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2006 Year-End Report on the Federal Judiciary
Between December 19 and January 8 there are 32 college bowl Games—but
only one Year-End Report on the Federal Judiciary. I once asked my
predecessor, Chief Justice William H. Rehnquist, why he released this
annual report on the state of the federal courts on New Year’s Day. He
explained that it was difficult to get people to focus on the needs of
the Judiciary and January 1 was historically a slow news day—a day on
which the concerns of the courts just might get noticed.
This is my second annual report on the Judiciary, and in
it I am going to discuss only one issue—in an effort to increase even
more the chances that people will take notice. That is important because
the issue has been ignored far too long and has now reached the level
of a constitutional crisis that threatens to undermine the strength and
independence of the federal Judiciary.
I am talking about the failure to raise judicial pay. This
is usually the point at which many will put down the annual report and
return to the Rose Bowl, but bear with me long enough to consider just
three very revealing charts prepared by the Administrative Office of the
United States Courts. The first shows that, in 1969, federal district
judges made 21 percent more than the dean at a top law school and 43
percent more than its senior law professors.
Today, federal district judges are paid substantially
less than—about half—what the deans and senior law professors at top
schools are paid. See, e.g., Report of the National Commission on the
Public Service, URGENT BUSINESS FOR AMERICA: REVITALIZING THE FEDERAL
GOVERNMENT FOR THE 21ST CENTURY 22-23 (January 2003) (the Volcker
Commission Report). (We do not even talk about comparisons with the
practicing bar anymore. Beginning lawyers fresh out of law school in
some cities will earn more in their first year than the most experienced
federal district judges before whom those lawyers hope to practice some
The next chart shows how federal judges have fared
compared not to those in the legal profession, but to U.S. workers in
general. Adjusted for inflation, the average U.S. worker’s wages have
risen 17.8 percent in real terms since 1969. Federal judicial pay has
declined 23.9 percent—creating a 41.7 percent gap.
Some of you may be thinking—"So what? We are still able
to find lawyers who want to be judges." But look at the next and last
chart. An important change is taking place in where judges come
from—particularly trial judges. In the Eisenhower Administration,
roughly 65 percent came from the practicing bar, with 35 percent from
the public sector. Today the numbers are about reversed—roughly 60
percent from the public sector, less than 40 percent 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
This is not the first time this issue has been raised in
one of these annual reports. Twenty years ago Chief Justice William H.
Rehnquist submitted his first year-end report. He specifically focused
on the inadequacy of judicial compensation. He pointed out that Congress
had failed, over a period of nearly two decades, to provide judges with
salaries commensurate with increases in the cost of living and the
importance of their responsibilities. Chief Justice Rehnquist emphasized
that, because a capable and qualified federal Judiciary is essential to
the proper functioning of our system of government, judicial
compensation is critically important to the country as a whole. Congress
responded to these arguments through the Ethics Reform Act of 1989,
Pub. L. No. 101-94, 103 Stat. 1716 (1989), which provided for a
phased-in adjustment that helped to make up for the previous years of
salary erosion. However, the mechanisms set up in that Act to prevent
future salary erosion have failed, and judicial salaries have continued
to fall further and further behind the cost of living.
In the face of continuing congressional inaction to fix
these problems, the late Chief returned to this subject again and again
in his year-end reports. Sixteen years later, Congress has still not
enacted a salary increase, providing instead only occasional and modest
cost-of-living adjustments. A bad situation once again has reached the
level of a crisis.
As Chief Justice Rehnquist observed, federal judges
willingly make a number of sacrifices as a part of judicial life. They
accept difficult work, public criticism, even threats to personal
safety. Federal judges, who have historically been leaders of the bar
before joining the bench, do not expect to receive salaries commensurate
with what they could easily earn in private practice. They can rightly
expect, however, to be treated more fairly than they have been. Judges,
who have the obligation to make decisions without regard to public favor
and who must frequently make unpopular decisions, have no constituency
in Congress to voice their concerns. They must rely on fact, equity, and
reason to speak on their behalf. Those considerations make clear that
the time is ripe for our Nation’s judges to receive a substantial salary
Congressional inaction in the face of this situation is
grievously unfair. Since Chief Justice Rehnquist first called for a pay
raise twenty years ago, the decline in real compensation has continued.
Judges who willingly make substantial sacrifices in support of public
service are being asked to bear unreasonable burdens. In the face of
decades of congressional inaction, many judges who must attend to their
families and futures have no realistic choiceexcept to retire from
judicial service and return to private practice. The numbers are
sobering. In the past six years, 38 judges have left the federal bench,
including 17 in the last two years. If judicial appointment ceases to be
the capstone of a distinguished career and instead becomes a stepping
stone to a lucrative position in private practice, the Framers’ goal of a
truly independent Judiciary will be placed in serious jeopardy.
Inadequate compensation directly threatens the viability
of life tenure, and if tenure in office is made uncertain, the strength
and independence judges need to uphold the rule of law—even when it is
unpopular to do so—will be seriously eroded. And as Alexander Hamilton
explained, “[t]he independence of the judges once destroyed, the
constitution is gone, it is a dead letter; it is a vapor which the
breath of faction in a moment may dissipate.” Commercial Advertiser
(Feb. 26, 1802) (reprinted in The Papers of Alexander Hamilton, Volume
XXV 525 (Columbia University Press 1977).
The American people and their government have a profound
stake in the quality of the Judiciary. The dramatic erosion of judicial
compensation will inevitably result in a decline in the quality of
persons willing to accept a lifetime appointment as a federal judge. Our
Judiciary will not properly serve its constitutional role if it is
restricted to (1) persons so wealthy that they can afford to be
indifferent to the level of judicial compensation, or (2) people for
whom the judicial salary represents a pay increase. Do not get me
wrong—there are very good judges in both of those categories. But a
Judiciary drawn more and more from only those categories would not be
the sort of Judiciary on which we have historically depended to protect
the rule of law in this country.
We are at the point where reason commands action. The
National Commission on the Public Service described judicial pay as "the
most egregious example of the failure of federal compensation policies"
and unambiguously recommended, four years ago, that Congress enact "an
immediate and substantial increase in judicial salaries." Volcker
Commission Report 22. The budgetary cost of that action is miniscule in
proportion to its value in preserving the strong and independent
Judiciary that is vital to our constitutional structure. No doubt a
judicial salary increase would be unpopular in some quarters, but
Congress—like the courts—must sometimes make decisions that are
unpopular in the short term to promote a greater long-term good.
Congress has a constitutional responsibility to do so.
I raised the issue of judicial compensation in my first
year-end report. Much of what I say in this report is not new.
Nevertheless, I have no choice but to highlight this issue because
without fair judicial compensation we cannot preserve the quality and
independence of our Judiciary, which is the model for the world.
As we enter the new year, the federal Judiciary remains
strong, but it needs the support of the coordinate branches if it is to
maintain the strength and independence it must have to fulfill its
constitutional role. That is the challenge for the coming year.
I thank the judges and court staff throughout the country
for their continued hard work and dedication. I am very grateful for the
personal sacrifices they and their families make every day. As Robert
Frost reminded us “from the heart,” we work as one, whether "together or
apart." I extend to all best wishes for a Happy New Year.