Increasing Pay for Federal Judges
By DAVID M. AXELRAD Currently, federal appellate judges earn $175,100 per year, and district judges earn $165,200. By many standards, that is a substantial salary. But the great disparity between the compensation of federal judges, many of whom are among our best and most experienced legal professionals, and that of their peers in private law firms has become a major disincentive to many highly competent attorneys who might otherwise consider judicial service. Judges do not expect to be paid on the same scale as partners in major law firms, and judicial officers have traditionally accepted reduced compensation as part of the sacrifice that is expected in public service. But the erosion of federal judicial compensation has become dramatic and alarming. As U.S. Supreme Court Chief Justice John Roberts pointed out in his most recent report on the state of the federal judiciary, “[a]djusted for inflation, the average U.S. worker’s wages have risen 17.8% in real terms since 1969. Federal judicial pay has declined 23.9% . . .” For 24 percent less than what they earned over 35 years ago, we ask our judges to play a crucial role in our lives and in the effective functioning of our democracy. They must resolve everything from the right to life to the right to die, and they must resolve these issues in the context of a crushing caseload. For example, with respect to intermediate courts of appeals, the front line of the federal appellate bench, we currently ask 179 active federal appellate judges to address over 66,000 filings a year. At the same time, those judges receive an ever-declining salary that is now equal to or below the compensation paid first-year lawyers at major law firms. (In particular, see David Lat’s June 18, 2007 editorial in the New York Times, “The Supreme Court’s Bonus Babies,” which stated, “Most of [the U.S. Supreme Court law] clerks will join elite private law firms. [F]irms entice them with signing bonuses that are expected to reach $250,000 this year – paid on top of starting salaries approaching $200,000. Thus some former clerks, in their first year practicing law, will earn twice as much as their former judicial bosses.”) The problem of inadequate judicial pay is not new. The American Bar Association and Federal Bar Association issued reports in 2001 and again in 2003 calling for substantial increases in federal judicial compensation because, as argued in the 2003 report, “the salaries of Federal judges had reached such levels of inadequacy that they threaten to impair the quality and independence of the Third Branch.” And this year, Roberts declared in his report that the failure to increase judicial compensation “has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.” One of the biggest contributing factors to the problem of the continuing decline of judicial compensation is “linkage” between congressional and judicial salaries, according to the ABA and Federal Bar Association’s 2001 report. The effect of linkage is that judicial salaries may rise only to the extent members of Congress feel comfortable raising their own salaries. However, judicial pay should not be at the mercy of congressional sensitivity to public opinion. Linkage perpetuates an egregious disparity between federal judicial compensation and the compensation paid to legal professionals in the private sectors and in sectors of the government not subject to the linkage requirement. It is not surprising that both the American Enterprise Institute and the Brookings Institution, in their 2007 paper “How to Pay the Piper: It’s Time to Call Different Tunes for Congressional and Judicial Salaries,” concluded that continuing the practice of linkage will “exacerbat[e] the difficulties of recruiting and retaining a highly-skilled workforce for vital government positions.” Inadequate judicial compensation has proven to be one of the most intractable problems facing the third branch of government. However, U.S. Senators Leahy, Hatch, Reid, McConnell, Feinstein and Graham recently introduced S.B. 1638, which would immediately increase all federal judicial salaries by 50 percent. This increase should be viewed as an essential investment in the future of the judicial branch of government. The return on that investment is not only fair compensation of the highly skilled and experienced people who devote themselves to the generally thankless job of resolving society’s disputes, but also an incentive for able attorneys to opt for public service on the bench. This, in turn, would increase the diversity of the bench. As the Roberts report explained, “In the Eisenhower Administration, roughly 65% [of federal trial judges] came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed – roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.” Moreover, the proposed compensation adjustments would increase the tenure of judges on the bench, ensuring that the public and the judicial system will continue to benefit from the wisdom and efficiency that experienced judges bring to their work. Finally, compensation reform would stem what many observers see as a “brain drain” of judicial talent to the siren call of for-profit private judging. With compensation declining and opportunities in the area of private dispute resolution exploding, more and more experienced judges are opting for that remunerative alternative and leaving the bench. At the time S.B. 1638 was introduced, Senator Leahy astutely summarized the problem: Our democracy and the rights we enjoy depend on a strong and independent) [sic] judiciary. During the last few years it has been the courts that have acted to protect our liberties and our Constitution. The independence of the judiciary is compromised, however, if judges leave the bench for financial reasons. The quality of the judiciary is threatened if judges’ salaries are inadequate to attract and retain our best legal minds. Given the essential role that the judiciary plays in our system of government, we should pass this raise to judicial salaries. The House Judiciary Committee recently approved its own version of judicial compensation relief. Unfortunately, the House version provides for a smaller increase than the Senate version and would adversely affect the retirement rights of federal judges. Our federal judges should be compensated at a level befitting their professional skill and experience and recognizing the ever more complex demands placed upon them in resolving society’s issues. Hopefully, Congress can reach a consensus on judicial compensation that will substantially increase judicial pay and leave intact the hard-earned retirement rights federal judges deserve. David Axelrad is a partner with the civil appellate litigation firm of Horvitz & Levy LLP in Los Angeles. Page: 1 of 1 pages for this article
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