‘The Nussbaum Doctrine’

My friends at the Sun have done it again: Your recent editorial on the judicial pay litigation misrepresents the basis of our suit and misapprehends the public’s opinion of it [Editorial, “The Nussbaum Doctrine,” June 11, 2008].

I’m flattered by the title of the editorial, but if you’re going to call something the “Nussbaum Doctrine,” please get it right.

Clever as I am, I don’t argue that the Constitution requires what the Framers rejected, which was the indexing of judicial salaries to “wheat or some other thing of permanent value.”

That wouldn’t have worked for the reason that Gouverneur Morris and others said it wouldn’t work: There is no commodity that has a permanent, fixed value.

What we do argue is this: In granting the Legislature the power to increase judicial salaries, the Framers understood that they were creating a risk to judicial independence.

But they accepted that risk because they had to; if they didn’t allow judicial salaries to be increased, inflation could render those salaries inadequate.

From that fact — and, more importantly, from the fact that the separation of powers mandates that there be an independent Judiciary co-equal with the other branches of government — we argue that, for this independent, co-equal status to be a reality, the Constitution requires that judicial salaries be adequate.

But don’t just take it from me. Take it from one of the lawyers representing the legislators whose prerogatives you claim to defend.

In a hearing earlier in a judicial-pay litigation brought by four individual judges (which last week resulted in a wise decision declaring that holding judicial salaries hostage to legislative salaries violates the constitutional separation of powers), the court asked this question of the assistant attorney general who represented the Legislature, the Governor, and the State:

“So there is a stage where the [judicial] salary could be so low that it could be constitutionally objected to, right?”

The lawyer’s answer: “Yes.” No ifs, ands, or buts. In fact, the State’s lawyer suggested that if judges’ salaries dropped to those of entry-level government lawyers, that might cross the line.

We say the line is higher than that, and that it has in fact been crossed. But everyone — except one lost in reveries of courts with spittoons about which you reminisce in your editorial — agrees that there is such a line.

As for the poll you mention, it is misleading to cite it as evidence that “[m]ore people [support] a pay raise for the most dysfunctional state legislature in the nation than a raise for the judges.”

The respondents in that poll were never told that legislators can earn substantial outside income — and that many do — while judges legally cannot. They were never told that summer interns at many New York City law firms get paid at higher rates than judges. They were never told that New York judicial salaries, when adjusted for the cost of living, rank next to dead last in the land.

In short, they were never told the facts.

BERNARD NUSSBAUM
New York, N.Y.

The author represents Chief Judge Kaye and the New York Unified Court System in the judicial pay lawsuit against the Legislature and its leaders, the governor, and the state.