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2005 Year-End Report on the Federal Judiciary
New Year's Day in America means football, parades, and, of course, the
Year-End Report on the Federal Judiciary. I am pleased to carry on the tradition
launched by Chief Justice Burger, and continued for the past 19 years by Chief
Justice Rehnquist, of issuing on New Year's Day a report on the state of the
federal courts. I recognize that it is a bit presumptuous for me to issue this
Report at this time, barely three months after taking the oath as Chief Justice.
It remains for me very much a time for listening rather than speaking. But I do
not intend to start the New Year by breaking with a 30-year-old tradition, and
so will highlight in this Report issues that are pressing and apparent, even
after only a few months on the job.
First and foremost: the state of the federal judiciary is strong. We
celebrated on September 24th the 250th anniversary of the birth of Chief
Justice John Marshall. If Marshall were able to observe the work of the federal
courts today, there doubtless would be much that would surprise him. But he
would see in the work of the men and women who took the same judicial oath he
did the same commitment to uphold the Constitution and to fulfill the Framer's
vision of a judicial branch with the strength and independence "to say what the
law is," without fear or favor. Marbury v. Madison (1803).
Violence Directed at Judges
No review of the year just passed can ignore the violent events that took
place in Illinois and Georgia in February and March. The Nation was shocked by
the horrific murders of a U. S. District Court judge's husband and mother by a
disappointed litigant, and the terrible incident in Atlanta in which a judge,
court reporter, and deputy were killed in the Fulton County courthouse. These
attacks underscored the need for all branches of government, state and federal,
to improve safety and security for judges and judicial employees, both within
and outside courthouses. We see emerging democracies around the world struggle
to establish court systems in which judges can apply the rule of law free from
the threat of violence; we must take every step to ensure that our own judges,
to whom so much of the world looks as models of independence, never face violent
attack for carrying out their duties.
Appropriations and Judicial
Article III of our Constitution seeks to protect judicial independence by
providing that district and appellate judges serve during good behavior and
receive "a Compensation, which shall not be diminished during their Continuance
in Office." These provisions alone, important as they are, cannot guarantee
judicial independence, and a strong and independent judiciary is not something
that, once established, maintains itself. It is instead a trust that every
generation is called upon to preserve, and the values it secures can be lost as
readily through neglect as direct attack.
In recent years, the budget for the federal judiciary and the
ever-lengthening appropriations process have taken a toll on the operations of
the courts. There are two areas of concern that have come to the fore and now
warrant immediate attention and action. The first may come as a surprise to
many: unlike many other elements of the federal government, the judiciary is
required to pay a large and ever-increasing portion of its budget as rent to
another part of the government—the General Services Administration (GSA).
According to information compiled by the Administrative Office of the U. S.
Courts, while the judiciary spends almost sixteen percent of its total budget on
GSA rent—twenty-two percent of its "salaries and expenses" appropriations—only
three percent of the Department of Justice budget goes toward GSA rent, and the
Executive Branch as a whole spends less than two-tenths of one percent of its
budget on GSA rent. During fiscal year 2005, the judiciary paid $926 million to
GSA in rent, even though GSA's actual cost for providing space to the judiciary
was $426 million. The disparity between the judiciary's rent and that of other
government agencies, and between the cost to GSA of providing space and the
amount charged to the judiciary, is unfair. The federal judiciary cannot
continue to serve as a profit center for GSA.
Escalating rents combined with across-the-board cuts imposed during fiscal
years 2004 and 2005 resulted in a reduction of approximately 1,500 judicial
branch employees as of mid-December when compared to October 2003. We are
grateful that our fiscal year 2006 appropriation provides the judiciary with a
5.4 percent increase over fiscal year 2005. While this should allow the courts
to restore some of these staffing losses, the judiciary must still find a
long-term solution to the problem of ever-increasing rent payments that drain
resources needed for the courts to fulfill their vital mission.
A more direct threat to judicial independence is the failure to raise judges'
pay. If judges' salaries are too low, judges effectively serve for a term
dictated by their financial position rather than for life. Figures gathered by
the Administrative Office show that judges are leaving the bench in greater
numbers now than ever before. In the 1960s, only a handful of district and
appellate court judges retired or resigned; since 1990, 92 judges have left the
bench. Of those, 21 left before reaching retirement age. Fifty-nine of them
stepped down to enter the private practice of law. In the past five years alone,
37 judges have left the federal bench—nine of them in the last year.
There will always be a substantial difference in pay between successful
government and private sector lawyers. But if that difference remains too
large—as it is today—the judiciary will over time cease to be made up of a
diverse group of the Nation's very best lawyers. Instead, it will come to be
staffed by a combination of the independently wealthy and those following a
career path before becoming a judge different from the practicing bar at large.
Such a development would dramatically alter the nature of the federal
Chief Justice Rehnquist wrote often about the need to raise judicial
pay—going so far as to say in his 2002 Year-End Report that he felt at risk of
"beating a dead horse." Despite his entreaties, however, the situation has
gotten worse, not better. According to information gathered by the
Administrative Office, the real pay of federal judges has declined since 1969 by
almost 24 percent, while the real pay of the average American worker during that
time has increased by over 15 percent.
Three years ago, in January 2003, the National Commission on the Public
Service concluded that "Congress should grant an immediate and significant
increase in judicial, executive and legislative salaries" and that "[i]ts first
priority in doing so should be an immediate and substantial increase in judicial
salaries." Yet no effective action has been taken to address this problem. I am
not the first person to observe that the way judicial and other high-level
government salaries are set—llowing the salaries to stagnate until large
increases are required—simply does not work. And all those in public service
whose pay scales are tied to those of higher-level officials feel the pinch of
I understand that it is difficult for Congress to raise the salaries of
federal judges, especially in a tight budget climate. I also understand that it
is the responsibility of Congress to do difficult things when necessary to
preserve our constitutional system. Our system of justice suffers as the real
salary of judges continues to decline. Every time an experienced judge leaves
the bench early, the judiciary suffers a real loss. Every time a judge leaves
the bench for a higher paying job, the independence fostered by life tenure is
weakened. Every time a potential nominee refuses to be considered, the pool of
candidates from which judges are selected narrows.
If Congress gave judges a raise of 30 percent tomorrow, judges would—after
adjusting for inflation—be making about what judges made in 1969. This is not
fair to our Nation's federal judges and should not be allowed to continue.
Unfortunately, judges do not have a natural constituency to argue on their
behalf. They do not serve a particular group, and courts—by their very
design—often have to render unpopular decisions. Judges must rely on the
Congress and the President to increase their pay.
The federal judiciary, as one of the three coordinate branches of government,
makes only modest requests of the other branches with respect to funding its
vital mission of preserving the rule of law under our Constitution. Those of us
in the judiciary understand the challenges our country faces and the many
competing interests that must be balanced in funding our national priorities.
But the courts play an essential role in ensuring that we live in a society
governed by the rule of law, including the Constitution's guarantees of
individual liberty. In order to preserve the independence of our courts, we must
ensure that the judiciary is provided the tools to do its job.
A New Year inevitably kindles fresh hope. In the coming year, the men and
women of the federal judiciary will faithfully discharge their heavy
responsibility of ensuring equal justice under law. The other two branches of
government can aid us in that effort by, first, enacting a significant pay raise
for federal judges, and, second, eliminating or at least sharply lowering the
courthouse rent that the judiciary is required to pay GSA. These two steps—whose
budgetary impact would be vanishingly small—would go a long way toward
maintaining a strong and independent federal judiciary with the resources to
administer justice efficiently and fairly. And that is priceless.
On September third, the Nation lost a distinguished and dedicated public
servant, and we in the judiciary lost a good friend and colleague. William H.
Rehnquist led the Third Branch of our government for almost 19 years. He will be
counted by history—an avocation to which he offered four books of his own—as
among the handful of great Chief Justices of the United States. For the many of
us both within and outside the judiciary who were fortunate enough to know him
personally, he will always be remembered as a fair, thoughtful, and decent
I want to thank the judges and court staff throughout the country for their
continued hard work and dedication to our common calling over the past year. I
extend to all my wish for a Happy New Year.