution, and to deliver its opinions with an eye toward their diplomatic

value would take only minimal effort and has the potential for high returns. While the Court is indeed the best body to conduct legal diplomacy, it has been falling short in doing so in recent sessions. We are at a critical moment in world history . People in the Middle East and North Africa are asserting discontent with their governments . Many nations in Africa, Asia, and Eurasia are grappling with new technologies, repressive regimes and economic despair . With the development of new countries, such as South Sudan, the formation of new governments, as is occurring in Egypt, and the development of new constitutions, as is occurring in Nepal, it is important that the US welcome and engage in legal diplomacy and informative two-way dialogue .

As a nation with lasting and sustainable legal values and traditions, the Supreme Court should be at the

forefront of public legal diplomacy. With each decision, the Supreme Court has the opportunity to better define, explain and defend key legal concepts. This is an opportunity that should not be wasted.

Democracy prevents global warsKagan ’15 [Bob. Senior Fellow for Foreign Policy at Brookings. “Is Democracy in Decline? The Weight of Geopolitics” 1/25/15 http://www.brookings.edu/research/articles/2015/01/democracy-in-decline-weight-of-geopolitics-kagan //GBS-JV]

Diamond and others have noted how important it was that these “global democratic norms” came to be “reflected in regional and international institutions and agreements as never before.”[10] Those norms had an impact on the internal political processes of countries, making it harder for authoritarians to weather political and economic storms and easier for democratic movements to gain legitimacy. But “norms” are transient as well. In the 1930s, the trendsetting nations were fascist dictatorships. In the 1950s and 1960s, variants of socialism were in vogue. But from the 1970s

until recently, the United States and a handful of other democratic powers set the fashion trend. They pushed—

some might even say imposed—democratic principles and embedded them in international institutions and agreements. Equally important was the role that the United States played in preventing backsliding away from democracy where it had barely taken root. Perhaps the most significant U.S. contribution was simply to prevent military coups against fledgling democratic governments.

In a sense, the United States was interfering in what might have been a natural cycle, preventing nations that ordinarily would have been “due” for an authoritarian phase from following the usual pattern. It was not that the United States was exporting democracy everywhere. More often , it played the role of “catcher in the rye” —preventing young democracies from falling off the cliff—in places such as the Philippines, Colombia, and Panama. This helped to give the third wave

unprecedented breadth and durability. Finally, there was the collapse of the Soviet Union and with it the fall of Central and Eastern Europe’s communist regimes and their replacement by democracies. What role the United States played in hastening the Soviet downfall may be in dispute, but surely it played some part, both by containing the Soviet empire militarily and by outperforming it economically and technologically. And at the heart of

the struggle were the peoples of the former Warsaw Pact countries themselves. They had long yearned to

achieve the liberation of their respective nations from the Soviet Union, which also meant liberation from communism. These peoples wanted to join the rest of Europe, which offered an economic and social model that was even

more attractive than that of the United States. That Central and East Europeans uniformly chose democratic forms of government, however, was not simply the fruit of aspirations for freedom or comfort. It also reflected the desires of these peoples to place themselves under the U.S. security umbrella. The strategic, the economic, the political, and the ideological were thus inseparable . Those nations that wanted to be part of NATO, and later of the European Union, knew that they would stand no chance of admission without democratic credentials. These democratic transitions, which turned the third wave into a democratic tsunami, need not have occurred had the world been

configured differently. That a democratic, united, and prosperous Western Europe was even there to exert a powerful magnetic pull on its eastern neighbors was due to U.S. actions after World War II.

1nc Court Stripping – Case Turn

Congressional retaliation will undercut courts --- they have no institutional protection against the backlashCrabb, 12 --- United States District Judge, Western District of Wisconsin (2012, Barbara B., Wisconsin Law Review, “ADDRESS: ROBERT W. KASTENMEIER LECTURE: BRIDGING THE DIVIDE BETWEEN CONGRESS AND THE COURTS,” 2012 Wis. L. Rev. 871)

Another thirty years passed before the judicial system had the opportunity to become self-governing. In 1922, Congress authorized the establishment of what is now the Judicial Conference of the United States, to be made up of the chief judges of each circuit court of appeals, headed by the Chief Justice, and charged with the responsibilities of holding annual meetings to make policy, report on the condition of the dockets in each circuit, and submit recommendations for improving the administration of justice. n21 In 1939, Congress established the Administrative Office of the United States Courts, subject to the control of the Chief Justice and the Judicial Conference, and gave the office financial control of the lower federal courts and primary responsibility for the administration of the federal judiciary. n22 Among other things, this meant that for the first time, the courts were not in the questionable position of having to seek funding from the most frequent litigator in their courts, the Department of Justice. n23 In 1967, Congress authorized the establishment of the Federal Judicial Center, the judiciary's educational and research arm. n24 In 1980 and again in 2002, Congress enacted legislation giving the judicial councils of each circuit new responsibilities for judicial discipline. n25

[*878] These major changes in court administration put the judicial branch on a firmer footing than it had been in the nineteenth century and gave it a larger measure of autonomy, but they did not change the basic relationship between the two branches. The judiciary remained dependent on Congress for the confirmation of new judges, the creation of new judgeships, funding for courthouses, their basic budgets, and procedural rules, just as it is today. The courts still have no independent source of funding. They have no right to be heard on congressional decisions to expand or restrict the scope of the courts' jurisdiction

or to enact laws that will increase the courts' workload. In other words, when it comes to matters affecting institutional independence, the judiciary has no constitutional protection and its power is limited to persuasion. If Congress wanted to, it could retaliate against the courts by cutting the courts' funding ; disestablishing individual courts ; adding or taking away Justices from the Supreme Court; imposing crippling restrictions on the operations of the courts ; narrowing their jurisdiction; impeaching individual judges and Justices; and refusing to confirm nominees to fill judicial vacancies.

The framers set up what could well be a recipe for disaster : giving the judiciary the last word on the law, with the inevitable controversies that authority will provoke, and then giving it no institutional protection . It is a little like giving a person a very old and very unpredictable gun for personal security. If used properly, the gun may perform its intended function, but it's just as

possible that it will inflict great damage on its owner. Making the judiciary the final arbiter on the meaning of the law, with the authority to declare a law or practice unconstitutional gives it power, but a power that can be explosive and set off backlashes of varying proportions . By no means is it a power that can ward off encroachment by the other branches. When an entity has little power in a relationship, it behooves it to assess the sticking points between it and its protagonist, husband carefully what little power it possesses, employ diplomacy, look for areas in which the interests of both parties are in alignment, and seek ways to enhance what little power of persuasion it has.

This crushes judicial independence Baum, 9 --- Professor of Poli Sci at Ohio State (Lawrence, Congress & the Presidency, “Review of “When Courts and Congress Collide: The Struggle for Control of America's Judicial System” Taylor and Francis)

Geyh’s explanation of the customary independence of courts, supported by his analysis of historical developments, provides

considerable insight into the limited use of congressional powers over the courts. Clearly, Congress as a body developed a kind of self-restraint, one that became more deeply rooted over time. Members of Congress who want to take strong concrete action against the courts have had a strong burden of proof to overcome. When members who agree with what the courts have done combine with members who are reluctant to attack judicial independence, they create a formidable barrier to action.

One potential drawback to historical analysis of a current phenomenon is that it is tempting to interpret the outcome of history—-in this case, customary judicial independence—-as inevitable and permanent. That is especially true when the resulting state of the system is characterized in terms of equilibrium. Geyh avoids that temptation. Indeed, he thinks that the courts’ independence might decline markedly as the current era of court-congressional relations continues. He ascribes that possibility largely to a growing belief that judges act on their own preferences rather than the law, a belief that weakens congressional deference to the courts .

Geyh argues that federal judges have helped to preserve their independence by acting cautiously in relation to Congress . He catalogues the array of forms that this caution

takes. He recognizes that caution has been mixed with bold actions that could be expected to arouse congressional wrath, and he sees increasing judicial boldness in the current era as another potential catalyst for inroads on judicial independence. Admittedly, it is difficult to determine the extent to which judges rein themselves in with Congress in mind and even more difficult to determine the effects of such choices. But Geyh makes a good case

that judicial caution has helped to protect the courts’ relative autonomy.

Congress empirically blocks salary increases in response to controversial decisions --- critical to judicial independenceMiller, 6 --- Associate Professor and Chair of the Department of Government and International Relations at Clark University (Summer 2006, Mark C., Case Western Reserve University, “SYMPOSIUM: JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY: SEARCHING FOR THE RIGHT BALANCE: When Congress Attacks the Federal Courts,” 56 Case W. Res. 1015, JMP)

I. Congress's Compensation Power

There have been many instances in which Congress has used various mechanisms to attack the federal courts for decisions with which a determined legislative majority has disagreed . n30 While to my knowledge Congress has not yet deliberately defied the protections inherent in the Compensation Clause, the legislative branch has used other means to attack the courts and to

attempt to influence court decisions. Even though the Compensation Clause prevents Congress from reducing any

judicial salaries that have already vested, n31 the clause neither requires Congress to provide any annual cost of living [*1021] adjustments for federal judges nor prevents Congress from canceling future announced judicial salary increases. n32 Thus, judicial salaries have

always been a point of contention, and Congress has sometimes used judicial salaries to send a clear message to the courts. For example, in 1964, Congress increased the salaries for lower federal judges by $ 7,500 per year but increased the salaries for Justices of the U.S. Supreme Court by only $ 4,500 per year. As Schmidhauser and Berg explain, "The $ 3,000

differential clearly reflected a direct Congressional reprimand to the Supreme Court. This crude rebuff clearly stemmed from congressional dissatisfaction with several controversial decisions rendered by the Court." n33

Clearly, judicial salary issues have added to the tensions between the courts and Congress. Federal judges often feel that Congress does not provide adequate compensation for them. As Professor Paul M. Bator has remarked, "federal judges, as a group, complain more about their pay than any other group I have ever encountered." n34 There is probably a great deal of truth to the fact that federal judges feel that they are underpaid. In 2003, Judges Coffin and Katzmann noted that, "Since 1969, federal judicial salaries have lost twenty-four percent of their purchasing power." n35 Various congressional actions regarding annual cost of living adjustments for federal judges have not made federal judges feel better about their financial situations. For example, in 1995, 1996, 1997, and 1999, Congress blocked previously announced "automatic" cost of living increases for various governmental officials, including federal judges, that had been provided for in the Ethics Reform Act of 1989. n36 Congress was really attempting to prevent the automatic pay raises for its own members from going into effect, but the legislation blocked federal judicial pay increases as well as the pay raises for legislators. When federal judges sued to [*1022] recover their blocked "automatic" pay increases, the United States Court of Appeals for the Federal Circuit ruled that the proposed "automatic" pay raises had not vested, and thus, there was no violation of the Compensation Clause in the legislative actions. n37 Although the Supreme Court refused to grant certiorari in the case, Justice Breyer wrote a strongly worded dissent to the denial of certiorari, which Justices Scalia and Kennedy joined. n38 This concern with judicial salaries and other budgetary resources is not new, of course. Although he was speaking more broadly of his frustration with congressional budgeting practices, Chief Justice Warren stated in 1969 that, "It is next to impossible for the courts to get something from Congress." n39

In his annual year-end reports on the State of the Judiciary, Chief Justice Rehnquist often complained about Congress's approach

to judicial salary issues. In his 2000 Year-End Report on the Federal Judiciary, Chief Justice Rehnquist focused most of the report on what he termed, " the most pressing issue facing the Judiciary : the need to increase judicial salaries." n40 The Chief Justice went on to say,

In order to continue to provide the nation a capable and effective judicial system we must be able to attract and retain experienced men and women of quality and diversity to perform a demanding position in the public service. The fact is that those lawyers who are qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges.

In order to continue to attract highly qualified and diverse federal judges -- judges whom we ask and expect to remain for life -- we must provide them adequate compensation. n41

In a quite lengthy discussion of the subject, the Chief Justice also noted that judicial salary issues had been discussed in thirteen of

the last nineteen end-of-year reports on the state of the judiciary. n42 In his 2002 Annual Report, the Chief Justice reiterated the same sentiment: "At the risk of beating a dead horse, I will reiterate what I have said many times over the

years about the need to compensate judges fairly." n43 Judicial salary issues remain important to the Supreme Court and to all federal judges. In his first annual report, Chief Justice Roberts also raised the judicial salary issue:

A more direct threat to judicial independence is the failure to raise judges' pay. If judges' salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life. Figures gathered by the Administrative Office show that judges are leaving the bench in greater numbers now than ever before. n44

Adequate judicial salaries key to judicial independence --- guts the global modelJustice Kennedy, 2007– Supreme Court Justice, Harvard Law School, London School of Economics, Stanford University (Justice Anthony M. Kennedy, “Testimony of Associate Justice Anthony M. Kennedy before the United States Senate Committee on the Judiciary Judicial Security and Independence”, February 14, 2007, http://www.americanbar.org/content/dam/aba/migrated/poladv/priorities/judicial_pay/kennedystatement.authcheckdam.pdf)//TT

As I have tried to convey, separation of powers and checks and balances are not automatic mechanisms.

They depend upon a commitment to civility, open communication, and good faith on all sides. Congress has certain functions that cannot be directed or initiated by the other branches; yet those prerogatives

must be exercised in good faith if Congress is to preserve the best of our constitutional traditions. You must be diligent to protect the Constitution and to follow its letter and spirit, and, on most matters, no one, save the voters, can call you to account for the manner in which you discharge these serious responsibilities. This reflects, no doubt, the deep and abiding faith our Founders placed in you and in the citizens who send you here.

Please accept my respectful submission that, to keep good faith with our basic charter, you have the unilateral constitutional

obligation to act when another branch of government needs your assistance for the proper performance of its duties. It is both

necessary and proper, furthermore, that we as judges should, and indeed must, advise you if we find that a threat to the judiciary as an institution has become so serious and debilitating that urgent relief is necessary. In my view, the present Congressional compensation policy for judicial officers is one of these matters.Judges in our federal system are committed to the idea and the reality of judicial independence. Some may think the phrase “judicial independence” a bit timeworn. Perhaps there has been some tendency to overuse the term; there may be a temptation to invoke it each time judges disagree with some commonplace legislative proposal affecting the judiciary. If true, that is unfortunate, for judicial independence is a foundation for sustaining the Rule of Law.

Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must. A judiciary with permanent tenure, with a sufficient degree of separation from other branches of government, and with the undoubted obligation to resist improper influence is essential to the Rule of Law as we have come to understand that term.

Judicial independence presumes judicial excellence, and judicial excellence is in danger of erosion. So at this juncture in the history of the relationship between our two branches my conclusion is that we have no choice but to make clear to you the extent of the problem as we see it, with the hope your Committee will help put the problem into proper perspective for your own colleagues and for the nation at large.

It is my duty, then, to tell you, Mr. Chairman, that in more than three decades as a judge, I have not seen my colleagues in the judiciary so dispirited as at the present time. The blunt fact is that the past Congressional policy with respect to judicial salaries has been one of neglect.

As a consequence, the nation is in danger of having a judiciary that is no longer considered one of the leading judiciaries of the world. This is particularly discordant and disheartening, in light of the care and consideration Congress has generally given in respect to other matters of judicial resources and administration.

The current situation, in my submission, is a matter of grave systemic concern. Let me

respectfully suggest that it is a matter Congress in the exercise of its own independent authority should address, in order to ensure that the essential role of the judiciary not be weakened or diminished. You are well aware of threats to the judiciary that history has deemed constitutional crises, such as the Court’s self-inflicted wound in Dred Scott or the ill-conceived 1937 Court-packing proposal. These were constitutional crises in the

usual sense of the term. So too, however, there can be systemic injury over time, caused by slow erosion from neglect. My concern, shared by many of my colleagues, is that we are in real danger of losing, through a gradual but steady decline, the highly qualified judiciary on which our Nation relies. Your judiciary, the Nation’s judiciary, will be diminished in its stature and its capacity if there is a continued neglect of compensation needs.

Uniqueness

Pay Raises Now for Federal Judges

They’re getting paid now House ‘14[William. Political Reporter for the National Journal. “Court Rulings Mean Judges Will Get an Extra $1B in Pay and Benefits” The National Journal 9/24/14 http://www.nationaljournal.com/congress/court-rulings-mean-judges-will-get-an-extra-1b-in-pay-and-benefits-20140924]

More than 2,000 federal judges from Chief Justice John Roberts down will share in about $1 billion more in salary and benefits over the next 10 years because of court rulings determining that Congress improperly withheld automatic increases dating from the 1990s, according to the Congressional

Budget Office.¶ "As a result of those decisions and corresponding administrative actions, many judges will now receive automatic salary increases, and subsequent annuity adjustments, as well as restitution for prior automatic salary increases they should have received," wrote CBO Director Douglas Elmendorf.¶ His cost calculations were delivered in a letter on Wednesday to Senate Judiciary Committee Chairman Patrick Leahy.¶ The letter addresses the financial impacts of successful court challenges to the congressional withholding of federal judge pay increases in 1995, 1996, 1997, 1999, 2007, and 2010. Those legal challenges were most notably carried out in Beer v. United States and

Barker v. United States.¶ Federal court judges have already started to benefit. Their salaries rose by 14 percent on Jan. 1, as the years of missing cost-of-living adjustments were added to their paychecks. The chief justice now is paid $255,500, and associate Supreme Court justices have a $244,400 salary. U.S. Circuit Court

of Appeals judges are getting $211,200 a year, and the annual salary of a U.S. District Court judge is $199,100.¶ As a cumulative result of the court decisions, writes Elmendorf, direct federal spending will be higher by about $1.027 billion from 2015 through 2024. Only about $190 million of that will be discretionary costs, subject to annual appropriations.

Pay raises now for federal judgesGosselin, 14 (1/24/2014, Gary, Michigan Lawyers Weekly, “Federal judges get long-awaited raises,” Lexis, JMP)

(January 16, 2014) All federal judges have received a long-awaited 14 percent pay raise, as years of catch-up cost-of-living adjustments were added to their paychecks, according to Bloomberg News.

The chief justice is being paid $255,500, up from $223,500, according to the report, with associate Supreme Court justices pulling down $244,400 annually up from $213,900. U.S. Circuit Court of Appeals judges are getting $211,200 a year, up from $184,500, and the annual salary of a U.S. District Court judge increased to $199,100 from $174,000.Back in 1995 Congress canceled four cost-of-living wage increases, resulting in a class action that the judges won.

Judicial-Congress Relations Good Now

Relations between congress and the courts are increasing now – familiarity Palazzolo, 14 – [Joe, Staff Writer for the Wall Street Journal on legal affairs, The Wall Street Journal, “Congress and the Courts Are Learning to Get Along”, 12/18/14, http://blogs.wsj.com/law/2014/12/18/congress-and-the-courts-are-learning-to-get-along/, 7/7/15]JRO

The legislative and judicial branches are less neighborly than they once were, but efforts are underway to rekindle a spark in the relationship. The U.S. Supreme Court hasn’t had a member with experience as an elected politician since Justice

Sandra Day O’Connor, a former state senator in Arizona, retired nearly a decade ago. Likewise, only seven members of Congress, all in the House, were judges. The past couple years may have marked a low point in inter-branch relations. The partial shutdown of the government in 2013 “caused broad disruptions” to the courts, which were already smarting from budget cuts. U.S. District Judge Richard G. Kopf in Nebraska, writing on his blog during the shutdown, told Congress to “go to hell,” capturing the sentiments of more than few of his

colleagues. To bridge the gulf, federal judges have been meeting with legislators under the auspices a Pew Charitable Trusts program called “Safe Spaces,” according to a recent

interview posted on the website of the Administrative Office of the U.S. Courts. In the interview, Chief Judge Robert A.

Katzmann of the Second U.S. Circuit Court of Appeals says mending fences is smart from a practical perspective. “After all, the courts depend upon Congress for the appropriation of its budget.” He goes on: We have to understand that the courts will be reviewed in terms of operations by the Congress. They will want to make sure

that our funds are being used appropriately and efficiently. So, we respect congressional prerogatives. We want the Congress to respect judicial prerogatives as to the decisions of particular cases and the decisional autonomy that courts need to have. Understanding each other is essential if we are to do our work effectively. A few seconds

later, he breaks the news that judges and legislators (and staff) are learning to be neighbors again. Judge Katzmann says: As part of that work to improve relations between the branches, the Pew Charitable Trusts has included us in its program on safe spaces, and what this program involves is, over the next two years, having a variety of kinds of meetings with the Hill. So we had a wonderful meeting with the House Judiciary Committee that included the chair and ranking member – Chairman Goodlatte and John Conyers — Justice Breyer, Justice Alito, other members of Congress. We had a meeting just recently with the committee staffs of the House Judiciary Committee and the Senate Judiciary

Committee. We’re having a meeting this spring with senators. And so these kinds of interactions foster a familiarity, make it easier when there are issues having to do with the administration of justice for the branches to interact. A spokeswoman for the Administrative Office of the U.S. Courts declined to describe the nature of the discussions but said there are

no set agendas. A spokeswoman for Pew Charitable Trusts, who also declined to reveal the content of the meetings, said, “We have been pleased to work with Judge Katzmann and others to facilitate discussion among members of Congress and the judiciary on issues of common interest.”

AT: Supreme Court Will Rule on NSA

The Supreme Court will avoid ruling on the NSA – too little dataKerr, 14 – [Orin, is a professor of law at the George Washington University Law School., The Volokh Conspiracy, “Will the Supreme Court Review the NSA’s Telephony Metadata Program?”, 1/2/14, http://volokh.com/2014/01/02/supreme-court-take-bulk-telephony-case-circuit-courts-dont-invalidate-program/, 7/7/15]JRO

In the wake of the dueling opinions by Judges Leon and Pauley about the NSA’s Section 215 telephony metadata program, a lot of commentators are assuming that the issue is heading to the Supreme Court. If a federal circuit court rules that the program is unconstitutional and survives en banc review, then I agree that Supreme Court review is likely. Invalidating a major federal program will usually get the Justices’ attention. But let’s assume that the Second Circuit upholds Judge Pauley’s decision, and the DC Circuit reverses Judge Leon. Will the Supreme Court intervene if the Second and DC Circuits uphold the program? We don’t know, of course, as it all depends on what might get four votes to grant cert. It’s a

discretionary call, so it’s hard to predict. At the same time, I think a lot of commentators overestimate the chances that the Supreme Court would step in. It’s certainly possible, but it’s not at all a sure thing. Here are five reasons why the Supreme Court might not review the Section 215 cases: 1) Section 215 sunsets on June 1, 2015. On that date, the statutory authority for the bulk telephony program will end. If the White House wants to continue the program beyond that date, it will have to convince Congress to expressly approve bulk collection. Alternatively, Congress might not be willing to go along, and will only be willing to approve a modified program or no program at all. Either way, the sunsetting of Section 215 will trigger a major Congressional debate on the desirability of bulk collection that will either reject it or accept it in modified form. A cert petition in the Section 215 cases from Judges Pauley and/or Leon would reach the Supreme Court as this debate was either ongoing or recently worked its way through the elected branches. The fresh debate over the desirability of bulk collection in Congress lessens the likelihood of the Supreme Court stepping in to the debate at that time, both because the issue

may be mooted by statute and because the Court may feel that statutory regulation is preferable to constitutional regulation in this context. See United States v. Jones, 132 S.Ct. 945 (2012) (Alito, J. concurring) (“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”). 2) As I have noted before, there are reasons why the circuit courts may not reach the Fourth Amendment merits in these cases. The same grounds provide reasons why there might not be a Supreme Court ruling on the

merits. 3) The record of exactly what the telephony metadata program is and how it works remains quite murky. The Justices might want to wait until the litigation develops more and the facts become better known. 4) If pretty much everyone has standing to bring a lawsuit seeking to enjoin the telephony metadata program, then there’s no reason why the Supreme Court has to step in after the DC Circuit and Second Circuit rule. The Justices can wait until other circuits address the same issue,

especially in light of the changing statutory picture discussed in #1 above, 5) Reviewing the telephony metadata program would require the Justices to take on a lot of complicated issues that haven’t been explored much in the lower courts. First, the Justices presumably would have to take on the mosaic theory; second, they would have to address the reasonableness of NSA non-content surveillance. Those are each huge issues, and there is very little on them among lower court decisions. Given the Justices’ preference for percolation in the lower courts, and in light of #4 above, they may want to wait until the lower courts work through them. Of course, the counter-argument is that the constitutionality of the bulk telephony program is a question of national importance, and the Supreme Court is the Supreme Court. We pay them the big bucks to step in and decide the big cases. Perhaps. But that view hinges on a notion of the Supreme Court’s

role that four or more Justices may or may not share. We don’t know how eager the Justice s may be to step in, and the arguments above will give them reasons to stay out for now.

Links / Internal Links

Link --- Constitutional Rulings

Controversial constitutional rulings cause significant Congressional backlash – constitutional amendments can be passed to overturn themMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the

Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 9

In theory, when the Supreme Court or another federal court issues a constitutionally based decision, the only way for Congress to

overturn that decision is through a constitutional amendment. In fact, a variety of amendments to the Constitution have been enacted mainly to overturn Supreme Court decisions, including

the Eleventh Amendment, the Civil War amendments (the Thirteenth, Fourteenth, and Fifteenth), the Sixteenth Amendment, and the Twenty-Sixth Amendment. In addition, a variety of constitutional amendments designed to overturn specific Supreme Court decisions have been proposed but never ratified. For example, there have been efforts to pass constitutional amendments prohibiting abortion, prohibiting flag burning, allowing prayer in schools, and prohibiting gay marriage. To date, none of these proposed amendments have received the

two-thirds vote in both houses of Congress necessary to send them to the states for ratification. Even when Congress enacts a constitutional amendment, however, the inter-institutional conversation does not end. As Comiskey has noted, “Because the courts can rule on disputes over the meaning of an amendment’s terms,

amendments do not always end the constitutional dialogue on the subjects they address” (2008, 207).

Some of the most persistent proposals for constitutional amendment proposals have been aimed at prohibiting burning of the American flag as a form of political protest. Votes on proposed constitutional amendments to prohibit flag burning have been taken nearly every year since the Supreme Court’s decisions in Texas v. Johnson (1989) and United States v. Eichman (1990) allowing it. Almost every year since these cases were handed down, one house of Congress has gotten the necessary two-thirds vote to pass the proposed amendment, but the other house has failed to reach that threshold. Thus the proposed amendment has never been sent to the states for ratification because it has never gotten the necessary vote in both houses of Congress at the same time.

In reality, Congress can also take statutory steps to reverse the policy announced by the Court, if not the constitutional decision itself. Davidson notes that the same partisan and ideological fights that Congress engages in over a wide variety of policy issues clearly spill over into issues of constitutional interpretation. “Partisan and ideological allegiances are as divisive as ever,” he writes, “and are especially salient in congressional responses to pressing constitutional questions” (1993, 118). But one Democratic member of Congress warned that Congress should not rush to overturn constitutionally based decisions of the Supreme Court. This member said to me, “The President has said that he has an equal role in interpreting the Constitution with Congress and the Supreme Court, but that is not true. Congress and the President must follow the Supreme Court in constitutionally based cases because the job of the courts is to interpret the Constitution. We can’t just ignore court rulings on the Constitution like the President has tried to do.”

Of the twenty-three Supreme Court decisions studied by Robert Dahl (1957), in effect seventeen were reversed by Congress. Likewise, Joseph Ignagni and James Meernik (1994) found that in the years 1954– 90 Congress had in effect reversed the policy direction in thirteen of the sixty-five decisions they studied. For example, in 1978 the Supreme Court ruled that the Fourth Amendment did not protect the offices of a newspaper from police searches if the police had a search warrant. Congress responded by passing legislation granting additional protections to newspapers (see Peretti 1999, 142). Using a different methodology, Pickerill (2004, 41) found that in almost half of the cases he studied, Congress acted to save statutes found to be unconstitutional by the courts. Pickerill argues that although at times Congress will directly confront the Court’s constitutionally based decisions, “it is much more common for Congress to amend legislation in a manner that makes clear concessions to the Court’s decision” (2004, 49).

Link --- First Amendment

Judicial rulings regarding the First Amendment are fraught with political resentment and failMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 10

Fights between Congress and the Supreme Court over the interpretation of the Free Exercise Clause of the First Amendment have also occurred recently. After Congress overwhelmingly enacted the Religious Freedom Restoration Act in an attempt to overturn the Supreme Court’s decision limiting the free exercise of religion in Employment Division v. Smith (1990), the Supreme Court promptly struck down that statute in City of Boerne v. Archbishop Flores (1997) (see, e.g., Bragaw and Miller 2004). Congress responded by enacting the Religious Land Use and Institutionalized Persons Act of 2000, which reestablished some of the rights protected by the Religious Freedom Restoration Act (see Baum 2004, 212). In striking down the Religious Freedom Restoration Act, the Supreme Court said in the Boerne case, “Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper action and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. When the political branches of the Government act against the background of a judicial interpretation of the

Constitution already issued, . . . it is this Court’s precedent . . . which must control” (521 U.S. 507, 535– 36). Thus the Boerne decision will long be remembered for “its stunning assertion of the Court’s supremacy in settling all governmental disputes” (Bragaw and Perry 2002, 21). Therefore, the U.S.

Supreme Court claims to be the last word on issues of constitutional interpretation. However, many scholars doubt that Congress will refrain in the future from attempting to modify or to overrule Supreme Court decisions through statutory means (see Murphy et al. 2006, 339).

Link --- Statutory Interpretations

Unpopular statutory interpretations not only cause congressional backlash but get ignoredMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the

Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 8

Congress and the federal courts also have routine interactions regarding federal court decisions involving statutory interpretation. Federal courts routinely interpret the statutes enacted by Congress. As Lawrence Baum and Lori Hausegger remind us, “The largest share of the Court’s work is interpretation of statutes

enacted by Congress” (2004, 107). Of course, when the majority in Congress is unhappy with a judicial decision involving statutory interpretation, they can simply pass a new statute to overturn the court’s decision (see, e.g., Henschen 1983). For example, in 1978 Congress enacted the Pregnancy Discrimination Act after the Supreme Court held that pregnancy was not a protected disability under the Civil Rights Act of 1964 (see

Pacelle 2002, 94). The Civil Rights Restoration Act of 1991 overturned at least a dozen Supreme Court statutory-interpretation decisions regarding the ability of victims to sue for alleged

race and sex discrimination. In fact, it is not uncommon for Congress to move to overturn judicial decisions involving statutory interpretation (see, e.g., Eskridge 1991a; and Baum and Hausegger 2004). R. Shep Melnick (1995, 101) believes that Congress overturns many more judicial-policy statements than Eskridge has found, in large part because many members of Congress may not even realize that they are taking action to overturn

a court decision in any given piece of legislation. Mark Graber (1993) and George Lovell (2003), among others, argue that at times Congress intentionally passes statutes with ambiguous language, thus further empowering the courts by almost requiring them to interpret the ambiguous statutes. In other words, Congress punts the most controversial decisions to the courts in order to preserve a fragile coalition in the legislative branch. After the courts issue rulings involving statutory interpretation, Congress may decide to review its original ambiguous compromise. Davidson (1993) reports that Congress now pays increasing attention to the statutory-interpretation decisions of the courts. According to Davidson, “An increasingly frequent source of the lawmaking agenda is found in judicial interpretations of existing statutory language” (1993, 103). Jeb Barnes (2004b) has found

that Congress pays a great deal of attention to the statutory-interpretation decisions of the federal courts. As Barnes has summarized the changing nature of the such rulings by the courts, “Put simply,

today’s federal judges not only serve their traditional role of resolving politically important constitutional disputes, but also pay a significant role in administering conflicts among competing agencies over the meaning of statutes and considering public challenges to regulatory procedures and decisions” (J. Barnes 2004a, 36).

Link --- National Security Ruling

Judicial involvement in national security cases threatens its prestige and authority Chesney, 2009 – Professor at the University Of Texas School Of Law (Robert, “National Security Fact Deference”, 95 Va. L. Rev. 1361, October 2009, http://www.virginialawreview.org/sites/virginialawreview.org/files/1361.pdf)//TT

This leaves the matter of secrecy. Secrecy relates to the collateral consequences inquiry in the sense that failure to maintain secrecy with respect to national security information can have extralitigation consequences for government operations—as well as for individuals or even society as a whole—ranging from the innocuous to the disastrous. Without a doubt this is a significant concern. But, again, it is not clear that deference is required in order to address it. Preservation of secrecy is precisely the reason that the state secrets privilege exists, of course, and it also is the motive for the Classified Information Procedures Act, which establishes a process

through which judges work with the parties to develop unclassified substitutes for evidence that must be withheld on secrecy grounds.222

3. Institutional Self-Preservation

Judicial involvement in national security litigation, as noted at the outset, poses unusual risks for the judiciary as an institution. Such cases are more likely than most to involve claims of special, or

even exclusive, executive branch authority. They are more likely than most to involve a perception—on the part of the public, the government, or judges themselves—of unusually high stakes. They are more likely than most to be in the media spotlight and hence in view of the public in a meaningful

sense. These cases are, as a result of all this, especially salient as a political matter. And therein lies the danger for the courts. Because of these elements, an inappropriate judicial intervention in national security litigation is unusually likely to generate a response from the other branches or the public at large that might harm the institutional interests of the judiciary, either by undermining its prestige and authority or perhaps even by triggering some form of concrete political response.This concern traditionally finds expression through the political question doctrine, which in its prudential aspect functions to spare

judges such risks. But just because a court determines that a case or an issue is justiciable does not mean that the institutional self-preservation concern has gone away or that a judge has lost sensitivity to it. National security fact deference provides a tempting opportunity for judges to accept the responsibility of adjudication while simultaneously reducing the degree of interbranch conflict and hence the risk of political blowback. We cannot expect judges to attribute deference decisions to this motivation, of course, but we must account for the possibility—even the likelihood—that such concerns will play some role.

Link --- NSA / Surveillance

Congress opposes any further restrictions on surveillanceGross 6/5/15 [Grant - covers technology and telecom policy in the U.S. government for the IDG News Service, and is based in Washington, D.C. “Don't expect major changes to NSA surveillance from Congress”, PC World, http://www.pcworld.com/article/2932337/dont-expect-major-changes-to-nsa-surveillance-from-congress.html] BSchulz 21

After the U.S. Congress approved what critics have called modest limits on the National Security

Agency’s collection of domestic telephone records, many lawmakers may be reluctant to further change the government’s surveillance programs. The Senate this week passed the USA Freedom Act, which aims to end the NSA’s mass collection of domestic phone records, and President Barack Obama signed the bill hours later.

After that action, expect Republican leaders in both the Senate and the House of Representatives to resist further calls for surveillance reform. That resistance is at odds with many rank-and-file lawmakers, including many House Republicans, who want to further limit NSA programs brought to light by former agency contractor Edward Snowden. Civil liberties groups and privacy advocates also promise to push for more changes. It may be difficult to get “broad, sweeping reform” through Congress, but many lawmakers seem ready to push for more changes, said Adam Eisgrau, managing director of the office of government relations for the American Library Association. The ALA has charged the NSA surveillance programs violate the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable searches and seizures. “Congress is not allowed to be tired of surveillance reform unless it’s prepared to say it’s tired of the Fourth Amendment,” Eisgrau said. “The American public will not accept that.” Other activists are less optimistic about more

congressional action. “It will a long slog getting more restraints,” J. Kirk Wiebe, a former NSA analyst and whistleblower said by email. ”The length of that journey will depend on public outcry—that is the one thing that is

hard to gauge.” With the USA Freedom Act, “elected officials have opted to reach for low-hanging fruit,” said Bill Blunden, a cybersecurity researcher and surveillance critic. “The theater we’ve just witnessed allows decision makers to boast to their constituents about reforming mass surveillance while spies understand that what’s actually transpired is hardly major change.” The “actual physical mechanisms” of surveillance programs remain largely intact. Blunden added by email. “Politicians may dither around the periphery but

they are unlikely to institute fundamental changes.” What’s in the USA Freedom Act? Some critics have blasted the USA Freedom Act as fake reform, while supporters have called it the biggest overhaul of U.S. surveillance program in decades. Many civil liberties and privacy groups have come down in the middle of those two views, calling it modest reform of the counterterrorism Patriot Act. The law aims to end the NSA’s decade-plus practice of collecting U.S. telephone records in bulk, while allowing the agency to search those records in a more targeted manner. The law also moves the phone records database from the NSA to telecom carriers, and requires the U.S. Foreign Intelligence Surveillance Court (FISC) to consult with tech and privacy experts when ruling on major new data collection requests from the NSA. It also requires all significant FISC orders from the last 12 years to be released to the public. The new law limits bulk collection of U.S. telephone and business records by requiring the FBI, the agency that applies for data collection, to use a “specific selection term” when asking the surveillance court to authorize records searches. The law prohibits the FBI and NSA from using a “broad geographic region,” including a city, county, state or zip code, as a search term, but it doesn’t otherwise define “specific search term.” That’s a problem, according to critics. The surveillance court could allow, for example, “AT&T” as a specific search term and give the NSA the authority to collect all of the carrier’s customer records. Such a ruling from FISC would seem to run counter to congressional intent, but this is the same court that defined all U.S. phone records as “relevant” to a counterterrorism investigation under the

old version of the Patriot Act’s Section 215. The USA Freedom Act also does nothing to limit the NSA’s surveillance of overseas Internet traffic, including the content of emails and IP voice calls. Significantly limiting that NSA program, called Prism in 2013 Snowden leaks, will be a difficult task in Congress, with many lawmakers unconcerned about the privacy rights of people who don’t vote in U.S. elections. Still, the section of the Foreign Intelligence Surveillance Act that authorizes those NSA foreign surveillance programs sunsets in 2017, and that deadline will force Congress to look at FISA, although lawmakers may wait until the last minute, as they did with the expiring sections of the Patriot Act covered in the USA Freedom Act. The House Judiciary Committee will continue its oversight of U.S. surveillance programs,

and the committee will address FISA before its provisions expire, an aide to the committee said. Republican leaders opposed to more changes Supporters of new reforms will have to bypass congressional leadership, however. Senate Republican leaders attempted to derail even the USA Freedom Act and refused to allow amendments that would require further changes at the NSA. In the House, Republican leaders threatened to kill the USA Freedom Act if the Judiciary Committee amended the bill to address other surveillance programs. Still, many House members, both Republicans and Democrats, have pushed for new surveillance limits, with lawmakers adding an amendment to end so-called backdoor government searches of domestic communications to a large

appropriations bill this week. Obama’s administration has threatened to veto the appropriations bill for several unrelated reasons, but several House members have pledged to push hard to prohibit the FBI and CIA from searching the content of reportedly tens of thousands of U.S. communications swept up in an NSA surveillance program targeting overseas terrorism suspects. Closing that surveillance backdoor is a top priority for civil liberties groups, said Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union’s Washington, D.C., legislative office. “We’ve had this statute that masquerades as affecting only people abroad, but the reality is that it sweeps up large numbers of U.S. persons,” she said. Other changes possible Advocates and lawmakers will also push for a handful of other surveillance reforms in the coming months. The changes most likely to pass make limited changes to surveillance programs, however. While not tied to NSA surveillance, lawmakers will press for changes to the 29-year-old Electronic Communications Privacy Act (ECPA), a wiretap law that gives law enforcement agencies warrantless access to emails and other communications stored in the cloud for more than six months. A House version of ECPA reform counts more

than half the body as co-sponsors. Still, tech companies and civil liberties groups have been pushing since 2010 to have those communications protected by warrants, but law enforcement agencies and some Republican lawmakers have successfully opposed the changes.

Link --- Executive Order 12333 / Surveillance

Congress would be heavily opposed to the plan - they tried to slip 12333 provisions into the Intelligence Authorization Act in attempt to prevent court interventionMasnick 14 [Mike - he founder and CEO of Floor64 and editor of the Techdirt blog. “How Congress Secretly Just Legitimized Questionable NSA Mass Surveillance Tool”, Tech Dirt, 12/12/14, https://www.techdirt.com/articles/20141212/07421729414/how-congress-secretly-just-legitimized-questionable-nsa-mass-surveillance-tool.shtml] BSchulz 23

We recently noted that, despite it passing overwhelmingly, Congress quietly deleted a key bit of NSA reform that would have blocked the agency from using backdoors for surveillance. But this week something even more nefarious happened, and it likely

would have gone almost entirely unnoticed if Rep. Justin Amash's staffers hadn't caught the details of a new provision quietly slipped into the Intelligence Authorization Act, which effectively "legitimized" the way the NSA conducts most of its mass surveillance. For a while now, we've discussed executive order 12333, signed by President Ronald Reagan, which more or less gives the NSA unchecked authority to tap into any computer system not in the US. Over the summer, a former State Department official, John Napier Tye, basically blew the whistle on 12333 by noting that everyone focused on other NSA programs were missing the point. The NSA's surveillance is almost entirely done under this authority, which has no Congressional oversight. All those other programs we've been arguing about -- Section 215 of the Patriot Act or Section 702 of the FISA Amendments Act -- are really nothing more than ways to backfill the data the NSA has been unable to access under 12333. In other words, these other programs are the distraction. 12333 is the ballgame, and it has no Congressional oversight at all. It's just a Presidential executive order. Yet,

what Amash and his staffers found is that a last minute change by the Senate Intelligence Committee to the bill effectively incorporated key parts of EO 12333 into law, allowing for "the acquisition, retention, and dissemination" of "nonpublic communications." Here's where those who slipped this bit into the law got sneaky. Recognizing that they might be called on it, they put it in with language noting that such information could only be held on to for five years -- and then claimed what they were really doing was putting a limit on data already collected: Backers of the section argue it would actually limit to five years the amount of time communications data could be kept at intelligence agencies, certain exceptions permitting.

But it is generally acknowledged that such data is already rarely kept beyond five years, which Amash characterized as a trade-off that "provides a novel statutory basis for the executive branch's capture and use of Americans' private

communications." "The provisions in the intel authorization appear to be an attempt by Congress to place statutory restrictions on the retention of information collected under Executive Order 12333, which is not subject to court oversight, has not been authorized by Congress, and raises serious privacy concerns," said Neema Guliani, legislative counsel with the American Civil

Liberties Union. "However, these restrictions are far from adequate, contain enormous loopholes, and notably completely exclude the information of non-U.S. persons." This seems particularly nefarious. In trying to claim that they're putting a limit on this activity (that's already happening) they can

claim that they're not really expanding the power of the NSA and the surveillance state. But, by putting it in law, rather than just having it in an executive order, they're effectively legitimatizing the practice, and making it much harder to roll back. And they did it all quietly without any debate. That's massively troubling. Inserting such a major power into the law at the very least deserves (and should require) a full and fair public debate about the issue and whether or not it is

truly needed. Doing it in secret, at the last minute, with no public acknowledgement or discussion, and then pretending it's about "limits" rather than legitimizing what's in EO 12333 is really, really nefarious. Unfortunately, even with Rep. Amash raising the alarm about it,

the bill easily passed 325 to 100, without most in Congress probably having any idea about this issue and what it meant. Rep. Zoe Lofgren claimed that if Congress fully understood the provision, it almost certainly wouldn't have passed: "If this hadn't been snuck in, I doubt it would have passed," said Rep. Zoe Lofgren, a California Democrat who voted against the bill. "A lot of members were not even aware that this new provision had

been inserted last-minute. Had we been given an additional day, we may have stopped it." This is the kind of crap that the

intelligence community keeps pulling, and it's why there's so much that's troubling in the way they play the

legislative game. Not only do they write the legislative language in sneaky ways that they can carefully

interpret themselves -- they then get "friends" in Congress to quietly insert the language when no one's looking. By putting it in bills that have to pass, these things get put into the law and aren't at all easy to remove.

Link --- Drones

Congress views domestic drones as a necessity Waterman 12 [Shaun - editor of POLITICO Pro Cybersecurity. He is an award-winning journalist who has worked for the BBC and United Press International. “Drones over U.S. get OK by Congress”, Washington Times, 2/7/12,

http://www.washingtontimes.com/news/2012/feb/7/coming-to-a-sky-near-you/?page=all] Bschulz 24

Look! Up in the sky! Is it a bird? Is it a plane? It’s … a drone, and it’s watching you. That’s what privacy advocates fear from a bill

Congress passed this week to make it easier for the government to fly unmanned spy planes in U.S. airspace. The FAA Reauthorization Act, which President Obama is expected to sign, also orders the Federal Aviation

Administration to develop regulations for the testing and licensing of commercial drones by 2015. Privacy advocates say the measure will lead to widespread use of drones for electronic surveillance by police agencies across the country and eventually by private companies as well. “There are serious policy questions on the horizon about privacy and surveillance, by both government agencies and commercial entities,” said Steven Aftergood, who heads the Project on Government Secrecy at the Federation of American Scientists. The Electronic Frontier Foundation also is “concerned

about the implications for surveillance by government agencies,” said attorney Jennifer Lynch. The provision in the legislation is the fruit of “a huge push by lawmakers and the defense sector to expand the use of drones ” in American airspace , she added. According to some estimates, the commercial drone market in the United States could be worth hundreds of millions of dollars once the FAA clears their use. The agency projects that 30,000 drones could be in the nation’s skies by 2020. The highest-profile use of drones by the United States has been in the CIA’s armed Predator-drone program, which targets al Qaeda terrorist leaders. But the vast majority of U.S. drone missions, even in war zones, are flown for surveillance. Some drones are as small as model aircraft, while others have the wingspan of a full-size jet. In Afghanistan, the U.S. use of drone surveillance has grown so rapidly that it has created a glut of

video material to be analyzed. The legislation would order the FAA, before the end of the year, to expedite the process through which it authorizes the use of drones by federal, state and local police and other agencies. The FAA currently issues certificates, which can cover multiple flights by more than one aircraft in a particular area, on a case-by-case basis. The Department of Homeland Security is the only

federal agency to discuss openly its use of drones in domestic airspace. U.S. Customs and Border Protection,

an agency within the department, operates nine drones, variants of the CIA’s feared Predator. The aircraft, which are flown remotely by a team of 80 fully qualified pilots, are used principally for border and counternarcotics surveillance under four long-term FAA certificates. Officials say they can be used on a short-term basis for a variety of other public-safety and emergency-management missions if a separate certificate is issued for that mission. “It’s not all about surveillance,” Mr. Aftergood said. Homeland Security has deployed drones to support disaster relief operations. Unmanned aircraft also could be useful for fighting fires or finding missing climbers or hikers, he added. The FAA has issued hundreds of certificates to police and other government agencies, and a handful to research institutions to allow them to fly drones of various kinds over the United States for particular missions. The agency said it issued 313 certificates in 2011 and 295 of them were still active at the end of the year, but the FAA refuses to disclose which agencies have the certificates and what their purposes are. The Electronic Frontier Foundation is suing the FAA to obtain records of the certifications. “We need a list so we can ask [each agency], ‘What are your policies on drone use? How do you protect privacy? How do you ensure compliance with the Fourth Amendment?’ ” Ms. Lynch said. “Currently, the only barrier to the routine use of drones for persistent surveillance are the procedural requirements imposed by the FAA for the issuance of certificates,” said Amie Stepanovich, national security counsel for the Electronic Privacy Information Center, a research center in Washington. The Department of Transportation, the parent agency of the FAA, has announced plans to streamline the certification process for government drone flights this year, she said. “We are looking at our options” to oppose that, she added. Section 332 of the new FAA legislation also orders the agency to develop a system for licensing commercial drone flights as part of the nation’s air traffic control system by 2015. The agency must establish six flight ranges across the country where drones can be test-flown to determine whether they are safe for travel in congested

skies. Representatives of the fast-growing unmanned aircraft systems industry say they worked hard to get the provisions into law. “It sets deadlines for the integration of [the drones] into the national airspace,” said Gretchen West, executive vice president of the Association for Unmanned Vehicle Systems

International, an industry group. She said drone technology is new to the FAA. The legislation, which provides several deadlines for the FAA to report progress to Congress, “will move the [drones] issue up their list of priorities ,” Ms. West said.

Link Magnifier --- Congress Scrutinizes Court Decisions

Court decisions are subject to extreme Congressional scrutiny – ensures backlashMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 12

Pickerill has found that Congress pays a great deal of attention to constitutionally based judicial decisions, at least those from the Supreme Court. Congress may not devote much time to constitutional

issues in its initial debates on legislation (Pickerill 2004, 67), but it does respond when the courts declare congressional actions to be unconstitutional. As Pickerill notes, “Congress is highly responsive to Supreme Court decisions striking federal statutes; that is, Congress usually responds formally to the Supreme Court by repassing the statute in modified form, amending the Constitution, or taking other official action” (2004, 7). “When it comes to constitutional issues,” he concludes,

“Congress is often a reactive body” (2004, 145). Congress is certainly aware of the voice of the courts in the inter-institutional constitutional debate, although the legislative branch may not always yield to the dictates of the judicial branch.

The more routine interactions between Congress and the federal courts illustrate that the two institutions have very different perspectives and wills. At times, these regular interactions inevitably produce friction and tension between the two institutions. At times, Congress has attempted to use its institutional powers in the judicial confirmation process and in the budgetary process, among others, to help shape the direction of judicial decisions. At

other times, Congress has been more direct in its attempts to guide or alter the scope of judicial decisions. Since constitutional interpretation is a continuous dialogue among the political actors in American society, these interactions between Congress and the courts will probably continue well into the future. Congress will always attempt to influence the decision making of federal judges, including the justices who sit on the U.S. Supreme Court. While this continuous conversation among the branches of government is certainly healthy, there are limits as to how far Congress should go in its attempts to influence judicial decisions.

When Congress goes too far, the majority in Congress may get what they want in the short term, but at the expense of the fundamental principle of judicial independence . Independent federal courts must remain key participants in the ongoing inter-institutional constitutional conversation.

Internal --- Congressional Backlash Impacts Judicial Salaries

Controversial court decisions result in Congress stripping judicial payMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 1

Appropriations for the Courts and Judicial Salaries Another regularized interaction between Congress and the federal courts involves the annual budget process for the federal judiciary. Congress has the power of the purse, and each year Congress must appropriate funds for the operation of the federal court system. Each year, one or two justices travel across the street to testify before the Appropriations Committee of either the House or the Senate to explain the proposed budget for the federal judiciary. In a rare occurrence, in February 2007 Justice Kennedy even testified before the Senate Judiciary Committee concerning the judicial branch’s request for higher salaries for federal judges (see Biskupic 2007; and Mauro 2007). Thus

overall appropriations for the judicial branch have long been a source of concern and conflict between Congress and the federal courts (see, e.g., Walker and Barrow 1985; Perry

1999; and Rishikof and Perry 1995). In her study of congressional appropriations for the federal judiciary, Eugenia Toma found that from 1946 to 1977, Congress rewarded the Supreme Court with budget increases when it

handed down conservative decisions and attempted to punish the Court for its liberal decisions by withholding budget increases. Toma concluded that Congress “signals its overall approval or disapproval of the Court’s direction through budgetary allocations” (1991, 146). However, even Toma agrees that this control mechanism works only “at the margin” (145).

Members of Congress do often threaten to use their power of the purse against the

federal courts, even if those threats usually do not materialize. Thus when Majority Leader Tom DeLay bellowed, “We set up the courts. We can unset the courts. We have the power of the purse!” (qtd. in Klein 2005), or when Congressman Steve King (R-IA) expressed his frustration with the courts by declaring, “When their budget starts to dry up, we’ll get their attention” (qtd. in Marcus 2005), these threats seemed to ring hollow. The fact that Congress rarely cuts

the federal judiciary’s budget, however, does not reduce the seriousness of these threats. It is certainly possible in the future that if Congress becomes angry enough with the Supreme Court or with the other federal courts, the judicial branch’s annual budget will suffer. In addition to

judicial salaries, the federal courts depend upon Congress for funds for new judgeships, for courthouses, for staff, for technology, and for a variety of other purposes. Chief Justice Warren was upset with Congress because it would not even provide the necessary funds for a library messenger for the

Court (see Peretti 1999, 143). As I have written previously, “The annual appropriations process provides a clear avenue to see the different institutional perspectives of the Supreme Court and of Congress. The courts rightly see themselves as an independent third branch, and many judges seem to resent Congress’s interference with their budget requests”

(Miller 2004, 64). Congress, however, often views the federal courts as just one more federal agency begging for funds (see, e.g., Resnik 2000b, 1011). Judicial salary increases are not at the top of the agenda for many politicians. As one staffer to a liberal Democrat told me, “Federal judges already make more money than most of our constituents. It’s hard to be sympathetic to their salary concerns.” Another staffer for a liberal Democrat told me, “There’s no way we are raising judicial salaries until we get a decent increase in the minimum wage first.” Echoing the point that the courts are just one more federal agency begging for money, a Democratic staffer in the Senate told me, “Judges are public servants, and the courts aren’t special. There are other benefits to being a judge other than the

salaries.” Thus judicial salaries are not high-priority items on the congressional agenda each year, although federal judges have long complained that they were severely underpaid.

Congress can use compensation and appropriation power in response to decisions it disagrees withMiller, 6 --- Associate Professor and Chair of the Department of Government and International Relations at Clark University (Summer 2006, Mark C., Case Western Reserve University, “SYMPOSIUM: JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY: SEARCHING FOR THE RIGHT BALANCE: When Congress Attacks the Federal Courts,” 56 Case W. Res. 1015, JMP)

I would like to begin by thanking the organizers of this wonderful conference on judicial independence for inviting me to comment on the excellent paper presented by Professors Entin and Jensen. n1 This paper tells us a great deal about issues surrounding tax legislation and the Compensation Clause. It is certainly possible that Congress might attempt to attack the courts through the use of tax legislation, and the Compensation Clause is certainly one device designed to protect the courts from such attacks. Clearly, the Compensation Clause helps ensure judicial independence. I think Professors Entin and Jensen have given us a strong

examination of the intersection of tax law and the Compensation Clause. Nevertheless, I would like to broaden the discussion to cover various ways in which Congress can attack the federal courts when the legislative branch is unhappy with the decisions of the judicial branch . Specifically, Congress can use its compensation power , appropriation power, and impeachment power to demonstrate Congress's disapproval of a judicial decision.

Congressional backlash empirically blocks judicial salary increasesTalmadge, 99 --- Justice on the Washington Supreme Court (Winter 1999, Philip A., Seattle University Law Review, “Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems,” 22 Seattle Univ. L. R. 695)

The doctrine of judicial restraint has been encrusted in recent years with considerable ideological cant of both the left and the right. n17 The ideological discussion highlights particular political issues of the day.

Many conservatives decry judicial activism with respect to the courts' role in racial desegregation in America or [*702] reproductive rights issues. n18 Liberals complain today of judicial activism in property and economic issues. n19 But this doctrine need not be the captive of the left or the right. The doctrine itself has become "political" largely because it is not susceptible to rigorous and predictable definition.

That the courts are not entirely trusted by the partisan branches of government to announce constitutional principles is illustrated by recent Washington legislation. In 1997, a bill was introduced in the Washington State House of Representatives with thirty-three sponsors. The bill challenged the doctrine of judicial review: "The doctrine of judicial review that the courts have the sole and final say in interpreting the Constitution on behalf of all three branches of government has been subject to serious analysis and criticism by scholars, jurists, and others for almost two hundred years." n20 The legislation's apparent intent was to undercut the finality and authority of judicial review of constitutional questions by permitting the legislature to disagree with a judicial interpretation of the Washington Constitution and to submit the issue to the voters in a statewide referendum. n21

[*703] The sense that the courts are too powerful sometimes conflicts with direction to judges from the partisan branches to state their views more publicly. In 1997, twenty-two sponsors introduced in the Washington State House of Representatives a measure urging the Supreme Court to amend Canon 7 of the Code of Judicial Conduct to afford judges and judicial candidates the right to "speak freely and without fear of governmental retaliation, on issues that are not then before the court." n22

The United States Congress has also raised serious questions about judicial performance through a different methodology. The United States Senate's recent glacial pace in confirming nominees to judicial vacancies increases judicial workloads and instills

trepidation in the minds of the nominees. n23 In recent legislation, n24 Congress [*704] sought to restrain "judicial activism" by denying judges cost-of-living salary adjustments and limiting federal court jurisdiction. Various versions of the legislation would deny federal courts the power to release federal prisoners because of bad prison conditions and establish special procedures to hear challenges to state initiative measures.

In summary, these issues illustrate the need for the courts continually to revisit and review the core constitutional functions of the judiciary. n25 Within the constitutional sphere, however, the courts should be active and the other branches of government constrained not to act unconstitutionally. The judiciary cannot "restrain" itself from declaring the enactments of legislative bodies violative of constitutional norms. The courts must vigorously protect individuals, particularly minorities, from majoritarian

tyranny. But this protective role does not allow the courts to "constitutionalize" every controversy. Judicial self-restraint lends support to the legitimacy of judicial independence.In our system of separation of powers, achievement of the necessary balance between a judiciary vigorous within its constitutional sphere and independent of the partisan branches of government, and a judiciary restrained in its inclination to right every wrong, is no easy task. That necessary balance is, however, the essence of ordered liberty in the American constitutional system. Likewise, the other branches of government must regard the authority and independence of the judiciary by respecting judicial

review, properly funding the courts, and avoiding the imposition of nonjudicial duties or ever-escalating caseloads. The fulfillment of separation of powers is found in the principles of restraint employed in the federal and state court systems.

Congress uses the judicial budget to exert political influence over the Supreme Court—threatens judicial independence Toma, 91 – Professor of Public Policy at the Martin School of Public Policy and Administration, PhD Economics (Eugenia Froedge, “Congressional Influence and the Supreme Court: The Budget as a Signaling Device”, The Journal of Legal Studies, January 1991, http://www.jstor.org/stable/724457)//TT

Taken together, the results of the empirical tests and the ancedotal evidence suggest that Congress uses the budget as a device to signal its approval or disapproval to the Court. The answer as to whether the Court responds to the budgetary signals by altering its decisions in the direction desired by Congress was not addressed through an examination of specific case decisions. Instead, I tested only whether the budget was a determinant of the overall liberal/conservative rating of Court decisions. The budget was significant in all tests. The results are supportive of the thesis developed in this article. While the selection process for judges and the lifetime tenure on the bench can insulate the Court

from political pressures to a large degree, the budget appears to be a mechanism which, at the margin,

allows Congress to exert political influence over Supreme Court decision making.[omit chart]

IV. CONCLUDING COMMENTS

This article has empirically examined the relationship between budget allocations by Congress and Supreme Court decision

making. The findings suggest that the relationship between Congress and the Supreme Court resembles-in kind if not in degree-that between Congress and other agencies in a very important way. Congress signals its overall approval or disapproval of the Court's direction through budgetary allocations.

Richard Epstein suggests that there is an optimal amount of independence for the Supreme Court.23 From a constitutional perspective, complete independence of any single branch of government grants a greater than optimal amount of discretion to that branch. Epstein argues that a fixed term of tenure on the bench, therefore, may be preferable to the current life tenure, for it

would reduce the power of the Court. The retention of budgetary authority by Congress over the Court represents another means by which some accountability of the Court remains intact. As long as the Congress controls the purse strings, members of the Supreme Court will not be totally autonomous agents.

Internal --- Congressional Backlash => Cuts to Judicial Budget

Congress cuts judicial budget in response to politically unpopular decisions Cross and Nelson, 2001 – JD Harvard, BA University of Kansas, Professor of Business Law and Law at the University of Texas; Assistant Professor of Political Science at the Pennsylvania State University (Frank and Blake, “STRATEGIC INSTITUTIONAL EFFECTS ON SUPREME COURT DECISIONMAKING”, 95 Nw. U. L. Rev. 1437 2000-2001, hein online)//TT

Congressional resource controls are not limited to salary adjustments and expenses. The judiciary has considerable concern about its caseload and docket control.199 When Congress in the 1980s considered the Civil Justice Reform Act, legislation that would affect judicial control over civil case processing, the judiciary

lobbied hard and effectively to ward off this intrusion of their authority.200 Congress may pressure the judiciary by refusing to authorize new judgeships or confirm new judges, or even by threatening the reduction of judgeships.201 Such measures increase the caseload per judge and make the position a less enjoyable one.

Judicial resource concerns are periodically quite evident. In 1989, a press conference at the Supreme Court was

held to express concern for judicial salaries, described as "the most serious threat to the future of the judiciary and its continued operation. 202 Judicial lobbying is readily observed by casual review of The Third Branch, the official journal of the federal courts, published monthly by the Administrative Office of the U.S. Courts.2° i Judith Resnik suggests that the federal judiciary has recently become something like an agency, not a co-equal branch, due to its dependency on Congress for resources.204

There is empirical evidence that Congress pays attention to Supreme Court decisions and punishes undesirable decisions with budget cuts, and that the Justices respond with decisions more amenable to congressional policy goals. Eugenia Toma hypothesized that the relationship between

Congress and the Supreme Court was a contractual one in which budgetary favors are linked to politically acceptable decisions. 20 5 She empirically analyzed the Court's budget and its decisions. The greater the ideological distance between a term's decisions and the congressional average of the relevant House and Senate

committees, the less money was appropriated for the Court's budget.20 6 She also found that the Court responded to these signals and modified its decisions accordingly. 20 7 The effect was not an enormous one and not entirely consistent over the years, 208 but it was clearly present, enough to meet rigorous standards of statistical significance.209

Congress may achieve indirectly through appropriations what it cannot do directly. 210

Congress will backlash by limiting salary increases or cutting other necessary funding for courtsCross and Nelson, 2001 – JD Harvard, BA University of Kansas, Professor of Business Law and Law at the University of Texas; Assistant Professor of Political Science at the Pennsylvania State University (Frank and Blake, “STRATEGIC INSTITUTIONAL EFFECTS ON SUPREME COURT DECISIONMAKING”, 95 Nw. U. L. Rev. 1437 2000-2001, hein online)//TT

c. Resource Punishment.-Perhaps the most salient constraint on courts involves congressional control over their resources.

Judicial salaries are generally protected from being cut by Congress, but a displeased Congress may withhold salary increases or other resources. 182 There are few, if any, constraints on congressional control of

funding for judicial support staff, courthouses, and other necessary resources of the Third Branch. Congress does not

automatically defer to the Court's budget requests, nor does it automatically grant the Court some increase in resources to account for inflation or growing caseloads. Between 1946 and 1988, the real budget for the Court increased at an average of 3.2% per year, but annual changes in the budget have varied from a negative

9.8% to a positive 13.7%.183 Plainly, Congress has both the power and inclination to manipulate appropriations to the courts.' 84

One might naively presume that federal judges are above caring about matters so mundane as money, but this is not the case.

Justices frequently go to Congress pleading for more resources and even more pay.'85 More indirectly, the judiciary has gone to Congress to reduce their caseload, seeking an expansion in the number of judges and a reduction in federal cases. 186 They express a concern for coming years about "how to pay the rent."'187 The "federal judiciary as an entity now worries about federal judges' salaries, their cost of living increases, pensions, travel budgets, sharing courtrooms (as compared to having a courtroom of one's own), building and maintenance, ' staff and employment - " policies, and the nature of .,, 88 federal judges' assignments, that is, jurisdictional grants.”188

There is a history of congressional resource punishment. The legislature "communicated its displeasure with the liberal Warren Court in 1964 by increasing the annual salary of federal judges by $7,500 while providing the [Supreme Court] justices with only a $4,500 increase.' 8 9 Earl Warren lamented his poor relations with Congress, noting that

on one occasion, a Court request for a library messenger was struck from its budget. 90 Congress may withhold a cost-of-living pay increase for judges, thus functionally reducing their salaries. 191 Judges have sought to resist congressional efforts to limit their salaries, but there are limits to their ability to resist . 192

Resource punishment goes far beyond salaries, as the federal courts are dependent upon financing an increasingly vast infrastructure. The salary protection provided by the Constitution "does not begin to meet the demands for staff, space and equipment now common within the 'federal court system."" 93 Congress has resisted some judicial requests for resources. Senator Grassley has taken a green eyeshade view of court expenses.19 4 Other legislators have also exercised increasingly tough oversight on judicial expenditures.195 This legislative "power to determine judges' salaries and judicial budgetary appropriations assists it in controlling judicial behavior."' 96 Whatever the congressional motivation behind

such oversight, federal judges have shown concern.197 In response to this congressional pressure, the judiciary appears "ready to placate and to mollify.”198

Judicial decisions affect Congress’ budget allocation Toma, 91 – Professor of Public Policy at the Martin School of Public Policy and Administration, PhD Economics (Eugenia Froedge, “Congressional Influence and the Supreme Court: The Budget as a Signaling Device”, The Journal of Legal Studies, January 1991, http://www.jstor.org/stable/724457)//TT

According to the thesis of Section II, the more closely the Court's decisions correspond to the desires of Congress, the larger the budget appropriation Congress will grant. For

empirical purposes, the smaller the difference in the ratings between the Court decisions and the Congressional votes on a liberal-conservative scale, the higher the Supreme Court's budget should be. Similarly, the higher the budget, the smaller the resulting difference between the ratings of the Court and Congress, if the budget affects Court decisions. Alternatively, if the Court acts in a way that is independent of political influences, the budget should not affect the ratings difference.

Internal --- Congressional Backlash Destroys Judicial Legitimacy

Congressional backlash will crush judicial legitimacy --- even an unsuccessful attack will gut judicial reviewMartin, 1 --- Prof of Political Science at Washington University

(Andrew D., Statuatory Battles and Constitutional Wars: Congress and the Supreme Court)

But the large policy payoff in the constitutional cases. What does the ability of the President and Congress to attack through overrides or other means constitutional court decisions imply in terms of the cost of the justices bear? If an attack succeeds and the court does not

back down, it effectively removes the court from the policy game and may seriously or, even irrevocably harm its reputation, credibility, and legitimacy . Indeed, such an attack would effectively remove the court from policy making, thus incurring an infinite

cost. With no constitutional prescription for judicial review, this power is vulnerable, and

would be severely damaged if congress and the president were effective in attack on the Court. But even if the attack is unsuccessful , the integrity of the court may be damaged, for the assault may compromise its ability to make future constitutional decisions and, thus, more long-lasting policy. One does not have to peer as far

back as scott v. sandford to find examples; Bush v. Gore (2000, U.S.) may provide one. To be sure, the new President and Congress did not attack the decision, but other members of government did of

course, unsuccessfully at least in terms of the ruling’s impact. Yet, there seems little doubt that the critics (not to mention

the decision itself) caused some major damage to the reputation of the court , the effects of which the justices may feel in the not-so-distant future.

Internal --- Budget Cuts Undermine Judicial Independence

Sufficient funding key to ensure independent judiciaryJudge Harlington, 2001- Professor at the Washington University in Saint Louis – School of Law (Wood, “JUDGES’ FORUM NO. 2: “Real Judges”, New York University School of Law, 2001, ProQuest)//TT

Judges have always been at some personal risk from disgruntled litigants and antigovernment groups. n17 For example, an ordinary looking[*265] letter was delivered to me one February at the office, but its contents were not ordinary. It was a very mean and vicious threat about what would soon happen to me. The sender from the Chicago area got so enthusiastic about sending me his "valentine" that he forgot and conveniently put his name and return address on the envelope. Since we are now in a war with terrorists, the risks are much greater for everyone . Congress has the responsibility to look after the welfare of the judiciary because the judiciary cannot financially care for itself. The judicial structure must be kept healthy and safe, especially in times of

national crises, or the terrorist will have achieved some part of their goal. Federal judges who meet certain age and service requirements and voluntarily choose to become "senior judges" are constitutionally entitled, without further judicial service, to receive full salary for the rest of their lives. That additional salary, however, has already been earned. It is like a pension that most others in nonpublic pursuits earn during their productive years. Judges, as a result, need not be motivated out of concerns for an uncertain financial future. That future has been provided for, but today many senior federal judges keep on working without any additional compensation out of a sense of duty. Senior judges could fully retire, as do many in private business, and just go home to a rocking chair and "smell the roses." That rocking chair would likely be a much safer place these days than any federal building. Because of the contributions by working senior judges who have not retired, many judicial emergencies are avoided, our judicial system is kept in operation, and the federal government is saved great additional expense. Currently, senior judges handle twenty percent of the federal caseload. Even with the help of the working senior judges, the active judges in some areas need additional help to take care of the continually increasing caseload. In the past three decades, judges of the United States courts of appeals have seen a nearly two hundred percent increase in their average caseloads, and a federal district judge's average caseload has increased by over fifty five percent. n18[*266] In addition to adequate salaries, the independent judiciary must have adequate resources to function. The judiciary needs funding for offices, staff, training, and equipment. A reasonably impressive courtroom is not a waste of money as appropriate surroundings contribute to the dignity of the law and the respect for those who administer it.But this emphasis on salary does not mean that salary is the only reward for judicial service. Being judges and rendering impartial and competent judicial service ordinarily brings with it some public prestige and confidence in the system, as well as personal satisfaction to the

judges for service rendered for their country. The prestige, public confidence, and judicial independence were inherited from judicial predecessors, but that inheritance must be continually earned and protected. That judicial inheritance must be passed on unblemished to our successor judges of tomorrow.

Congress uses appropriation process to undermine judicial independence Miller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 2

Concerns over the annual appropriations process led Chief Justice Roberts to also argue that the independence of the courts was under attack . He wrote in his

2005 annual report that “in recent years, the budget for the federal judiciary and the ever-lengthening appropriations process have taken a toll on the operation of the courts.” He went on to complain about the overly high rents that the judicial branch pays to the federal General Services

Administration for courthouses and other office space. He continued, “Escalating rents combined with across-the-board cuts imposed during fiscal years 2004 and 2005 resulted in a reduction of approximately 1,500 judicial branch employees as of mid-December 2005 when compared to October 2003” (2006).

Congress may also be able to use its taxing power against federal judges, although that

seems unlikely (see, e.g., Entin and Jensen 2006). The legislature can use its power of the purse in other ways to make life more difficult for federal judges, such as refusing to give them adequate courthouses, technology, or staff. Some members of Congress have used the appropriations process to attempt to force the Supreme Court and other federal courts to allow cameras in their courtrooms (see, e.g., Biskupic 2007; and Mauro 2007). One federal judge told me that Congress may require federal district court judges to share courtrooms, which he interpreted as an

attack on the professionalism of the judiciary. Judge Harry T. Edwards, of the U.S. Court of Appeals for the District of Columbia Circuit, agrees: “In the process of deciding to allocate funds, Congress and the President can sometimes turn courthouse funding into a political football” (2006, 233). When it comes to the annual appropriations process, it seems that Congress often does not consider significant the fact that the courts are a coequal third branch. As a

former chair of the House Appropriations subcommittee with jurisdiction over the budget for the judicial branch explained, “The courts do not have many advocates in Congress. They do not have a constituency. Congress continues to pass more and more laws that require the courts to assume jurisdiction of more cases and add to their workload. Congress is eager to authorize more judges, but when it comes to paying for them, the members of Congress do not think that is a very high priority” (N. Smith 1996, 177). In fact, the courts are often at a disadvantage when it comes to funding

because there is little that they or federal judges can do for the reelection-minded legislators. Certainly, as John Walker and Deborah Barrow note, “judges cannot exchange their decisions for favorable congressional treatment without destroying the very foundations of the judiciary’s independence and authority” (1985, 44). Or as Chief Justice Warren noted, it is difficult for the courts to lobby Congress, because “we can’t trade anything with the Committees” (qtd. in Walker and Barrow 1985, 44). None of the liberal congresspersons or liberal congressional staff whom I interviewed would admit that they or their bosses would support cutting the budgets of the courts in retaliation for conservative judicial decisions. As one Democratic staffer told me, “Liberals don’t want to hurt judges because we are fighting for increased access to the federal judiciary. Increased

access to the federal courts always serves the interests of justice.” With the courts lacking a clear constituency, it becomes far too easy for Congress to treat the courts as just one more federal entity begging for money from the legislative purse.

Internal --- Judicial Salary Key to Independence

Salary concern is the most pressing issue facing the judiciary --- key to its independence. Our 1nc Miller evidence quoted Chief Justice Rehnquist.

Salaries are the most important internal link to judicial independenceSchwartz, 12 --- Symposia Editor, Cardozo Law Review (Karissa M., Cardozo Law Review de novo, “ARTICLE: SOUND THE ALARM: THE CONSTITUTIONAL CRISIS OF JUDICIAL COMPENSATION,” 2012 Cardozo L. Rev. De Novo 101, JMP)

When legal scholars refer to a "constitutional crisis," they speak about a substantive legal showdown between branches of the government, such as President Roosevelt's "court packing" plan, n1 the presidential subpoena issued by Congress during the

Watergate era, n2 or the election recount in Bush v. Gore. n3 Chief Justice Roberts has recently sounded the alarm about an ongoing constitutional crisis that threatens the viability of the judicial branch of government. n4 This constitutional crisis undermining the strength and independence of the federal judiciary is the failure to raise judicial pay. n5

Over the years, federal judicial salaries have stagnated, while [*102] inflation has risen. n6 Since 1993, judicial pay has fallen 10.8% behind inflation while the pay of most other federal workers has increased by 18.5%. n7 Consequently, judicial pay has

declined substantially and, in doing so, has impacted the makeup of the judiciary. n8 The inadequate levels of judicial pay not only threaten the judiciary's composition but also the quality of justice in the United States. n9

Critics argue that there is no need to increase judicial salaries, since judicial salaries are already higher than those of other occupations. n10 Former Chief Justice

Rehnquist answered this critique by identifying the disparity in judicial compensation as compared to the [*103] rest of the legal profession. n11 In addition, Chief Justice Roberts has noted that a federal judge is aware he is making financial sacrifices to serve the nation; however, there comes a point when those sacrifices become an undue financial burden. n12 The national cost to minimize the financial burden on judges

is minimal compared to the intangible cost of minimizing American justice. n13 Thus, in order to maintain a judicial system made up of diverse and competent individuals, we must adequately compensate our judiciary lest we lose the most qualified individuals to higher paying occupations. n14

Fair compensation is key to maintaining judicial independence American College of Trial Lawyers, 2007 (“JUDICIAL COMPENSATION: OUR FEDERAL JUDGES MUST BE FAIRLY PAID”, Board of Regents, March 2007, http://www.americanbar.org/content/dam/aba/migrated/poladv/priorities/judicial_pay/actlpospaper.authcheckdam.pdf)//TT

An independent judiciary is critical to our society; and fair compensation is essential to maintaining that independence . Of all the grievances detailed in the Declaration of Independence, none was more galling than the lack of independence imposed by King George on Colonial judges:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

Declaration of Independence, July 4, 1776. English judges were assured life tenure during their “good behavior” by the Act of Settlement of 1700, but their Colonial counterparts served at the pleasure of the King. Their salaries were subject to his whims. Judges beholden to the King, not surprisingly, often ruled as he pleased, no matter how unfairly. The framers of our post-Revolution government needed to ensure an independent judiciary.

In 1780, nearly a decade before the U.S. Constitution was ratified, John Adams drafted a Declaration of Rights for the Massachusetts State Constitution, which declared:

It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.

The concept of judicial independence – that judges should decide cases, faithful to the law, without “fear or

favor” and free from political or external pressures – remains one of the fundamental cornerstones of our political and legal system. As Alexander Hamilton explained, once the independence of judges is destroyed, “the Constitution is gone, it is a dead letter ; it is a paper which the breath of faction in a moment may dissipate.”3

Fair compensation is critical to maintain that independence. In the Federalist Papers, Hamilton explained the importance of fair compensation: “[I]n the general course of human nature, a power over a man’s subsistence

amounts to a power over his will.” Federalist Papers No. 79. Thus, the U.S. Constitution contains two critical provisions to defend and preserve judicial independence for federal judges: (1) life tenure and (2) a prohibition against diminution of compensation.

Inflation is not unique to modern times. The drafters of the Constitution were aware of the problem, and they took steps to solve it.

Explaining that “next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support,” Hamilton, in Federalist Paper No. 79, observed:

It would readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant today might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation.

A case can be made that the Constitution requires a raise in judicial compensation to ameliorate the diminution which has occurred over time as the result of inflation.4 When the Constitution was adopted, the Founding Fathers provided that the President was entitled to compensation which can be neither increased nor decreased during the term of office, while judges were guaranteed there would be no diminution of compensation; there was no ban on increases in judicial compensation, because it was contemplated that there might have to be increases. Hamilton explained:

It will be observed that a difference has been made by the Convention between the compensation of the President and of the judges. That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.

The prohibition against diminution of judicial salaries was not simply to protect judges; it was designed to protect the institution of an independent judiciary and thereby to protect all of us. Society at large is the primary beneficiary of a fairly compensated bench:

[T]he primary purpose of the prohibition against diminution was not to benefit the judges, but,

like the clause in respect of tenure, to attract good and competent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations and pervading principles of the Constitution and to the administration of justice without respect to persons and with equal concern for the poor and the rich.

Salary declines will erode the integrity of the federal judiciaryDenton, 9 --- Associate, Latham & Watkins LLP. B.A., Rutgers University; J.D., Brooklyn Law School (Fall 2009, Blake, Drexel Law Review, “THE FEDERAL JUDICIAL SALARY CRISIS,” 2 Drexel L. Rev. 152, JMP)

[*152] The federal judiciary is revered in the legal world and stands as a testament to the virtues of our system of justice. As with any institution, its reputation is a function of the professionalism, intelligence, and hard work of its past and current members. Nominees for federal judgeships go through a rigorous vetting process, n1 which to date has yielded an

exceptionally qualified judiciary. Unfortunately, Congress has not treated federal judges with the dignity that they deserve when it comes to salary considerations. Judicial pay has not increased commensurate with that of other federal employees, nor kept up with inflation. n2

The Framers sought to insulate the federal judiciary from political influence by granting federal judges the constitutional guarantees of lifetime tenure "during good Behaviour" and, through the Compensation Clause, "Compensation, which shall not be

diminished during their Continuance in Office." n3 Although Congress has not actually decreased the pay of federal judges,

which would be an obvious violation of the Compensation Clause, it has accomplished the functional equivalent of a salary cut by failing to increase federal judges' wages; instead, standing idly by as the quality of life one can lead on a judicial salary declines.This Article argues that Congress, in its treatment of judicial pay, has violated the spirit and possibly even the letter of the Constitution. Admittedly, this argument may be purely academic [*153] because the forum for such a debate would be federal court. n4 Federal judges might be reluctant to find Congress's actions unconstitutional, due to the perceived impropriety of granting themselves a de facto pay raise. Thus, the bulk of this Article focuses on the practical and more immediate effect of the

growing inadequacy of judicial salaries. I contend that the steady erosion of judges' "real salaries," i.e.

their salaries once we account for changes in the cost-of-living due to inflation, n5 will impact the composition of the federal judiciary in three ways: (1) there will be less diversity on the federal bench ; (2) more judges will retire once they have attained the requisite age and service requirements; and (3) fewer top legal professionals will seek federal judgeships . Therefore, if Congress does not act quickly to improve judicial pay, the integrity of the federal judiciary is at risk .

Inadequate pay is causing high quality district judges to leave and discouraging others from becoming judges --- undermines the judiciaryKennedy, 7 --- Supreme Court Justice (2/14/2007, Anthony M., “Testimony of Associate Justice Anthony M. Kennedy before the United States Senate Committee on the Judiciary; Judicial Security and Independence,” http://www.judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da1200c37&wit_id=e655f9e2809e5476862f735da1200c37-1-1, JMP)

It is disquieting to hear from judges whose real compensation has fallen behind. Judges do not expect to become wealthy when they are appointed to the federal bench; they do expect, however, that Congress

will protect the integrity of their position and provide a salary commensurate with the duties the office requires. For the judiciary to maintain its high level of expertise and qualifications, Congress needs to restore judicial pay to its historic position vis-à-vis average wages and the wages of the professional and academic community.

A failure to do so would mean that we will be unable to attract district judges who come from the most respected and prestigious segments of the practicing bar. One of the distinguishing marks of the Anglo-American legal tradition is that many of our judges are drawn from the highest ranks of the private bar. This is not the case in many other countries, where young law school graduates join the judicial civil service immediately after they complete their legal educations. Our tradition has been to rely upon a judiciary with substantial experience and demonstrated excellence. Private litigants depend on our judges to process complex legal matters with the skill, insight, and efficiency that come only with years of experience at the highest levels of the profession.

There are two present dangers to our maintaining a judiciary of the highest quality and competence: First, some of the most talented attorneys can no longer be persuaded to come to the bench; second, some of our most talented and experienced judges are electing to leave it.In just the past year, two of the finest federal district judges in California have left for higher-paying jobs elsewhere, one in academia and the other in the state judiciary. The loss of these fine jurists is not an isolated phenomenon. Since January 1, 2006, ten Article III judges have resigned or retired from the federal bench. It is our understanding that seven of these judges sought other employment. In 2005, nine Article III judges resigned or retired from the bench, which was the largest departure from the federal bench in any one year. Four of those nine judges joined JAMS, a California-based arbitration/mediation service, where they

have the potential to earn the equivalent of a district judge's salary in a matter of months. My sense is that this may be just the beginning of a large-scale departure of the finest judges in the federal judiciary . It would be troubling if the best judges were available only to those who could afford private arbitration.

The income of private-sector lawyers has risen to levels that make it unlikely Congress could use earnings of a senior member of the bar as a benchmark for judicial salaries in anything approaching a one-to-one ratio. It has not been our tradition, furthermore, that highly accomplished, private attorneys go to the bench with the expectation of equivalent earnings. Still, outside earning figures are relevant, particularly if we look at earnings for entry-level attorneys, senior associates, and junior and mid-level partners. These persisting differentials create an atmosphere in which it is difficult to attract eminent attorneys to the bench and to convince experienced judges to remain. Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before. These continuing gross disparities are of undoubted relevance. They are a material factor for the attorney who declines a judicial career or the judge who feels forced to leave it behind. The disparities pose a threat to the strength and integrity of the judicial branch.

The intangible rewards of civic service are a valid consideration in fixing salary levels, but here, too, we are at a disadvantage in recruiting and retaining our best judges. As my colleague Justice Breyer says to me, it is one thing to lose a judge to a partnership in a New York law firm but quite another to lose him or her to a non11 profit position with rich intangible rewards plus superior financial incentives. The relevant benchmark here is law school compensation. At major law schools salaries not just of the deans but also of the senior professors are substantially above the salaries of federal district judges. So if a highly qualified attorney wants to serve by teaching young people, the salary differential is itself an incentive to leave. The intangible rewards of judicial service, while of undoubted relevance, do not overcome the present earnings disparity.

For judges to use federal judicial service as a mere stepping-stone to re-entry into the private sector and law firm practice is inconsistent with our judicial tradition. It could undermine faith in the impartiality of our judiciary if the public believes judges are using the federal bench as an opportunity to embellish their resumes for more lucrative opportunities later in their professional careers.

Judicial salaries are a key factor in ensuring judicial independence and attracting qualified candidatesJudge Harlington, 2001- Professor at the Washington University in Saint Louis – School of Law (Wood, “JUDGES’ FORUM NO. 2: “Real Judges”, New York University School of Law, 2001, ProQuest)//TT

Not only is a reasonable judicial salary fair treatment of judges for their work, but it is also an important factor in judicial independence . A well paid judge is less susceptible to deserting the bench for the more lucrative private practice or, in the very rarest of

circumstances, succumbing to the temptation to do judicial favors for a fee. Judges who have accepted bribes may not only be subject to impeachment as judges, but also find themselves as defendants in front of the bench of another judge and possibly on their way to the penitentiary. n15 Reasonable judicial salaries also serve another very important purpose because fair compensation helps attract the most qualified lawyers to the bench. If serving as a judge were to mean a financial sacrifice impacting prospective judges and their families, only the rich would become federal judges. That should not be. In 2001, Congress did not forget the Third Branch entirely and gave the judges a cost of living increase, not a pay raise, for which the judges are grateful. However, since 1993, the judges have received only four of nine annual cost of living adjustments. n16

Judicial salaries are key to judicial independence Entin, 2011 – Associate Dean for Academic Affairs; David L. Brennan Professor of Law and Professor of Political Science (Jonathan L., “GETTING WHAT YOU PAY FOR: JUDICIAL COMPENSATION AND JUDICIAL INDEPENDENCE”, Utah Law Review, 2011, http://epubs.utah.edu/index.php/ulr/article/viewFile/542/403)//TT

One vital way of assuring judicial independence is to guarantee that judges need not fear that their salaries will be reduced if they render unpopular or controversial decisions. The United States Constitution seeks to do this by providing that all federal judges “shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”1 As

the Supreme Court explained in perhaps the leading case on the Compensation Clause, “[a] Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.”2

The Compensation Clause does not forbid increases in judicial pay; rather it prohibits only reductions in judges’ salaries. This aspect of the clause undoubtedly reflects the notion

that the prospect of a pay cut poses a greater threat to judicial independence than does a pay raise.3 While the prospect of a salary increase also could influence a judge’s rulings,4 the framers debated at length the propriety of allowing for increasing judicial pay before deciding to omit any reference to that matter from the Compensation Clause.5

The apparent simplicity of the language of the federal Compensation Clause and its state counterparts conceals several troublesome issues. 6 Part II of this Article will address when a judicial salary becomes vested and thus no longer susceptible to reduction. Part III considers whether taxation of judicial salaries can amount to an unconstitutional diminution in compensation. Part IV focuses on the extent to which withholding cost-of-living increases impermissibly reduces judicial pay. Even in situations

that do not violate the Compensation Clause, questions about how much to pay judges, as well as how

often and by what process judicial salaries should be increased, present potentially significant policy issues. Part V considers some of those questions, and suggests that the case for raising judges’ pay should not rest exclusively or even primarily on the financial aspects of judicial service.’

The number of judges have declined as a result of low salaries Justice Kennedy, 2007– Supreme Court Justice, Harvard Law School, London School of Economics, Stanford University (Justice Anthony M. Kennedy, “Testimony of Associate Justice Anthony M. Kennedy before the United States Senate Committee on the Judiciary Judicial Security and Independence”, February 14, 2007, http://www.americanbar.org/content/dam/aba/migrated/poladv/priorities/judicial_pay/kennedystatement.authcheckdam.pdf)//TT

The commitment and dedication of our judges have allowed us to maintain a well-functioning system despite a marked increase in workload. In 1975, when I began service on the Court of Appeals for the Ninth Circuit, there were approximately 17,000 appellate

cases filed. By 2005, that number had quadrupled to nearly 70,000 cases. The increase in the number of judges has not kept up. In 1975 each three-judge panel heard approximately 500 cases per year; by 2001, the number

had risen to over 1,200. Without the dedicated service of our senior judges, who are not obligated to share a full workload but do so anyway, our court dockets could be dangerously congested. It is essential to the integrity of the Article III system that our senior judges remain committed to serving after active duty and that those now beginning their judicial tenure do so with the expectation that it will be a lifelong commitment.

Despite the increase in workload, the real compensation of federal judges has diminished substantially over the years. Between 1969 and 2006, the real pay of district judges declined by about 25 percent . In the same period, the real pay of the average American worker increased by

eighteen percent. The resulting disparity is a forty-three percent disadvantage to the district judges. If judges’ salaries had kept pace with the increase in the wages of the average American worker during

this time period, the district judge salary would be $261,000. That salary is large compared to the average wages of citizens,

but it is still far less than the salary a highly qualified individual in private practice or academia would give up to become a judge.Since 1993, when the Ethics Reform Act’s Employment Cost Index pay adjustment provision ceased operating as Congress

intended, the real pay of judges has fallen even faster. Inflation caused a loss of real pay of over twelve percentage points, while the real pay of most federal employees has outpaced inflation by twenty-five percentage points.Former Federal Reserve Chairman Paul Volcker has advocated raising the salary of federal district judges to remedy this decades-long period of neglect. His proposal would at least restore the judiciary to the position it once had. My concern is that any lesser increase would be counterproductive because it would indicate a Congressional policy to discount the role the federal court system has as an equal and coordinate branch of a constitutional system that must always be committed to excellence.

Internal --- Congress Strips the Court

The congress will backlash against unpopular decisions and strip the court of jurisdiction Miller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 3

Historically, court stripping has often been threatened, for example by labor supporters and other progressives during the

conservative activist era of the Supreme Court from the 1890s to the mid-1930s (see Ross 1994). Today, it is the conservatives who are acting to strip the federal courts of jurisdiction over a variety of types of cases. While their actions are controversial, some conservatives, such as former attorney general Edwin Meese, have clearly stated their preference that Congress strip the courts of jurisdiction under many circumstances.

These conservatives often feel that too many federal judges take a liberal activist approach to judicial decision making and that court-stripping legislation is one clear way to reign in a judiciary in which federal judges improperly “legislate from the bench.” In other words, these conservatives feel that the courts should reflect the will of the majority, and they perceive liberal judicial activism as counter-majoritarian. For example, overstating the historical record a bit Meese said, “Congress has in the past withdrawn jurisdiction from the lower federal courts when it became dissatisfied with their performance or concluded that state courts were the better forum for certain types of cases” (Meese and Dehart 1997, 181– 82). In September 2004 the Senate Republican Policy Committee distributed a report entitled Restoring Popular Control of the Constitution: The Case for Jurisdiction-Stripping Legislation. The report states that “the American people must have a remedy when they believe that federal courts have overreached and interpreted the Constitution in ways that are fundamentally at odds with the people’s common constitutional understandings and expectations”

(Kyl 2004, 1). Thus court stripping is a method for changing the direction of federal judicial decisions and altering the independent voice of the courts in the inter-institutional constitutional dialogue.

Congress will strip the courts of jurisdiction because of controversy – empirics proveBrandenburg 09 [Bert - Executive Director, Justice at Stake Campaign. Justice at Stake (JAS) is a nonpartisan national partnership working to keep courts fair, impartial, and independent. “OURTS UNDER PRESSURE: THE GROWING THREAT TO IMPARTIAL JUSTICE”, 59 Syracuse L. Rev. 371 (2008-2009)] Bschulz 6

The second recent threat to impartial justice was a surge in efforts to strip jurisdiction from federal courts, often in retaliation for rulings in highprofile cases. It was not the first such round of attacks. After the Supreme Court's 1954 Brown v. Board of Education decision, angry lawmakers sought to block federal courts from ruling on public education laws.24 During the 1960s and 1970s, issues like the draft, Miranda warnings, busing, school

prayer, and abortion sparked efforts to cut the courts' power to review challenges to federal laws. 25 The latest cycle of assaults began in 1996, a presidential election year that saw three major court-stripping laws and a political assault on a sitting judge. 26 In the wake of the Oklahoma City

bombing, Congress passed an anti-terrorism bill that dramatically restricted federal judicial review for death row inmates and for many immigrants facing deportation. 27 The Illegal Immigration Reform and Immigrant Responsibility Act eliminated or severely restricted the ability of immigrants to seek a federal court review as they seek asylum from persecution or fight deportation efforts. 28 The Prison Litigation Reform Act drastically diminished the ability of prisoners to get a day in court to object to abusive prison conditions, and weakened the authority of federal judges to craft

remedies when those conditions actually break the law. 29 The efforts quickened after the 2002 elections. The 2003 "Feeney Amendment" sharply limited the ability of federal judges to issue sentences below federal guidelines.30 In 2004, the House of Representatives passed a measure to strip federal courts of jurisdiction to rule on challenges to the Pledge of Allegiance. 31 The House also passed the "Marriage Protection Act," which singled out one law (the Defense of Marriage Act) for special treatment, exempting it from any review by the federal courts.32 Another measure passed in 2005 gave the Secretary of Homeland Security unilateral power to waive any law on the

books that might interfere with the building of border fences-including civil-rights and minimum-wage protections, and even

criminal laws.33 The recent surge in culture-war attacks on the courts culminated in the effort to rig the Terri Schiavo case. Congressional efforts to send a family dispute into federal court were so politically transparent that they generated a national backlash.34 Other measures fell short, but showed the surge in anti-court sentiment. Proposed marriage amendments to the Constitution sought to take powers from state judges to rule on family law issues they have handled for centuries. 35 The "Constitution Restoration Act" would have denied federal courts the power to hear any suit involving a governmental official's "acknowledgment of God as the sovereign source of law, liberty, or government." 36

For good measure, any judge caught exceeding his or her jurisdiction could have been impeached.37 A separate House measure would have allowed Congress to reverse any Supreme Court decision that struck down a law on constitutional grounds.38

Congress can undercut the Court in a number of ways when it disagrees with decisionsMiller, 6 --- Associate Professor and Chair of the Department of Government and International Relations at Clark University (Summer 2006, Mark C., Case Western Reserve University, “SYMPOSIUM: JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY: SEARCHING FOR THE RIGHT BALANCE: When Congress Attacks the Federal Courts,” 56 Case W. Res. 1015))

IV. Conclusion

There are of course other examples of ways that a determined majority in Congress can attack the independence of the federal judiciary. It is beyond the scope of this paper to discuss in detail some of the other mechanisms that could be used by Congress to attack the federal courts. For example, this paper has

discussed neither court packing plans, such as those advocated by President Franklin Roosevelt, n80 nor various

plans to prevent federal courts from hearing certain types of cases, commonly referred to as

court-stripping proposals. n81 Other actions that Congress could take include proposals to divide up the Ninth Circuit U.S. Court of Appeals in response to the particular ideological path taken by that court. n82 Certainly, a determined majority in Congress can find other innovative avenues for attacking the courts.

It is clear that the federal courts and Congress have radically different institutional cultures and wills. These different institutional wills and institutional perspectives mean that the two branches usually do not understand the other's decision-making process very well. For the sake of the rule of law, we need to know more about the interactions and relationships between these two governmental bodies. The Entin and Jensen paper takes an important step closer to reaching that level of knowledge.

Congress can meddle with courts in a number of ways after offending opinions Geyh, 03 --- Professor of Law at Indiana (Winter/Spring 2003, Charles G., Indiana Law Journal, “Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts,” 78 Ind. L.J. 153))

There is a multitude of ways that a motivated Congress could conceivably get the Supreme Court's attention. I have already alluded to some: it could impeach and remove justices who issue offending opinions, or it could defy unacceptable decisions, exclude troublesome categories of cases from the Supreme Court's appellate jurisdiction, pursue constitutional amendments limiting judicial review, or manipulate judicial appointments so as to avoid the confirmation of judges who would perpetuate a narrow view of congressional power. In addition, it could hold the judiciary's budget hostage, or (with the aid of a cooperative President) enlarge the size of the Supreme Court to ensure a sympathetic majority.

With the possible exception of manipulating the appointments process, the foregoing suggestions are likely to elicit an "oh, come now" response. But why? One [*157] explanation is that such proposals are thought to violate the independence of the judiciary as guaranteed by Article III of the U.S. Constitution; another is that, regardless of their constitutionality, these proposals are unacceptable because they undermine the spirit of interbranch comity

that the political branches seek to preserve. And yet, according to oft-cited lore, the political branches have exploited these devices for judicial control throughout our history, and with rare exception, the judiciary has acquiesced: n16 at the turn of the Nineteenth century, Congress packed and unpacked the lower courts for partisan ends in the "Midnight Judges" affair, and impeached judges for their strident, pro-Federalist sympathies; a generation later, Georgia defied the Supreme Court altogether, and President Andrew Jackson declared that he had the constitutional authority to do likewise; during Reconstruction, a radical Republican Congress stripped the Court of jurisdiction to undo an important piece of Reconstruction legislation, and, the story goes, packed and unpacked the Supreme Court for political purposes. During the populist and progressive period, proposals to curb or eliminate judicial review and end life tenure abounded, culminating in a successful effort by Franklin Delano Roosevelt to intimidate the Supreme Court into changing its pattern of decisionmaking by proposing to pack the Court with New Deal sympathizers. And a generation later, Richard Nixon campaigned to end Warren Court liberalism in the wake of calls to impeach Earl Warren and William O. Douglas, and did so by replacing retiring justices with avowedly more conservative successors.

A2: Congress Can’t Reduce Salary

Congress can prevent judicial pay increases – this crushes judicial independenceMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 7

While Congress is constitutionally barred from reducing the salaries of federal judges, an angry Congress can refuse to grant them salary increases. In 1964, for example, Congress increased the salaries for lower federal judges by $7,500 per year

but increased those for Supreme Court justices by only $4,500 per year, a clear indication that Congress was unhappy with several Court decisions (see Schmidhauser and Berg 1972, 9). During the fight between FDR and the Supreme Court over the constitutionality of the New Deal, Congress did the reverse by enacting financial incentives for early retirement for the justices, hoping to encourage some retirements from the Court so that Roosevelt could appoint justices more favorable to his views (see Murphy et al. 2006, 337).

Today judicial salaries remain a key point of contention between Congress and the federal courts. Seth Stern noted that

“salaries [for federal judges] are far lower than what fresh-faced law school grads can make at big corporate firms” (2002). Chief Justice Roberts said in his 2006 Year-End Report that keeping judicial salaries well below those of many law professors today is a “constitutional crisis” and a potential threat to judicial independence (2007, 1). In his appearance before the Senate Judiciary Committee in February 2007, Justice Kennedy echoed this theme: “The Committee knows that judges throughout the United States are increasingly concerned about the

persisting low salary levels Congress authorizes for judicial service. Members of the federal judiciary consider the problem so acute that it has become a threat to judicial independence” (U.S. Senate 2007). In his 2007 Year-End Report Chief Justice Roberts again raised the concern of

inadequate judicial salaries, noting that many federal judges received lower salaries than some first-year lawyers at the largest firms in major U.S. cities, where many of the federal judges serve. The chief justice also praised congressional efforts to increase judicial salaries, including action by the House Judiciary Committee in late 2007 to give federal judges cost-of-living adjustments that had been denied to them since 1989. The Senate Judiciary Committee passed similar legislation in February 2008. In his 2007 Year-End Report Roberts declared, “I am resolved to continue Chief Justice Rehnquist’s twenty-year pursuit of equitable salaries for federal judges” (2008, 6).

The main problem for federal judges is that since 1989, annual cost of-living increases for federal judges have been linked to congressional salary increases. When Congress votes to raise its own pay, it often hides behind the fact that federal judges will also enjoy the salary increase. When members of Congress refused to vote themselves annual cost-of living increases (usually during election years), these increases were automatically denied to federal judges. Members of Congress also are hesitant to allow other federal employees, including federal judges, to earn higher salaries than they do. In December 2007 The Third Branch, a newsletter published by the Administrative Office of the Federal Courts, carried an interview with Congressman Howard Berman (D-CA), the then chair of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property, the subcommittee in which legislation to decouple judicial salaries from congressional salaries originated. When asked about the opposition of some members of Congress to the legislation, Congressman Berman responded, “Some of my colleagues believe that linking the salaries of federal judges to our own salaries will somehow make it politically more palatable for Members of Congress to approve cost-of-living adjustments for themselves. The evidence simply does not bear this out” (Berman 2007, 1).

AT: Aff Doesn’t Overturn Statute

Even reviewing and interpreting statute can cause Congressional backlashCrabb, 12 --- United States District Judge, Western District of Wisconsin (2012, Barbara B., Wisconsin Law Review, “ADDRESS: ROBERT W. KASTENMEIER LECTURE: BRIDGING THE DIVIDE BETWEEN CONGRESS AND THE COURTS,” 2012 Wis. L. Rev. 871, JMP)

Even when a judge upholds a statute, she may frustrate the will of Congress unknowingly by reading the statute in a way Congress never intended. It may be that Congress did not make its intention clear or the statute contains a drafting error or the judge simply makes a mistake. It is true, of course, that not every legislator feels a personal affront when a statute is ruled unconstitutional or when it is misread. Some were not in office when it was passed; others opposed its passage and are glad to see it overturned; others voted for it only because they anticipated it would not survive judicial review.

Nevertheless, the fact that judges have this responsibility and exercise it is a source of irritation to members of Congress.

AT: Congress Can’t Strip

Congress has authority to strip courtsYoo, 7 --- Professor of Law at UC Berkeley (Fall 2007, Jesse Choper and John Yoo, California Law Review, “Wartime Process: A Dialogue on Congressional Power to Remove Issues from the Federal Courts,” 95 Calif. L. Rev. 1243, JMP)

Yoo: Whether Congress has the authority to remove federal jurisdiction over a class of federal question cases is a difficult issue, but it seems to me that the balance of authorities is in favor of the power . Congress has traditionally been understood by most, n36 but not all, n37 commentators to hold the power to decide whether to implement Article III's jurisdictional grants to the federal courts. This power comes from several sources. First, Article III, Section 2's enumeration of the cases and controversies to which the federal judicial power

extends has not generally been thought to be self-executing. n38 Second, Congress has the power to decide whether to create the inferior courts at all, and this power has been thought to imply the authority to define what cases will be heard by those courts. n39 These powers allow Congress to remove whole categories of cases from the jurisdiction of both the lower federal courts and the Supreme Court.

Neither Article I nor Article III appears to place any substantive limitation on how Congress chooses to use these powers. In the past, the Court has accepted the removal of jurisdiction when Congress obviously sought to stop the Court from reaching substantive outcomes with which [*1254] Congress disagreed. The clearest example of this is Ex Parte McCardle, in which the Court upheld Congress's elimination of an 1867 Act's grant of appellate jurisdiction to the Supreme Court in federal habeas claims. n40 Reacting to Ex Parte Milligan, n41 decided the year before McCardle, Congress stripped the Court of jurisdiction because it feared that the Court would use the case to pass on the constitutionality of military occupation of the Southern States during Reconstruction. Congress even went so far as to act after the Court had heard oral argument but before it had issued a judgment. n42 Nonetheless, in McCardle the Court upheld the law and dismissed the case, saying that it lost jurisdiction the moment Congress passed the stripping law and had no authority to declare the law invalid. In Lauf v. E.G. Shinner, the Norris-La Guardia Act removed jurisdiction from the federal courts to issue injunctions in labor dispute cases, again because Congress disagreed with the course of previous judicial decisions. n43

AT: Congress Won’t Strip

Congressional inaction is not inevitable --- it is a product of judicial restraint that the plan breaks. That’s the 1nc Baum ev.

Past isn’t relevant --- congressional backlashes against the court could be successful in the current partisan environmentIU News Room, 6 (4/6/2006, Indiana University News Room, “Congressional control over the courts? History says no, but it could happen,” http://newsinfo.iu.edu/news-archive/3254.html, JMP)

BLOOMINGTON, Ind. -- Despite regular confrontations with the courts throughout American history, Congress has rarely used its powers to control the federal judiciary. But that tradition may be changing, according to an Indiana University Bloomington law professor.

An intensifying partisan divide over the future of America's judicial system, which

threatens to undermine public confidence in our courts and the rule of law, is jeopardizing the longstanding balance between the courts and Congress, argues Charles Geyh in his debut book, When Courts and Congress Collide: The Struggle for Control of America's Judicial System (University of Michigan Press, 2006).

History has shown that congressional proposals to control the decisions judges make by impeaching them, taking away their jurisdiction, holding their budgets hostage or "un-making" their courts rarely succeed, said Geyh, a professor of law and

Charles L. Whistler faculty fellow at the IU School of Law-Bloomington.

Yet he believes that the recent round of attacks on courts -- from Congress, pundits and evangelical conservatives -- has increased the possibility that current proposals to control the federal judiciary might actually succeed .

"There's this confluence of events -- you might call it a perfect storm of factors -- where you have a deeply polarized public, an evangelical right sharpening the divide over moral issues that ultimately the courts will have to decide, and a new way of looking at judges as being controlled by their political preferences," Geyh said. "In this environment, it may prove extremely difficult to preserve a system where we give judges breathing room and latitude to decide cases without legislative interference ." While Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with rare exceptions, resisted employing more direct methods of control. So why hasn't Congress made good on its threats to strip federal judges of their autonomy? Geyh believes the answer lies in a custom of respect for the judiciary's independence that Congress has honored for two centuries. This custom is grounded in the belief that judges will usually decide cases based on the facts and the law and seek immunity from political and other pressures that could corrupt their impartial judgment, he said.

More recently, though, scholars and policy makers have challenged that belief and argued that "independent" judges routinely

disregard the law and decide cases in light of their personal politics. This ongoing campaign against "judicial activism" and "legislating from the bench" has eroded public confidence in the courts, Geyh said. Along with an escalating battle between the nation's political parties for control of judicial

appointments, it has created a potentially destabilizing environment that threatens to jeopardize the "dynamic equilibrium" between Congress and the courts .

"If you already believe that judges aren't following the law and are guided by their political preferences, then why even have independent judges?" Geyh asks. "Why not just control them?"

AT: Congress Doesn’t Care

Congress does react to controversial decisions and disregard of congressional directivesCrabb, 12 --- United States District Judge, Western District of Wisconsin (2012, Barbara B., Wisconsin Law Review, “ADDRESS: ROBERT W. KASTENMEIER LECTURE: BRIDGING THE DIVIDE BETWEEN CONGRESS AND THE COURTS,” 2012 Wis. L. Rev. 871, JMP)

The divides between and among the branches are a given in our system. The congressional-executive divide is a continuing struggle for supremacy, fueled by the constant pull of partisan politics, ideology,

lobbyists, the media, financial influence, and the unrelenting focus on the next election. The judicial-legislative divide is marked by legislative indifference, broken intermittently by periods of anger provoked by controversial judicial decisions or the perception that judges are disregarding congressional directives. Partisan politics are at play in the relationship, particularly when Congress confirms, or refuses to confirm, judicial nominees and when it establishes, or refuses to establish, new judgeships, but these fights are essentially between Congress and the executive branch. The judiciary is the battlefield, not the army.

The fact is that "few in Congress know much about or pay attention to the third branch of government," as Congressman Kastenmeier observed in 1988. n1 He continued: "in some

respect, the judiciary for the Congress is ... sort of tolerated by benign neglect." n2 Columnist Andrew Cohen made essentially the same point in a March 18, 2012, article on TheAtlantic.com, lamenting the slow pace of Senate confirmation of judicial nominees and the lack of understanding among some legislators of what federal judges do. n3 He noted in particular the legislative failure to appreciate the importance of judges to job creation "to the extent [that judges] bring certainty and finality to legal disputes" and to "the financial uncertainty that pending litigation brings." n4

This lack of understanding is unfortunate, but not surprising. Senators and representatives are inundated with matters of importance to attend to. The old days in which long-serving legislators developed knowledge and experience in particular areas have largely faded away; legislators do not serve as long as they used to, even when they are not subject to term limits. The legislative week is shorter, because more members keep their homes in their districts, and the constant pressure [*873] to raise reelection funds means less time for learning about legislation and providing oversight. Increasing partisanship makes it harder for legislators to agree on even routine matters. (And, to be fair, judges do not know all that much about the nuts and bolts of legislating.)

AT: Courts Will Block

Courts can’t check congressional backlashCrabb, 12 --- United States District Judge, Western District of Wisconsin (2012, Barbara B., Wisconsin Law Review, “ADDRESS: ROBERT W. KASTENMEIER LECTURE: BRIDGING THE DIVIDE BETWEEN CONGRESS AND THE COURTS,” 2012 Wis. L. Rev. 871, JMP)

When Congress responds to perceived problems, in the courts or elsewhere, by proposing legislation that the courts find threatening to their independence, there is little the courts can do . If the legislation is a true threat to decisional independence, the courts may be

obliged by the Constitution to strike down the legislation. When the legislation is a threat only to institutional independence and therefore not prohibited by the Constitution, the courts must fall back on persuasion, diplomacy, and compromise. The Civil Justice Reform Act provides an example. The Act raised questions about judicial independence when it was proposed in 1990 for the purpose of reducing the cost of litigation. n37 To judges, the bill was overly intrusive: it attempted to prescribe exactly how courts should handle civil cases; when they should hold pretrial conferences; who should hold them (judges only; never magistrates); and how quickly judges were to get cases to trial. n38 In addition, it required analyses of caseloads and semiannual reporting of motions under advisement and cases that had been pending for more than three years. n39

Impacts

No Solvency --- Congress Ignores Court

Congress just ignores court decisionsMiller 09 [Mark - Professor of Political Science, Adjunct Professor of History, Director of Law and Society Program, at Clark University, ‘Constitutionalism and Democracy : View of the Courts from the Hill : Interactions Between Congress and the

Federal Judiciary.” University of Virginia Press, 2009, proquest] Bschulz 11

Of course, when the Supreme Court issues a constitutionally based decision, there is no guarantee that Congress will actually follow the ruling. At times, Congress just ignores constitutional decisions from the courts . For example, in Immigration and Naturalization Service v. Chadha (1983) the Supreme Court ruled that Congress could not constitutionally use a one-house veto to overrule decisions by federal agencies. The response from Congress has been to continue to enact such legislative vetoes, and a variety of presidents have signed them into law. Thus Congress has effectively ignored the Court’s decision in Chadha (see Fisher and Adler 2007, 222–

24). It is difficult for the Supreme Court to be an active participant in the inter-institutional constitutional dialogue when the other branches simply ignore the Court’s pronouncements.

No Solvency --- Congress Overrides Court

Congress regularly overrides Supreme Court decisions that overturn federal law Emenaker, 2013 – MA Government at Johns Hopkins University, MA Social Science at Humboldt State University, BA Political Science with minor in Sociology at Humboldt State University (Ryan Eric, “Constitutional Interpretation and Congressional Overrides: Changing Trends in Court-Congress Relations”, College of the Redwoods , March 28-30, 2013, SSRN database)//TT

A third trend identified by this paper is the increased number of successful overrides to Court decisions nullifying federal law. In most instances when federal law was nullified, bills were proposed to modify the decision. In 29.3 percent of cases invalidating federal law, during the Rehnquist Court, Congress successfully overrode the Court decision. The rate of overrides found in this study is significantly higher than the rate found in a previous study of

constitutional-interpretation-overrides. This rate of overrides is also significantly higher than what has been found in studies focused on statutory overrides. Obviously, the low override rates found in studies focusing on statutory interpretation decisions fail to reflect the commonality of constitutional-interpretation-overrides. This may indicate—despite commonly held beliefs—that it is actually easier for Congress to override a decision based on

constitutional interpretation than it is a decisions based on statutory interpretation. This frequency of overrides also directly challenges the belief that the Court has the final word in interpreting the Constitution. Further these results negate the notion that Congress’s only option after the Court nullifies federal law is amending the Constitution, clearly Congress can and does simply pass statues to modify constitution-interpretation-decisions. The above information clearly indicates that interactions between the Court and Congress do not end with judicial review. It also indicates that theories of Court-Congress relations that do not account for constitutional-interpretation-overrides are incomplete.

It is important to note that the high rate of nullifications of federal law, and the high rate of congressional overrides, both observed during the Rehnquist Court, do not necessarily reflect hostility between the two branches. In some instances the Court struck down acts of Congress by inviting a congressional override. This clearly supports theories that the justices do not always seek to avoid being overridden. Override invitations suggest it is too simplistic to conclude that Court action nullifying federal law, or congressional attempts to override, automatically indicate strained relations between the branches.

At the same time it is also important to note that not all congressional overrides are based on invitations. This means that

Supreme Court judges sometimes fail to avoid uninvited overrides. If the justices are acting strategically to avoid overrides, as rational choice scholars suggest, they often miscalculate. The interactions between the Rehnquist Court and Congress also highlighted a process involving multiply rounds of constitutional

interpretation. As the process in the Metropolitan Washington Airports Act and Boerne showed, interactions between Congress and the Court continued after the first instance of judicial review. Current rational choice models fail to diagram this level of complexity, oversimplifying the interactions of the two branches.

Turns Case --- SOP / Modeling

Turns SOP and guts judicial modelSchwartz, 12 --- Symposia Editor, Cardozo Law Review (Karissa M., Cardozo Law Review de novo, “ARTICLE: SOUND THE ALARM: THE CONSTITUTIONAL CRISIS OF JUDICIAL COMPENSATION,” 2012 Cardozo L. Rev. De Novo 101, JMP)

CONCLUSION

The country's first constitutional crisis, Marbury v. Madison, n197 resulted in the doctrine of judicial review and established the independence of the judicial branch. Marbury v. Madison created a vigorous judiciary, which has served the United States well for more than two hundred years. Since that decision, judges have weighed in on major questions of constitutional rights that have

shaped American society. Judges have contributed to the growth and prosperity of this nation and are entitled to be compensated fairly for the work they do. n198 No other branch can take on the role of the judiciary, as it goes expressly against the constitutionally mandated separation of powers doctrine .

Thus, Congress must adhere to the Constitution and take the necessary steps to fairly compensate the federal judicial branch. If Congress fails to make adjustments to the current compensation structure, America will lose the diverse and independent judiciary that has created the highest standard of jurisprudence in this nation, if not the world.

Turns Case --- Decision Won’t Be Implemented

Court stripping has been the recent norm in war power cases --- guts solvencyAlexander, 7 --- Professor of Law at Stanford (Fall 2007, Janet Cooper, California Law Review, “Jurisdiction-Stripping in a Time of Terror,” 95 Calif. L. Rev. 1193, JMP)

Introduction

Although the question of congressional power to limit the jurisdiction of the federal courts is a centerpiece of the federal courts canon, there are few decided cases that grapple squarely with the constitutional issues involved in jurisdiction-stripping. n1 For the past fifty years or so, jurisdiction-stripping bills have been introduced on a host of politically controversial issues n2 including racial discrimination, free speech and association, the rights of criminal defendants, state legislative apportionment, abortion, school prayer, gay marriage, n3 and environmental preservation. n4 In the end, however, Congress usually backs off; very few such bills have been enacted. n5 And while the Supreme Court has repeatedly [*1194] said that "substantial constitutional questions" would be raised if judicial review of constitutional claims were unavailable, n6 the Court has almost always managed to resolve challenges to jurisdiction-stripping statutes on non-constitutional grounds-most recently in June 2006. n7 Both Congress and the Court have avoided confrontation. n8

But now the Executive Branch seems determined to force the constitutional issue. After the Supreme Court rendered decisions requiring procedural safeguards for detainees in the war on terrorism, n9 and with more cases pending that raised additional claims, n10 the Administration elected to press its vision of exclusive and unfettered presidential power and its effort to make Guantanamo Bay a law-free zone where the Constitution does not operate. When the Supreme Court held in Rasul v. Bush that the Guantanamo detainees had a right to file habeas petitions challenging their detention and stated in a footnote that their petitions "unquestionably" described violations of the Constitution, n11 Congress passed the Detainee Treatment Act of 2005 (DTA) n12 withdrawing federal jurisdiction over habeas petitions by Guantanamo detainees. n13 Senators who opposed [*1195] eliminating habeas jurisdiction noted that Hamdan v. Rumsfeld, a habeas petition challenging the constitutionality of military commission trials of detainees, was then pending before the Supreme Court, n14 and explicitly likened the situation to that of Ex parte McCardle. n15

The Administration's handling of the detainees received another blow when the Court held

in Hamdan that the DTA's jurisdiction-stripping provisions were inapplicable to pending cases and invalidated the military

commissions because they violated the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. n16 Rather than complying with the decision , or seeking Congressional authorization of appropriate procedures as the Court strongly hinted, however, the Administration secured the passage of the Military Commissions Act of 2006 (MCA). n17 Although the MCA

was presented as a compromise bill it in fact was a virtually complete victory for the President, a congressional endorsement (albeit over strong opposition in the Senate) of his broad claims of presidential power in the war on terrorism.The statute expands the definition of enemy combatant far beyond the Supreme Court's narrow definition in Hamdi. Whereas Hamdi defined "enemy combatant" as one who was "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in [*1196] an armed conflict against the United States there," n18 the MCA expands the definition to include those who have "purposefully and materially supported hostilities" against the United States or its allies. n19

Hamdi did not authorize detention of anyone who did not actually engage in armed conflict against U.S. or allied troops in Afghanistan. The MCA, however, permits the President to treat persons captured far from any battlefield, who have not participated in any violent activity, as enemy combatants. Indeed, the Government's lawyers have taken the position in court that a "little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but ... really is a front to finance al-Qaeda activities" can be classified as an enemy combatant. n20

The MCA also makes all noncitizens who are declared to be enemy combatants subject to trial by military commission rather than the courts, n21 including even lawful permanent residents located within the United States. The provisions denying habeas review apply to all proceedings "relating to" such military commission prosecutions. n22 Additionally, the MCA authorizes the use of military commission procedures that fall short of the requirements of the Geneva Conventions, contrary to the holding of Hamdan; purports to give the President the power to interpret the meaning and application of the Conventions; n23 attempts to legislatively define the commissions and the MCA's amendments to the War Crimes Act into compliance with the Conventions; n24 declares that the Conventions may not [*1197] be judicially enforced by any individual, including citizens, n25 despite Hamdan's holding to the contrary; and prohibits the courts from using foreign sources of law in cases interpreting the War Crimes Act. n26 In addition to its express provisions, the MCA strengthens the President's assertion of legal authority in his actions toward the

detainees by placing them into the highest category of deference under Youngstown, n27 when the President exercises his Article II powers with the express authorization of Congress exercising its Article I powers.

The MCA attempts to insulate all of these innovations from constitutional scrutiny by eliminating the possibility of judicial review. While the DTA denied habeas only for noncitizens detained at Guantanamo by the Department of Defense, the MCA purports to deny habeas (and "any other action" seeking judicial review) for any alien, regardless of geographical location, who has been "determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." n28 The MCA thus strips habeas protection from lawful resident aliens detained within the United States as well as detainees at Guantanamo and other locations outside the United States.

The further effect of the jurisdiction-stripping provisions of the DTA and the MCA is to eliminate any means of enforcing Rasul and Hamdan - which is to say, to render those decisions nullities if the government does not wish to comply with them. Nothing in the DTA or MCA requires a speedy determination of enemy combatant status, or any determination at all, and no review is possible within the military or court systems until a [*1198] final decision is made by a Combatant Status Review Tribunal (CSRT) or a military commission. It would now be possible for the administration simply not to conduct status determinations, and the affected detainees would have no way to obtain any relief. In fact, the statutes attempt to make the provisions of the Geneva Conventions, the War Crimes Act, and the substantive restrictions of the Detainee Treatment Act unenforceable as well by expressly eliminating jurisdiction for any judicial review of the conditions of confinement, including interrogation through torture or cruel, inhumane and degrading treatment n29 and forced transfer of detainees to other countries for interrogation and imprisonment. n30 Unlike the DTA, which explicitly applied only to noncitizens in the custody of the Defense Department at Guantanamo Bay, the MCA's jurisdiction-stripping provisions apply to all noncitizens who are determined to be enemy combatants. n31 The provision barring claims based on the Geneva Conventions applies to all persons, including citizens and persons who are not in custody. n32

As one supporter of the legislation put it:

Congress and the president ... told the courts, in effect, to get out of the war on terror ... It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions. The law ... directly reverses Hamdan ... n33

2nc Rule of Law Impact

Rule of law solves war—multiple triggersFeldman ‘8 [Noah Feldman, a contributing writer for the magazine, is a law professor at Harvard University and an adjunct senior fellow at the Council on Foreign Relations, “When Judges Make Foreign Policy”, NEW YORK TIMES, 9—25—08, www.nytimes.com/2008/09/28/magazine/28law-t.html]

Looking at today’s problem through the lens of our great constitutional experiment, it emerges that there is no single, enduring answer to which way the Constitution should be oriented, inward or outward. The truth is that we have had an inward- and outward-looking Constitution by turns, depending on the needs of the country and of the world. Neither the text of the Constitution, nor the history of its interpretation, nor the deep values embedded in it justify one answer rather than the other. In the face of such ambiguity, the right question is not simply in what direction does our Constitution look, but where do we need the Constitution to look right now? Answering this requires the Supreme Court to think in terms not only of principle but also of policy: to weigh national and international interests; and to exercise fine judgment about how our Constitution functions and is perceived at home and abroad. The conservative and liberal approaches to legitimacy and the rule of law need to be supplemented with a healthy dose of real-world pragmatism. In effect, the fact that the Constitution affects our relations with the world requires the justices to have a foreign policy of their own. On the surface, it seems as if such inevitably political judgments are not the proper province of the court. If assessments of the state of the world are called for, shouldn’t the court defer to the decisions of the elected president and Congress? Aren’t judgments about the direction of our country the exclusive preserve of the political branches? Indeed, the Supreme Court does need to be limited to its proper role. But when it comes to our engagement with the world , that role involves taking a stand , not stepping aside . The reason for this is straightforward: the court is in charge of

interpreting the Constitution, and the Constitution plays a major role in shaping our engagement with the rest of the world. The court therefore has no choice about whether to involve itself in the question of which direction the Constitution will face; it is now unavoidably involved. Even choosing to defer to the other branches of government amounts to a substantive stand on the question. That said, when the court exercises its own independent political judgment, it still does so in a distinctively legal way . For one thing, the court can act only through deciding the cases that happen to come before it, and the court is limited to using the facts and circumstances of those cases to shape a broader constitutional vision. The court also speaks in the idiom of law — which is to say, of regular rules that apply to everyone across the board. It cannot declare, for instance, that only this or that detainee has rights. It must hold that the same rights extend to every detainee who is similarly situated. This, too, is an effective constraint on the way the court exercises its policy judgment. Indeed, it is this very regularity that gives its decisions legitimacy as the product of judicial logic and reasoning. Why We Need More Law, More Than Ever So what do we need the Constitution to do for us now? The answer, I think, is that the Constitution must be read to help us remember that while the war on terror continues, we are also still in the midst of a period of rapid globalization. An enduring lesson of the Bush years is the extreme difficulty and cost of doing things by ourselves. We need to build and rebuild alliances — and law has historically been one of our best tool s for doing so. In our present precarious situation, it would be a terrible mistake to abandon our historic position of leadership in the g lobal spread of the rule of law. Our leadership matters for reasons both universal and national. Seen from the perspective of the world, the fragmentation of power after the cold war creates new dangers of disorder that need to be mitigated by the sense of regularity and predictability that only the rule of law can provide . Terrorists need to be deterred. Failed states need to be brought under the umbrella of international organizations so they can govern themselves . And economic interdependence demands coordination, so that the collapse of one does not become the collapse of all . From a national perspective, our interest is less in the inherent value of advancing individual rights than in claiming that our allies are obligated to help us by virtue of legal commitments they have made. The Bush administration’s lawyers often insisted that lawwas a tool of the weak, and that therefore as a strong nation we had no need to engage it. But this notion of “lawfare” as a threat to the United States is based on a misunderstanding of the very essence of how law operates. Law comes into being and is sustained not because the weak demand it but because it is a tool of the powerful — as it has been for the United States since World War II at least. The reason those with power prefer law to brute force is that it regularizes and legitimates the exercise of authority. It is easier and cheaper to get the compliance of weaker people or states by promising them rules and a fair hearing than by threatening them constantly with force. After all, if those wielding power really objected to the rule of law, they could abolish it, the way dictators and juntas have often done the world over.

Collapse of rule of law causes nuclear war [gender paraphrased].Charles S. Rhyne, Founder and Senior Partner of Rhyne & Rhyne law firm. “Law Day Speech for Voice of America.” May 1,

1958. American Bar Association. http://www.abanet.org/publiced/lawday/rhyne58.html

In these days of soul-searching and re-evaluation and inventorying of basic concepts and principles brought on by the expansion of man’s vision to the new frontiers and horizons of outer space, we want the people of the world to know that we in America have an

unshakable belief in the most essential ingredient of our way of life—the rule of law. The law we honor is the basis

and foundation of our nation’s freedom and the freedom for the individual which exists here. And to Americans our

freedom is more important than our very lives. The rule of law has been the bulwark of our democracy. It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship. When we talk about “justice” under our rule of law, the absence of such justice behind the Iron Curtain is apparent to all. When we talk about “freedom” for the individual, Hungary is recalled to the minds of all men. And when we talk about peace under law—peace without the bloodbath of

war—we are appealing to the foremost desire of all peoples everywhere. The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons in resolving international disputes. We

in our country sincerely believe that [hu]mankind’s best hope for preventing the tragic consequences of

nuclear-satellite-missile warfare is to persuade the nations of the entire world to submit all disputes to tribunals of

justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance. Man’s relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely die together. History teachers that the rule of law has enabled [hu]mankind to live together peacefully within nations and it

is clear that this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations. The lawyer is the technician in man’s relationship to man. There exists a worldwide

challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people.

U.S. Judiciary Modeled

Emerging democracies model the US and need a strong judiciaryThe Center for Justice and Accountability et al, 04 (3/1/2004, Amici Curiae in support of petitioners in Al Odah et al. v USA, "Brief of the Center for Justice and Accountability, the International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies," http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/82/AmiciCuriae_Center_for_Justice_Int_League_Human_Rights_Adv_For_Indep_Judiciary2.PDF)//Jmoney

Many of the newly independent governments that have proliferated over the past five decades have adopted these ideals. They have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's, the end of the Cold War and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration of Yugoslavia,

and the continuing turmoil in parts of Africa, Latin America and southern Asia. Some countries have successfully transitioned to stable and democratic forms of government that protect individual freedoms and human rights by means of judicial review by a strong and independent judiciary. Others have suffered the rise of tyrannical and oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the judiciary. And still others hang in the balance, struggling against the onslaught of tyrants to establish stable, democratic governments.

In their attempts to shed their tyrannical pasts and to ensure the protection of individual rights, emerging democracies have consistently looked to the United States and its Constitution in fashioning frameworks that safeguard the independence of their judiciaries. See Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of

the “[m]any countries . . . [that] have engaged in fundamental constitutional reform over the past three decades,” nearly all adopted “a bill of rights and establishe[d] some form of active judicial review”). 19 Establishing judicial review by a strong and independent judiciary is a critical step in stabilizing and protecting these new democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual

Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the judicial branch as having "a uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent the arbitrary exercise of government power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for

Criminal Law Reform and Criminal Justice Policy (1998) ("There is increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most countries in transition from dictatorships and/or statist economies recognize the need to create a more stable system of governance, based on the rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last visited Jan. 8, 2004). Although the precise form

of government differs among countries, “they ultimately constitute variations within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status of supreme law, is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 718 (2001).

This phenomenon became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced independent judiciaries following their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States v. Then, 56 F.3d

464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory and practice. See generally

Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).”). It is a trend that continues to this day. 20

The US Supreme Court has international influence.Narasimhan, 08 (Angela, Doctoral Candidate in Syracuse University’s Political Science Department. “DOMESTIC COURTS, GLOBAL CHANGES: INTERNATIONAL INFLUENCES ON THE POST-COLD WAR SUPREME COURT.” March 18, 2008. http://jpm.syr.edu/wp-content/uploads/2012/04/15_a.pdf)//CB

This summer, five of the nine current Supreme Court justices spent time overseas teaching law and attending international legal conferences. Although these same individuals continue to clash over the place of foreign law in their decision making – the travelers included both Justice Antonin Scalia, who vehemently opposes its consideration in Supreme Court decision making, and a vocal supporter, Justice Anthony Kennedy – their willingness to travel and

interact with the global legal community was not seen as out of the ordinary. Perhaps this is because, as members of the most prominent national judiciary in the world, such interaction is considered a natural part of these justices’ job. Indeed, the greater context in which the Court operates has changed in

recent decades. Since the end of the Cold War, the American legal system has gained visibility abroad through the United States’ involvement in constitution drafting and judicial reform. Although this involvement was originally a minor part of American foreign aid and concentrated primarily on the new

democracies of Europe and the former Soviet Union, it has become a primary focus of U.S. democracy assistance across the globe in the past decade as attention has turned to the importance of securing the rule of law in transitional countries (Carothers 2005). As a result, the prominence of our national judicial system has grown and members of foreign and international courts have become more familiar with and likely to consider its decisions (Slaughter 1998). Scholars have also linked the universalization of and widespread international convergence on human rights’ protections in recent decades to the active exportation and influence of the U.S. Bill of Rights (Kelemen and Sibbitt 2004).

On a global scale, a rise in both formal and informal interaction between the national judiciaries of the world has also been noted. The development of an active international community of judges and legal professionals has been part of what some scholars call judicial globalization (Slaughter 2005), a process in which national courts have become

increasingly likely to communicate and consider each others’ decisions (Slaughter 1997).

Transnational legal activism and the involvement of non-domestic actors in domestic legal issues and cases has also become prevalent (Keck and Sikkink 1998). However,

when considering the increasingly global network of legal norms and actors, the United States’ role is generally considered to be limited to that of an exporter, not an importer.

Judicial Independence Key to Democracy

Judicial independence guarantees democratic stability --- interpret the constitution, protect minority rights, and maintain rule of lawGibler and Randazzo, 11 --- *Associate Professor of Political Science, University of Alabama, AND **Associate Professor of Political Science, University of South Carolina.

(July 2011, Douglas Gibler and Kirk Randazzo, “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding”, JSTOR)//Yak

The difficulties of establishing judicial independence have led some to argue that courts only reflect elite interests. Tsebelis

(2002), for example, argues that courts almost never constitute a separate veto player within a polity. Judicial-selection procedures in most countries practically guarantee that courts will fail to provide new constraints on the policymaking process. Only when other political actors take extreme positions or when a new issue, not related to judicial selection, comes before the court can the judiciary pose an effective veto. This is why judicial independence does not necessarily lead to higher rates of judicial annulment (Burbank, Friedman, and Goldberg 2002). This is also why institutionalization of the courts matters as newly independent courts will tend to reflect executive and/or legislative policy pref erences on most issues (Epstein, Knight, and Shvetsova 2001). Nevertheless, the attention other political

actors devote to the courts suggests that judicial institutions can matter. Yeltsin was concerned enough with the Russian constitutional court to dismiss it entirely, as was Argentina's military regime in 1976 and its democratic regime in 1983. These rulers

understand that even courts lacking judicial independence can provide increased legitimacy for the dominant position of other political actors (Larkins 1998).

The weak version of judicial independence argues a selection effect. Courts matter by providing constraints on the crafting of legislation. Stone Sweet (2000, see also Shapiro and

Stone 1994), for example, notes that parliaments in Europe increasingly alter their behavior to conform to court rulings, sometimes by asking the judiciary for input before passing law. Because judicial influence places limits on the preferences of parliamentary actors, parliaments often govern as the courts desire so that law reflects judicial interests even in the absence of judicial intervention. Difficulties arise in testing this argument since scholars must deduce prior preferences from what is likely to be strategic political

behavior. What is clear, however, is that judicial preferences affect the content of legislation even if no annulments are observed.

The stronger version of judicial independence argues that courts can play a central role in guaranteeing democratic stability. The judiciary is responsible for interpreting the constitution, for protecting minority rights, and often with securing other procedures associated with liberal government (Larkins 1996). More generally, courts are responsible for maintaining the rule of law (O'Connor 2003, 2008), and this guarantee serves as the last step to ward ensuring the establishment of consolidated democracy (Linz

and Stepan 1996). Absent judicial protection, citizens lose their ability to monitor and check the ruling regime with speech, press, and public demonstration. Consequently, the judiciary ensures that political leaders do not act in complete disregard for statutory and constitutional law.

Judicial independence allows a strong middle class to prevent autocratic reversionsGibler and Randazzo, 11 --- *Associate Professor of Political Science, University of Alabama, AND **Associate Professor of Political Science, University of South Carolina.

(July 2011, Douglas Gibler and Kirk Randazzo, “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding”, JSTOR)//Yak

One of the strongest predictors of democratic survival seems to be wealth (Lipset 1959,75). Przeworski and various coauthors (Przeworski et al. 1996; Przeworski and Limongi 1997; Przeworski et al. 2000) argue

that wealth provides the antidote to all types of antidemocratic reversions. According to their research, democratic transitions occur for myriad reasons that are often unrelated to economic development. Nevertheless,

high levels of state wealth (usually measured by GDP) provide strong societal protections against reversions from democracy. A strong middle class makes autocratic repression more difficult (Moore 1966; Reuschemeyer, Stephens, and Stephens 1992), and more generally, an increase in the number of powerful actors within society is more likely to bring about a competitive, democratic equilibrium (Olson 1992). Though the role of wealth in establishing democracy

has been questioned (Boix 2002; Boix and Stokes 2003; Epstein et al. 2006), no one seems to doubt that wealth prevents reversions from democracy.

The mechanisms by which wealth maintains democratic stability leave room only for

instrumental influence from an independent judiciary . For example, the ability of Lipset's (1959)

middle class or Moore's (1966) bourgeoisie to demand political power would also presuppose a judiciary that guarantees property and other individual rights. In this

case, power within society rests with these new interests, not an institution. Thus, any political leverage the court has becomes completely endogenous to public support, and

absent public support, an independent judiciary becomes meaningless. Empirically, this logic suggests a spurious relationship as controls for wealth will render the effects of independent judiciaries statistically insignificant in any study involving a representative sample of cases. This argument provides a baseline hypothesis with which to test the effects of judicial independence.

Judicial independence prevents concentration of power in the executive during economic crisis Gibler and Randazzo, 11 --- *Associate Professor of Political Science, University of Alabama, AND **Associate Professor of Political Science, University of South Carolina.

(July 2011, Douglas Gibler and Kirk Randazzo, “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding”, JSTOR)//Yak

Military crises are often associated with rejections of democratic principles (Desch

1996; Gibler 2012; Thompson 1996). Though the causal mechanisms are not completely uniform across theories, the majority of these second-image-reversed arguments assume that conflict changes the distribution of power within the state (Rasler and Thompson 2004). The modal path toward reversions to

authoritarianism follows several well-documented responses to external threat. First, the executive seeks increased political power to efficiently deal with potential threats (Rasler 1986). This move is backed by a public that seeks security and defense of national pride (Mansfield

and Snyder 2003). Increased nationalism and increased power for the executive mean that dissent will be quashed as an intolerant majority moves against the opposition

(Gurr 1998). Institution ally, a strong military is created to deal with the threat, and this military becomes a significant force within society (Lasswell 1997). Finally, power is

institutionalized within an executive that now has a strong military to enforce its position within the polity (Gibler 2010).

Building on the connection between wealth and democratic survival, many scholars have argued that economic crises can also lead to increased concentrations of power within the executive. O'Donnell's (1973) work provided one of the first of these arguments. Concen trating on Brazil and Argentina, O'Donnell argued that the wealth initially created by import substitution industrialization did not translate initially into strong

regimes capable of withstanding economic downturns. When economic crises crippled the governments, powerful elite interests established authoritarian regimes to facilitate the painful economic measures necessary for the protection of property and economic recovery (see also Crowther 1986; Im 1987). Meanwhile, Gasiorowski (1995) pro vides

substantial empirical support for the argument that democratic breakdown follows economic recessions (see Kaufman 1976; Skidmore 1977; Wallerstein 1980).

The economic crisis model has also been incorpo rated into the foreign policy literature by the diversionary use of force theory. According to this theory, during difficult economic times, leaders may provoke low-level conflicts to distract the public from failures in leadership. Successful involvement in foreign conflicts then creates a rally effect that salvages their electoral future (DeRouen 2000). Although the model has received only modest em pirical support when predicting the

use of force interna tionally (Gelpi 1997; Levy 1989; and more recently, Oneal and Tir 2006), each theory explicitly assumes at least a partial breakdown of democracy during economic crises as the executive seeks increased political power. Note, too, the implicit assumption that public support follows the use of force; this is consistent with the external threat argument above.

Role of Judiciary

Both crisis models outlined above rely on a common mechanism that leads to democratic reversion: crisis affects the domestic bargaining power of various actors, this advantages the executive vis-

a-vis other domestic actors, and eventually, power is concentrated in the executive as democratic principles are eroded. The causal mechanism in both scenarios relies on the opportunity given the executive by each type of crisis, as this opportunity, when coupled with popular backing, allows the executive to supersede the constitution in favor of expediency.

An independent judiciary can affect this process in two ways. First, established judiciaries are likely to deter executives from using the crisis as an opportunity to gain power. An executive during crisis will likely not risk additional political decisions that question their authority. While this weak form of judicial independence creates few judicial annulments, the court does buttress the political power of other societal and governmental interests against executive incursions. The strong form of judicial independence manifests when the executive is overtly checked with annulments as the court favors mi nority rights and participatory democracy.

In either case, the executive is constrained by the court and democracy maintains. Both forms of judicial independence lead to our central hypothesis:

HI: Established independent judiciaries decrease the likelihood of regime reversions toward authoritarian governmental systems.

In Hypothesis 2, we modify slightly the argument regarding the effects of an independent judiciary by including a time restriction. As the literature suggests, only established independent judiciaries are likely to have an ability to counter executive or legislative influences. Since most studies view new judiciaries as reflections of elite interests, we are agnostic about the effects of new courts:

H2: New independent judiciaries will have no effect on the likelihood of regime reversions toward authoritarian governmental systems.

Courts need independence to preserve legitimacy and prevent authoritarianismGibler and Randazzo, 11 --- *Associate Professor of Political Science, University of Alabama, AND **Associate Professor of Political Science, University of South Carolina.

(July 2011, Douglas Gibler and Kirk Randazzo, “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding”, JSTOR)//Yak

Should judiciaries succeed in creating broad popular support and establish their independence, the court can serve as a powerful political force within the regime. This explains why autocratic regimes often preempt the threat of court-led embarrassments and restrict the judiciary's ability to hear unfriendly cases. Although courts under authoritarian regimes

tend to consist of impartial judges, courts in autocracies also tend to possess narrow legal authority (Larkins 1998). For example, the Franco regime in Spain had a separate court to handle politically sensitive cases (Toharia 1974).

Judiciaries that lack political independence have strong incentives to protect the interests in power and exercise whatever authority they have only at the margins. Dependent courts therefore regularly seek cases over which ruling elites have little concern in order to distance their branch from the executive. Or

justices will make rulings to curry favor with those likely to gain power (Helmke 2002).

Either way, to maintain the legitimacy of the court, justices must pay attention to the

prevailing economic conditions within the state, the concentration of executive power, the

identity of litigants, and the constitutional ramifications of their decisions before rul ing against elite interests (Bumin, Randazzo, and Walker 2009; Gibson, Caldeira, and Baird 1998; Herron and Ran

dazzo 2003). Assumed, then, is a highly strategic court that develops its legitimacy and independence over time.

Judicial independence key to stabilization during democratic transitionOFFICE OF DEMOCRACY AND GOVERNANCE 02 (January 2002, Office of Democracy and Governance; Bureau for Democracy, Conflict, and Humanitarian Assistance; U.S. Agency for International Development. “GUIDANCE FOR PROMOTING JUDICIAL INDEPENDENCE AND IMPARTIALITY,” http://pdf.usaid.gov/pdf_docs/PNACM007.pdf) WM

<B. The Importance of Judicial Independence and Impartiality Judicial independence is important for

precisely the reasons that the judiciary itself is important. If a judiciary cannot be relied

upon to decide cases impartially, according to the law, and not based on external pressures and influences, its role is distorted and public confidence in government is undermined. In democratic, market-based societies, independent and impartial judiciaries contribute to the equitable and stable balance of power within the government. They protect individual rights and preserve the security of person and property. They resolve commercial disputes in a predictable and transparent fashion that encourages fair competition and

economic growth. They are key to countering public and private corruption, reducing political manipulation, and increasing public confidence in the integrity of government. Even in stable democracies, the influence of the judiciary has increased enormously over the past several decades. Legislation protecting social and economic rights has expanded in many countries, and with it the court’s role in

protecting those rights. The judiciary has growing responsibility for resolving increasingly complex national and international commercial disputes. As criminal activity has also become more complex and international and a critical problem for expanding urban populations, judges play a key role in protecting the security of citizens and nations. Judiciaries in countries making the transition to democratic governance and market economies face an even greater burden. Many of these judiciaries must change fairly dramatically from being an extension of executive branch, elite, or military domination of the country to their new role as fair and independent institutions. At

the same time, the demands on and expectations of these judiciaries are often high, as views about citizens’ rights, the role of the executive branch, and market mechanisms are rapidly evolving. The judiciary often finds itself a focal point as political and economic forces struggle to define the shape of the society . These judiciaries also face the serious crime problems that frequently accompany transitions, as well as enormous issues of corruption, both that carried over from old regimes, as well as corruption newly minted

under changing conditions.>

Strong Judiciary Checks Authoritarianism

Strong judiciary key to check authoritarianism Kalb 13 [Summer, 2013; Johanna Kalb is an Associate Professor of Law, Loyola University New Orleans College of Law, “The Judicial Role in New Democracies: A Strategic Account of Comparative Citation”, 38 Yale J. Int'l L. 423]

The role of the judiciary in transitional regimes has received increasing attention in the last few decades based largely on two historical developments. First,

constitutionalism and judicial review have become increasingly pervasive attributes of late twentieth-century political transitions, which has increased the predominance of the judicial role in most new democratic regimes. Second, a growing number of countries that once held democratic elections have regressed into authoritarian or semi-authoritarian rule n38 or have simply failed to

move beyond the thin electoral definition of democracy. n39 In this historical context, scholars have turned their focus to the role that courts can play in helping to consolidate or solidify the post-election transition to a democratic order. A. Diagonal Accountability According to Juan J. Linz and Alfred Stepan, democratic consolidation is complete when a government comes to power that is the direct result of a free and popular vote, when this government de facto has the authority to generate new policies, and [*431] when the executive, legislative, and judicial power generated by the new democracy does not have to share

power with other bodies de jure. n40 As is now widely acknowledged, the project of democratic consolidation is inhibited by accountability failures in political institutions.

In other words, democracy stalls n41 or collapses because institutional weaknesses undermine the processes by which governmental actors are held responsible for performing their appropriate functions. Courts can aid in

democratic consolidation by reinforcing constitutional structures of accountability

across a number of different planes. First, a credible and autonomous judiciary may serve as an important mechanism of horizontal accountability. "In institutionalized democracies,

accountability runs ... horizontally across a network of relatively autonomous powers (i.e. other institutions) that can call into question, and eventually

punish, improper ways of discharging the responsibility of a given official." n42 Given the primacy of judicial review in most new regimes, courts are well positioned to ensure that other governmental actors are subject to the constraints of the law . An effective judiciary may thus be a key institutional actor in preventing the reconsolidation of power in the executive that has characterized so many nations in

transition. n43 Courts also play a role in vertical accountability, which can be understood

to characterize the relationship between the citizenry and the national government. In introducing this concept, Guillermo O'Donnell focuses on the methods by which nonstate actors in media and civil society can continue to hold state actors to account through regular election, social mobilization, and media oversight.

n44 An effective judiciary can protect and enable these processes of vertical accountability by ensuring governmental respect for the individual rights that underlie them - for example, by ensuring access to the voting booth and protecting freedom of speech and association. [*432] While O'Donnell's vertical axis ended with the national government, in the democracies of the last fifty years, the notion of vertical accountability arguably extends further to characterize the relationship between the domestic population, the national government, and the international community, which

includes international courts, the governments of other nations, and international NGOs. Most recent democratic transitions were in fact driven by pressures from both internal and external constituencies, sometimes in concert. n45 For example, "few would question the central role

played by occupation forces in fostering democratic government in Germany and Japan after World War II," while "the American security umbrella played a similar facilitating function for democracy in South Korea, and Taiwan." n46 In recent decades, international sanctions have helped to force internal political change (perhaps most notably in South Africa), while "the export of election monitoring technologies such as parallel vote tabulation and exit polls played a crucial role in bringing down Augusto Pinochet in Chile in 1988, unseating Slobodan Milo<hac s>evic in Serbia in 2000, and sparking the Orange Revolution in 2004." n47 In each of these cases, donor funding has helped to generate and preserve a global web of civil society groups, which has helped to inspire and operationalize the indispensable efforts of domestic advocates during transitions. n48 Moreover, even long after the formal democratic transition has occurred, new governments, particularly in the economically underdeveloped countries of the Global South, continue to confront pressures from the international community to maintain systems of democratic governance, to protect and promote human rights, and to facilitate economic integration. Thus,

governmental actions during the transitional period and beyond are under increased levels of scrutiny from both vertical and horizontal audiences,

which can mobilize each other in support of accountability at the national level. The judiciary can also play a role in mediating these relationships by protecting the domestic rights that enable these transnational connections - by protecting access to the Internet and to

international travel, for example. The ongoing activity along both of the axes creates the opportunity for the judiciary to engage in what we may describe as "diagonal accountability." n49 In modern [*433] regimes in transition, the judiciary must be responsive to activities on both the vertical and horizontal axes. The challenge is in satisfying these different audiences that are sometimes in harmony and sometimes

in conflict. The courts, given their responsibility for preserving the possible channels of horizontal and vertical

accountability, are uniquely positioned to manage this overlap and can mobilize one axis

"diagonally" in support of promoting accountability along the other. Courts may draw on international support "vertically" to protect against encroachment from the other branches "horizontally" - for example, by reaching out to influential international institutions to put pressure on

the president to comply with judicial orders limiting executive authority. Alternatively, courts may be well positioned to safeguard the authority of other domestic institutions along the horizontal axis by acting as a site of resistance against coercive international pressures - for example, by striking down as unconstitutional domestically unpopular legislation forced on the elected branches by international actors.

Democracy => Global Peace

Strong democracy maintains global peace – the best research provesCortright 13, David Cortright is the director of Policy Studies at the Kroc Institute for Peace Studies at the University of Notre Dame, Chair of the Board of Directors of the Fourth Freedom Forum, and author of 17 books, Kristen Wall is a Researcher and Analyst at the Kroc Institute, Conor Seyle is Associate Director of One Earth Future, Governance, Democracy, and Peace How State Capacity and Regime Type Influence the Prospects of War and Peace, http://oneearthfuture.org/sites/oneearthfuture.org/files//documents/publications/Cortright-Seyle-Wall-Paper.pdf

Drawing from the empirical literature , this paper identifies two underlying pathways through which state governance systems help to build peace. These are: State capacity. If states lack the ability to execute their policy goals or to maintain security and public order in the face of potentially violent groups, armed conflict is more likely . State capacity refers to two significant aspects: security capacity and social capacity. Security capacity includes the

ability to control territory and resist armed incursion from other states and nonstate actors. Social capacity includes the ability to provide social services and public goods. Institutional qxuality. Research suggests that not all governance systems are equally effective or capable of supporting peace. Governance systems are seen as more credible and legitimate , and are better at supporting peace , when they are characterized by inclusiveness, representativeness, transparency, and accountability. In particular, systems allowing citizens to voice concerns, participate politically, and hold elected leaders accountable are more stable and better able to avoid

armed conflict. Both dimensions—state capacity and quality—are crucial to the prevention of armed conflict and are the focus of part one of this paper. Part two of the paper focuses on democracy as the most common way of structuring state government to allow for inclusive systems while maintaining state capacity. The two parts summarize important research findings on the features of governance that are most strongly associated with prospects for peace. Our analysis, based on an

extensive review of empirical literature , seeks to identify the specific dimensions of governance that are most strongly associated with peace. We show evidence of a direct link between peace and a state’s capacity to both exert control over its territory and provide a full range of social services through effective governance institutions. We apply a governance framework to examine three major factors associated with the outbreak of war—border disputes, ethnic conflict, and dependence on commodity exports—and emphasize the importance of inclusive and representative governance structures for the prevention of armed conflict.

Democratic Backsliding => War

Democratic backsliding causes great power warGat 11, Professor at Tel Aviv University, Ezer Weizman Professor of National Security at Tel Aviv University, Azar 2011, “The Changing Character of War,” in The Changing Character of War, ed. Hew Strachan and Sibylle Scheipers, p. 30-32

Since 1945, the decline of major great power war has deepened further. Nuclear weapons have concentrated the minds of all concerned wonderfully, but no less important have been the institutionalization of free trade and the closely related process of rapid and sustained economic growth throughout the capitalist world. The communist bloc did not participate in the system of free trade, but at least initially it too experienced substantial growth, and, unlike Germany and Japan, it was always sufficiently large and rich in natural resources to maintain an autarky of sorts. With the Soviet collapse and with the integration of the former communist powers into the global capitalist economy, the prospect of a major war within the developed world seems to have become very remote indeed. This is one of the main sources for the feeling that war has been transformed: its geopolitical centre of gravity has shifted radically. The modernized, economically

developed parts of the world constitute a ‘zone of peace’. War now seems to be confined to the less-developed parts of the globe, the world’s ‘zone of war’, where countries that have so far failed to embrace modernization and its pacifying spin-off effects continue to be engaged in wars among themselves, as well as with developed

countries.¶ While the trend is very real, one wonders if the near disappearance of armed conflict within the developed world is likely to remain as stark as it has been since the collapse of communism. The post-Cold War moment may turn

out to be a fleeting one. The probability of major wars within the developed world remains low—because of the factors already mentioned: increasing wealth, economic openness and

interdependence, and nuclear deterrence. But the deep sense of change prevailing since 1989 has been based on the far more radical notion that the triumph of capitalism

also spelled the irresistible ultimate victory of democracy; and that in an affluent and

democratic world, major conflict no longer needs to be feared or seriously prepared for. This notion, however, is

fast eroding with the return of capitalist non-democratic great powers that have been absent from the international system since 1945. Above all,

there is the formerly communist and fast industrializing authoritarian-capitalist China, whose massive growth

represents the greatest change in the global balance of power. Russia, too,

is retreating from its postcommunist liberalism and assuming an increasingly authoritarian character.¶ Authoritarian capitalism may be more viable than people tend to assume . 8 The communist great powers failed even though they

were potentially larger than the democracies, because their economic systems failed them. By contrast, the capitalist authoritarian/totalitarian powers during the first half of the twentieth century, Germany and Japan, particularly the former, were as efficient economically as, and if anything more successful militarily than, their democratic counterparts. They were defeated in war mainly because they were too small and ultimately succumbed to the exceptional continental size of the United States (in alliance with the communist Soviet Union during the Second World War).

However, the new non-democratic powers are both large and capitalist. China in

particular is the largest player in the international system in terms of population and is showing spectacular economic growth that within a generation or

two is likely to make it a true non-democratic superpower.¶ Although the return of capitalist non-democratic great powers does not necessarily imply open conflict or war, it might indicate that the democratic hegemony since the Soviet Union’s collapse could be short-lived and that a universal ‘democratic peace’ may still be far off .

The new capitalist authoritarian powers are deeply integrated into the world economy. They partake of the development-open-trade-capitalist cause of peace, but not of the liberal democratic cause. Thus, it is crucially important that any protectionist turn in the system is avoided so as to prevent a grab for markets and raw materials such as that which followed the disastrous slide into imperial protectionism and conflict during the first part of the twentieth century. Of course, the openness of the world economy does not depend exclusively on the democracies. In time, China itself might become more protectionist, as it grows wealthier, its labour costs rise, and its current competitive edge diminishes.¶ With the possible exception of the sore Taiwan problem, China is likely to be less restless and revisionist than the territorially confined Germany and Japan were.

Russia, which is still reeling from having lost an empire, may be more problematic. However, as China grows in power, it is likely to become more assertive, flex its muscles, and behave like a superpower, even if it does not become particularly aggressive. The democratic and non-democratic powers may coexist more or less peacefully, albeit warily, side by side, armed because of mutual fear and suspicion, as a result of the so-called ‘security dilemma’, and against worst-case scenarios.

But there is also the prospect of more antagonistic relations, accentuated ideological rivalry, potential and actual conflict, intensified arms races, and even new cold wars, with spheres of influence and opposing coalitions. Although great power relations will probably vary from those that prevailed during any of the great twentieth-century conflicts, as conditions are never quite the same, they may vary less than seemed likely only a short while ago.

Democracy Solves Middle East War

Democratic stability prevents outbreak of Middle Eastern war – the threat is under-estimatedCordesman 13, Anthony H. Cordesman holds the Arleigh A. Burke Chair in Strategy at CSIS, Iraq: The New Strategic Pivot in the Middle East, http://csis.org/publication/iraq-new-strategic-pivot-middle-east

It is hard to determine why Iraq receives so little U.S. attention as it drifts towards sectarian conflict, civil war, and alignment with Iran . Tensions in

Iraq have been rising for well over a year, and the UN warned on June 1, 2013 that “1,045 Iraqis were killed and another 2,397 were wounded in acts of terrorism and acts of violence in May. The number of civilians killed was 963 (including 181 civilian police), and the number of civilians injured was 2,191 (including 359 civilian police). A further 82 members of the Iraqi Security Forces were killed and 206 were injured.”

This neglect may be a matter of war fatigue; the result of a conflict the United States “won” at a tactical level but seems to have lost at a strategic level. It may be the result of the fact the civil war in Syria is more intensive,

produces more human suffering, and is more open to the media. The end result, however, is that that the U nited S tates is just beginning to see how much of a strategic pivot Iraq has become .

The strategic map of the region is changing and Iraq’s role in that change is critical . It used to be possible to largely separate the Gulf and the Levant. One set of tensions focused on the Arab-Israel conflict   versus tensions focused on the Gulf. Iraq stood between them. It sometimes became a crisis on its own but always acted as a strategic buffer between two major subregions in the Middle East.However, it has become clear over the last year that the upheavals in the Islamic and Arab world have become a clash within a civilization rather than a clash betweencivilizations. The Sunni vs. Alewite civil war in Syria is increasingly interacting with the

Sunni versus Shi’ite tensions in the Gulf that are edging Iraq back towards civil war. They also interact with the Sunni-Shi’ite, Maronite, and other

confessional struggles in Lebanon.

The “Kurdish problem” now spreads from Syria to Iraq to Turkey to Iran. The question of Arab identity versus Sunni or Shi’ite sectarian identity divides Iraq from the Arab Gulf states and pushes it towards

Iran. Instead of terrorism we have counterinsurgency, instability, and religious and ethnic conflict.

For all the current attention to Syria, Iraq is the larger and more important state. Iraq is a nation of 31.9 million and Syria is a nation of 22.5 million. Iraq has the larger economy: Iraq has a GDP of $155.4 billion, and Syria had a GDP of $107.6 billion in 2011, the last year for which there are

useful data. Most important, Iraq is a critical petroleum state and Syria is a cypher. Iraq has some 143 billion barrels worth of oil reserves (9 percent of world reserves) and Syria has 2.5 billion (0.2 percent). Iraq has 126.7 has

trillioncubic meters of gas, and Syria has 10.1. Iraq has a major impact on the overall security of the Gulf , and some 20 percent of the world oil and LNG exports go through the Gulf.

This does not mean the conflict in Syria is not tragic or that it is not important. But from a practical strategic viewpoint, Iraq divided Iran from the Arab Gulf states. Iraqi-Iranian tensions acted as a

strategic buffer between Iran and the rest of the Middle East for half a century between the 1950s and 2003. Today, Iraq has s Shi’ite government with close links to Iran and is a military vacuum. Iraq’s Shi’ite leaders treat its Sunnis and Kurds more as a threat than as countrymen. Its Arab neighbors treat Iraq’s regime more as a threat than an ally, and the growing Sunni-Shi’ite tension in the rest of the region make things steadily worse in Iraq and drive it towards Iran.

If Iraq moves towards active civil war , its Shi’ites will be driven further towards Iran and Syria. If Assad survives and the Arab Gulf states continue to isolate Iraq, the largely token U.S. presence in Iraq is likely to become irrelevant and Iraq is likely to become part of a “Shi’ite” axis going from Lebanon to Iran. If Assad falls, and U.S. and Gulf Arab tensions with Iran continue to rise, Iran seems likely to do everything it can to replace its ties to Syria with influence in Iraq.If Iraq moves towards active civil war, its Shi’ites will be driven further towards Iran and Syria. If Assad survives and the Arab Gulf states continue to isolate Iraq, the largely token U.S. presence in Iraq is likely to become irrelevant and Iraq is likely to become part of a “Shi’ite” axis going from Lebanon to Iran. If Assad falls, and U.S. and Gulf Arab tensions with Iran continue to rise, Iran seems likely to do everything it can to replace its ties to Syria with influence in Iraq.

Arab and Turkish pressure on Iraq seems more likely to push Iraq towards Iran than away from it. If Iraq becomes caught up in sectarian and ethnic civil war, this will push its Shi’ite majority towards Iran, push its Kurds toward separatism, and push the Arab states around Iraq to do even more to support Sunni factions in Lebanon, Syria, and Iraq while suppressing their own Shi’ites.

The United States has limited cards to play. The U.S.-Iraqi Strategic Framework Agreement exists on paper, but it did not survive the Iraqi political power struggles that came as the United States left. The U.S. military presence has been reduced to a small U.S. office of military cooperation at the U.S. Embassy in Baghdad and it is steadily shrinking. The cumbersome U.S. arms transfer process has already pushed Iraq to buy arms from Russia and other suppliers. The U.S. State Department’s efforts to replace the military police training program collapsed before they really began. The United States is a marginal player in the Iraqi economy and economic development, and its only aid efforts are funded through money from past years. The State Department did not make an aid request for Iraq for FY2014.

However, it is far from clear that Prime Minister Nouri al-Maliki or most of the Shi’ite ruling elite really want alignment with Iran or that anyone in Iraq wants civil war. A revitalized U.S. office of military cooperation and timely U.S. arms transfer might give the United States more leverage, and U.S. efforts to persuade Arab Gulf states that it is far better to try to work with Iraq than isolate it might have a major impact. Limited and well-focused U.S. economic and governance aid might improve leverage in a country that may have major oil export earnings but whose economy needs aid in reform more than money and today has the per capita income of a poverty state, ranking only 162 in the world.

Making Iraq a major strategic focus in dealing with Turkey and our Arab friends and allies might avoid creating a strategic bridge between Iran and the Gulf states. It might limit the growing linkages between the tensions and conflicts in the Gulf and those in the Levant, and help secure Jordan, Lebanon, and Egypt. It would not be a major expense to give the State Department’s country team in Baghdad all of the aid resources it needs to move Iraq towards economic reform and a stable military.

Even limited success in damping down internal conflict in Iraq and helping Iraq keep a distance from Iran might save the United States far more, even in the short run, than substituting strategic neglect for strategic patience. It also might help prevent Iraq

from becoming a far worse civil conflict than now exists in Syria, fueling the religious war between Sunnis and

Shi’ites, which can turn a clash withina civilization into a serious war and spill over into terrorism in the West .

Judicial Independence Solves Terrorism

Independent judiciaries establish government credibility—that’s key to prevent terrorism.Findley and Young 11 (Michael, assistant prof of polisci at Brigham Young University with a research emphasis in terrorism and development. Joseph, Associate Professor at American University with a joint appointment in the School of Public Affairs and the School of International Service. “Terrorism, Democracy, and Credible Commitments,” International Studies Quarterly. Vol. 55 No. 2, spring 2011. Wiley Online Lirbrary.)//CB

Political institutions are an important part of an explanation of terrorism precisely

because different institutions provide distinct strategic incentives for groups to pursue policy change. Both democracies and nondemocracies could have higher or lower levels of terrorism depending on how well their institutional arrangements make government commitments credible. We consider a specific institutional arrangement, whether a state has an

independent judiciary, and hypothesize that independent judiciaries make government commitments more credible, thereby providing less incentive for groups to use terrorism. Without independent judiciaries, executives cannot credibly restrain themselves from future violations of rights. Thus, groups seeking to make extreme demands through a formal political process must assess whether the executive will resort to force. An independent judiciary offers some assurances about future government behavior in this situation.¶ We examine this credible commitment hypothesis using a new data set of all domestic and transnational terrorist events in 149 countries from 1970 to 1997 (LaFree and Dugan 2007).2 The results indicate

that independent judiciaries decrease the likelihood of terrorism, offering support for the credible commitment hypothesis. We also find that variation in terrorism exists both within and across regime type, although on average democracies have higher levels of terrorism than autocracies. In addition to standard statistical tests and robustness checks, we

use matching methods and demonstrate that our results are not dependent on any one model specification (Rosenbaum and Rubin 1983; Ho, Imai, King, and Stuart 2007).

Credibility established by independent judiciaries reduces violence and terrorism.Findley and Young 11 (Michael, assistant prof of polisci at Brigham Young University with a research emphasis in terrorism and development. Joseph, Associate Professor at American University with a joint appointment in the School of Public Affairs and the School of International Service. “Terrorism, Democracy, and Credible Commitments,” International Studies Quarterly. Vol. 55 No. 2, spring 2011. Wiley Online Lirbrary.)//CB

Like dissident groups, states are not always homogeneous actors. Different actors could vie for policy control within the state, the main divisions being the branches of government. In many circumstances, the executive branch is dominant. In other cases, a legislative branch could be the primary state actor. In cases

where the judicial branch exercises a credible check on executive power, we contend

that the outcome of the interactions between the state and the dissident group will be less violent.7 The separation of powers could thus alter the incentive structure that shapes the actions of both states and extremist groups.¶ North, Summerhill, and Weingast

(2000:27) indicate that ‘‘establishing credible commitments requires the creation of political institutions that alter the incentives of political officials so that it becomes in their interest to protect relevant citizen rights.’’ A credible commitment to limited government makes terrorism and other violent dissent less beneficial in comparison with formal, nonviolent political participation. Nonviolent interaction with the state is also less costly, as the regime not only tolerates, but

honors, political participation through formal mechanisms. In particular, it offers a wider range of choices—not

simply violence—for political contention (Tilly 2003). Importantly, for a commitment to be credible,

a limit on government power needs to be self-enforcing (Weingast 1995). Institutions that credibly

restrain the executive branch of government are most important, because the executive branch typically has

the ability to control the means of coercion. Terrorism, therefore, is less likely in states that credibly commit to honoring the formal political process and respecting citizen rights

than in states that cannot make such commitments.¶ Although most of the conflict bargaining literature

highlights the need for credible commitments to avoid or end wars (Fearon 1995; Walter 2002; Powell 2006), precisely which institutions make commitments more credible is not well understood.8 A number of political institutions could facilitate credible commitments, and we now turn to a discussion of one important institution— independent judiciaries.

Independent judiciaries establish governmental credibility that breeds state engagement instead of terrorism.Findley and Young 11 (Michael, assistant prof of polisci at Brigham Young University with a research emphasis in terrorism and development. Joseph, Associate Professor at American University with a joint appointment in the School of Public Affairs and the School of International Service. “Terrorism, Democracy, and Credible Commitments,” International Studies Quarterly. Vol. 55 No. 2, spring 2011. Wiley Online Lirbrary.)//C

States that create independent judiciaries provide a limit on the power of the executive, the most likely agent of government violence (North and Weingast 1996; Smith 2008). As Staton and

Reenock (2010:117) assert, rights enforced by ‘‘effective, independent judiciaries are designed to

ensure that state promises to forgo financial predation and to respect the physical integrity of its subjects are perceived credible.’’ In their study of seventeenth-century England, North and Weingast (1989:819) find that ‘‘the

creation of a politically independent judiciary greatly expanded the government’s ability credibly to promise to honor its agreements, that is, to bond itself. By limiting the ability of the

government to renege on its agreements, the courts played a central role in assuring a commitment to secure rights.’’11¶ Independent judiciaries can constrain the actions of the executive and provide confidence to citizens to invest, contract with other citizens, and negotiate with the state. As Feld and Voigt (2003:498) argue, there are three general cases in which an independent judicial branch has importance for societal interactions: ‘‘in cases of conflict between citizens... in cases of conflict between government and the citizens... in cases of conflict between various government branches.’’ The second case, conflict between the state and citizens, is important for under- standing a citizen’s resort to terrorist violence. Davenport (1996), for example, finds that

states with independent judiciaries repress their citizens less than states without this

institution. Because states are constraining their use of violence and credibly limiting their power, citizens may be as well. ¶ If individuals with extreme preferences feel that they cannot pursue their policy goals and⁄or grievances in a formal institutional setting

because the government might later crack down on them, they will turn to noninstitutional participation. Because of the extreme nature of their preferences, violence is more likely than it may be for moderates. Moderates have less reason to be concerned about a future government

response, because the nature of their claims is less consequential to the government. Because independent judiciaries can limit the power of the executive and credibly restrain state violence, thereby reducing the need for dissident violence, we offer the following hypothesis:

Judicial Independence Solves Disease

Independent judiciaries are key to fighting global disease spreadGreco 5 (Michael S., President – American Bar Association, Miami Daily Business Review, 52.42, 12-5, Factiva)

What makes the rule of law so important that it attracted such a distinguished community† First, because the rule of law is so central to everything the legal community stands for, both in the United States and around the world. And second, because we increasingly find that our nation's top international priorities-defeating terrorism, corruption and even the spread of deadly diseases-are being undone at the ground level by poor governance and lawlessness . As Rice eloquently told the gathering, "In a world where threats pass even through the most fortified

boundaries, weak and poorly governed states enable disease to spread undetected , and

corruption to multiply unchecked, and hateful ideologies to grow more violent and more

vengeful." The only real antidote to these global threats is governments, in all corners of the

world, that operate with just, transparent and consistent legal systems that are enforced by fair and independent judiciaries. These issues are not just the province of distant foreign governments. Building the rule of law must begin at home. Recent revelations in our own country-that the CIA has maintained secret prisons for foreign detainees-underscore the urgent need for an independent, nonpartisan commission to investigate our treatment of such prisoners.

ExtinctionTorrey and Yolken 5 E. Fuller and Robert H, Directors Stanley Medical Research Institute, 2005, Beasts of the Earth: Animals, Humans and Disease, pp. 5-6

The outcome of this marriage, however, is not as clearly defined as it was once thought to be. For many years, it was believed that microbes and human slowly learn to live with each other as microbes evolve toward a benign coexistence wit their hosts. Thus, the bacterium that causes syphilis was thought to be extremely virulent when it initially spread among humans in the sixteenth century, then to have slowly become less virulent over the following three centuries. This reassuring view of microbial history has recently been challenged by Paul Ewald and others, who have questioned whether microbes do necessarily evolve toward long-term accommodation with their

hosts. Under certain circumstances, Ewald argues, “Natural selection may…favor the evolution of extreme harmfulness if the exploitation that damages the host [i.e. disease] enhances the ability of the harmful

variant to compete with a more benign pathogen.” The outcome of such a “marriage” may thus be the murder of one spouse by the other. In eschatological terms, this view argues that a microbe such as HIV or SARS virus may be truly capable of eradicating the human race.

Judicial Independence Solves Economy

Judiciary independence key to economic growth—boosts investment, property rights, and regulates commerce.Sievert 14 (Jacqueline, assistant professor of Political Sciences and Public affairs at Western Carolina University. “Courts and Conflict: Examining the Causal Mechanisms of Independent Judiciaries and Domestic Conflict” May 5, 2014. http://visionsinmethodology.org/wp-content/uploads/2013/11/Sievert_VIM2014.pdf)//CB

One of the most common answers to why autocrats create and use courts has been to create and ensure the protection of property rights to regulate commerce and attract investment. As Weingast (1995) wisely notes, any state strong enough to ensure property rights is strong enough to intrude on them. Therefore, governments must be able to credibly commit to the protection of property rights, and one way to do this has been the

establishment of courts. “By establishing a neutral institution to monitor and punish violations of property rights, the state can make credible its promise to keep its hands off (Root and May, 2008). Similarly, Mustafa argues when writing about judicialization in Egypt,

“the consolidation of unbridled power resulted in a severe case of capital flight depriving the economy of a tremendous amount of Egyptian and foreign private investment... Judicial institutions were rehabilitated in an effort to attract investment, to provide the regime with new tools to monitor and discipline the state’s own bureaucratic machinery, and to shape a new legitimizing ideology around the “rule of law”” (Moustafa, 2008).

Establishing and adhering to the rule of law was not just an Egyptian strategy, but one adopted by Singapore as well. Then Prime

Minster Lee Kuan Yew cited rule of law as the foundation of the impressive economic growth Singapore experienced after independence from Malaysia. This was echoed by the then-Chief Justice of Singapore,

“Singapore is a nation which is based wholly on the Rule of Law. It is clear and practical laws and the effective observance and enforcement of these laws which provide the foun- dation for our economic and social development. It is the certainty which an environment based on the Rule of Law guarantees which gives our people, as well as many [multinational corporations] and other foreign investors, the confidence to invest in our physical, industrial as well as social infrastructure” (Silverstein, 2008).

It is not just Singaporean elites who laud the rule of law as the key to economic growth and property rights . The 2013-2014 Global Competitiveness Report from the World Eco- nomic Forum ranks Singapore first for the efficiency of legal framework in settling disputes, transparency of government policymaking, and public trust in politicians. Singapore also ranks second in the world for the protection of property rights, for intellectual property

protections, and for strength of investor protection (World Economic Forum, 2013-2014). Clearly international investors and monitoring groups, as well as Singaporean citizens view the courts, property protections, and the regulatory environment favorably as well.

Judicial independence spurs economic growth—government credibility protects property rights.Voigt and Guttman 13 (Stefan, director of Economics and Law at Hamburg University. Jerg, post-doc at Hamburg University’s Graduate School of Economics and Law. “Turning cheap talk into economic growth: On the relationship between property rights and judicial independence,” Journal of Comparative Economics. Vol. 41 No. 1. Science Direct.)//CB

The argument to be developed in this paper is that promising private property rights is not sufficient to induce economic development. Rather, governments need to find means to make such promises credible. Over the last couple of years, various devices that could serve this function have been analyzed both theoretically and empirically. Among them are the number of veto players (Henisz, 2000; Tsebelis, 2002), the degree of checks and balances (Beck et al., 2001), but also joining international organizations (Levy and Spiller, 1994; a recent empirical test is Dreher

and Voigt, 2011). Previous studies find that promises work only in conjunction with one or more of these means to increase the credibility of promises. This has been shown with regard to the promise of an independent central bank for bringing about monetary stability (Keefer and Stasavage, 2003; Hayo and Voigt,

2008). Here, we argue that a factually independent judiciary increases the credibility of government promises, including the promise to enforce property rights.

Feld and Voigt (2003, 2006) show that JI is conducive to economic growth. JI is a procedural attribute that

asks whether judges who decide according to the law have to expect any negative consequences (such as being moved to other courts, being paid less or even fired). It is, at least on logical grounds, completely unrelated to the content of legislation, a substantive attribute. We hypothesize that the growth effect of a high degree

of JI should be more pronounced if the substantive attributes are also growth-friendly. In other words, if countries promise secure property rights and have been factually implementing their promises for a while, then increased growth of per capita income is predicted to be observable.

Judicial Independence Solves Internal Conflict

Judicial independence reduces internal conflict of authoritarian states—regimes are more likely to engage with a credible government.Sievert 14. (Jacqueline, assistant professor of Political Sciences and Public affairs at Western Carolina University. “Courts and Conflict: Examining the Causal Mechanisms of Independent Judiciaries and Domestic Conflict” May 5, 2014. http://visionsinmethodology.org/wp-content/uploads/2013/11/Sievert_VIM2014.pdf)//CB

This project seeks to unpack the relationship between independent judiciaries and authoritarian regimes, and present a unified theory that explains when autocrats have incentives to create and empower independent courts and when they have incentives to restrict the ability of the courts to overturn their most preferred policies. This work builds on existing literature on judicial

institutions in authoritarian regimes and argues that in addition to the benefits of legitimacy and protected property rights autocrats can learn how resolved aggrieved groups are in society by allowing some independent judicial decision making.To develop this argument I analyze a game-theoretic model in which a government, some aggrieved group, and a court all interact.

The results show that leaders of authoritarian regimes can use independent courts to learn how resolved aggrieved groups are, and in turn this information allows the regime to offer policy concessions that satisfy the groups demands, alleviating the group’s threat to mobilize against the regime. To learn how resolved groups are, they need to file suits against the regime, and in order to do so they must believe the court hearing their case will be at least nominally independent. That is, they need to believe their case will get a fair hearing in front of the court, as such the court needs to rule against the regime at least some of the time. The macro-implications of the theoretical model are then modeled empirically using observational data.

Independent judiciaries reduce internal conflict and human rights violations by decreasing executive overreach.Sievert 14 (Jacqueline, assistant professor of Political Sciences and Public affairs at Western Carolina University. “Courts and Conflict: Examining the Causal Mechanisms of Independent Judiciaries and Domestic Conflict” May 5, 2014. http://visionsinmethodology.org/wp-content/uploads/2013/11/Sievert_VIM2014.pdf)//CB

According to the theoretical model by adopting at least a partially independent court a regime can reduce its likelihood of experiencing civil conflict with an aggrieved group by offering policy concessions to satisfy the group’s demands. Therefore, what we can expect to observe is few states with independent courts experiencing civil conflict.

In addition to being informed by the theoretical model this expectation is supported by various studies regarding judicial independence and dissent, protests and human rights protections. Increased protections of human rights and respect for physical integrity rights are found to be positively associated with empowered judiciaries (Keith, 2002; Keith, Tate

and Poe, 2009; Powell and Staton, 2009) and constraints on the executive (Bueno de Mesquita et al., 2005; Davenport, 2007). Additionally literature on international law and respect for human rights finds that international human rights treaties can create mobilization opportunities for citizens and that these laws matter most where domestic groups “have the motive and the means to demand the protection of their rights”, most likely in court (Simmons, 2009). Interestingly Conrad and Ritter (2013) find that international human rights treaties have a small, but positive and effect on rights protections when they are

secure in office. They find that secure leaders who are obligated under international human

rights treaties will repress less when facing mobilized challenges to their rule in order to avoid potential court costs (Conrad and Ritter, 2013).

Affirmative Answers

AT: Judicial Independence Impact

Empirically won’t undermine independent judiciaryGeyh, 03 --- Professor of Law at Indiana (Winter/Spring 2003, Charles G., Indiana Law Journal, “Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts,” 78 Ind. L.J. 153))

The well-documented, cyclical attacks on the courts mentioned above serve to punctuate phases in the relationship between the federal courts and the political branches in ways that justify their use as section headings in Part II, which chronicles the development of customary independence. By themselves, however, these episodic altercations between the judiciary and the political branches tell a story that is woefully incomplete, first because they tend primarily to involve the Supreme Court to the frequent exclusion of the lower courts, and second because they dwell on moments of heightened interbranch tension, while ignoring protracted periods of relative calm

[*158] between crises. When the more complete story is told, we find that while Congress and the President have attacked the Supreme Court in generational cycles, their support for the emergence of an independent judicial branch has been largely uninterrupted over time . In fact, some of the most meaningful steps toward promoting an increasingly strong and independent judiciary have been taken during and immediately after bitter confrontations between the branches over alleged excesses of the Supreme Court. As I intend to demonstrate, there were three primary manifestations of these emerging independence norms: first, a congressional resistance to other than minimalist, incremental reform of the judiciary's basic structure throughout the nineteenth century; second, a congressional commitment to furnishing the judiciary with the tools to govern itself throughout the twentieth century; and third, a gradual decline over the nineteenth and twentieth centuries in the acceptability of holding the judiciary accountable for its decisions by means of impeachment or by changes in court structure, size, or jurisdiction.

The prevailing impression, derived from scholarly obsession with the battles between Congress and the Supreme Court, is that episodic, independence-threatening confrontations are the defining features of the interbranch landscape. When the Supreme Court's cyclical battles with the political branches are superimposed upon the underlying saga of the judiciary's largely uninterrupted progress toward independence, however, a different and more complete story emerges--one which suggests that

these episodic battles are better characterized as departures from a deeper and more stable constitutional custom of interbranch comity. Thus, occasional episodes of brinksmanship have periodically served to revalidate the emerging rule of an independent judicial branch.

AT: Judicial Salary Increases --- Court Ruling Ensures Payment

Court ruling ensures Congressional pay for judgesDenniston, 12 --- has been covering the Supreme Court for fifty-five years (10/7/2012, Lyle, “Major victory – and pay raises – for U.S. judges,” http://www.scotusblog.com/2012/10/major-victory-and-pay-raises-for-u-s-judges/, JMP)

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday. If

the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress. The ten-to-two decision by the Federal Circuit is here.

The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished. The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.

Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court. Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.

The Supreme Court has played a continuing role in this prolonged constitutional fight, and in June of last year told the Fedeeral Circuit to decide whether the six judges’ case (the latest of several such cases) should be dismissed on the theory that it was barred by the Federal Circuit’s 2001 precedent.

AT: Judicial Salary Increases --- Congress Must Pay

No internal link – congress is mandated to pay the salaries – means it can’t be cutMoyer, 15 – [Bruce, is on the Federal Bar Association government relations counsel, Federal Bar Association, “Federal Judges Score a Pay Adjustment, Quietly”, January 2015, http://www.fedbar.org/Advocacy/Washington-Watch/WW-Archives/2015/JanuaryFebruary-2015-Federal-Judges-Score-a-Pay-Adjustment-Quietly.aspx, 7/6/15]JRO

Congressional Reaction Members of Congress are inquiring how much these raises will cost. According to the

Congressional Budget Office (CBO), the bill will be considerable. The CBO in October announced that the federal government will spend a collective $1 billion more to pay its judges over the next 10 years, including the costs of the backpay awards. Most of the tab represents “mandatory spending,” meaning Congress will have no choice but to pay the tab because it is required by statute. Over this time period, an additional $190 million will need to be appropriated with discretionary funds to pay for the rise in the salaries of non-Article III judges. Given the widespread distrust of government, some Americans may see the judicial pay litigation as little more than self-interested, activist judges mandating themselves a pay raise. But the judges presciently turned to an ancient common-law doctrine to validate their actions: the “Rule of Necessity,” which permits judges with an interest in a case before them to still hear and decide the case if it could not otherwise be heard elsewhere. Whether that explanation convinces members of Congress unhappy with their smaller paycheck remains to be seen.

AT: Judicial Salary Increases --- No Impact

Judicial pay does not affect judicial performance --- statistics prove Baker, 2007- Professor at the Washington University in Saint Louis – School of Law (Scott, “Should We Pay Federal Circuit Judges More?”, Boston University Law Review, July 4, 2007, SSRN database)//TT

Conclusion

Chief Justice Roberts, his brethren, and many prominent members of the legal community have issued statements about the corrosive effect of low judicial salaries. The heated rhetoric is itself telling: low judicial salaries are creating a “constitutional crisis”;145 because of low salaries “the nation is in danger of having a judiciary that is no longer considered one of the leading judiciaries of the world”;146 and “eroding federal judicial salaries will lead, sooner or later, to less capable judges and ultimately to inferior adjudication.”147

This Article is the first to test whether judicial salaries really do impact judicial performance. Given the available data, the effect of low judicial pay is non-existent, at least

when judicial pay is measured against the next best financial opportunity for most circuit judges. Low pay does not impact voting patterns, citation practices, the speed of controversial case disposition, or opinion quality. Low pay does lead to slightly fewer dissents. While statistically significant, the magnitude of this effect is slight.

Low judicial salaries might have a corrosive character. The source of the corrosion, however, rests outside judicial performance. Chief Justice Roberts is probably half right: low judicial

salaries erect a barrier to entry onto the bench for some candidates. But this barrier is inconsequential if those candidates who are willing to take judgeships are indistinguishable from those candidates driven from the applicant pool by low judicial salaries. That is the story these data support.

Judicial salaries don’t affect judicial independence and decisions Baker, 2007- Professor at the Washington University in Saint Louis – School of Law (Scott, “Should We Pay Federal Circuit Judges More?”, Boston University Law Review, July 4, 2007, SSRN database)//TT

This Article is the first to test the impact of judicial pay on performance of federal circuit judges. By comparing judicial salaries to salaries of the next best financial opportunity for most circuit judges – partnership in regional law firms – this Article finds that

judicial compensation is irrelevant to most quantifiable measures of judicial performance. Regardless of the difference between their salary and their next best

opportunity, judges of both political parties vote the same in controversial cases; they are equally likely to cite as persuasive authority opinions by judges from the other political party; they decide controversial cases in the same amount of time; and they write equally strong opinions.8 Indeed, the only statistically significant effect of low judicial salaries is that judges paid poorly as against their next best opportunity dissent less often in controversial cases. But the magnitude of this

effect is tiny. In short, pretty much nothing would happen if Congress decided to raise judicial salaries.These empirical results make sense. There are very few federal circuit judgeships, and many people want them. Salary, a generous pension, and a number of non-pecuniary perks make the federal circuit judgeship attractive. The president picks his nominee based on his preferences in combination with the views of the senators. The composition and depth of the candidate pool makes

little difference. True, someone might turn down the job for financial reasons, but the

next person picked will be indistinguishable in his or her eventual judicial performance.

Part I.A sets forth the constitutional structure, statutory scheme, and history of the law governing judicial salaries. Part I.B summarizes the debate about judicial salaries, considering the arguments made for higher salaries. Based on these arguments, Part I.B articulates competing theories about the likely impact of judicial pay on judicial performance. Part II details the statistical methodology used to test the theories. It develops two approaches – judge-to-judge direct comparisons and pool-to-pool comparisons – that can be used to determine whether higher salaries would alter judicial performance. Part III performs the

statistical analysis, reporting that judicial pay does not affect the nature of judicial votes in controversial cases, the speed of case disposition in controversial cases, the character of judicial citations in written opinions, or the strength of judicial opinions. Part III does show that judges who give up a lot of money to take the bench dissent less frequently. By inference,

then, low judicial pay (i.e., big spreads between judicial pay and private sector pay) yields marginally less dissent. Part IV deals with some potential objections to the analysis, and, finally, there is a brief conclusion.

Impacts to judicial pay are grossly exaggerated Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Taking these words of warning to heart, one might think that the judiciary is truly on the short road to perdition. Fortunately,

however, these predictions of apocalyptic catastrophe are gross exaggerations.

For starters, despite doomsday claims that judicial salary levels have reached unprecedented lows, historical data demonstrates that judicial salaries have always been less than the market rate for lawyers , without any serious consequences . 14 Furthermore, shrill predictions that these salary levels will spell the end of the judiciary are similarly not a new phenomenon, 15 having been made in previous eras, and

having resulted in neither the demanded salary increases nor the terrible plagues predicted by these prophets. 16 Rather than showing the necessity of salary increases, these salary critics have simply demonstrated the truth of Yogi Berra's observation: "[I]t's tough to make predictions, especially about the future."1 7 One

safe bet, however, is that critics will continue to complain about judicial salary levels and make predictions of doom, yet no serious harm will befall the judiciary, or at least none related to judicial compensation. This prediction is based on over two hundred years of history, and although the past does not foreordain the future, it offers a good roadmap for determining where the judiciary is headed.18

Despite the decline in judicial pay, there has been no impact on the quality of the judiciary Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Today, many judges follow in the tradition of Learned Hand. Consider the quality of the judiciary that present judicial salaries buy

for the American taxpayer. Those pushing for a judicial pay increase fail to mention the number of excellent jurists that continue to toil on the federal bench, despite present salary levels. Excellent judges, such as the Seventh Circuit's Richard A. Posner and Frank H. Easterbrook and the Fourth Circuit's J. Michael Luttig, to name but a few,"'I serve despite their obvious ability to command superior salaries in the

private sector. And these judges are no fools: They know they could greatly increase their salaries, yet, for love of their duties, they choose to remain in their present positions.

Perhaps they are wise enough to realize that money is not the only thing that makes for a fulfilling career in the law.

Besides warning that the quality of judges is declining or will decline if salaries are not increased, critics also take aim at the quality of judicial work product. Because of the high quality of the judiciary, deficient decisions are uncommon, and most are based on legal theories that did not originate with the judges who have adopted them." 2 A meaningful discussion of the quality of

judicial opinions would require more ink than can be spilt on the subject here, but it is worth noting that critics of the present judicial compensation structure have not been able to show that salaries have adversely affected the quality of judicial decisions.Admittedly, it is difficult to conceive of a suitable standard by which to measure the overall quality of judicial decisions-it would entail an analysis of the grammar, syntax, clarity, conciseness, organization, and sophistication of decisions, as well as an analysis of their outcome, their basis in the law, the complexity of the issues presented, the citation to precedent, the amendments to the opinion required to gamer majority support, the time required to produce the decision, and the legislative or judicial reversal rate, to name but a few factors. In the end, however, the complexity in evaluation really makes no difference because under any system of measurement, modem judicial opinions fare no worse, and probably much better, than those of previous generations, some of

whom were paid more (in actual purchasing power) than the present judiciary.' 13 Take reversal rates, for example. There has been no noticeable increase in the rate of reversal in the federal system, despite the decline in the real value of judicial salaries.1 14 The stylistic quality of judicial opinions has not significantly diminished either,1 15 and possibly because of developments in computer technology and the adoption of citation standards, they have arguably improved. The same thing goes for the quantity of decisions

produced: Federal judges produce more opinions (with more citations to precedent) than ever before. The workload of the federal judiciary, which was never light, has increased significantly with the explosion of federalizing legislation that makes every citizen's sneeze a federal concern.11 6 True, better technology and law clerks serve to lighten the load for many judges and may be partly responsible for this increased

productivity," I7 and judges of previous generations did not enjoy these privileges," 1 8 but it is ultimately the judge himself who is responsible for the outcome of a case and the final form of a written decision, regardless of whether the first draft of the opinion had its genesis in a law clerk. In short, no matter how you slice it, there is just no hard evidence that the modem federal judiciary or its work product is inferior to that of prior generations.

There is no correlation between high salaries and excellence Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

It is also worth noting that if wealthy, would-be judges are unsatisfied with judicial pay, they need not seek judicial positions. Contrary to popular notions, the judiciary would not be worse off were this to happen and, indeed, it would be much better off.3 46 Although some commentators assume that lawyers who toil in large firms and pull down heavenly salaries are generally the best qualified for judicial service,347 little evidence supports this view. These attorneys, for whom judicial service would constitute a financial sacrifice, have hardly cornered the market on skills essential to judging. The fact that a lawyer commands a whopping salary in the private sector is certainly a factor that suggests competence-assuming that their clients are rational maximizers and can differentiate between quality legal work and inferior products-since the market places a higher value on their work. But there may also be other factors that explain an attorney's heavenly salary factors that do not correlate with excellence-such as nepotism, favoritism, family connections, lack of accountability, or client ignorance as to the quality of legal services. Because these factors

undoubtedly come into play, one cannot say with certainty that a highly-compensated attorney is also a highquality attorney simply because he commands a lofty salary. An attorney's ability to demand a high salary from wealthy clients does not guarantee his 348 excellence, just as a lawyer who voluntarily foregoes a high salary should not, by that fact

alone, be presumed inferior.349 Many talented lawyers elect not to pursue highly compensated positions, choosing instead the nonpecuniary benefits of other positions. Some of these attorneys likely place a higher priority on intellectual challenge, or the love of America, or public service. These are the same attorneys who likely will be attracted to judicial service to the extent it entails these benefits.

Take, for example, Justice Thurgood Marshall, who lost $3500 his first year of practice 350 and who preferred litigating constitutional cases to the riches of private practice. Although as an Associate Justice his left-leaning philosophy often left much to be desired, no one can deny that as an attorney he was a talented litigator who tirelessly championed one of the worthiest causes: eradication of govemment-sponsored racism. The fact that he was never handsomely compensated, or even that he lost money practicing law, does not mean that he was an inferior attorney; it simply means there was not a substantial market for his skills. Similarly, many law professors or government lawyers would make excellent jurists and would not object to laboring at the present judicial salary levels, even though these attorneys are not presently commanding lofty salaries. 351 As Chief Justice Rehnquist has noted, judicial service often entails a pay increase for these attorneys. 352 Ifwhatever their motivations-these gifted individuals are willing to serve according to the present pay scale, the American taxpayer should not be forced to pay wages according to the rate of their more expensive colleagues. It simply is not true that "better pay would attract even better judges than now sit on the federal bench," 353 and the American taxpayer should not be compelled to disprove this theory.

Not only are many less-well-compensated attorneys sufficient to the judicial task, many would be an improvement over attorneys who place money high on their list of priorities. America would be better served by such individuals-those with the wisdom and discipline to control their spending habits and live within their means-than their less-frugal counterparts.

As two scholars have posited:

[F]or any two individuals with the same ability, the one who seeks promotion to the judiciary because of its nonpecuniary benefits rather than because of its monetary compensation will likely prove to be the better judge. This is because the nonmonetarily oriented individual would be more likely to exhibit self-restraint. Therefore, it is these

individuals whom we would like to capture in our selection process. Our analysis suggests that this can be accomplished by forcing the candidates who wish to serve on the bench to accept salary reductions in giving up their private practices.354

America could certainly use more judges habituated to exercise restraint. Similarly, frugal judges might be a little more frugal with taxpayers' money when running prisons, hospitals, and school districts. Requiring a little sacrifice might not be so bad for the quality of the judiciary after all.

Remember, this sacrifice is not exactly severe. Attorneys who desire to be judges are not being called upon to sacrifice their first-born child or their happiness (unless their happiness is inextricably tied to lofty salaries). It is not as though federal judges must go begging in order to feed or clothe their families. Everyone concedes that the "concern here is not that federal judges are

impoverished., 355 Judges "receive a respectable amount of compensation on both state and federal levels. 356 Although federal judges lacking independent wealth cannot live extravagantly, they certainly can live comfortably, and at levels higher than the average American that struggles to pay his own bills, including the taxes that pay for judicial salaries. 357 Just as nothing is inherently wrong with having a judiciary primarily composed of the wealthy, there would be nothing wrong with having those of moderate means control the courthouses of America regardless of whether judicial pay is increased, decreased, or maintained at its present level.

True, not everyone has the temperament conducive to a career in the judiciary. As Alexander Hamilton believed, the number of individuals capable of offering their wisdom in service on the judiciary is quite small.

Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.358

Or, as Roscoe Pound put it: "The administration of justice is not an easy task to which every man is competent., 359 The American bar produces a sufficient number of exceptional attorneys to staff the federal and state courts, 360 and not all of these are cutting their teeth at silk stocking law firms.

Low judicial salaries don’t prompt judges to leave – history proves Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law

Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

The foregoing history of the judicial salary "crisis" is not meant to be an encompassing overview of the subject. Rather, it is meant

to catalyze further understanding of the contemporary clamoring for raises by showing that dissatisfaction with salary levels is not a recent phenomenon, and that, despite over two hundred years of dissatisfaction with judicial salaries, the evils forecast by salary critics have not yet come to pass.86 The idea that a desire for greater remuneration frequently motivated departures from the bench is likewise not of recent origin, but has been voiced for centuries. Furthermore, this history poignantly illustrates that judges who remain on the bench are savvy enough to point to the departure of their brethren at the same time they remind Congress about a pay raise. The import of this veiled threat is not ignored, however empty this threat usually is.

History has also shown that the number of judges departing the bench has increased in recent years.87 Some of these departures undoubtedly are based upon financial concerns engendered by judicial salaries.88 However, the inconvenient truth for salary critics remains: In "the last 200 years, relatively few judges have explicitly cited low pay as their reason for resignation. 89

This brief account of the salary "crisis" demonstrates that, despite much wailing and grinding of teeth, the federal judiciary remains a powerful (some might say too powerful) 90 and viable entity that shows no sign of losing its vigor.91 Generally, the judiciary continues to be recognized for its excellence.92 Yet, some critics still point to judicial problems as evidence that low judicial salaries have a deleterious effect on America's justice system. Among these problems are the crowded dockets, the inferior judges producing pedestrian opinions, the increased risk of bribery and corruption, and the threat that the judiciary will become a club for only the wealthy. As the

analysis below demonstrates, none of these charges have much merit.

Raising judicial wages are bad – it attracts candidates who only care about the pecuniary aspects of the jobBaker, 2007- Professor at the Washington University in Saint Louis – School of Law (Scott, “Should We Pay Federal Circuit Judges More?”, Boston University Law Review, July 4, 2007, SSRN database)//TT

The familiar economic argument is that higher wages attract better workers. In other words, workers with the greatest skill or human capital command the highest wages.42 This argument does not readily transfer to the pool of federal circuit judicial nominees. Almost every nominee for a judgeship takes a pay cut for the bench. Even nominees that come from the public sector could, if they wanted to, work in law firms, which would pay more than a circuit judgeship. The real impact of

higher judicial salaries is a reduction of the pay cut nominees have to take. As we shall see, reducing the size of the pay cut could theoretically affect the judiciary’s performance.

People care about both non-pecuniary and pecuniary aspects of a job.43 For any person, a preference profile can be constructed indicating how much he or she subjectively values each non-pecuniary aspect and each pecuniary aspect of a given job. This profile will differ for each person depending on the individual’s wealth, how much he or she values consumption versus leisure, and many other personal factors.

Now take judges. Judges care about a number of things besides money: status, prestige, leisure, power to affect policy, and public service.44 Different people attach different weights to these non-pecuniary aspects of the job. The spread between the judicial salary and the wage in a candidate’s next best opportunity reveals the strength of the candidate’s attachment to the non-pecuniary aspects of judging. In

other words, the spread reflects the person’s taste for becoming a judge; a candidate willing to accept a large spread has a strong

preference for judging.45 Furthermore, an individual’s preferences over the various non-pecuniary aspects of a judgeship might then influence eventual judicial performance. A strong desire for the circuit judgeship could, for example, correlate with a strong preference for leisure, which might manifest itself by that judge taking a long time to write her opinions.

By raising salaries, Congress reduces the spread between judicial salaries and the candidate’s next best opportunity. As a result,

higher salaries might weed out some of the people with the strongest desires for the judicial role. Sure, the true ideologue, the leisure maximizer, the prestige-obsessed, and the committed public servant

will still be interested in the judgeship, but now so will a lot of other people. Under the “salary matters” theory, increased competition affects the kind of person eventually selected for the bench.To see why this might be so, suppose that the pay for circuit judges is zero. In this case, individuals willing to take the job must really want to be judges. These individuals value non-pecuniary aspects of the job a lot – leisure, power, prestige, public service, etc. – and money less so (perhaps because they are wealthy already). Suppose the pay is increased to $150,000 a year. In that case, people who would take the judgeship for nothing would still compete for the judicial slot, but now people who place a lower value on non-pecuniary perks and a higher value on wages would enter the pool. Increasing pay to $2 million a year expands the pool even further; it now includes some lawyers who do not care much about the non-pecuniary aspects of the judgeship and care

a lot about money. In this way, raising judicial pay (1) expands the candidate pool and (2) alters the profile of “tastes” for the judicial role among pool members.

Salaries not key– non pecuniary parts of the job alone motivates judges to serve Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Also important to an understanding of the judicial salary "crisis" is the motivation of those who seek judgeships. Certainly no judge has ever been misled into believing that a federal judgeship is a fast track to wealth and material prosperity239 -although federal

judgeships entail an abundance of retirement and disability benefits24 0 -so it must be something else that entices attorneys to the bench and keeps them happy enough to continue in service. Many judges are happy. In the words of Justice Breyer: "I think we have a fabulous job., 241 "The fact that very few judges .ever resign from the bench indicates that the nonpecuniary benefits from this work are probably worth considerably more to them" than the income they forego.242 Similarly, judging from the number of attorneys still seeking positions on the federal bench, it is apparent that many of them share Justice Breyer's sentiments and believe that they can be fulfilled through judicial service, despite moderate salaries. 43

B. Non-Pecuniary Income

No one disputes that federal judges work hard-perhaps harder than most government employees. Judges also face difficult decisions of great importance to the community. 244 No doubt, most could obtain

greater compensation in private practice. But as many contemporary judges understand, there is much more to life than money, and the daily grind of a law firm partnership, while meaningful for some, may not be everyone's cup of tea. Take for example Justice Felix Frankfurter, who conceded that "I wanted to be a lawyer, but I didn't want to have clients., 245 Frankfurter could have escaped the headaches associated with clients by remaining in academia, but found the lure of the bench irresistible. Certainly he understood that serving as a judge could be downright fun, or in the words of Judge Posner, "judging is a gas." 246 Chief Justice Rehnquist is probably correct that as a matter of cosmic

fairness there should be an increase in judicial salaries. But there is little basis for his claim that such an increase is necessary to recruit and maintain a first-rate judiciary, because many seek service on the judiciary for reasons other than the pay.

A large part of the reason why salary levels have not deleteriously affected recruitment or retention of judges is that attorneys and judges seek the bench for a multiplicity of

reasons, many of which have little to do with money. They can derive net utility from various aspects

of judging and being a judge. Indeed, "nonpecuniary satisfactions are an important part of most federal judges' 'income.' ' 247 "[S]alary figures do not tell the whole story of the trend in federal judicial income. 'Income,' when used realistically to denote the features that make one job more or less attractive than another, obviously contains nonpecuniary as well as pecuniary elements; nor are the pecuniary elements exhausted in salary. 248 In the words of Judge

Sprecher, monetary "compensation is not the primary attraction for those who aspire to judicial service.,, 249 There are at least nine non-monetary aspects of a judge's compensation that must be included in any calculation of the "income" they derive from their jobs, and which attract attorneys to a judicial career.

Prestige is enough to attract judges to join the bench Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

"Public esteem is difficult to measure but it is an important factor in the desirability of any job or office. 250 Many who undertake a career on the bench do so, in part, because of the prestige and honor of the job.25' Who, after all, does not desire the esteem of one's peers? Judge Bork, certainly an

authority on the judiciary, believes that the dignity of the position is "a major attraction of a career on the bench, 252 and many other experts agree.253 Thus, for some judges, the honors

"inherent in service on the federal bench outweigh simple calculations of personal income potential. 254 Money takes second place to the esteem that can be gained on the bench: Litigants stand when judges enter the courtroom; judges are addressed by a special title; judges wear special robes; judges are the center of attention in court;

judges of even modest mental means are perceived as wise and knowledgeable; and judges enjoy privileges that make their colleagues in the other two branches salivate.2 55 With this kind of stature, it is no wonder that many attorneys seek judgeships, 256 for "no

position which offers prestige ever lacks applicants. 2 57 Accordingly, so long as judicial salaries permit the maintenance of a reasonably comfortable existence, what judges lack in money can frequently be made up in prestige.258

Power, authority, and public service are enough to recruit qualified candidates Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Closely related to the prestige of federal judgeships is the power and authority that judges wield, 259 as judges receive respect largely because of their authority and the effect of their decisions. 260 Law impacts everyone's life; therefore, judges-as interpreters of law, arbiters of legal disputes, and creators of common law-exercise their power over the smallest and greatest among men. "We are under a Constitution, but the Constitution is what the judges say it is,'261 and the judges have been doing a lot of saying of late.

"Count de Tocqueville remarked more than a century ago that hardly a political issue arose in the United States that was not converted into a legal question and taken to the courts for decision. Today de Tocqueville's observation is even closer to the mark,, 262 resulting in judges exercising greater control over the smallest details of the state, often to their pleasure. As St. Augustine observed: "'The desire to rule over our equals is an intolerable lust of the soul."'' 263 Undoubtedly some judges burn with this lust,264 while others simply enjoy having people pay attention to their view on how things ought to be. As an example of the encompassing power of judges, consider that America's judiciary recently decided the outcome of the 2000 Presidential election.265 Certainly the issue need not always be so lofty to warrant judicial attention. Judges are willing to give their opinion on much more pedestrian matters, such as the administration of prisons, hospitals, and public housing266 or whom the Boy Scouts

should admit to their ranks.267 Frankly, no question is too great or too small to warrant judicial attention. Although the judiciary was originally considered the weakest of the

three branches, this concept is hardly true today.268 Because attorneys do not live in a vacuum, they are fully aware of the power they could wield as judges.

For those so inclined, then, serving as a judge entails entrustment with substantial authority; indeed, more authority than they could ever exercise in private practice. "Because prestige, power, and high incomes are commonly available amenities for partners in large law firms and because those partners

are willing to take substantial reductions in income to become judges, it follows that the judiciary confers more prestige (and power) on these individuals than is available to them in the law firm context." 269 The judicial position affords them the opportunity to advance their political agenda or favorite constitutional theory well beyond the range of a mere attorney. 7° Such a lawyer, weighing the benefits of a judgeship, will consider "not only the virtually absolute authority bestowed by a judgeship over litigants and lawyers, but also the broader social impact a judge's decisions have as precedent and

as social policy. '271 For these chosen few, because they receive a benefit in the power they wield, the monetary rewards of a judgeship need not be great to recruit or retain them. They will stick around if they are reasonably well paid and perceive their position as an influential one.3. Public Service

Not all judges who enjoy the power of the bench do so because they possess a tyrannical or authoritarian streak.272 Many see

the value that this authority has for serving the common weal.273 After all, where else can an individual impact people's lives in such a positive way with such momentous power? Many attorneys who seek judicial positions, therefore, desire a job that entails the real possibility of contributing to the betterment of law and 274 ,215 society. Indeed,

the very purpose of law is "the welfare of society, so judges who seek the position to enhance that welfare are doing so with the 276 noblest sentiments. 7 6 As Senator

Patrick Leahy has noted, those interested in serving on the judiciary "are motivated by public service, not by pay, and that has always been the case ., 277 Because many private sector jobs are not as fulfilling to such individuals,278 these judges obtain substantial psychic income from serving on the judiciary that they could not obtain elsewhere.279 Accordingly, they are willing to serve for less remuneration than someone less inclined to public service.

Intellectual challenge and excitement are desired attributes of judgeship—not only moneyFrank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Even those who are committed to the enhancement of the public welfare may be reluctant to undertake a career that is boring or

lacks intellectual stimulation. Indeed, many an attorney finds law an attractive vocation because of the intellectual challenge and excitement it provides. In a related vein, some judges are extremely "interested in problems and their solutions," and they see the judiciary as a distinct opportunity within which to exercise their problem-solving skills.280 Indeed, this was one of the attractions that lured Justice Story to the bench, despite the inferior salary.281

Intellectual growth and stimulation are undoubtedly desired attributes of any position, but perhaps even more so for attorneys. They are substantial benefits that are highly valued in any attorney's career calculation, especially since drudgery is, unfortunately, a real part of almost every attorney's practice. Importantly, then,

federal judgeships generally provide judges with an abundance of mental stimulation.282 In the words of Judge Oakes, serving on the federal bench "remains one of the most challenging and interesting of all jobs, with consistently new learning

experiences every single day." 283 Thus, it is not surprising that many judges-like many law professors-are willing to forego some of the monetary benefits of private practice so that they might enjoy the intellectual stimulation of being a judge. Frequently, for those judges who enjoy the intellectual nature and problem-solving aspects of being a judge, money is "of only secondary interest to him. He fills his emotional

needs through the solution of complex problems., 28 4 This type of judge sees service on the judiciary as an "opportunity to engage in interesting, exciting and challenging work" 285 to an extent that he might not find at a law firm. Thus, such a judge can easily find substantial contentment on the bench without burdening taxpayers with the higher taxes necessary to fund a judicial pay increase.286

AT: Judicial Salary Increases --- Doesn’t Impact Decisions

Judges still work hard regardless of pay and “overcrowded” dockets Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

1. Surviving Crowded Dockets

In light of heavy caseloads faced by some courts, salary-level critics could argue that these caseloads are somehow related to inadequate salaries. Perhaps judges feel less compelled to maintain a consistent work level, and maybe crowded dockets are a

symptom of a judiciary in crisis-a crisis caused by low salaries. Such an argument, however, is easily shown to be devoid of merit.

Despite dissatisfaction with salary, the federal courts have continued to function well, even while encountering increased demands and expanding caseloads.

Crowded dockets are essentially unrelated to the judicial pay scale and instead have their genesis in congressional activity (the federalization of crimes), 93 and congressional inactivity (the failure to promptly confirm judicial nominees and to create judgeships).94 Not surprisingly, then, caseloads are excessive in many districts and circuits where nominees are awaiting Senate confirmation 95 or where the drug trade has increased the number of federal criminal cases.96

Contrary to salary critics' arguments, judges generally work harder today than they did even fifty years ago, despite their ability to make more money in the private sector. Accordingly, salaries have not had a deleterious effect on the amount of judicial work being produced.

Problems with busy caseloads and crowded dockets are hardly recent phenomena.97 In 1921, Roscoe Pound complained as follows: "[T]he condition of pressure under which causes are passed upon in the American urban communities of today, where crowded calendars preclude the thoroughness in presentation and deliberation in judicial study which were possible a century ago, prevent judicial lawmaking from achieving its best."98 A few years later, Justice Cardozo lamented: "Crowded dockets make

it impossible for judges, however able, to probe every case to its foundations." 99 One can hardly ascribe crowded dockets to any recent drop in the purchasing power of federal judges. Thus, the act of increasing salaries will probably not alleviate busy dockets, despite arguments to the contrary. After all, it is not as though judges have agreed to a work slowdown to pressure Congress to increase judicial salaries, despite the fact that this practice has proven successful for other workers. In short,

judicial salary levels, though lower than what judges could make as attorneys in private practice, are not so pathetic as to disrupt the functioning of the judiciary.

Low salary levels don’t produce substandard decisionsFrank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Salary-level critics also suggest that existing salary levels have resulted in an inferior judiciary that produces inferior decisions. As discussed above, the federal judiciary has not reduced its caseload, which would be one sign of a judiciary in crisis. Similarly,

federal judges are not producing noticeably lower-quality opinions, or at least none that are attributable to "inferior" judges, and critics have not identified a rash of poor quality opinions that might support their contentions. Although some critics suggest that the

modem judiciary is of a lower quality because of inadequate salary levels, none of these salary critics have identified these "inferior" judges, suggesting that no such identifiable group exists. As Judge Posner has observed: "Although federal judges like everyone else consider themselves underpaid and would like higher salaries, I do not think that the current salary level is a serious threat to the quality of the federal judiciary. . . ." 100 Indeed,

despite a number of unpopular rulings, the federal judiciary still retains a high degree of respect

among the American public and is generally considered one of the bright spots of the federal government.' 0' This scenario is not exactly the gloomy scenario that critics of salary levels have been forecasting.

The academic credentials of judges tell a similar story. The judges of today generally

endure a more systematic and intensive formal education than their predecessors enjoyed. This is especially true if one considers that before the 1900s, few lawyers or judges even attended law school, much less three years at a premier legal academy. 102

Critics would be hard pressed to name more than a handful of sitting federal judges who do not possess judicial acumen. Undoubtedly, inferior judges on the federal bench are ubiquitous (by definition, not every judge can be the best), just as there

likely are bad lawyers practicing at the bar. But believing that judicial salaries attract judges to the bench or keep them from pursuing private practice is baseless. Indeed, many a law firm would hire any federal judge with alacrity, and in light of the prestige and revenue that attracting a former federal judge would likely entail, it is probable that many a law firm would hire even an incompetent one. 103 Furthermore, even the prestige of the bench follows departing jurists to the private firm: "Retired judges (even judges who have resigned to pursue a career in practice)

usually retain the title 'judge,' and the title commands some deference even when separated from the office.' 1 4 If such a judge were interested only in his financial well-being and some modicum of prestige, he would quickly jump to a private law firm. Other than the back-loaded nature of the judicial compensation scheme, 10 5 the level of judicial salaries gives such a judge little incentive to stick around. Accordingly, there is little basis for arguing that the present salary structure results in the retention of incompetent judges while encouraging talented jurists to depart for the greener pastures of a private law firm.

It is true, of course, that judicial salaries hardly compare to the earnings achievable in the private sector. From time to time, this disparity has encouraged some judges to leave the bench and discouraged talented members of the bar from committing to the

judiciary, 0 6 at least temporarily. But salary has never seriously affected the quality of the judiciary. In fact, some of the greatest American jurists have served in times when judicial salaries were on the leaner side.

Deficient salaries don’t increase the risk of bribery Frank, 2002 – Judge advocate in the US Army Judge Advocate General’s Corps (Michael J., “JUDGE NOT, LEST YEE BE JUDGED UNWORTHY OF A PAY RAISE: AN EXAMINATION OF THE FEDERAL JUDICIAL SALARY "CRISIS"”, Marquette Law Review, July 17,2002, http://judgewatch.org/library/fed-judicial-salaries/Judge%20Not,%20Lest%20Yee%20Be%20Judged%20Unworthy%20of%20a%20Pay%20Raise-%20An%20Examina.pdf)//TT

Despite warnings that deficient salaries might increase the incidence of bribery," 9 this evil has not materialized. Notwithstanding allegedly inadequate salary levels, most judges have not sought to supplement their incomes through graft and corruption, and

no correlation has been shown between the incidence of judicial corruption and the rate of judicial compensation. Indeed, federal judges are thought to be among the most respectable and honest

members of the federal government. Perhaps this is because an individual's salary level is not indicative of his or her personal honesty. For example, take Brazilian judges, whose salary "is over thirty times that of the average salary," an amount that, according to the logic of salary critics, decreases "the incentives for corrupt behavior."' 120 Perhaps these generous salaries diminish some of the incentive for corruption, but Brazilians, whose average monthly income is just $260,12 are hardly getting their money's worth. With no disrespect to Brazilian judges, they certainly do not enjoy an international reputation for above-average moral rectitude commensurate with their salary level. Indeed, "Brazil is replete with tales of corrupt judges, arbitrary rulings and requests for bribes., 122 Demonstrating the law of diminishing returns,

it is apparent that paying judges thirty times the average Brazilian salary is not purchasing thirty times the average amount of Brazilian honesty, 123 nor is there any reason to believe that increasing the salary of American judges would increase the American's moral rectitude. Because honesty is not a commodity that can be bought and sold, Brazilians, like Americans, could better spend their tax revenue elsewhere. Taxpayers cannot purchase integrity for morally weak judges, and they should not be forced to enrich judges who are willing to prostitute their honesty for material gain. 124

The rationale behind the critics' theory-that well-compensated judges do not need bribes to survive, while under-compensated judges do-is probably accurate only in extreme situations when judicial salaries are only slightly above the poverty level, a situation not

faced by members of the American judiciary. 125 Thus, for example, if a judge could not buy food for his children, his moral resolve might be overcome by a strong desire to preserve his family, perhaps by accepting money from litigants in exchange for

desired rulings. 126 No one contends that American federal judicial salaries are close to the poverty level. "The salaries judges receive do not impose the sort of economic hardship that could even begin to explain, let alone justify, a judge's decision to shade her rulings for economic gain."' t27 The problem judges and would-be judges face is more likely to be a problem with sending their children to prestigious (read: expensive) universities, 28 and maintaining an affluent lifestyle. As Professor David Barnhizer mused, "[J]udicial corruption is generally not related to levels of judicial compensation. Judges receive a respectable amount of compensation on both state and federal levels."1 29

This is not to say that wealthy politicians and judges never seek bribes. They obviously do. 130 But increasing salaries is not an effective means of inhibiting such conduct. In fact, it is arguable that

increased salaries will actually attract those who value money above other goods-such as honesty-and such judges would be more inclined to accept bribes.'13 Higher salaries might "attract the venal to office, plausibly increasing rather than decreasing the incidence of corruption. ' 32 As Archbishop Fulton Sheen once wrote: "Riches in great abundance have a peculiar quality; they make men more greedy.' 33 Thus, encouraging the wealthy to join the judiciary or making

judges wealthy is not a wise course of action, at least from the perspective of preventing bribery. "Simply increasing judicial salaries will not automatically improve the quality of the judiciary. The higher the salary the more desirable the position becomes to the least desirable candidates. 134 Judges who desire financial wealth more than serving honestly will likely either resign their posts or pursue graft, regardless of what they are paid. Because the public fisc could never afford to satisfy such a judge's lust for riches-even if such satisfaction were possible-it is also

doubtful that a substantial increase in pay would persuade these judges to serve faithfully and honestly. Therefore, the present salary scheme wisely encourages judges who value money at a level above the non-monetary benefits of serving on the judiciary to depart the bench.

AT: Court Stripping

Congress won’t strip the courtDevins, 7 --- Professor of Law and Government at William and Mary (Winter 2007, Neal, University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S SHADOWS SYMPOSIUM: CONSTITUTIONAL AVOIDANCE AND THE ROBERTS COURT,” 32 Dayton L. Rev. 339, JMP)

III.Conclusion: The Roberts Court and Constitutional Avoidance

What lessons should the Roberts Court glean from recent congressional attacks against the Court and from the Warren era?

Should the Roberts Court make use of constitutional avoidance because it has a high opinion of Congress-that is, it believes Congress cares about the Constitution and wants to engage in meaningful constitutional dialogues? Alternatively, should it make use of constitutional avoidance because it fears that Congress is likely to strike back at constitutional rulings invalidating federal statutes? The answer is no to both questions.

First, unlike Congress in the Warren era, today's Congress is less engaged in constitutional matters and less interested in asserting its prerogative to independently interpret the Constitution. n35 Second, it does not seem that Congress is poised to strike back at the Court. Unlike the Warren Court rulings, Rehnquist Court rulings did not prompt the ire of Congress. Recent court- stripping proposals, for example, have largely focused on state n36 and lower federal court n37 rulings rather than Supreme Court decisions. This has been a distinguishing feature for most of these proposals. And, as mentioned, the rulings in which the Court reinvigorated federalism by striking down all or part of 31 statutes did not prompt any significant response from Congress.

Lawmakers do not have incentives to strip the Court of jurisdiction or otherwise engage in meaningful court-curbing practices. Though some lawmakers are interested in scoring points with their constituents by introducing anti-court legislation and

making rhetorical statements about activist judges, there is little risk of Congress waging battle with the courts by enacting jurisdiction-stripping proposals . n38

Congressional response to Hamdan actually disproves the link Devins, 7 --- Professor of Law and Government at William and Mary (Winter 2007, Neal, University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S SHADOWS SYMPOSIUM: CONSTITUTIONAL AVOIDANCE AND THE ROBERTS COURT,” 32 Dayton L. Rev. 339, JMP)

What then of the Military Commission Act, n39 which was Congress's response to the Roberts

Court's 2006 decision in Hamdan v. Rumsfeld? n40 Not only did Congress authorize military commission trials of enemy combatants, but lawmakers stripped the federal courts of habeas jurisdiction, while allowing federal court review of both commission verdicts and the determination of whether a detainee is an enemy combatant. n41 This legislation, for reasons I have

detailed elsewhere, n42 was not intended to be a rebuke to the Supreme Court . Lawmakers claimed to be following the Court's direction that Congress sort out whether Guantanamo detainees should be tried by military commissions or federal courts. Also, lawmakers made clear that they were not stripping the courts of their authority to hear habeas corpus claims grounded in the Constitution; instead, lawmakers argued that enemy combatants do not possess constitutional habeas rights. n43 Under this view, the only habeas protections afforded enemy combatants are the ones that Congress granted them through legislation-something that Congress could rescind. For this very reason, lawmakers made clear that the Court could conclude that enemy combatants possess constitutional habeas rights and thereby neuter the statute's prohibition of habeas filings. Bill sponsor Senator Lindsey Graham (R-S.C.) put it this way: "It is a statutory right of habeas that has been granted to enemy combatants. And if there is a constitutional right of habeas corpus given to enemy combatants, that is a totally different endeavor, and it would change in many ways what I have said." n44

The Roberts Court, in other words, can make use of straightforward statutory interpretation techniques to negate the habeas provision of post-Hamdan legislation. n45 There is no need to invalidate the bill as an unconstitutional restriction on court jurisdiction. More significant for purposes of this essay, there would be no need to make explicit use of [*347] constitutional avoidance techniques because of the Court's desire to avoid the constitutional question as a reason to limit the statute's reach. The Court, instead, can simply declare that the statute does not interfere with constitutional habeas, including the Court's power to

sort out whether the Constitution provides habeas protections to enemy combatants. In this way, the Roberts Court can use a statutory prohibition of habeas jurisdiction as an occasion to assert its authority to define the Constitution's meaning.

--- XT: Congress Won’t Strip

Congress won’t force passage of stripping bills --- just wants to rhetorically attack courtsDevins, 7 --- Professor of Law and Government at William and Mary (Winter 2007, Neal, University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S SHADOWS SYMPOSIUM: CONSTITUTIONAL AVOIDANCE AND THE ROBERTS COURT,” 32 Dayton L. Rev. 339, JMP)

II.The Rehnquist Court

Fast-forward to 2006 (when John Roberts became Chief Justice of the United States). There are dramatic differences between the Rehnquist-era Congress and earlier Congresses. These differences explain why

lawmakers today are less interested in constitutional questions and also have incentives to launch rhetorical attacks against the courts. The defining feature of today's Congress is political polarization along ideological lines. n15 No longer are there liberal Rockefeller Republicans or conservative southern Democrats. Before the 2006 elections, if a line of ideology had been drawn in the House and Senate, all Republicans would have been to the right of all Democrats. n16 This phenomenon is fueled by party primaries, in which candidates in both the House and Senate must appeal to their respective base when running for election. n17 It is also fueled in the House of Representatives by redistricting, which typically guarantees safe seats for Republicans or Democrats. n18

What are the consequences of this ideological polarization? One consequence is greater cohesion within the parties and a sense that the parties want to deliver a message that will resonate with their base. n19 This is [*343] so-called "message politics," where the Democrats and Republicans develop distinctive, competing messages. There is also less interest in what happens to legislation after it is enacted, including Supreme Court decisions invalidating legislation. This stems from "position-taking legislation," where the focus is on making judgmental statements that are pleasing to the base, instead of producing certain results for constituents. For example, by enacting the Gun-Free School Zones Act, n20 lawmakers were able to take a position in favor of protecting children, regardless of whether the Court upheld the law. n21

Another consequence of message politics is that lawmakers are less interested in independently interpreting the Constitution. There are several indications of this loss of interest. First, there has been a clear decline in the percentage of hearings raising significant constitutional issues. Outside of the Judiciary Committees (which have strong incentives to continue holding constitutional hearings) the number of hearings that raised significant constitutional issues declined across the board between 1970 and 2000. n22 For example, the Foreign Affairs Committee, which used to have its own expertise on constitutional questions, does not hold nearly as many constitutional hearings as it once did. n23 Second, when Congress does hold constitutional hearings, lawmakers increasingly look for witnesses who will support the preexisting views of the party that selects them. n24 Of course, hearings have never really been a bipartisan search for the truth. However, some committees used to have unified staffs, and the hearings were less of the staged press conferences that they are today. n25

A final consequence is that there has been a dramatic change in lawmaker attitudes toward congressional interpretation of the Constitution since Morgan conducted his study of the 1959 Congress. Bruce Peabody tried to replicate the Morgan study by questioning members of Congress in 2000 using the same questionnaire that Morgan used. n26 This recent survey occurred during the height of the Rehnquist Court federalism revival. [*344] Notwithstanding this revival, only 13.8% of lawmakers, as compared to 40% in the Morgan survey, thought that the Court should give controlling weight to congressional interpretations of the Constitution. n27 Correspondingly, Peabody found that 71.3% of lawmakers thought that the courts should give either limited or no weight to congressional assessments of the constitutionality of legislation. n28

Notably, the federalism revival did not prompt any meaningful backlash in Congress. Federalism-related hearings did not increase in the 1990s as compared to other periods, and the federalism hearings that did take place were not related to Court decisions. Rather, they were about the Contract with America. n29 The Court's federalism revival was of no interest to Congress, at least with respect to hearings-there is virtually no mention of the federalism decisions in the Congressional Record. n30 Congress, in other words, was not interested in engaging in any kind of dialogue with the Court on these issues.

Against this backdrop, it is not surprising that today's lawmakers see court- stripping proposals on socially-divisive issues as a way to speak to their base. Like position-taking legislation,

lawmakers are most interested in launching rhetorical attacks against the Court.

Moreover, because there is some fear that median voters support judicial independence, n31 social conservatives do not want to risk a backlash against their agenda by pushing for the enactment of such bills . n32 Indeed, they can reach out to their base by introducing bills and making floor statements about them. Consider, for example, the proposed legislation stripping the courts of jurisdiction on same-sex marriage and the Pledge of Allegiance. n33 In 2004, the House approved these measures shortly before the November elections, at a time when the Senate never had an opportunity to consider them. n34 If Congress had been truly interested in getting that legislation approved, those bills would have been taken up earlier, and they would have made their way from the House to the Senate or the Senate would have independently considered [*345] them. That did not happen. Instead,

social conservatives in the House wanted to send a message that would resonate with their base without risk of political backlash.

Congress won’t strip courtsDevins, 7 --- Professor of Law and Government at William and Mary (Winter 2007, Neal, University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S SHADOWS SYMPOSIUM: CONSTITUTIONAL AVOIDANCE AND THE ROBERTS COURT,” 32 Dayton L. Rev. 339, JMP)

In the pages that follow, I will compare Court-Congress relations in the early Warren Court era to those during the Rehnquist

Court era. Following this comparison, I will argue that the Roberts Court has no reason to employ constitutional avoidance techniques. First, today's Congress is not particularly interested in constitutional questions, so there is no good governance reason to use constitutional avoidance. Second, though a whole raft of court-stripping proposals has been introduced in the past few years, the evidence suggests that today's Congress is not interested in striking back at the Supreme Court in that way.

AT: Congressional Override

Interest groups ensure that Congress doesn’t override Supreme Court decisionsEskridge, 91 – Professor of Law, Georgetown University Law Center, John A. Garver Professor of Jurisprudence at Yale Law School (William N., “Overriding Supreme Court Statutory Interpretation Decisions”, 101 Yale L.J. 331 1991-1992, 19991, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4816&context=fss_papers)//TT

Why does Congress not override more of the Supreme Court's statutory decisions?140 The most obvious reason suggested by this study141 is the existence of conflictual demand patterns. Many Supreme Court statutory decisions involve big stakes and sharply clashing interests. While the losers often have enough clout to bring decisions to the congressional agenda, the winners are also likely to

have some influence. In such cases, unless the losers at the Supreme Court level can persuade other groups to be supportive or neutral, their chances of overturning a Supreme Court decision are not promising. This explanation squares with the data generated by the current survey.

The Supreme Court's most controversial statutory decisions are usually not overridden because there are strong interest group alignments on both sides of the issues, leaving the Court's decisions firmly intact. The congressional overrides listed in Appendix I tend to involve Supreme Court cases in which the winning interests were not powerful at the time of the override-because the interests are diffuse or outside the political process (decisions benefiting accused criminals) or because the substantive position was weak (Gilbert) or had lost force over time (Boutilier).