This article is in the news archives --- for current news go to the Third Branch News.
Senator Calls Judges' Stagnant Salaries Threat to Judiciary
Calling stagnant judicial salaries a threat to the Judiciary’s ability
to function, the chairman of the Senate Judiciary Committee opened a
Valentine’s Day hearing on judicial independence and security.
"We have witnessed judges’ physical security being
threatened and their institutional security and independence under
rhetorical attack by some affiliated with the political branches," said
committee chair Senator Patrick Leahy (D-VT). "There are also more
subtle threats. As the Chief Justice recently re-emphasized, there is
pervasive uncertainty about the Judiciary’s financial security and
ability to function as an efficient and effective arbiter of justice
because of stagnant salaries year after year. . . We need to do our part
to ensure that the dedicated women and men of our Judiciary have the
resources, security, and independence necessary to fulfill their crucial
In a rare appearance by an active Supreme Court Justice
before a congressional committee outside of appropriations hearings,
Justice Anthony M. Kennedy testified—the only witness before the
Judiciary Committee at the hearing.
Senator Arlen Specter, ranking minority member on the
Judiciary Committee, complimented Kennedy on his outstanding service and
his approach to the judicial duties, which Specter called
"non-ideological, non-doctrinaire." On the issue of independence,
Specter said that many of the members of Congress had spoken out when
the court had been attacked "for doing its duty and speaking out on the
law. And when these ridiculous suggestions are made about impeachment,
they are quickly squelched." He added that the pay raise for federal
judges will come through, noting that, "Courts shouldn’t be held hostage
to the Congress, and we’ll get that worked out."
Leahy commended both Chief Justice John Roberts, Jr. and
Kennedy for speaking out on behalf of the Judiciary; "I intend to do
what I can to convince Congress to fairly evaluate this issue [of
judges’ pay]. . . .I urge Congress and the President to consider a
broader judicial compensation measure this year," he said.
In his testimony, Kennedy addressed what members of the
federal Judiciary consider to be a threat to judicial
independence—persisting low judicial salary levels.
Kennedy said that in more than three decades as a judge, he
has never seen his judicial colleagues so dispirited. "The blunt fact is
that the past Congressional policy with respect to judicial salaries
has been one of neglect," he said. "My concern, shared by many of my
colleagues, is that we are in danger of losing, through a gradual but
steady decline, the highly qualified Judiciary on which our nation
relies. Your Judiciary, the nation’s Judiciary, will be diminished in
its stature and its capacity if there is a continued neglect of
Kennedy told the committee there are two threats to the
Judiciary’s ability to maintain the highest quality and competence.
"First," he said, "some of the most talented attorneys can no longer be
persuaded to come to the bench; second, some of our most talented and
experienced judges are electing to leave it."
According to Kennedy only the commitment and dedication of
judges—especially senior judges— have allowed the Judiciary to maintain a
well-functioning system. "Without the dedicated service of our senior
judges, who are not obligated to share a full workload but do so anyway,
our court dockets could be dangerously congested," he said. "It is
essential to the integrity of the Article III system that our senior
judges remain committed to serving after active duty and that those now
beginning their judicial tenure do so with the expectation that it will
be a lifelong commitment."
However, increases in judicial workload and a substantial
decline in real compensation threaten that commitment. "Between 1969 and
2006, the real pay of district judges declined by about 25 percent,"
Kennedy said. "In the same period, the real pay of the average American
worker increased by 18 percent." If judges’ salaries had kept pace with
the increase in the wages of the average American worked during this
time period, the district judge salary would be $261,000.
Judges are leaving the bench. According to Kennedy, seven of
the 10 Article III judges who resigned or retired from the federal
bench since January 1, 2006, sought other employment. In 2005, nine
Article III judges resigned or retired, the largest departure from the
federal bench in any one year. "My sense is that this may be just the
beginning," Kennedy warned, "of a large-scale departure of the finest
judges in the federal Judiciary."
And the federal bench is at a disadvantage in recruitment.
The income of private-sector lawyers has risen to such levels that
Congress is unlikely to use them as a benchmark for judicial salaries.
In addition, the salaries of many employees in federal executive branch
and independent agencies are well in excess of the salaries of federal
judges and justices. Kennedy noted that now even non-profit positions
and the salaries of senior professors at major law schools are
substantially above the salaries of federal district judges. "The
intangible rewards of judicial service, while of undoubted relevance, do
not overcome the present earnings disparity," Kennedy said.
Judges do not expect to receive the same compensation as
private-sector lawyers at the top of the profession, Kennedy told the
Committee. "They do, however, have the expectation that Congress will
treat them fairly, and on their own merits, so that judicial office and
our absolute commitment to the law are not demeaned by indifference or
neglect, whether calculated or benign," he said.
On judicial security issues, Judge D. Brock Hornby (D. Me.),
chair of the Judicial Conference Committee on the Judicial Branch,
presented the Judicial Conference position on S. 378, the Court
Security Improvement Act of 2007, in a written statement submitted to
the Senate Judiciary Committee. The bill contains provisions on the
security requirements of the Judicial Branch, the disclosure of
sensitive information, and greater penalties for the recording of
malicious liens against federal judges. John F. Clark, Director of the
U.S. Marshals Service, also submitted a written statement on a number of
initiatives undertaken by the USMS designed to address judicial
Leahy introduced S. 378, with bipartisan support from
ranking minority member Senator Arlen Specter (R-PA) and Senators
Richard Durbin (D-IL), Harry Reid (D-NV), Edward Kennedy (D-MA), John
Cornyn (R-TX), Orrin Hatch (R-UT), Charles Schumer (D-NY) and Susan
Collins (R-ME). An identical measure has been introduced by
Representative John Conyers (D-MI), chair of the House Judiciary