One key to the independence of the federal Judiciary is that Article III of the Constitution of the United States guarantees federal judges tenure during good behavior and prohibits reducing their compensation while in office. Yet the federal courts of course depend on Congress for funding, including any increase in judicial compensation.

At the Constitutional Convention, the framers saw the necessity of allowing periodic increases in judicial salaries. Although the original draft of the compensation clause of Article III contained a prohibition on either decreasing or increasing the salary of a sitting judge, the delegates to the Convention recognized that freezing judges' salaries would be unworkable and would nullify the protections of life tenure. The delegates agreed that Congress ought to be able "to increase salaries as circumstances might require . . . ."1 They noted three independent factors that could justify raising judicial salaries: inflation, an increased workload or societal expectations. As Alexander Hamilton explained:

It will readily be understood, that the fluctuations in the value of money and in the state of society, rendered a fixed rate of compensation [for judges] in the Constitution inadmissible. What might be extravagant today, might in half a century become penurious and inadequate.²

The delegates also recognized that the Judiciary would require persons "of the first talents" and that to attract them the pay would have to be substantial.³ Today, all of these factors point to the need for a salary increase for the Judiciary.

I recognize that the salaries of federal judges are higher than average salaries in many occupations, and that some may be skeptical of the need to raise the salaries of judges who already earn more than $140,000 per year. But in order to continue to provide the nation a capable and effective judicial system we must be able to attract and retain experienced men and women of quality and diversity to perform a demanding position in the public service. The fact is that those lawyers who are qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges.

In order to continue to attract highly qualified and diverse federal judges—judges whom we ask and expect to remain for life—we must provide them adequate compensation. To paraphrase a statement made by George Mason at the Constitutional Convention, I fear that otherwise the question will be not who is most fit to be chosen, but who is most willing to serve. We cannot afford a Judiciary made up primarily of the wealthy.

We should abandon the approach to judicial salaries that puts off the inevitable increases until salaries have so eroded in value that substantial increases are necessary. The Commission on Executive, Legislative and Judicial Salaries (known as the "Quadrennial Commission") was devised in 1967 to solve this problem through an independent commission of private sector members that would recommend to the President appropriate salary changes for the Judiciary as well as the Congress and senior Executive Branch officers. 2 U.S.C. §§ 351 et seq. The President was to take these recommendations into account in making his salary recommendations to Congress. Unless Congress acted to disapprove them within 30 days, the salary rates recommended by the President would be implemented.

The Quadrennial Commission, whose members were appointed every four years by the President, the Speaker of the House, the President of the Senate and the Chief Justice, first met in 1968. Although the President's recommendation to Congress was less than the Commission's recommendation, it was implemented in 1969. The 1973 Quadrennial Commission's recommendation and the President's recommendation based upon it were not implemented. The 1977 Quadrennial Commission for the first time recommended different rates of pay for Level II Executive Branch officers ($60,000), Members of Congress ($57,500) and court of appeals judges ($65,000). The President recommended $57,500 for all three categories, which was implemented in 1977.