March 2007

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 responsibilities."

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 compensation needs."

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 security concerns.

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 Committee.