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Panel Warned About Inadequate Pay for Federal Judges

The National Commission on the Public Service, led by Chairman Paul Volcker (photo left), held its first public hearings this month at wich Associate Justice Stephen G. Breyer and Chief Justice William H. Rehnquist (photo right) spoke on the need of improved judicial pay. Commission member Donna E. Shalala and Executive Director Hannah S. Sistare are photo center.

The inadequacy of judicial pay took center stage as the National Commission on the Public Service launched public hearings on the need for comprehensive reform in federal government service.

"Inadequate compensation seriously compromises the judicial independence fostered by life tenure," said Chief Justice William H. Rehnquist, the Commission’s first witness.

"The prospect 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," Rehnquist said in a crowded Brookings Institution hearing room.

Supreme Court Justice Stephen G. Breyer and Chief Judge Deanell Reece Tacha (10^th Cir.) joined the Chief Justice in voicing concern about judicial branch compensation.

"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," he added. "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 that is now occurring."

Rehnquist cited a June 14 letter to the Commission from Leonidas Ralph Mecham, Director of the Administrative Office, to make the point that some judges feel they have been treated unfairly.

"For example, a former district judge said: ‘I couldn’t feel secure about the future. We’d been assured we would receive cost-of-living increases. Then Congress said no to the promised COLAs.’ That sense of inequity erodes the morale of our judges," the Chief Justice said.

Commission Chairman Paul Volcker promised Rehnquist that the concerns of "this important co-equal branch" of the federal government would be studied, and publicly thanked Judge Robert A. Katzmann (2^nd Cir.) for pointing out that the Commission’s membership reflected experience only in the executive and legislative branches.

Volcker emphasized that the Commission’s report, expected by the end of 2002, would deal with all aspects of public service—compensation, hiring, firing, recruitment and organization.

The Commission, chaired by Volcker, a former chair of the Federal Reserve Board, is composed of ten other commissioners representing both political parties, and directed by the Brookings Institution’s Center for Public Service.

Appearing with Rehnquist, Breyer told the Commission that "something has gone seriously wrong with the judicial compensation system that the Constitution’s framers foresaw.

"Without adequate compensation—if judges’ pay continues to erode—we cannot expect the federal judicial system to function independently and effectively, as the... framers intended."

Breyer used a succession of charts to illustrate judicial pay erosion over the last three decades.

"Between 1969 and 1999 real pay for federal trial court and appellate court judges has declined by about 25 percent; during the same period of time, the real pay of the average American worker increased by 12.4 percent," he said.

"Back in 1969, when I was at Harvard, top professors were paid $28,000 and the dean was paid $33,000, while district court judges were paid $40,000," he said. "But now we see quite a different picture. Based on my informal survey of top law schools, senior law professors at those schools make around $250,000, and law school deans tend to make around $325,000."

Other charts compared federal judges’ salaries to those of judges in Canada and England, American lawyers, and top executives in large non-profit organizations.

Chair of the Judicial Branch Committe, Chief Judge Deanell Tacha (10th Cir.) talks with vice-chair Judge Richard S. Arnold (8th Cir.) prior to the hearing. Tacha testified before the Commission on the impact of salary erosion on federal Judges.

In each comparison, judicial compensation is lagging. Federal trial judges are paid $150,000; appellate judges $159,100; Supreme Court associate justices $184,400; and the chief justice $192,600.

Noting that those salaries are considerably higher than those earned by most Americans, Breyer asked, " Why...should judges be paid yet more?" The answer, he said, "has nothing to do with what judges might deserve or merit" and "everything to do with the nature of the institution and the value of a strong, well functioning, truly independent judicial system for all Americans."

"Harm to the institution is, of course, harm to the public whom the institution seeks to serve," Breyer said.

When Commission member Kenneth Duberstein, who called Breyer’s testimony "extraordinary and frightening," asked what federal judges should be paid, Breyer and Rehnquist refrained from naming a dollar amount.

Any pay raise should be "substantially more than a COLA" to make up for past neglect, Rehnquist suggested. Breyer said district judges should be paid as much as senior law professors at major law schools.

Making service as a federal judge a stepping stone for some more lucrative position in private sector "spells death for the judicial system," Breyer said.

Testifying before the Commission two days later, Tacha reported that "as a result of salary neglect, judges are leaving the bench in unprecedented numbers."

"We are losing many of our most experienced jurists," said Tacha, who chairs the Judicial Conference Judicial Branch Committee. "They are leaving the bench in growing numbers." She gave special thanks to the American Bar Association and Federal Bar Association for their help, stating, "They have been our constant partners in every effort we’ve undertaken on judicial compensation." But despite best efforts, judges’ real pay has fallen, she said. "My colleagues are, to put it mildly, dispirited...there is a strong sense of betrayal."

Tacha urged the Commission to consider three questions: Is the current judicial salary fair? Does it aid in maintaining judicial independence? And does the current judicial salary-fixing process improve and not diminish the Third Branch of government?