2000 Year-End Report on the Federal Judiciary (cont.)

The 1981 Quadrennial Commission's recommendation and that of the President were not implemented. The 1985 Quadrennial Commission made no salary recommendations, but the 1987 Quadrennial Commission recommended that the rates of pay for Level II Executive Branch officers, Members of Congress and court of appeals judges be raised to $135,000; the President recommended $89,500 for Level II Executive Branch employees and Members of Congress, and $95,000 for court of appeals judges.⁴ The recommendations were implemented in 1987. The 1989 Quadrennial Commission's recommendation and the President's recommendation based upon it were not implemented, but they laid the groundwork for the enactment later that year of the Ethics Reform Act.

In addition to the Quadrennial Commissions, in 1975 Congress enacted the Executive Salary Cost-of-Living Adjustment Act, which gave judges, Members of Congress and high-level Executive Branch officials the same automatic cost-of-living adjustments accorded to other federal employees, unless specifically rejected by Congress. In practice, however, Congress frequently rejected or reduced the cost-of-living adjustments due under the Act. In 1981, Congress enacted section 140 of Public Law No. 97-92, which requires specific congressional action to give judges cost-of-living adjustments.

As the President noted in transmitting his 1989 salary recommendations to Congress, "[e]very one of the Commissions that has met over the past 20 years concluded that a pay increase for key Federal officials was necessary." Cong. Rec., vol. 135, pt. 1, p. 251, Jan. 19, 1989. The President also noted that the 1989 Quadrennial Commission had "documented both the substantial erosion in the real level of Federal executive pay . . . since 1969 and the recruitment and retention problems that have resulted, especially for the Federal judiciary." Id. Because neither the Quadrennial Commissions' recommendations nor cost-of-living adjustments were regularly implemented, periodic crises in federal pay continued to arise.

The Ethics Reform Act of 1989, Public Law No. 101-194, was the latest effort to resolve this problem. It provided a cost-of-living adjustment that year, followed by a pay raise the following year, for a total increase in judicial pay of nearly 35 percent. The Act also provided for yearly upward adjustments (automatic unless rejected by Congress for Members of Congress and Executive Branch officers, but still requiring legislation for judges) based upon the Employment Cost Index (ECI). Since 1993, however, there have been only three adjustments in the salaries of federal judges—2.3 percent adjustment in 1998, a 3.4 percent adjustment in 2000 and a 2.7 percent adjustment effective today. The 1989 Act also replaced the Quadrennial Commission with a different form of commission; that commission has never even met.

Although the Judiciary is appreciative of any upward adjustment, these small and infrequent increases have once again allowed federal judicial salaries to erode. This unfor-tunate situation should not continue. As in the late 1980s, we are facing a critical moment in judicial compensation. The need for increased compensation for federal judges has been raised in 13 of the last 19 Year-End Reports, yet during that time judicial salaries have not even kept pace with inflation. And they have been far outpaced by salaries of lawyers in the private sector.

Twenty years ago, those lawyers who were appointed to the federal bench from private practice earned an average of about $131,000 just prior to their appointments. As of January 1, 2001, our federal district court judges make $145,100 and our court of appeals judges are paid $153,900 per year. Yet many partners in top firms in large cities now make in excess of $500,000 per year. It is no wonder that during the 1990s, 54 federal district court and court of appeals judges left the bench. While we cannot say that these judges left because of salary concerns alone, this number compares with 41 judges during the 1980s and just three during the 1960s.

If the federal Judiciary had re-ceived the ECI adjustments called for by the Ethics Reform Act of 1989, district court judges would now be paid about $159,300 and court of appeals judges $168,900. Instead, the compensation of federal judges continues to lag far behind both inflation and the spiraling compensation of attorneys in private practice. Many judicial law clerks, who work for federal judges for one or two years immediately after graduating from law school, leave their clerkships to work for top firms in big cities and immediately make as much as the judges for whom they clerked. While most of these law clerks have been out of law school for only a year or two, our federal judges are necessarily already experienced attorneys when they are appointed. Becoming a federal judge is an honor and a privilege, and requires a devotion to public service. But even the most devoted public servant should be fairly compensated.

Toward the end of the 106th Congress, there was a move to repeal the ban on honoraria for judges imposed by the Ethics Reform Act of 1989, in an effort to ameliorate the effect of lagging salaries and Con-gress's failure to implement cost-of-living adjustments envisioned by the Act. This move was met with an outcry against what some feared would create the appearance of impropriety, even though any honoraria would be governed by the strict standards of the Code of Conduct for United States Judges, just as they had been before 1989. Yet many of those who condemned any effort to repeal the honoraria ban recognized the genuine need to increase salaries for the federal Judiciary.

The 107th Congress has a real opportunity to solve the problem of inadequate judicial compensation, particularly in light of the current budgetary surplus. First, Congress should act to pass legislation to re-store foregone ECI adjustments by increasing judicial salaries by 9.6 percent and the President should sign this legislation. Second, because judges are appointed for life and expected to remain on the bench, increases in judicial compensation should not be tied to increases for non-career public servants. Third, future Ethics Reform Act increases for the Judiciary should be automatic. Finally, some form of the Quadrennial Salary Commission should be revived in order to advise Congress and the President periodically as to appropriate compensation for senior government officials. I am hopeful that during the next year, we can work together to bring about a lasting solution to ensuring consistent, adequate compensation for the Judiciary.

Last July, after a private organization issued a report critical of judges' attending private educational seminars at the expense of the seminar sponsors, legislation was introduced that would prohibit federal judges from accepting "anything of value in connection with a seminar." The Judicial Education Reform Act of 2000, known as the Kerry-Feingold Bill (S. 2990 (106th Cong.)) would give the Board of the Federal Judicial Center the power to authorize gov-ernment funding for judges to attend only those "seminars that are conducted in a manner so as to maintain the public's confidence in an unbiased and fair-minded judiciary."
The assignment to the FJC Board— or to any government board—of authority that is tantamount to deciding what seminars or educational meetings federal judges may attend—and to decide it under the extraordinarily vague standard set out above—has most of the elements commonly associated with government censorship. Such a proposal seems quite out of place in this country, with its tradition of freedom of speech and of the press. As Justice Holmes famously noted (in his dissent in Abrams v. United States, 250 U.S. 616, 630 (1919)), "the ultimate good desired is better reached by free trade in ideas" than by censorship.

Existing legal and ethics provisions properly restrict judges from accepting benefits from parties to litigation before them and provide for disqualification in any instance where a judge's impartiality might reasonably be questioned. The current financial disclosure requirements also ensure that information regarding attendance at private seminars at the expense of the seminar sponsors is available to the public.

At its meeting in September, the Judicial Conference of the United States opposed the Kerry-Feingold Bill, noting that it is overly broad, raises potential constitutional issues and would mandate an inappropriate censorship role for the Federal Judicial Center. Subsequently, the FJC Board also opposed the bill. In addition to the reasons cited by the Judicial Conference, the FJC Board explained that the legislation would jeopardize the Federal Judicial Center's ability to cosponsor seminars with law schools and other organizations, as it occasionally does now. The legislation is also opposed by the Federal Judges Association and the deans of a number of law schools.

The Federal Judicial Center's mandate is to provide continuing education for federal judges and court personnel—and for over 30 years the Center has ably performed this task. Later in this report, I describe the range of programs for judges presented by the Center last year. Nevertheless, the Center cannot provide every federal judge education each year on the wide array of subjects that judges may confront, including topics primarily of local concern. Seminars organized by law schools, bar associations and other private organizations are a valuable source of education in addition to that provided by the Federal Judicial Center. The effect of S. 2990 would be dramatically to restrict the information made available to federal judges through seminars by requiring that the content of that information and the identities of its presenters be weighed against a prediction of public confidence in fair-mindedness. This is contrary to the public interest in encouraging an informed and educated Judiciary, and contrary to the American belief in a free trade in ideas.