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Judicial Pay and the Constitution

Tuesday, December 28, 2010  |  posted by Hugh Hewitt

Chief Justice John Roberts will soon issue his annual state-of-the-judiciary report. Up until last year the Chief Justice would use the occasion to request the Congress to address the problem of the pay for federal judges. Though the salaries of federal judges are significantly higher than those of most Americans and they enjoy wonderful job security and retirement benefits because of the Constitution’s lifetime tenure guarantee, the fact is that first-year graduates of law schools often make more than judges, and judicial salaries pale in comparison to what these judges could make in the private sector. This disparity leads to many early retirements from the Bench, and a long-term trend towards turnover. Retirement benefits are great, but they don’t put kids through college and there aren’t many children of federal judges getting scholarship assistance, and the necessarily strict ethical rules governing the life of a federal judge put many restrictions on earning outside income.

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All of this is pretty much understood on the Hill, but the politics surrounding judicial pay have stalled real reform for years. The base salary needs to substantially upped and then tied to an independent escalator. I discussed the issue yesterday with Senator-elect Mike Lee and incoming Chair of the House Judiciary Committee Lamar Smith. Here’s what they had to say.

Senator-elect Lee:

HH: As you know, Chief Justice Roberts puts out the state of the judiciary about this time every year. And federal judge pay is always a problem. Andy opinion on that going in, Mike Lee?

ML: Yeah, look, the Constitution says that we can’t diminish the compensation of Article III judges and Supreme Court justices during their time in office. And over time, when you fail to make the necessary adjustments, upward adjustments to their compensation, it has the effect, essentially, of cutting their pay. We’re not supposed to be able to do that. And in addition to that, there are policy reasons why you don’t want the salaries that you pay to your Article III judges and justices to be roughly competitive with what first and second year associates at law firms are making, you know, recent law school graduates. It’s insulting to the dignity of our justice system.

HH: Now I made the argument to Chairman Smith that originalists and Tea Party activists would not object to healthy pay for federal judges, because it keeps originalists in place, and it keeps an independent judiciary, and it’s a Constitutionalist’s approach. You are often said to be the first Tea Party senator. Do you agree with that assessment of what Tea Party activists would think about a hefty hike in judicial pay?

ML: Yeah, I wholeheartedly would support such a hike, and I think it’s entirely consistent with being a Tea Party man, and being a textual originalist. You see, bad things happen in government when the government starts doing things that it shouldn’t be doing. And it in the process usually stops doing the things that it is supposed to do. One of the few things the federal government is supposed to do is to establish a healthy independent judiciary. That can’t exist, and it won’t exist, as long as we don’t pay them adequately, and make sure that they’re taken care of well. And often times, I think we run into that risk as a result of the fact that our federal government has become too many things to too many people. And it shouldn’t be. It’s supposed to be focused on just a few basic things, one of which involves a judiciary.

Incoming Chairman Smith:

HH: Almost every year, the Chief Justice of the United States appeals to Congress to please address federal judicial pay. Last year, Chief Justice Roberts did not include that in his state of the judiciary. He’d kind of given up hope on that.

LS: Right.

HH: But that really is a problem, and we’re losing great judges left and right, and we’re going to end up with only academics if that doesn’t get fixed soon. Is that something that your committee will look into this year?

LS: We will look into it. It’s been harder to pass in an economic climate where there is 9.8% unemployment, and then you’re talking about pay raises for federal judges. But they haven’t had a pay raise in many, many years. They do have a generous retirement system, and I think we can maybe reform that at the same time we give them a pay raise. And we came within just, literally, I’d say a day and a couple of votes of being able to pass it last year. But in the end, it didn’t happen, and now we’re just going to have to start over again. But federal judges now, sometimes make less than someone out of law school working in New York City. So we do need to have a better balance, to have a little bit more pay for federal judges, and at the same time, reforming their retirement system. So that is something I support. I don’t know if it’s going to happen, as I say, in the current economic climate. But as soon as the economy starts to improve, and people feel better about their jobs, and other individuals are getting salary increases and cost of living, we can do that for the judges as well.

HH: Yeah, I’m betting even the Tea Parties would support that, because we’re losing originalists left and right. And when they can’t pay the college bills, that’s when you start…

LS: Yeah.

HH: …because you’re right. First year associates in New York make more than federal district court judges.

LS: Yes.

Speaker-designate Boehner would do a very good thing for the Constitution and the judges if he pushed forward a judicial pay bill very early in the new Congress, and if he did so with confidence and as an expression of the new majority’s commitment to not just reading the Constitution aloud but to respecting its provisions concerning the other, equal branches.


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