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Insecure About their Future: Why Some Judges Leave the Bench

Judge Joe Kendall (N.D. Tex.) loved his job. But he left this year, at age 47 and after 10 years on the federal bench, for private practice. He joined more than 60 Article III judges who retired or resigned from the bench between 1991 and 2002, the largest number of departures over such a period in the history of the Judiciary. Only five judges left in the 1960s. Four federal judges left the bench in the first month of 2002 alone, two before retirement age.

"I will never have another job that's better or more satisfying, or work with a group of finer people than U.S. judges, but I need to do what I'm doing," said Kendall. He has two children who will soon be college-bound, and a third child with special needs. "I have financial concerns," he said.

He isn't alone. Judge Alfred J. Lechner Jr. (D. NJ), now in private practice, was 37 when he was appointed to the federal bench. With three children in college, he has tuition bills in excess of $97,000, more than his take home pay as a district court judge. When he left the bench in 2001, he left without entitlement to an immediate or deferred annuity, despite more than 15 years of service.

Since 1993, federal judges have received only four of nine annual cost-of-living adjustments (COLAs). According to a joint report on federal judicial pay erosion by the American Bar Association and the Federal Bar Association, the combination of denied cost-of-living increases and inflation since 1969 has cut the current value of judges' salaries by 24.6 percent. Over the past eight years, judges have seen the purchasing power of their pay decline by over 13 percent, which amounts to more than $16,000 per year. The cumulative compensation lost due to the denied COLAs during this period has now reached $81,500, based on the salary of a district court judge.

As the ABA/FBA report pointed out, "The core problem with the current procedure for setting judges' pay is the statutory linkage of judicial salaries to the salaries of Members of Congress. The linkage causes federal judges to suffer the consequences of Congress' reluctance to award itself a pay increase or even to accept cost-of-living adjustments that have been provided for by statute."

Judges are not alone in feeling the effects of constant salary erosion. The compensation of each Member of Congress and high level executive branch official has slipped in the very same way.

At the same time, private sector salaries of top attorneys have risen dramatically. Which means that, as former Chief Judge Edward Davis (S.D. Fla.) points out, "Federal judges can go down the street and make two to three times what they make as judges."

Kendall agrees. "There's not a federal judge in the country who couldn't make several multiples more than what the federal government pays," he said. It is especially hard for federal judges to see law clerks leave their employment after a year and make more than their former bosses. Today it is not unusual for lawyers straight out of law school to earn nearly as much money in their first year at major law firms as federal judges with 30 years of experience. Law-school deans and corporate general counsel also command salaries well above the compensation of federal judges. But, Kendall cautions, "There's more to life than money. And it's wrong to conclude judges leave public service for money. We leave because circumstances require it. It was a wrenching emotional decision for me, but when I looked at it intellectually and financially, it was a no-brainer."

Davis had three more years to run as chief judge of the Southern District of Florida when he retired from the federal bench. He left to enter private practice where a better salary would guarantee the long-term care of a handicapped family member. "If I had been sure I'd have enough money to care for the child, I would not have left the bench, but I couldn't feel secure about the future. We'd been assured we would receive cost-of-living increases after the pay raise in 1989," he said. "Then Congress said no to the promised COLAs."

The threatened doubling of life insurance costs in 1999, when the Office of Personnel Management tried to restructure the group life insurance premium rate schedule, was the final uncertainty for Davis. "I'd thought, no matter what, I still had the life insurance. But that really shocked people." This particular uncertainty was addressed when legislation was passed to allow the Judiciary to pay any increases on behalf of all active and senior judges aged 65 or older.

Pay wasn't the only reason for Judge Michael Burrage to leave the District Court for the Eastern District of Oklahoma for private practice in 2001. "But it was certainly a factor," he said. There were others.

"Congress kept expanding federal jurisdiction without increasing our courts' resources," Burrage said. "When we were prevented from earning honoraria after the Ethics Reform Act, and still didn't get the promised annual COLAs, well, it was time to leave."

The Judicial Conference at its March 2001 meeting strongly encouraged Congress to authorize an Employment Cost Index adjustment for federal judges, Members of Congress, and top executive branch officials in 2002; to enact legislation giving judges and other high-level federal officials a catch-up pay adjustment of 9.6 percent to recapture previous lost ECI adjustments; and to endorse the idea of a presidential commission to consider and make recommendations within 90 days on appropriate salaries for high-level officials in all three branches of government. Congress responded by giving judges a 3.4 percent COLA in FY 2002.

"The Judicial Branch Committee and the Judicial Conference remain committed to additional senior-level pay in all three branches of government." said the chair of the Judicial Conference Judicial Branch Committee, Chief Judge Deanell R. Tacha (10th Cir.). "Increasing pay at these levels is critically important if we are to attract and retain highly qualified and experienced public servants. Meanwhile, pay compression continues to have a serious negative impact on those who choose to remain in government service."

Pay may be a point of dissatisfaction for sitting federal judges, but pay with the prospect of a protracted confirmation process may actively discourage private attorneys from even considering the federal bench. "The combination of inadequate pay and a drawn-out and uncertain confirmation process is a handicap to judicial recruitment across the board, but it most significantly restricts the universe of lawyers in private practice who are willing to be nominated for a federal judgeship," Chief Justice William H. Rehnquist said in his 2001 Year-End Report on the Judiciary.

Former district court judge Carlos Moreno (C.D. Calif.) is now Justice Moreno, of the California Supreme Court. "My leaving the federal court had nothing to do with dissatisfaction," said Moreno, "unless you mean the overwhelming workload and the lack of pay." In the past three decades, a U.S. district judge's average caseload increased by 55.2 percent. The increase is nearly 200 percent for judges on the U.S. courts of appeals. As a California Supreme Court justice, Moreno earns more than he did as a federal district judge and the benefits are better, with full medical and dental coverage. And when he is able to retire, at 75 percent of his salary, he'll receive automatic cost-of-living increases.

But, to be honest, Moreno wasn't aware of the perks when he left the federal bench. "I moved to the Supreme Court," he said, the only Latino on the California Supreme Court, "because I liked the ability to be able to decide appellate issues at the state level."

The ABA/FBA report on federal judicial pay erosion quotes Representative Cliff Stearns (R-FL), who observed during the annual consideration of the Judiciary's appropriation, "The departure of experienced, seasoned judges undermines the notion of lifetime service and weakens our judicial system." To stem the drain, Davis, who consults with his state's nominating commission for federal judges, says the pay issue must be addressed. "Our state's commission members are acutely aware that federal judicial salaries are not attractive enough, and the prospects are unlikely judges will make more. As a result it's hard to get people from the private sector." In fact, Davis recounts, the last time the commission welcomed applicants for a district court judgeship, only 8 people applied.

Representative Judy Biggert (R-IL) introduced H.R. 570, the Federal Judicial Fairness Act of 2001, last February. Based on recommendations made by the ABA and the FBA, the bill would restore among other things, four COLAs lost by judges in the 1990s. The bill has 28 co-sponsors and is pending in the House Judiciary Committee. An identical bill, S. 1162, has been introduced by Senator Dianne Feinstein (D-CA) in the Senate.

Davis isn't arguing that federal judges should be paid what top attorneys pull down. "We need to find a level that's not tremendously more, but consistent, perhaps with deductible or paid benefits," he said, "then assure judges they'll get their COLAs." Kendall is even more direct. "If federal judges were paid what an average partner in an average law firm in an average city was paid," he said, " I'd still be on the bench."