YEAR-END REPORT FOCUSES ON FEDERAL JUDICIAL PAY


 

[Posted January 2, 2007]  If you care about an independent federal judiciary, you should click on this link to read the 2006 Year-End Report on the Federal Judiciary, released by Chief Justice Roberts yesterday.  There are a great many pithy comments in this (surprise!) eminently readable eight-page report.

The Chief Justice notes several statistical trends in the report, including the significant decline in the percentage of district judges who come from private practice.  He points out that the erosion of federal judges’ pay, due to inflation and Congress’s great resistance to increasing payroll appropriations, has effectively limited the pool of available talent to two classes:  Those who are already independently wealthy, and those (such as public sector employees) for whom the relatively modest district judge’s salary is a pay raise.

How modest?  The Chief compares a district judge’s pay with that of law school professors and deans, in 1969 and today.  Back in the Nixon Administration, the judges did relatively well, averaging 21% more than the deans, and 43% more than senior law professors.  Now, the jurists average half of those educators’ pay.  The gulf between judicial salaries and private sector attorneys’ incomes is so wide, the Chief doesn’t even mention them, except to note wryly that “Beginning lawyers fresh out of law school in some cities will earn more in their first year than the most experienced federal district judges before whom those lawyers hope to practice some day.”

I recall reading in Alan Dershowitz’s book, Letters to a Young Lawyer, the (at first blush implausible) advice, “Don’t make a lot of money.”  Professor Dershowitz’s premise was that taking an ultra-high paying job can chain you to that job, perhaps making it impossible for you to step aside for a cherished opportunity – such as a coveted judgeship.  According to the Chief, that situation is here, and it “has now reached the level of a constitutional crisis.”

So what do we do?  We can start by asking our representatives in Washington to have the political courage to do what virtually everyone agrees needs to be done – raise the judicial salaries, and make up for lost time in doing so.  It’s been sixteen years since Congress addressed this problem, and the Chief argues that “the mechanisms set up in [the Ethics Reform Act of 1989] to prevent future salary erosion have failed.”

I should note one qualifier to the previous paragraph, where I noted that “virtually everyone” concurs that an increase in federal judicial pay is needed now.  There are doubtless those among the extraordinarily tax-averse who will argue that the market should determine judicial salaries, and as long as there are at least a few candidates willing to take the job for less money, we might as well save the tax dollars.  There are perfectly good ripostes to these myopic views – many of them are in the report – but I doubt that any of those persons will be convinced.  I thus return to the premise that began this essay:  If you care about an independent judiciary, click on the link, read the report, and then do something.