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Federal Judicial Pay: Part 1

Wednesday, January 23, 2008  |  posted by Hugh Hewitt
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In 2006, federal judicial salaries ranged from $212,000 for the Chief Justice to $165,200 for federal district judges. Cost-of-living adjustments aside, federal judges haven’t seen a pay increase since 1991.

This item from early last year in the WSJ.com was a reminder that it isn’t enough to get great judges on to the federal bench. Fans of the rule-of-law and an independant judiciary must work to keep them there. Congress failed to address the issue of judicial pay last year. Perhaps they can get to it early this year before the presidential election roils the waters so deeply that bothing can be accomplished. The president and the Democratic leadership could make this one, bipartisan issue an example of fixing problems that really have no partisan aspect. If they don’t, the federal bench will begin to lose its younger superstars, and the next president will find it increasingly difficult to recruit from his or her list of talented lawyers and law professors. The quality of judging will quickly plummet if the only candidates a president can find are those who think the pay level is just fine as it is.

Most readers will look at the $165,200 number and declare it a grand salary which they envy, and indeed it is high compared to the average American’s salary.

But that number is also lower than many first year lawyers make when they leave law school and work for a big New York, Los Angeles or Washington, D.C. firm. Judges earn significantly less than what they would command in the private sector, often less than tenth of what they could be earning. Most of them love their work and feel a very high calling to preside over the judicial machinery, but for those judges with young families, the pressures are immense. If they leave they can quadruple their take home in a week, pay for college and save for retirement and a legacy for the children.

Or they can remain on the Bench, assuring justice is done in the courtrooms of the country. The vast majority of them would prefer to stay, and litigators would prefer that they do as well as experienced trial judges are a great benefit to lawyers with the facts and law on their side. Further, as more and more of the country’s political problems get kicked into the courts, we don’t want rookies or judges with expansive views of their roles or of the mystical powers of their robes presiding over the resolution of those cases.

The Chief Justice has campaigned to raise salary levels for judges. His year-end report on courts in 2006 was devoted to the topic, and deserves wide reading even a year later. The Chief Justice returned to the subject in his year-end report covering 2007:

Finally, I am resolved to continue Chief Justice Rehnquist’s twenty-year pursuit of equitable salaries for federal judges. Over the past year, congressional leaders and a wide range of groups that value a capable and independent Judiciary have made progress on this matter. The House Judiciary Committee passed a bill by an overwhelming bipartisan vote of 28 to five that would help reverse the steady erosion of judicial salaries since 1969, the benchmark year that Congress has utilized in recent years for assessing federal pay levels. The bill would restore judicial pay to the same level that judges would have received if Congress had granted them the same cost-of-living pay adjustments that other federal employees have received since 1989-not a full restoration but a significant one. The Senate Judiciary Committee was considering a similar bill when the 2007 Session ended. We are grateful for the continuing support of the bipartisan leadership in both the House and the Senate, as well as the support of the President, on this vital legislation. The legislation reflects a commitment on the part of the Legislative and Executive Branches to carry out their constitutional responsibilities with respect to the Judicial Branch, and I urge prompt passage as a first order of business in the new session.

The pending legislation strikes a reasonable compromise for the dedicated federal judges who, year after year, have discharged their important duties for steadily eroding real pay. This salary restoration legislation is vital now that the denial of annual increases over the years has left federal trial judges-the backbone of our system of justice-earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.

I do not need to rehearse the compelling arguments in favor of this legislation. They have already been made by distinguished jurists, lawyers, and economists in congressional hearings, letters, and editorials-and seconded by a broad spectrum of commercial, governmental, and public interest organizations that appear as litigants before the courts. I simply ask once again for a moment’s reflection on how America would look in the absence of a skilled and independent Judiciary. Consider the critical role of our courts in preserving individual liberty, promoting commerce, protecting property, and ensuring that every person who appears in an American court can expect fair and impartial justice. The cost of this long overdue legislation-less than .004% of the annual federal budget-is miniscule in comparison to what is at stake.

Read the Chief Justice’s entire report for its overview of the state of the federal judiciary, but take a moment to let your legislators know that you support the idea of fixing judicial pay. The conventional wisdom is that Washington is broken. Well, the federal judiciary isn’t, at least not yet. But an exodus of judges or the inability to recruit superstars in the future would quickly diminish the federal courts’ well-deserved reputation as the finest and fairest courts in the world. Fixing judicial pay would be a great step towards butressing the rule of law, and one on which liberals and conservatives alike could agree.

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