February 2007: The Year of Pay Reform for Federal Judges?

Washington Watch | February 2007
By Bruce Moyer

The federal judiciary is preparing to renew its efforts on Capitol Hill to secure a significant pay raise and to install a fairer process for ensuring future annual increases. Getting Congress to act on judicial salaries has never been easy, but the chances for success in 2007 may be better than in the past, with Democratic leaders supportive of a judicial pay increase now in control of Congress.

Chief Justice John Roberts Jr. publicly kicked off the campaign for higher judicial pay on New Year’s Day when he devoted the entirety of his 2006 year-end report to the need for a significant pay raise for federal judges. Roberts covered and updated the arguments previously made by his predecessor, William H. Rehnquist, and others (including the Federal Bar Association) on why a pay increase is sorely needed.

The new Chief Justice certainly appears to have embraced the cause. He pointed to several factors:
 

  • The accelerating exodus of judges from the federal bench in recent years, with 38 leaving in the past six years and 17 in the past two years; 
  • The failure of judicial salaries to keep up with the salaries of deans of the top law schools and senior law professors, with judges’ pay reaching only half of that earned by academic law professionals in some cases; and 
  • Most compellingly, the fact that judicial salaries have lagged behind the average salary paid to U.S. workers, largely as a result of the erosive effects of inflation. According to the Chief Justice, workers’ wages, when adjusted for inflation, rose 17.8 percent from 1969 to 2005, but judges' pay for the same period fell nearly 24 percent.

Federal judges' salaries vary according to their rank: district judges earn $165,200 a year; circuit judges earn $175,100; associate Supreme Court justices earn $203,000; and the chief justice of the United States earns $212,000. Members of Congress make the same pay as district judges do, and, since 1981 salary adjustments for federal judges have been linked to those received by members of Congress. This linkage of judicial and congressional salaries, in fact, represents one of the major reasons why judicial pay has fallen behind. Few members of Congress, especially in election years, are willing to support pay increases for judges, because members’ own pay would also go up, which could well trigger voter backlash.

The situation concerning judicial pay has deteriorated so much, Roberts said in his report, that it has "now reached the level of a constitutional crisis and threatens to undermine the strength and independence of the federal judiciary." Although several critics labeled the Chief Justice’s characterization of a constitutional crisis as hyperbolic, none disputed his data or the conclusion that low pay is causing an increase in resignations from the bench, thereby undermining the constitutional notion of life tenure and its relationship to an independent judiciary. "The dramatic erosion of judicial compensation will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge," Roberts wrote, adding that the judiciary should not be made up of individuals who are independently wealthy or "people for whom the judicial salary represents a pay increase."

The last time federal judges received a substantial pay raise was 1989. Some top Senate Democrats (Dianne Feinstein, Patrick Leahy, and John Kerry) were unsuccessful in their efforts to raise judicial pay by a proposed 16 percent last year. Former Chief Justice Rehnquist championed the cause for 20 years, and numerous commissions and reports, including two white papers issued by the Federal Bar Association and the American Bar Association in 2001 and 2003, advocated pay increases and changes to the pay adjustment mechanism. The last substantial push in Congress in 2003 nearly succeeded, with bipartisan support from Senate Republicans and Democrats and the White House, but opposition from Republican House leaders derailed the effort.

Will 2007 be the year that Congress musters the will to unlink judicial pay from congressional pay and give judges a substantial pay hike in order to erase the erosion that has occurred? One thing is clear: If the judiciary salaries are increased, it is going to happen during the first session of the 110th Congress—this year, before 2008 election year jitters become more palpable.

Bruce Moyer is government relations counsel for the FBA.
© 2007 Bruce Moyer. All rights reserved.

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