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William J. Kayatta, Jr.
Andrew David Hurwitz

Nominee to the First Circuit Court of Appeals

Nominated: January 23, 2012
Committee Questionnaire

JAG Videocast Overview:
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Kayatta: A Judicial Elitist Advocating for an Unaccountable Judiciary

JAG President Phillip Jauregui and Executive Director James Christophersen talk about Kayatta. Highlighting his views and statements, Phillip and James discuss why William Kayatta should never be confirmed. Check out the full-length JAG Videocast here.

Kayatta Takes the Elitist View that Judges Should Be Paid Twice as Much as U.S. SenatorsKayatta was a member of the American College of Trial Lawyers Ad Hoc Committee on Judicial Compensation and approved and edited the White Paper: “Judicial Compensation:  Our Federal Judges Must Be Fairly Paid.”[i]  Kayatta’s report expresses the elitist view that judges should be paid more than Senators and Members of Congress because judges “are not supposed to be average.  They should be the best of us, the brightest of us, the most fair and compassionate of us.”[ii]  Kayatta also argues that judicial salaries must be doubled and not linked to Congressional salaries to “attract and retain those relatively few talented persons we need as judges.”[iii]

Pursuant to Kayatta’s Judicial Philosophy, Judges May Raise Their Own Salaries By Legislating from the Bench.  Kayatta wrote: “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.”[iv]  Amazingly, Kayatta even writes that judges “might well” raise their own salaries through court cases and cites court precedent where such a claim was previously rejected outright.[v]  Furthermore, the text of the Constitution is clear that judges shall “receive for their services, a compensation, which shall not be diminished during their continuance in office.”[vi]  Clearly, the Constitution prohibits the reduction of judicial salaries but in no way requires cost of living raises.  Furthermore, the Constitution prohibits judges from raising their own salaries.  Any judicial action toward that end would amount to a self-serving usurpation of legislative power so patently egregious as to warrant review and removal of such judge under the Constitution.

Kayatta Believes that Salaries of U.S. Judges Should be Dependent on Salaries of Foreign Judges, Rather Than be Linked to Congressional Salaries.  Kayatta argues that salaries for U.S. judges should not be linked to Congressional salaries, but instead should be linked to salaries of foreign judges.[vii]  He therefore proposed, “a 100% raise from current compensation.  At that, our judges will arguably still be underpaid for the service they provide our society, but it is a start.”[viii]

Senator Sessions Took Issue with Kayatta’s – and the ABA’s – Suspect “Well Qualified” Rating of Elena Kagan Despite Her Failure to Meet The Minimum ABA Qualifications.  Kayatta was a Member of the American Bar Association Standing Committee on the Federal Judiciary when that Committee evaluated Elena Kagan during her confirmation hearings for the Supreme Court.[ix]  Kayatta and his Committee rated Elena Kagan as “Well Qualified.”[x]  Kayatta appeared before the Judiciary Committee to present the Kagan evaluation, and Senator Jeff Sessions took issue with Kayatta over that evaluation.

Sessions pointed out to Kayatta that the ABA standards provide that:  “The [ABA] Committee believes that a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law. In evaluating the professional qualifications of a prospective nominee, the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.”[xi]  Under these standards Kagan was grossly unqualified and, therefore, Sessions said to Kayatta in the Judiciary Committee hearing: “I found it difficult to understand how when she did not meet those qualifications that [Kayatta and] the Committee reached the highest rating for the highest court ….  [P]erhaps the highest rating was not called for.”[xii]

Kayatta’s ABA Report Defends Kagan in Baring Military Recruiters from Harvard.  Kayatta helped draft the ABA Report on Kagan that was submitted to the Senate.[xiii]  The report gratuitously raises and defends the issue of Kagan’s role in barring military recruiters from Harvard Law:

“The nominee’s handling of military recruiters at Harvard Law School was raised in the media as a possible basis for criticizing the integrity of the nominee for allegedly treating military recruiters and students interested in the military as second class citizens.  Harvard Law School had a long-standing policy denying placement office services to any firm or organization that refused to hire students for reasons including known sexual orientation.  She enforced the policy.  She did so less forcefully with the military than many in the Law School wished, setting up an alternative channel to provide similar services through a veterans group, and then exempting the military from enforcement of the policy when required to do so in response to the threatened loss of all federal funding for the entire university.  In other words, she provided military recruiters with a degree of student access that likely would not have been provided to private employers with similar policies.  Our interviews and review of these facts disclosed no evidence that then Dean Kagan demonstrated any type of bias that would cause us to question her integrity under our standards.”[xiv]

It would be appropriate for Senators to ask Kayatta why he chose to raise this issue and to defend Kagan’s role in barring the military from Harvard.

Kayatta Named on Report Seeking to Bar all Judicial Elections Based Upon Voter Opposition to Activist Judges in Iowa.  Kayatta’s name appears as a member of the Board of Regents of the American College of Trial Lawyers on their “White Paper on Judicial Elections (2011).[xv] [xvi]  The Paper cites several instances including the 2010 Iowa judicial elections as a reason to abolish all judicial elections,[xvii] presumably leaving the selection of judges to committees of unelected and unaccountable bar committees and lawyers such as Kayatta and the ABA.[xviii]  The Paper states:  “In the wake of these developments, three Supreme Court justices in Iowa were ousted in 2010 after interest groups, most from out of state, spent nearly a million dollars to unseat them owing to the court’s unanimous ruling in a 2009 gay marriage case.”[xix]

The Paper does not address the fact that the Iowa judges’ “gay marriage” case amounted to brazen judicial usurpation of legislative power.  The voters properly exercised their legal ability to remove these errant judges.  Without such remedies, the radical activism of judges – like the Iowa judges – would surely proliferate.

The Paper concludes: “The College believes that contested judicial elections, including retention elections, create an unacceptable risk that improper and deleterious influences of money and politics will be brought to bear upon the selection and retention of judges. The College therefore opposes contested elections of judges in all instances.”[xx]  Kayatta and the report fail to address the even greater risk of an unaccountably judiciary which can lead to anti-constitutional imposition of policy by courts through judicial fiat. 

Senators should ask Kayatta about his role in the report, and what options he had to exempt his name from the White Paper.  In addition, Kayatta should be asked whether he affirms the conclusion of the White Paper, and, if not, whether he believes that judges are subject to “checks and balances” by the other branches of government.  Finally, Kayatta should be asked what if any remedy is appropriate to address an out of control judiciary that would purport to “amend” the Constitution by judicial fiat.

TAKE ACTION: Contact your Senators and tell them to vote against William Kayatta! Click here to find your Senators' contact information.

[ii] American College of Trial Lawyers, “Judicial Compensation: Our Federal Judges Must be Fairly Paid, March 2007; available at: http://www.actl.com/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=2729 at page 4.  The report also claims that “The current system of linking judicial salaries to Congressional salaries makes little sense …. [and judicial salaries] should be [linked] to the salaries of [judges] in other countries.”  Id. at 6.

[iii] Id. at 5.  Kayatta also said that judicial salaries should be doubled which would result in their being paid twice that of  U.S. Senators.  Id. at 6-7 (salaries should not be linked to Congress but to foreign judges).

[iv] Id. at 3.  Kayatta explains in a supporting footnote:

“To be sure, in Atkins v. United States, 214 Ct. Cl. 186 (Ct. Cl. 1977), a group of federal judges were unsuccessful in arguing that

their rights had been violated because Congress had raised other government salaries to adjust for inflation at a different rate

than for judges. The court held that the Constitution vests in Congress discretion in making compensation decisions, so long

as they are not intended as an attack on judicial independence. On the facts in Atkins, the court found no such attack. But the

effect of inflation on judicial salaries over the past 30 years has eroded judicial compensation as effectively as an all-out assault.

A court might well reach a different decision on today’s facts.”  (Emphasis added.)

[v] Id.

[vi] Art. III, Sec. 1, U.S. Const.

[vii] Id. at 6-7.

[viii] Id. at 1.  (Emphasis added.)

[x] See Statement of Kim J. Askew, Chair of the American Bar Association Standing Committee on the Federal Judiciary, Concerning the Nomination of the Honorable Elena Kagan to be Associate Justice of the Supreme Court of the United States at pp 1, 19; available at: http://www.americanbar.org/content/dam/aba/migrated/scfedjud/statements/kagan.authcheckdam.pdf

[xi]ABA Standing Committee on the Federal Judiciary (Report of Judicial Nominations) at page 3; available at: http://www.americanbar.org/content/dam/aba/migrated/scfedjud/federal_judiciary09.authcheckdam.pdf

[xii] Available at: http://www.c-spanvideo.org/program/294266-2 (at 03:37:30).

[xiv] Statement of Kim J. Askew, Chair of the American Bar Association Standing Committee on the Federal Judiciary, Concerning the Nomination of the Honorable Elena Kagan to be Associate Justice of the Supreme Court of the United States at page 7; available at: http://www.americanbar.org/content/dam/aba/migrated/scfedjud/statements/kagan.authcheckdam.pdf

[xv] See “American College of Trial Lawyers White Paper on Judicial Elections” October 2011; available at: http://www.actl.com/AM/Template.cfm?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentID=5625 

[xvi] Kayatta says that he “had no role at all in its preparation,”  but while he may not have authored it – his name appears prominently on the report as a member of the “Board of Regents” and Kayatta should be asked about the process of the approval of the report, whether he had the opportunity to approve, edit, or vote for the report, especially since his name appears on the report and he lists it in his Senate Questionnaire as a report that he “issued or provided or that others presented on your behalf.”  See Kayatta Questionnaire at page 8; available at: http://www.judiciary.senate.gov/nominations/112thCongressJudicialNominations/upload/WilliamKayatta-PublicQuestionnaire.pdf

[xvii] See “American College of Trial Lawyers White Paper on Judicial Elections” October 2011; available at: http://www.actl.com/AM/Template.cfm?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentID=5625.  (Emphasis added.)

[xviii] Kayatta served on the ABA research committee that recommended Elena Kagan as “highly qualified” even she in no way met the ABA’s own published standards for Supreme Court justices. 

[xix] Id. at 4.

[xx] Id.  (Emphasis added.)