September 2007

PRESIDENT’S MESSAGE

THE CASE FOR A PAY RAISE FOR FEDERAL JUDGES

BY NANCY ALLF, PRESIDENT, STATE BAR OF NEVADA

"...Federal judges, who have historically been leaders of the bar before joining the bench, do not expect to receive salaries commensurate with what they could easily earn in private practice.  They can rightly expect, however, to be treated more fairly than they have been..."

-Chief Justice John Roberts, U.S. Supreme Court, in his 2006 Year-End Report on the Federal Judiciary

There is need for a significant federal judicial pay increase.  The real pay of federal judges has declined dramatically over the past three decades.  Many federal employees can now earn substantially more than judges. Salaries of law school deans and senior professors are now significantly higher than those of federal judges.  Good, experienced judges are leaving the bench.  But most importantly, low federal judicial salaries threaten the independence of the third branch of government. 

According to the Report of the National Commission on the Public Service, URGENT BUSINESS FOR AMERICA; REVITALIZING THE FEDERAL GOVERNMENT FOR THE 21ST CENTURY 22-23 (the Volcker Commission Report 01/03), the pay of federal judges has declined significantly.  Adjusted for inflation, the average U.S. worker's wages have risen 17.8% in real terms since 1969, while judicial pay has declined 23.9% during the same period of time.  The annual cost of living adjustment (COLA) for judges has not operated to protect federal judges.  COLAs were denied to federal judges in 1994, 1995, 1996, 1997, 1999 and 2007.  Chief Justice William Rehnquist first called for a pay raise 20 years ago in his first year-end report, pointing out that Congress had failed to provide judges with salaries that kept up with the cost of living.

Other federal employees can also earn substantially more than judges.  A significant number of federal employees (normally holding professional positions in the executive branch and banking agencies) now receive salaries at or above the salary of a district judge, which is currently $165,200.  These include the Chief Learning Officer, FDIC, up to $257,134, Deputy General Counsel CFTC, up to $208,994, and Assistant Deputy CIO, OCC, up to $206,790.  Some beginning lawyers just out of law school in large cities will earn more in their first year than will experienced federal district judges.

In 1969, district court judge salaries were about 20% higher than the salaries of top law school deans, and about 30% higher than those of senior law professors.  Today, some law school deans earn double the salary of district court judges-- or more-- as do senior law professors.  As of 2005, the median salary for deans of U.S. law schools (public and private) was about $229,000 or about 42% more than the 2005 salary of a district court judge.  There is also a decline in the salaries of federal district judges compared to the CEOs of large nonprofit corporations, according to a survey conducted by The Chronicle of Philanthropy (9/28/06 issue), which found the median salary of the nonprofit CEOs was over $327,000 annually. A comparison of adjusted 2007 salaries for district court judges and their equivalents in Australia and England indicated that judges made $320,495 in England and $249,828 in Australia.

Over the past six years, 38 judges have left the federal bench, including 17 in the last two years.  Judges, who have the obligation to make decisions without regard to public favor and who must frequently make unpopular decisions, have no constituency in Congress to voice their concerns. Many judges who have left the bench have cited financial considerations as a factor in their decisions to leave the bench.

In his year-end report, Chief Justice Roberts stated that "inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law-- even when it is unpopular to do so-- will be seriously eroded."  Salaries for federal judges were last increased in 1969 and 1989 under the Ethics Reform Act. Those increases were 33% in 1969 for district court judges, and between 35-40% over a two-year period in 1989. 

The Volcker Commission Report said that judicial pay is "the most egregious example of the failure of federal compensation policies" and recommended in 2003 that Congress enact "an immediate and substantial increase in judicial salaries." The budgetary effect of such an increase is de minimums in proportion to its value in preserving our strong and independent judiciary. The Judicial Conference has consistently supported efforts to enact immediate pay increases for federal judges.  A raise in pay for federal judges is also supported by the American Bar Association, the American College of Trial Lawyers, most law school deans, the editorial boards of many major newspapers, the general counsel of 60 major U.S. corporations (including American Express Company, General Electric, Allstate Insurance Company, Exxon Mobil Corporation and Microsoft Corporation), and many state bar associations, including Nevada’s.

In his 2006 year-end report on the judiciary, Justice Roberts quoted Alexander Hamilton, who said:

"(t)he independence of the judges once destroyed, the constitution is gone, it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate."

As has been emphasized by both Chief Justice Roberts, and previously by Chief Justice Rehnquist, a capable and qualified federal judiciary is essential to the proper functioning of our system of government.  Judicial compensation is critically important to the country as a whole. We as lawyers have a stake in the quality of the judiciary.