February 2007

Leaving So Soon Will Pay Issues Mean Only the Wealthy Can Afford to Serve?

"Federal judges are overworked, underpaid and under-appreciated," says Judge Hector M. Laffitte, and so he’s leaving the District of Puerto Rico. After 23 years of service to the federal Judiciary, in one of the busiest districts in the First Circuit, he’s returning to private practice. And pay—the lack of it—is a major factor in his decision. "Our last pay increase was in 1989. Salary erosion is hurting judges, and I can’t see an increase in our future," Laffitte says. "I’ve lost all hope."

He didn’t join the Judiciary to make money. "My first year’s salary as a federal judge in 1983 was essentially my expense account in private practice," he says. "But life had been good to me and I decided to give something back. I wanted to serve. I could survive because of the reserve I’d built up." Now, however, the financial cushion he’d established before joining the federal bench has been depleted. He warns that other federal judges may be in the same situation.

"People don’t understand," he says. "They think that government service is a revolving door. Judges aren’t meant to be like that. The more experience we have, the better and faster we work. But as long as judges are denied pay increases, eventually we’ll wind up with only the wealthy who can afford to serve."

Similarly, the Chief Justice, in his 2006 Year-End Report on the Judiciary warned that a Judiciary restricted to "persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or people for whom the judicial salary represents a pay increase. . .would not be the sort of Judiciary on which we have historically depended to protect the rule of law in this country."

"Judges are being put in a beggar’s position," says Laffitte, "in asking for a pay raise. We’re just not on Congress' radar."

In the past six years, 38 judges have left the federal bench, including 17 in the last two years. As the Chief Justice said in his year-end report, "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 choice except to retire from judicial service and return to private practice."

Across the country, Chief Judge David Levi is boxing up his chambers files after a long judicial career. He’s leaving the Eastern District of California, where he has been a U.S. district judge since 1990, to become dean of Duke Law School. At age 55 and with nearly 17 years on the bench, he is moving on. He speaks with some frustration of a retirement system where, until a judge reaches 65 and 15 years of service, there is absolutely no vesting.

"It’s quite an unfair financial arrangement," says Levi. "It looks very good to people that if you reach 65 and you’ve had 15 years of service, you can retire on a full salary until the day you die. In fact, it means there’s nothing for your spouse, except for whatever life insurance you have, if you were to die the day before you turned 65 or even the day after. You get absolutely nothing."

Levi believes pay issues, along with an all-or-nothing retirement compensation system, take a heavy toll. "People become judges because they want to serve. That’s the overall motivation," he says. "And judges are quite prepared to make financial sacrifices. But at some point you get to a tipping point where judges say, 'Look, there are just too many other opportunities out there—also with a service component, that are interesting and important, that permit a significant contribution to our legal institutions—where the pay is much greater, where there aren’t the same pension problems, and where I can take better care of my spouse and children.'"

In his experience, says Levi, judges are not, "in it to feel good about themselves; they are in it to do something for the nation." His district has over 800 weighted case filings per judge, well over the national average of 489. To help the district, two senior judges—who could have reduced their caseloads to a quarter of an active judge’s—instead carry full caseloads. "If you combine a crushing caseload with the lagging pay," says Levi, "I think it puts burdens on our judges that are neither fair nor reasonable. And not everybody will want, or be able, to accept these burdens. So over time, it will affect who is willing to join the federal bench."

Both Levi and Laffitte leave with an appreciation for their time on the bench. Both call it a great job and an opportunity for service that they’ve enjoyed. Both, however, also call it a difficult and at times stressful job. And like the Chief Justice, both are uneasy for the future of the Judiciary.