October 2006

Compensation Woes Threaten Recruitment and Retention in Federal Judiciary

“Recruiting and retaining talented judges and Judiciary employees with broad experience is essential to maintaining a credible, respected Judiciary,” representatives of the Judicial Conference told Congress last month. Judge D. Brock Hornby (D. Me.), chair of the Judicial Conference Committee on the Judicial Branch, and Chief Judge Philip M. Pro (D. Nev.) delivered that message before the House Committee on Government Reform Subcommittee on the Federal Workforce and Agency Organization.

In his opening remarks, subcommittee chair Jon C. Porter (R-NV) appeared to agree with Hornby and Pro. “One of the most critical human capital issues facing the federal government today,” he said, “concerns the need to make certain that employees in the federal workforce are properly compensated for the responsibilities they undertake in serving the public.” The subcommittee also heard testimony from David Walker, Comptroller General of the United States, former NASA Administrator Sean O’Keefe, and Dr. Gary Burtless, an economist with the Brookings Institution who has written extensively on executive compensation.

“The Judicial Conference believes that equitable compensation for all public servants, including high-ranking government officials such as judges, is important for the long-term good of our nation,” said Hornby. “In the view of the Conference, the compensation of these officials should be raised and maintained in proportion to their peers and to increases in the cost of living.”

Hornby noted that not only have judges’ salaries continued to lag well behind the salaries of their peers in law schools, the not-for-profit sector, and the private sector, but that, due to continued salary erosion, “the Judiciary is experiencing egregious salary compression and salary inversion.”

Since 1993, the compensation of federal judges has increased by 23.7 percent while the cost of living rose 31.8 percent. In contrast, the compensation of General Schedule employees rose by 57.5 percent, exclusive of within-grade increases, awards, and bonuses during the same time period. As a result, the basic pay of the career Senior Executive Service (SES) is now equivalent to the salaries of district judges, and the aggregate pay can be as much as $47,000 higher. In many geographic locations, the locality-adjusted pay of nearly 200 court unit executives and their deputies now exceeds the salaries of bankruptcy and magistrate judges (currently $151,984).

Comptroller Walker, who described for the subcommittee the scope of the recent GAO Report on “Trends in Executive and Judicial Pay” (see the September 2006 Third Branch), said their findings were consistent with the National Commission on the Public Service’s findings that “salaries for top-level government officials have not been keeping pace with inflation or maintaining reasonable relationships to the market.”

The Judiciary also is at a serious disadvantage when competing for talent with executive branch agencies. Compensation levels for Judiciary executives are lower than those for executive branch executives, affecting the Judiciary’s ability to recruit and retain high-level, experienced senior professionals. Judiciary executives generally receive no more than $165,200 in aggregate compensation, compared to up to $212,100 for career senior executives in the executive branch. In addition, the salaries of approximately 40 percent of senior court unit executives are capped at the Executive Schedule level III salary of $152,000. Ten percent of deputy court unit executives are capped at the same salary level.

“This narrowing of the differentials between top executives is unfair and should be fixed,” said Hornby. “The current salaries do not adequately compensate court unit executives and other senior judicial officials for their higher levels of leadership and scope of responsibility.” He pointed out that the difference in salary levels is so small that “the financial incentive for talented deputies and supervisors to aspire to positions of greater responsibility is disappearing.”

According to Hornby, Congress could fix the Judiciary’s pay problems by taking the following steps:

• authorizing equal cost-of-living adjustments (COLAs) for the Judiciary and General Schedule employees;
• restoring four missed COLAs for the Judiciary and Congress; and
• raising top level salaries to alleviate pay compression and pay inversion in the Judiciary.

While they encouraged the subcommittee to recommend that the President and Congress establish a new quadrennial salary review process, Hornby and Pro also believe pay relief for judges, members of Congress and Executive Schedule officials should not be put off until such a commission is impaneled. “On behalf of the Judicial Conference,” they said, “we would urge Congress to enact legislation to remedy promptly the problem of judges’ and judicial executives’ compensation.”