RUTHFULLY YOURS

As the Senate Judiciary Committee holds hearings on the nomination of Solicitor General Elena Kagan to the Supreme Court, one question I would like to see put to her is this: “General, assuming we are going to elevate you to the court, could we spend just a moment on a practical and personal question—how would you like to get paid?”

The question might be met with a quizzical look, but the inquiring senator could explain that it’s a sensitive matter and one that has enormous implications for all Americans. Judges’ pay was one of the animating grievances of the American Revolution, enumerated in the Declaration of Independence itself, which states in respect to the British tyrant: “He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”

So the Founders made a point of writing into the Constitution that the pay of federal judges may not be diminished during their continuance in office. Congress will never be permitted to lower Ms. Kagan’s nominal pay (which would start at $213,900 a year). But she is, after all, 50 years old and the Supreme Court is a lifetime appointment. Over 40 years, say, the value of that salary could diminish quite a lot.

If Ms. Kagan is asked how she’d like to receive her salary, she’ll likely respond that she is content to be paid in dollars, as are all other judges. If that’s her answer, then the senators can really get into it. Will she feel that way, they can ask, if in the coming years the U.S. dollar plunges to, say, a 5,000th of an ounce of gold? After all, in the past decade, just to pick one time span, the value of the dollar has plunged to less than a 1,250th of an ounce from the 265th of an ounce that it was worth at the start the Bush administration.

If Ms. Kagan asserts that she would be content with this arrangement, the senators may raise a collective eyebrow. For it happens that the other federal judges aren’t the least bit happy about it. A group of senior judges, comprising a rainbow coalition of some of our most distinguished jurists and ones nominated by presidents of both parties, is actually suing in federal court over the way they are paid.

The plaintiffs in the case—Beer v. U.S., named for U.S. Eastern District of Louisiana Judge Peter Beer—stretch from Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit to Richard Paez of the Ninth Circuit on the West Coast. But last month, they dug in and asked the Supreme Court itself to hear their plea that Congress does not have the right to suspend, as it has done in recent years, an automatic pay raise for them designed to adjust their income for inflation.

Ms. Kagan herself might have been representing the U.S. against the judges had not Neal Katyal taken the duties of acting solicitor general when she was nominated to the court. He promptly asked for a delay until July to answer judges’ petition.

The judges’ salary story was first reported by the New York Sun online. That prompted Rep. Ron Paul (R., Texas) to enter the article into the Congressional Record, with a note remarking on speculation that if the judges’ appeal fails, the judges “only recourse would be to challenge legal tender laws that artificially prop up the value of paper money.”

In other words, by asking Ms. Kagan about how she herself would like to get paid, the Judiciary Committee has a chance to open up the question of how all the rest of America—and any one else earning or being owed dollars—wants to get paid. At the rate things are going it is hard to think of a more pressing question.

Mr. Lipsky, founding editor of the New York Sun, is the author of “The Citizen’s Constitution: An Annotated Guide” (Basic Books, 2009).