By way of background, the Senior Status Program was created by the General Assembly in 2000, and is currently codified at KRS 21.580. It was designed by the legislature with the stated intent to “combat backlog and delay in Kentucky courts.” In exchange for the Kentucky State Treasury providing increased retirement benefits, a “retired” judge may elect within 90 days of “retirement” to serve without additional compensation as a Special Judge for 600 days over the following 5 years. (I enclose “retired” and “retirement” in quotation marks, because the increased retirement benefits have also been made available to judges who failed in their most recent attempt at re-election. Apparently, “retirement” for these purposes includes an involuntary termination of employment by a majority of the electorate. I wonder if being a Kentucky state judge is the only occupation in which you can be fired by your boss and still receive a bonus because of the “benefit” you bring to your employer. But that is another issue.)

We are told by Judge Billingsley that this is a good deal for the taxpayer – he says the 45 retired judges cost the state $1.5 million per year, as opposed to the $13.5 million that creating 45 new permanent judgeships would cost. The current program is set to expire on July 1, 2007. (I know, Judge Billingsley insists in his article that the program expires – due to 2002 and 2003 amendments to the statute – in 2009. Even if I agreed with Judge Billingsley that the amendments to the law in 2002 and 2003 extended the life of the law to 2009 – which, upon reading the text of KRS 21.580 as it exists today, I do not – it is apparent that the repeal would take precedence over the amendments per KRS 446.260. The repeal of KRS 21.580, effective July 1, 2007, has itself not been repealed.) I do not know if Judge Billingsley’s math is correct as to the cost savings associated with the Senior Judge program, though I have my doubts, but I will assume for purposes of this discussion that he is correct.

While I have not decided myself whether I think the Senior Judge Program is a good idea, or whether the amendment to the program would make it more or less palatable, I think a candid assessment of the program by different people could lead to different conclusions about the program’s merit. For example, the Supreme Court told us in Kuprion v. Fitzgerald that the appointment of a Special Judge by the Chief Justice does not create a new judgeship where there was not one before; Special Judges so appointed must serve in an existing division of the District Court, Circuit Court, or Court of Appeals. Practically speaking, a Special Judge does not serve in a courtroom that is his alone; he serves in an existing courtroom when the judge who normally presides there is absent, sick, on vacation, or the like. Kentucky law, even without the Senior Judge Program, allows an appointment of a Special Judge to fill the occasional vacancy caused by the absence of the regular incumbent judge – see KRS 26A.020 and KRS 21A.110.

So perhaps a rational State Senator – whether or not you and I agree with his analysis – could come to the conclusion that no real violence is done to due process or judicial efficiency by not extending the Senior Judge Program beyond July 1, 2007. After all, KRS 26A.020 and Section 110 of the Kentucky Constitution still provide for active or retired judges to be appointed by the Chief Justice to serve as Special Judges if the need arises. Considering the unfunded liabilities currently existing in the teachers’ and state employees’ retirement programs, as well as many legislators’ stated preference to wait until the 2008 “long” session of the General Assembly to address such matters, it would not be irrational in the least to decide to consider the extension of a retirement bonus program for “retired” judges at the same time the legislature will consider the changes needed to the other state retirement programs. And doing so is no evidence of spite, ill will, or an imagined slap at judicial independence. It is just as much, or more, evidence of a judgment that it would be better to save $1.5 million in the next year.

Citing rumors of “bad blood” between the Senate President and the Chief Justice of the Kentucky Supreme Court, Judge Billingsley characterizes the Senate’s refusal to pass this bill as both a “payback attack” and “an attack on the independence of the judiciary.” Of course, such wild speculation and hearsay, without additional proof, would most likely never have been admissible in Judge Billingsley’s courtroom. But, unfortunately, the Rules of Evidence do not apply to the blogosphere.

“Attacking the independence of the judiciary,” has become the battle cry of the judicial elites throughout the land. For example, last fall I discussed briefly an op-ed in the Wall Street Journal written by retired U.S. Supreme Court Justice Sandra Day O’Connor, in which she equated criticism of judicial opinions with a threat to “judicial independence.” Now, not only speaking out against an activist judicial opinion with which one disagrees, but according to Judge Billingsley, a state legislature’s failing to enact an extension of a law that provides bonuses to retired judges, threatens “judicial independence.” (Remember, the State Senate is not voting to take away all retirement benefits for judges; it is simply not extending a bonus program for 45 former judges.)

Apparently, “attacking the independence of the judiciary” now means whatever a disgruntled judge, or former judge, wants it to mean. But whatever this phrase may mean, it is used in a conclusory fashion and with the intent of stifling, and not fostering, debate about the merits of the issue. The appropriation of money and making decisions concerning the use of state funds has always been a quintessentially legislative function. But now, a legislative body that chooses a course of action (or inaction) in these areas that is different from a retired judge’s personal policy preferences is pilloried as wrongfully “pressuring” or even somehow attacking judges. This is a savage butchery of the English language, but the most important thing being sacrificed on the altar of “judicial independence” is a substantive debate.