The Boston Bar Association Weighs In On Judicial Compensation

Saturday, March 1, 2008 - 01:00

Editor: Since your installation as President of the BBA last September, you have pursued a very ambitious agenda. Would you give our readers an assessment of progress to date?

Doniger : The Association is hard at work on various aspects of the agenda. The Task Force on the Civil Right to Counsel is studying a number of areas of possible involvement and is considering possible pilot projects, and this spring I expect we will see several recommendations from the group to move this important work forward. The effort recently received a boost from The Boston Globe , which published an article on guardianships focusing on the plight of incapacitated elders being shipped off to what is tantamount to incarceration without counsel or adequate due process. On behalf of the Association I then testified at the State House on legislation that has languished for years but is now receiving considerable attention, and that included a right to counsel in such guardianships. A right to counsel in the context of guardianship may well ensue from a single, fortuitously timed newspaper article.

The Task Force on Diversity launched by my predecessor Jack Cinquegrana is also hard at work. We will have their initial report - which is to include recommendations for the BBA going forward - in the near future.

We have also been supporting Governor Patrick with respect to Criminal Offender Record Information (CORI) reform, which has to do with criminal background checks, particularly in the context of employment. There are several very important societal issues here. If someone has done something for which, in the time-honored phrase, he has paid his dues to society, what justification is there for punishing him further by effectively preventing him from getting a job as a consequence of what is in his record, provided it is not relevant to the particular job? And, of course, the price that society pays by way of recidivism in this situation is very high, when such individuals cannot obtain employment.

Finally, we have been very pleased with Governor Patrick's proposed budget, particularly as it relates to civil and criminal legal services funding and the trial court budget. These are issues that the Association has worked on for a long time, and while we know there is a great deal more work to be done, we are pleased that our efforts have helped to move this vital discussion forward.

Editor: You have also indicated a very strong interest in judicial independence as one of the principal foundations, perhaps the principal foundation, of the rule of law. Today the judiciary is often a target of abuse from hostile and often ill-informed elements among the public and, indeed, the press. Why is this happening now?

Doniger : The judiciary has always been an easy target because judges are constrained as to the comments that they can make on cases. And the campaign season seems to bring out people's lowest instincts. Many of your readers will be aware of the murder of a young family in the state of Washington by a defendant recently released on bail by a Massachusetts judge. National and local politicians, of course, immediately jumped on the soft-on-crime bandwagon. What they neglected to acknowledge, however, was the fact that in light of the information provided that judge by the prosecutor, the probation authorities and the Department of Corrections, she had no choice but to release this man.

A final irony lies in the fact that the loudest voice in these attacks was that of the politician who had appointed this particular judge. He was well aware of the votes to be gained by attacking judges.

The bottom line, of course, is that these attacks on judges are really an attempt to intimidate the judiciary, to make judges afraid of what the press and the public reaction is going to be, particularly when directed by sanctimonious voices from the political arena, with respect to their actions in unpopular cases or concerning unpopular defendants. But the key to the rule of law - and to an outstanding judicial system - is an independent judiciary and judges who will do the right thing irrespective of whether it is the popular thing. Here in Massachusetts we have a judicial system based upon judges being appointed until age 70. They are neither elected nor subject to reappointment. They do not have to pander to public opinion or bend to the public whims of the moment.

One of the most important things the organized bar can do in the face of these attacks is to speak out in defense of the judiciary. The Massachusetts judge involved in the Washington state case believed that she could not address the matter publicly, but I was in a position to do so, and did.

Editor: What about the role of the business community in communicating the importance of a fair and impartial system of justice to the functioning of the American economy?

Doniger : It is very much in the interest of the business community that our courts function efficiently and that judges are fair and impartial and enforce the rule of law dispassionately and with a degree of predictability that ensures confidence in the system. And it is immensely important that the business community speak out in support of the judicial system. Its voice - in support of adequate funding and staffing of the courts, maintenance of facilities and appropriate compensation of judges - is one that is heard by the legislators because of the role that business plays in our economy. And there is an element of self-interest here as well: business cannot function unless business disputes can be dealt with efficiently, objectively and in a timely fashion. And if business cannot function, we do not have a viable economy.

Editor: Doesn't the press have some sort of responsibility here too?

Doniger : I am a great believer in the power of an unbiased press to educate the public. When we talk about the organized bar and the business community speaking out on such an issue, it is the press upon which we rely to convey the message. This is most definitely a newsworthy issue, and I think the press has a responsibility to both understand its vital importance - by giving it prominent coverage - and to convey it to the public.

Editor: Among the underpinnings of judicial independence is judicial compensation. Over the past 30 years or so we've lost a great deal of ground here. Why?

Doniger : I am sure it is very disheartening for experienced judges to be earning less - sometimes far less - than first-year associates at some of the large firms who are often not yet members of the bar. The fact of the matter is that it is easy for legislatures, engaged in prioritizing the allocation of limited funds, to push judicial compensation down to the bottom of the list. They have been doing this for years. As a consequence, today we have an anomaly such as the disparity between the judge with years of experience on the bench and the first-year associate. Legislators simply conclude that they were not voted into office to put judicial salaries high on any list of funding priorities.

Well, if society believes that it is essential for our best and brightest to ascend to the bench - and I certainly believe that this is in society's very best interests - then this issue must be addressed. The disparity between what a high-powered attorney in private practice and a judge at any level can expect in compensation has the potential, over time, to undermine the quality of judicial decisions. Over a long period of time, such a development can have incalculable consequences for our entire court system. Clearly we are not talking about poverty-level salaries, but - in the context of the legal profession - we are talking about a reality that acts as a disincentive for experienced litigators and appellate attorneys to consider joining the judiciary. Add to this reality the possibility of being pilloried by the press without much ability to respond, together with the absence of much in the way of administrative and clerical support, and you have little with which to attract the kind of person to the bench who has been, over the past two centuries and more, the single most important component in our legal system. Editor: Where does the leadership come from in a debate like this? The legislature, obviously, has to take action. Can the organized bar, or the federal bench or a highly respected state judiciary like that of Massachusetts, make a positive contribution?

Doniger : Well, there are things on which the bench can speak out, but as a practical matter I don't think that what the judges say about judicial compensation is going to move the legislators. The organized bar, which, in Massachusetts, has some 25,000 members, is another matter. And the business community, which represents not only voters but the economic and financial entities that support politicians, is in a position to get the attention of the legislators in very short order. It is only through the efforts of the organized bar and the business community that, I believe, this issue is going to be addressed, and I am hopeful that we are making progress in this regard.

Editor: Can you share with us your thoughts about the risks that we are running here? Suppose that nothing happens, that we don't address this, or we do but we get it wrong.

Doniger : If everything remains as it is, with judicial salaries, administrative support and court funding remaining static, even decreasing, the result, inevitably, is increasingly backlogged sessions, cases proceeding at an ever slower pace and overworked judges unable to consider in depth the issues presented in the cases before them. All of this translates to a grave risk to the rule of law.

Let me focus on just one area. In Massachusetts the business community has access to a special section of the court system which is staffed by a group of judges with particular expertise in business cases. If that is undermined as a consequence of the issues we have been discussing, we have a direct challenge to the efficient, fair and objective operation of our court system - and the rule of law - as it impacts business. That is a risk that has an effect on everyone. If, for example, business cannot function as well as it might in Massachusetts as a result of a court system that is perceived as inefficient, unfair and subject to extraneous influences, the economy is impacted negatively. Is this actually going to happen? If we fail to address the problem for long enough, I am fearful that we run a real risk that it may.

Editor: Any predictions on how this discussion is going to develop over the next few years?

Doniger: Many of the legislators are lawyers, and they understand this situation. They are constrained by the state of the economy, however, and by shrinking revenues. I remain an optimist. While a variety of interests will always compete for the budgetary dollar, there are few, if any, interests that are as crucial to the well being of everyone as this one. I am hopeful that its time has come.

Please email the interviewee at doniger@srbc.com with questions about this interview.