Lagging Federal Judges’ Salaries: Impending Crisis
By Tom Williamson
In Washington, D.C., these days there is much concern—indeed, consternation—about the impending “fiscal cliff.” This stems from the scheduled expiration of the Bush–era tax cuts in January and the federal budget sequestration agreed to by Congress, which is also scheduled to become effective in January. The sequestration arrangement, across–the–board reductions mandated under the Budget Control Act of 2011, was intended to inspire a bipartisan appropriations “deal” to address the federal debt crisis. The deal did not materialize, and now the focus has shifted to whether and how the country can sustain the massive reductions in federal spending contemplated under the sequestration scheme.
Budget cuts and deficit reduction certainly are pressing issues worthy of our close attention; however, there is at least one area where lawyers need to speak out forcefully on the need to increase federal expenditures, namely, the salaries of federal judges. Even though judicial compensation is an infinitesimally small part of the federal budget, the stakes are high since the failure to address the pay issue adequately will adversely affect both the independence of the judiciary and the diversity of the bench.
The current salary for district court judges is $174,000, and for circuit court judges, $184,500. The eroded value of federal judicial salaries is well known and well documented. In real terms, a federal district judge’s salary has declined approximately 31 percent between 1969 and 2012. By contrast, inflation–adjusted wages for the average American worker have risen 19.5 percent over approximately the same period. In 1969 federal judges’ salaries were higher than the average salaries of senior faculty members and deans at leading law schools. Today compensation for federal judges has fallen substantially behind the average salaries of senior faculty ($330,000) and deans ($430,000) at those law schools. Further dramatic evidence of the severity of the salary lag is the ironic reality that, in their first year of practice at major law firms, youthful law clerks of experienced federal judges often receive salaries and bonuses that significantly exceed those of the judges who were their revered supervisors and mentors in the previous year.
The relative decline of compensation for federal judges has developed, in large part, because Congress has repeatedly failed to authorize cost–of–living adjustments (COLAs) that should have been appropriated each year under the Ethics Reform Act of 1989. If those COLAs had not been withheld, the salary today for district judges would be $247,086 rather than $174,000, and for circuit judges, $261,968 rather than $184,500—not nearly as sumptuous as the earnings of partners at major law firms, but still more appropriate for the stature of our federal judges.
The legal arguments for ensuring that judicial compensation not be diminished are rooted in the Constitution. Yes, the framers were wise and prescient enough to include the Compensation Clause, which provides that judges “shall … receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const. Art. III, § 1. The framers understood that insulating judicial compensation from political manipulation was essential to preserve the independence and integrity of the federal judiciary.
The practical arguments in favor of raising judicial pay are rooted in the damaging consequences for the recruitment and retention of federal judges that will flow from maintaining the status quo. The relative diminution of federal judicial salaries has reduced the pool of highly qualified candidates interested in being nominated. Many of those candidates are in the prime of their earning careers in the private sector, and they are understandably reluctant to put at risk their ability to pay college tuition for their children or to finance eldercare for aging family members. In addition, commentators have noted that, increasingly, district court judges are resigning from the bench and taking more lucrative positions at law firms, corporate legal departments, and alternative dispute resolution organizations. This trend prematurely deprives the already short–handed judiciary of judges who have invested years of their lives becoming experienced jurists. In addition, these resignations render these veteran judges ineligible to serve as senior judges, who play a vital role in helping to ease management of the caseloads of existing, understaffed federal courts.
The salary lag also poses a serious threat to efforts to diversify the bench. Justice Stephen Breyer underscored this problem in his 2007 testimony before the House Committee on the Judiciary: “[A] federal judgeship should not be reserved primarily for lawyers who have become wealthy as a result of private practice, or for those whose background is that of a judicial ‘professional,’ i.e., a state court judgeship or a magistrate position. . . .” This prospect is especially damning for the aspirations of minorities and women who are first-generation legal professionals. They will continue to be underrepresented on the federal bench because many of the most successful and promising candidates cannot reconcile the likely lifetime salary sacrifice of being a federal judge with meeting the full range of responsibilities to their children and older, dependent relatives.
The challenge of increasing federal judicial pay is compounded by the limits on judges as advocates for their own cause. We generally accept as normal and appropriate the myriad associations and organizations that tirelessly and effectively lobby Congress for appropriations funding, yet the judiciary does not have at its disposal any comparably potent lobbying organization. A group of judges is pursuing class action litigation to attempt to rectify Congress’ denial of COLAs under the Ethics Reform Act before the U.S. Court of Appeals for the Federal Circuit Court (Beer v. United States). Unfortunately, prospects for prevailing are complicated by an unfavorable U.S. Supreme Court precedent. The American Bar Association and other bar associations have made valiant attempts to assist by lobbying and filing amicus briefs, but, to date, those efforts have fallen short of achieving the hoped–for goals.
The call for more spending to increase the salaries of federal judges does not lend itself to a catchy sound bite, and the cause is unlikely to mobilize mass popular support. Rather, this is an area where lawyers, as a professional community, bear a special responsibility to be vocal and vigilant in support of increased judicial pay. That responsibility encompasses both educating the public about the linkage between judicial pay and judicial independence and becoming more assertive and resourceful about creating nonpartisan coalitions dedicated to persuading Congress that increasing federal judicial salaries are in the best interest of the American people, the federal deficit notwithstanding.
Reach Tom Williamson at twilliamson@dcbar.org.
