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Federalist Society Notice - ABA Award to Go To Liberal Activist Judge

***BARWATCH BULLETIN APRIL 2001***

· Judge William Wayne Justice to receive 2001 Thurgood Marshall Award

The ABA recently announced William Wayne Justice, Senior Judge of
the U.S. District Court for the Eastern District of Texas, has been
selected to receive its 2001 Thurgood Marshall Award in recognition of
his "historic and courageous" rulings which "immeasurably advanced civil
rights and liberties in Texas." The award, established in 1992, recognizes
an individual's long-term contributions to the advancement of civil
rights, civil liberties, and human rights in the United States. Judge
Justice will receive his award during a dinner ceremony sponsored by
the ABA Section of Individual Rights and Responsibilities on August 4,
during the ABA's Annual Meeting in Chicago.

His nominators for the Thurgood Marshall award cite his "reputation
for fairness, courage of conviction, and understanding and enforcement
of the Constitution" as being "unparalleled in the legal community and
among the general public." Yet in his twenty-three years on the bench,
Judge Justice has also gained a reputation for his liberal judicial
activism and his numerous controversial rulings. Texas Lawyer states
Judge Justice "defined the activist federal judge," and CBS' 60 Minutes
has labeled him as "the most liberal federal judge" in Texas. In a Houston
Chronicle interview in 1995, Judge Justice concurred with this depiction,
self-describing himself by stating he is "on the 10-most-wanted list of
judicial activists."

Some of his critics point to decisions such as Ruiz v. Estelle as an
example of his judicial activism. In this landmark prison reform case,
Judge Justice placed a population cap on Texas prisons by restoring "good
time" credits and parole, resulting in a 400% increase in the number of
early releases. The same ruling required the state to maintain prisons
at 95% capacity and expand the amount of space per prisoner. He also
ordered that more prisons guards be hired to increase inmate safety and
that prison work release and furlough programs be increased. In the two
decades since the decision was handed down, Judge Justice has continued
supervision of the state prison system. Yet in 1999, he ruled that Texas
state prisons have failed to rehabilitate themselves in that they still
run a brutal and inhumane prison system.

Another example some critics cite is Doe v. Plyer, in which Judge
Justice ruled that public schools cannot charge tuition for the children
of undocumented aliens, citing this would violate the equal protection
clause of the 14th Amendment. The class-action suit was brought in 1977,
two years after the state passed a law excluding non-citizens from a
tuition-free public education to deter illegal immigration. The ruling
was upheld by the 5th Circuit and the U.S. Supreme Court.

Last August in the midst of the 2000 presidential campaign, Judge
Justice ruled in Frew v. Gilbert that the Texas Health and Human
Services Commission was out of compliance with a 1996 federal mandate
to improve its delivery of Medicaid services. He contended that the
state failed to address the needs of about 13,200 children supervised
by the Texas Department of Protective and Regulatory Services, and it
failed to inform the nearly one million children enrolled in Medicaid
about available benefits and transportation. His ruling stated Texas
had provided "inflated and inaccurate" data about the frequency of
checkups for children under Medicaid, and he criticized the quality of
those checkups that did occur. Judge Justice also ruled that Texas was
providing inadequate dental care for children. Then Governor George
W. Bush's administration disputed these claims, pointing out the
state had nearly doubled medical spending in the seven years since the
class action suit had first been filed during Governor Ann Richards'
term in office. The Bush administration argued it had already doubled
transportation spending, and furthermore, increased the percentage
of eligible patients applying for medical benefits to 66% from 29% in
1993. Governor Bush also pointed out that Texas spends more on outreach
to encourage preventive care than any other state in the country. Judge
Justice's decision quickly became a campaign issue, with Democrat Al
Gore criticizing Bush through highlighting the ruling in paid advertising.

Other controversial decisions handed down by Judge Justice include
statewide school desegregation (United States v. Texas), public housing
desegregation, reform of the Texas juvenile incarceration system,
community placement of the mentally retarded, single member voting
districts, and bilingual education.

When announcing the award, Thurgood Marshall Award Committee Chair Cruz
Reynoso noted, "The breadth of Judge William Wayne Justice's contributions
to the advancement of civil rights epitomizes the spirit and tradition
of the Thurgood Marshall Award. We are especially pleased to honor such
a dedicated advocate of the underrepresented." Individual Rights and
Responsibilities Section Chair Michael S. Greco concurred, stating Judge
Justice's "lifelong work to promote civil rights and civil liberties,
often in an environment resistant to change, has made him truly one
of the unsung heroes of the legal profession. We are delighted to be
recognizing his achievements this year."

· ABA Calls for Increase in Federal Judicial Salaries

The ABA and the Federal Bar Association (FBA) urged the 107th Congress and
the Bush Administration to work together to "break the downward cycle of
pay erosion" of federal judicial salaries. The groups hold the conviction
that the "current salaries of Federal judges have reached such levels of
inadequacy that they threaten to impair the quality and independence of
the Third Branch." Through a jointly issued report, presented in February
to Chief Justice William Rehnquist, the ABA and the FBA emphasized that
judicial pay has been eroded by inflation and has not been adjusted to
reflect the rapid escalation of salaries of comparable positions in the
private sector. Federal judges have received only three COLA increases
since 1993, causing a 13.4% decline in judicial salaries when adjusted
for inflation. This has led to higher rates of judges leaving the bench
to return to private practice for much higher salaries.

Chief Justice Rehnquist has been an active proponent in this drive to
increase judicial salaries, stating that this is the "most pressing
issue facing the judiciary today. Competitive salaries are imperative
in trying to attract and retain qualified judges."

Representative Judy Biggert (R-IL) offered a bill, H.R. 570, to take into
account the ABA and FBA recommendations. The proposed legislation would restore six COLA raises not offered to federal judges in the past decade, effectively increasing salaries 9.6%. The bill would also eliminate the
statutory requirement that Congress must approve COLA raises for judges,
as judges would automatically receive the same COLA raises as other
federal workers.

The ABA Report, "Federal Judicial Pay Erosion: A Preliminary
Report on the Need for Reform" can be found on the ABA Web site at
http://www.abanet.org/poladv/2001

judicialpayreport.html.

· In Other News.

The ABA Standing Committee on Election Law, in cooperation with the
Section of Individual Rights and Responsibilities, the Section of State
and Local Government Law, and the Commission on Racial and Ethnic
Diversity in the Profession, has undertaken a review of issues that
arose in the Florida election controversy. The committee will present
a proposed election reform policy to the ABA House of Delegates at the
2001 Annual Meeting in August.

The ABA urged a House Appropriations subcommittee in late March to support
funding for the Thurgood Marshall Legal Educational Opportunity Program
for $5 million in fiscal year 2002, an increase of $1 million. The program
is administered by the Council on Legal and Education Opportunity, an ABA
Fund for Justice and Education non-profit project which is also governed
by AALS, LSAC, the National Bar Association, the National Asian Pacific
American Bar Association, and the Society of American Law Teachers. The
ABA stresses its own active involvement in increasing diversity in law
schools by highlighting its Legal Opportunity Scholarship Fund, which
endows twenty annual scholarships for minority students.

The ABA renewed its opposition to a flag-burning amendment after Senator
Orrin Hatch and Representative Randy Cunningham re-introduced legislation
to amend the Constitution to authorize Congress to prohibit the physical
desecration of the U.S. flag. While the ABA agrees that flag desecration
is abhorrent, it "nevertheless believes the proposed constitutional
amendment constitutes an unwarranted restriction on freedom of speech
and expression under the First Amendment."