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August 2002

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This article is in the news archives --- for current news go to the Third Branch News.


Judicial Pay Concerns Volcker Commision

Last month the National Commission on the Public Service conducted three days of hearings on reform in federal government service. One of the areas addressed was inadequate pay for judges. Among the more than a dozen witnesses who testified were Chief Justice William H. Rehnquist, Justice Stephen G. Breyer, and Chief Judge Deanell Tacha (10th Cir.), chair of the Judicial Conference Committee on the Judicial Branch. Below are excerpts from the testimony, as well as statements and questions by the commissioners.



"Inadequate compensation seriously compromises the judicial independence fostered by life tenure. The prospect that low salaries might force judges to return to the private sector rather than stay on the bench risks affecting judicial performance. Instead of serving for life, those judges would serve the terms their finances would allow and they would worry about what waits them when they return to the private sector."

"The compensation of federal judges continues to lag far behind both inflation and the rising compensation of attorneys in private practice. Oliver Ellsworth, who resigned as chief justice of the United States in 1800 due to poor health, said, ‘Though our country pays badly, it is the only one in the world worth working for.’ Those words still ring true today. Because these problems are longstanding, however, it’s not enough to simply muddle through the current crisis and then go back to business as usual."



"It’s a kind of vicious circle. And I think we’ve progressed too far, whatever the part of government, along that circle if, in fact, we all know—I mean, the same is true of the Forest Service, the FBI, the Congress of the United States and the federal judicial branch. If you do not pay over a long period of time what seem to be fair salaries to the Forest Service you’ll find that the wilderness suffers. And if you don’t do the same for the FBI you will find in the long run that the effort to fight crime, to fight terrorism becomes more difficult.

"And if in the case of the Judiciary you do the same you will discover that eventually you’ll wake up and the Judiciary just won’t be what it quite was, and the effort to be independent, the effort to have an effective judicial system that guarantees human liberty, among other things, will be seriously diminished.

"So that’s what I think the problem is and I appreciate your listening to it."



"If I had one plea for this commission, it would be that somehow you find a mechanism and are able to recommend a mechanism that will take into account these critical national and institutional issues while at the same time being sensitive to the political challenges encountered by individual members of Congress. It is a national, institutional problem.

"My colleagues throughout this nation are, to put it mildly, dispirited. When neither the Ethics Reform Act nor the Quadrennial Commission operated as it was statutorily enacted, to the judges it was like a pledge twice broken and that has resulted in serious erosion in the institution of the Judiciary."

"As judges are asked to tackle an ever-increasing caseload composed of ever tougher issues, there is, I have to tell you, a strong sense of betrayal among some very able people."




". . .if you talk to Members it’s not as much that they don’t want judges’ pay linked to Members of Congress. That is not the issue. The issue is they want an engine that will push through salaries at least occasionally and they’ve linked onto the judges as the best focal point for them to ever get a pay raise. . . .so I think part of the question here isn’t so much saying that Congress should give themselves a pay raise too. Indeed, the more credible entities you hooked onto Congress, like the military, like scientists at NIH, like others, would probably provide even more cover for Congress to be able to actually go forth.

"So I think that Congress would quickly get over the idea of people making more than them if they thought there was a mechanism that would actually get them a pay raise."




"Your comments, Mr. Chief Justice and Associate Justice Breyer, your statement of the problem I think is truly extraordinary and frightening. . . ."




"Mr. Chairman, I would just say that your earlier commission in the late ’80s looked at this question. Paul Light knows that. He made recommendations then in the context of what we saw then as a disparity in pay. But the fact that you are holding this commission and that you got the Chief Justice of the United States and an associate justice here to testify simply speaks to the way in which this problem has worsened and needs attention."


" I thank the commission for its work that it has undertaken and sincerely hope that it will devise and the government will implement a permanent solution."