May 2007

 

Pay Hearing Raises Questions of Delinkage and Diversity in Federal Judiciary

Supreme Court Justices Stephen Breyer and Samuel Alito appeared before the House Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property in April, and the topic of their testimony was federal judicial compensation.

“I [testify] today,” Breyer said, “because I believe that something has gone seriously wrong with the judicial compensation system. Compared to the average American, real judicial compensation levels over time have fallen by nearly 50 percent and that decline threatens to weaken the institution. Perhaps by appearing on behalf of the judicial institution and speaking directly to you in the Legislative Branch, who are facing a similar problem, I can help to explain the problem and why something must be done.”

Just as the salaries for executives in private industry and the non-profit sector exceed the salaries of federal judges, Breyer noted that many positions in the Executive Branch of the federal government now offer salaries “far higher than the salaries of district court judges and Members of Congress.” He showed subcommittee members a stack of announcements for vacant positions in the Executive Branch offering annual salaries of up to $305,166, well beyond the $165,200 paid to federal trial judges.

In his remarks, Alito calculated that if judges’ salaries had kept pace with the increase in the average wages of American workers between 1969 and 2006, a district judge’s salary would be $261,300.

“Judges do not expect to become wealthy when they are appointed to the federal bench,” Alito said. “However, they do expect to receive, in real terms, what the job paid when they took it. This situation threatens irreparable harm both to the institution and to the public that it serves.”

Fear That Diversity May Be Lost

In large part, subcommittee members responded favorably. The relatively recent historic link of salaries of judges and Members of Congress was on many minds.

“There probably was a time in our history when it could be justified or there was a rationale for it that made sense,” said House Judiciary Committee chair, Representative John Conyers Jr. (D-MI). “I don’t think that exists any longer.” Conyers also expressed concern that diversity on the federal bench is slipping away. “One of the strengths of the court. . . is the pluralism in terms of race, religion, and career expertise,” he said. “If we don’t eliminate linkage and increase federal judicial pay, I fear that we will be limiting our Judiciary to persons of more privileged backgrounds.”

Representative Lamar Smith (R- TX), ranking minority member on the House Judiciary Committee, said that “[t]he primary reason judicial pay has lagged for nearly 40 years is linkage.” He added that not all public servants are deprived of higher pay by an “arbitrary link to congressional compensation,” and cited the $257,000 annual salary of the FDIC’s chief officer and the $200,000 plus salary of the SEC’s deputy chief accountant. “In fact,” Smith said, echoing Breyer’s own testimony, “a single day’s listing of federal job vacancies on March 14th, showed 467 positions with pay ranges that exceed the current level for district judges and Members of Congress.”

Representative Adam Schiff (D-CA) said he knows judges who have left the bench to go back into private practice and acknowledged that a law clerk in the first year of private practice may make more than a federal judge. In the 109th Congress, Schiff introduced legislation in the House to de-couple congressional salaries from judicial salaries and to increase judges’ salaries.

“I think to keep a strong Judiciary, to get the very best people on the bench, we have to make a change,” Schiff said. He added, however, “[t]here’s only one thing, in fact, less popular than raising judicial salaries. And that’s raising legislative salaries.”

Subcommittee chair Representative Howard Berman (D-CA) said that despite opposition, he would not give up on delinkage. An insistence on linkage, he believes, will lead to saying no to any change in judicial salaries.

Opposition to Delinkage

The subcommittee’s ranking minority member, Representative Howard Coble (R-NC), remained “mildly in opposition” to his committee chair, saying that at their current salaries, justices and federal judges already place in the top 2 percent of all U.S. salaried workers. Representative F. James Sensenbrenner (R-WI) was more direct.

“I think both of our distinguished witnesses know that I do not favor delinkage between congressional and judicial salaries and thus will be the skunk at the lawn party,” he said. Sensenbrenner favors some type of comparability in compensation between the co-equal branches of government.

“I think the real question that has to be answered,” he said, “is not whether you deserve more pay or you don’t deserve more pay, but are the duties and responsibilities and time involved in discharging the duties of a federal district judge worth that much more than the duties, responsibilities, and time involved in being a member of the House of Representatives or a United States Senator?”

Career Stepping Stone

I think that every member of the federal Judiciary is underpaid,” offered Representative Robert Goodlatte (R-VA). “But I think it is the nature of public service that you are always going to be underpaid, no matter what we do to resolve this issue, in comparison to those who practice before your court and the lesser courts simply by virtue of what they can do in the private sector.”

Subcommittee member Representative Ric Keller (R-FL) echoed that belief. He then asked Breyer if he agreed it is unrealistic to expect that federal judges be paid an amount commensurate with what they would make in the private sector— noting that TV’s “Judge Judy” earns $28 million.

“I have never even in my most fanciful dreams dreamt I would earn Judge Judy’s salary,” Breyer responded. “I agree with you. Life isn’t fair, in respect to compensation, particularly. . . . But it’s the down, down, down, down over the course of—you can do it five years, 10 years, but then it becomes 15. It becomes 20. It becomes an entire working lifetime. And it’s that continuous erosion compared to the average American [salary]. That begins the demoralization. . . . And it eventually changes the institution.”

Representative Mike Pence (R-IN) found it “deeply troubling” that as a result of pay erosion that’s occurred over the last generation, the federal Judiciary may become a stepping stone in the course of a career.

Breyer agreed and told the subcommittee that when he’d looked recently at the roster of a prominent arbitration company, he’d found the names of 21 former federal judges. His reaction, he said, was to think, “‘Oh, dear’ because it means that there is a risk that this job which I love—it’s not just the Supreme Court, either, it’s the district court, or it’s the court of appeals—it becomes a stepping stone. The day that that job becomes a stepping stone instead of a capstone, which is what it’s supposed to be. . . that is death for the Judiciary.”

The complete testimony of Justices Breyer and Alito is available online at http://www.uscourts.gov/ testimony/JusticeBreyerPay041907. pdf and http://www.uscourts.gov/ testimony/JusticeAlitopay041907. pdf. To watch the full House hearing, check the Federal Judicial Television Network schedule on-line.