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Report Outlines Erosion in Judicial Salaries

Bars Urge Congress, President to Increase Judicial Salaries

Erosion of federal judges' pay threatens the quality and independence of the judicial branch, states a new report issued jointly by the American Bar Association and Federal Bar Association and formally received by Chief Justice William H. Rehnquist.

The report, among other recommendations, urges Congress and President George W. Bush to quickly increase judicial salaries by 9.6 percent to make up for judges not receiving cost-of-living adjustments in five of the past eight years.

"Judicial salaries have not kept pace with inflation and, as a result, have suffered a 13.4 percent decline in purchasing power during the same period," the report says. "This erosion in judicial pay has deprived judges (many of whom accepted significantly reduced compensation to become a judge) of the prospect of salary stability during their tenure on the bench."

The report was released publicly during a February 13 news conference at the Supreme Court building, immediately after ABA President Martha Barnett and FBA President Martha Barnett and FBA President Robert McNew presented it to the Chief Justice.

At the Supreme Court this month, Chief Justice William H. Rehnquist (photo left) received the report "Federal Judicial Pay Erosion" from Federal Bar Association President Robert McNew (photo below-left) and American Bar Association President Martha Barnett (photo below-right).

Reiterating the view he expressed in his 2000 Year-End Report on the Federal Judiciary, Chief Justice Rehnquist called the need to increase judicial salaries "the most pressing issue facing the federal Judiciary."

"I've read the report, and I think it does a very fine job of explaining just what's happened over the past few years to the Judiciary in terms of pay, and why it really is essential that we do something to turn this around," the Chief Justice said.

Stating that the nation must continue to have "a capable and effective judicial system," Chief Justice Rehnquist added: "If we continue to allow the pay of federal judges to lag so far behind both inflation and the spiraling compensation of attorneys in pri-vate practice, we risk ending up with a Judiciary that falls short of this goal."

ABA President Barnett said, "The federal bench has always drawn from the best and the brightest," and warned against judicial compensation becoming a decisive factor for many in choosing to go, or stay, on the bench. "Why should we, because of financial disincentives, limit the pool of lawyers willing to serve on the federal bench?" she said.

FBA President McNew said, "The quality of the justice system is directly dependent on the quality of the judges."

The two bar associations said they collaborated to issue the report "because of their conviction that the current salaries of federal judges have reached such levels of inadequacy that they threaten to impair the quality and independence of the Third Branch."

Stating that the new administration and the 107th Congress "have a unique opportunity to work together to break the downward cycle of pay erosion that undermines the fairness and adequacy of judicial compensation," the report calls for legislation to restore the Employment Cost Index adjustments for fiscal years 1995-1997 and 1999 by increasing judicial salaries and those with which they are linked by 9.6 percent. "This will help remedy the salary erosion that judges, members of Congress and high-level Executive Branch officials have suffered since 1993," the report says.

A major step toward fairness in compensation, the report says, would be congressional enactment of legislation that effectively delinks the salaries of members of Congress from those of judges and top-level executive branch officials. It notes that such a remedy "admittedly may be politically difficult."

The report urges Congress and the president to take these affirmative steps:

• Devote increased attention to the critical need to provide meaningful financial rewards for public service, particularly for high-level executive branch officials, Congress and the Judiciary.

• Make a public commitment to work together to permit the current annual pay adjustment process for judges, members of Congress, and high-level Executive Branch officials to work annually and automatically, as envisioned by the Ethics Reform Act of 1989.

• Repeal Section 140 of P.L. 97-92, which requires explicit congressional approval of any pay adjustment for the federal Judiciary, to allow the pay-setting mechanism for the federal Judiciary established by the Ethics Reform Act of 1989 to operate as intended.

• Enact legislation to re-establish a salary review commission, similar to past Quadrennial Commissions, to recommend pay rates for members of Congress, judges, and appointed officials in top executive positions on a regular and periodic basis. Any such commission should be adequately funded and its members appointed promptly to ensure that it is operational within a few months of its creation.

"The specter of declining salary in real terms discourages potential candidates from seeking appointment to the bench," the report says. "Qualified attorneys who lack the independent means to meet current and future financial obligations are especially likely to be deterred by the prospect of a salary that does not even keep pace with inflation. Regrettably, the socio-economic pluralism of the federal bench is jeopardized by declining judicial compensation."

The report also states that inadequate judicial pay deters candidates from seeking appointment to the bench, discourages judges from remaining on the bench, and threatens the constitutional guarantee of undiminished salary.

"The constitutional guarantees of life tenure and an undiminished salary were designed to protect the independence of the federal Judiciary. In today's environment, neither guarantee is secure," the report says. "While erosion of pay may not legally constitute a diminution in salary, it undermines the purpose of the guarantee."

According to the report, "The specter of declining salary in real terms discourages potential candidates from seeking appointment to the bench."

The report notes that while judicial salaries have not kept up with inflation, private sector salaries of top attorneys have risen dramatically. "Even though rendering public service and serving in a lifetime appointment are intangible benefits that compensate for the reduced salary levels associated with the bench, the disparity between judicial salaries and those of their peers has reached unacceptable levels," it states. The ABA/FBA report in its entirety is posted at the Judiciary's website, www.uscourts.gov. Users can click on "What's New" to find "Federal Judicial Pay Erosion."