Statement From James C. Duff, Director
Administrative Office of the U.S Courts

At this time, every federal employee, including every Member of Congress, is scheduled to receive a Cost of Living Adjustment (COLA) on January 1, 2009—that is every federal employee, except federal judges.

Recent mischaracterizations and misunderstandings by some have complicated a simple issue of providing a COLA to federal judges in 2009. COLAs are not “pay raises.” Rather, they are annual salary adjustments that merely keep salaries constant in relation to inflation. Six times over the past 15 years, judges have not received COLAs. Unless Congress acts, this will happen again and judicial salaries will continue to decline in real terms.

COLAs are intended to counteract inflation, but the COLAs that judges and Members of Congress receive—when they get them—are less than the rate of inflation. They also are less than the COLAs received by all other federal employees. In 2009, the COLA judges would receive, and Congress will receive, is estimated to be 2.8 %. This is 28 % less than the 3.9 % COLA other federal employees will receive.

The current challenging economic times are affecting all Americans. But that is no reason for Congress to treat federal judges differently than all other federal employees, including Members of Congress. We are grateful that some Members of Congress have recognized the inequity and attempted to resolve it in the waning days of this legislative session. On November 20, 2008, the Senate voted on and passed unanimously S. 3711, a bill to provide federal judges the 2009 COLA. Unfortunately, the House was unable to consider S. 3711 prior to the Thanksgiving recess. Therefore, they attached a COLA for judges to the only legislation that was moving at the time, the bill to rescue the auto industry. But even that action—wrongly labeled by some as a “pay raise” for judges—has now failed.

Federal judges are currently under-compensated because Congress has repeatedly failed to adjust judicial salaries in response to inflation. By its failure to do so once again, Congress only exacerbates a long-standing problem it must someday address. An important first step would be the repeal of a provision known as Section 140, which prevents federal judges from receiving annual COLAs automatically, as Members of Congress and federal employees do. But Congress’ failure to take action of any kind this year is especially jarring. Federal judges should not be the only federal employees denied a COLA. This is starkly unfair.

12/12/08