2002 Year-End Report on the Federal Judiciary Overview The Year in Review The Administrative Office of the United States Courts The Federal Judicial Center The United States Sentencing Commission In Memoriam Conclusion

Click here to go to the Federal Judiciary homepage.

2002 YEAR-END REPORT ON THE FEDERAL JUDICIARY

Chief Justice William H. Rehnquist

The 2002 Year-End Report on the Federal Judiciary is my 17th. As I look back on these reports, I am struck by the number of issues that seem regularly to crop up, or perhaps they never go away—judicial vacancies, the need for additional judgeships, judges’ salaries, judicial appropriations. Each of these issues relates to the fundamental interdependence of our three separate branches of government when it comes to funding our nation’s priorities. Although Article III of the Constitution of the United States protects federal judicial independence by promising district and appellate judges tenure during good behavior and "a Compensation, which shall not be diminished during their Continuance in Office," the federal courts of course depend on the Legislative and Executive Branches for funding and staffing. I am concerned about the effect of the current budget impasse on the courts and reiterate my request that Congress extricate the Judiciary by promptly passing a full-year appropriation that addresses the needs of the federal courts.

In this report, I will focus on three key priorities for the federal Judiciary: creating sorely needed new judgeships, promptly filling judicial vacancies, and increasing judicial pay.

In my last two Year-End Reports, I expressed hope that Congress would take action on the Judicial Conference’s request to establish ten additional court of appeals judgeships, 44 additional district court judgeships, and 24 new bankruptcy judgeships. We are grateful that in November, Congress created eight permanent district court judgeships and seven temporary district court judgeships, converted four temporary district court judgeships to permanent status, and extended one temporary district court judgeship for an additional five years.

But no additional court of appeals judgeships have been created since 1990. Despite a substantial increase in workload, the number of judgeships in the Courts of Appeals for the First, Second, and Ninth Circuits has not increased for 18 years—since 1984. During that time period, appellate filings in the First Circuit have risen 56 percent, in the Second Circuit they have risen almost 70 percent, and in the Ninth Circuit appellate filings have more than doubled—rising almost 115 percent. The Judicial Conference has asked that Congress create one new judgeship for the First Circuit, two judgeships for the Second Circuit, five for the Ninth Circuit, and two for the Sixth Circuit, which has had only one additional judgeship since 1984.

No new bankruptcy judgeships have been created since 1992, although the number of cases filed has increased by over 570,000 since then. In 1992, each bankruptcy judge handled an average of 2,998 cases; each now handles an average of 4,777 cases.

I urge the 108th Congress to act on all of the pending requests for new judgeships during its next session.

Promptly Filling Vacant Judgeships

I spoke to delays in the confirmation process in my Year-End Report in 1997 and again last year. As I have noted in previous reports, to continue functioning effectively and efficiently, our federal courts must be appropriately staffed. This means that judicial vacancies must be filled in a timely manner with well-qualified candidates. We appreciate the fact that the Senate confirmed 100 judges during the 107th Congress. Yet when the Senate adjourned, there were still 60 vacancies and 31 nominations pending.

With the same party now controlling the White House and the Senate, some will think the crisis has passed and that the confirmation process does not need to be fixed. Be that as it may, there will come a time when that is not the case and the Judiciary will again suffer the delays of a drawn-out confirmation process. On behalf of the Judiciary, I urge the President and the Senate to work together to fix the underlying problems that have bogged down the nomination and confirmation process for so many years. It is of no concern to the Judiciary which political party is in power in the White House or the Senate. We simply ask that the President nominate qualified candidates with reasonable promptness and that the Senate act within a reasonable time to confirm or reject them.

Increasing Judicial Pay

Despite my annual entreaties, there has been no effective action taken to resolve the mounting problem of judicial and other high-level Executive and Congressional pay. In fact, unless the 108th Congress acts, judges will not even receive the cost-of-living adjustment that nearly every other federal employee will receive during 2003. But I am hopeful that during the next year, a real solution to the pay crisis can be achieved.

At the risk of beating a dead horse, I will reiterate what I have said many times over the years about the need to compensate judges fairly. In 1989, in testimony before Congress, I described the inadequacy of judicial salaries as "the single greatest problem facing the Judicial Branch today." Eleven years later, in my 2000 Year-End Report, I said that the need to increase judicial salaries had again become the most pressing issue facing the Judiciary. It remains the most pressing issue today. We cannot continue to use an arrangement for setting pay that simply ignores the need to raise pay until judicial and other high-level government salaries are so skewed that a large (and politically unpopular) increase is necessary. This salary crunch also affects others in the public service by artificially compressing the salaries of those whose pay is tied to these higher salaries.

Inadequate compensation seriously compromises the judicial independence fostered by life tenure. That low salaries might force judges to return to the private sector rather than stay on the bench risks affecting judicial performance—instead of serving for life, those judges would serve the terms their finances would allow, and they would worry about what awaits them when they return to the private sector.

This is not a hypothetical concern: According to the Administrative Office of the United States Courts, more than 70 Article III judges left the bench between 1990 and May 2002—either under the retirement statute if eligible or simply resigning if not—as did additional numbers of bankruptcy and magistrate judges. During the 1960s, only a handful of Article III judges retired or resigned. Although we cannot say that the judges who are leaving the bench are leaving only because of inadequate pay, many of them have noted that financial considerations are a big factor.¹ The fact that judges are leaving because of inadequate pay is underscored by the fact that most of the judges who have left the bench in the last ten years have entered private practice.² There will always be a differential between government and private sector pay for excellent lawyers. But the Judiciary, in particular, will be compromised if there is too wide a gap. At the present time there is not just a gap, there is a chasm.

We do not want experienced judges to leave because they cannot afford to put their children through college or because their salaries are eaten away by inflation. It is not fair to the judges or to those who have litigation in the federal courts. Every time an experienced judge leaves the bench, the nation suffers a temporary loss in judicial productivity. It takes time for a new judge to gain the experience necessary to judge well and manage an ever-increasing docket efficiently. The judicial system benefits from the infusion of new judges required when judges leave after a lifetime of service. But our system cannot long tolerate the regular loss of experienced, seasoned judges now occurring.

Diminishing judicial salaries affects not only those who have become judges, but also the pool of those willing to be considered for a position on the federal bench. I am not suggesting that there is a shortage of lawyers lined up to apply for vacant judgeships. But many of the very best lawyers, those with a great deal of experience, are not willing to accept a position knowing that their salary will not even keep pace with inflation. Our judges will not continue to represent the diverse face of America if only the well-to-do or the mediocre are willing to become judges.

I recognize that the salaries of federal judges are higher than those in many occupations, and that some may be skeptical of the need to raise the salaries of judges who already earn at least $150,000 per year. But it is not fair to compare judges’ salaries to salaries in other occupations. Those lawyers who are most qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges. I am not suggesting that we match the pay of the private sector—but the large and growing disparity must be decreased if we hope to continue to provide our nation a capable and effective federal judicial system. Providing adequate compensation for judges is basic to attracting and retaining experienced, well-qualified and diverse men and women to perform a demanding position in the public service. We need judges from different backgrounds and we want them to stay for life.

The National Commision on the Public Service, also known as the Volcker Commision after its chair Paul Volcker, held public hearings in 2002 at which Associate Justice Stephen G. Breyer and Chief Justice William H. Rehnquist spoke on the need for improved judicial pay.

The federal Judiciary in the past has been able to attract experienced and able lawyers who have had extended and successful experience in the private sector. Their experience in that sector brings a perspective and an independence t hat is vital to the Judiciary. But it is these potential candidates who are deterred by the current level of compensation. Although we cannot hope to come close to the amount they earn in private practice, the appeal of public service makes up a good deal of the difference. That appeal is not enough at the present level of compensation.

During the past year, the National Commission on the Public Service, chaired by Paul Volcker, has been looking into various issues relating to restoring and renewing the public service, including pay. Justice Stephen Breyer and I, along with Chief Judge Deanell Tacha of the Court of Appeals for the Tenth Circuit, testified before the Commission last July, focusing on the critical need to raise judicial pay in order to continue to attract well-qualified nominees to the federal bench and to keep them there for life. It is obvious that the current approach to judicial and other high-level salaries does not work. I hope that the Volcker Commission will suggest a way for the government to implement a permanent solution. And I urge the Congress and the President to take up this issue early in the new year.