Underpaid And Overworked: The National Disgrace of Undercompensating Federal Judges, While Allowing Their Workload to Balloon

By JOHN W. DEAN
Friday, Nov. 03, 2006

"The failure of the Congress to address the problem of judicial salaries is assuming the proportion of a historic wrong," Justice Anthony Kennedy told Congress earlier this year. For decades, Congress has refused to address the fact that federal judges are grossly underpaid. Today, Supreme Court Justices earn $203,000 a year. That may sound hefty -- but, it should be noted, a Supreme Court law clerk, only one or two years out of school, will receive a starting salary close to this amount if he or she goes to work at a private law firm.

Chief Justice John Roberts made the same point in his first state of the federal judiciary message, reporting that "According to information gathered by the Administrative Office [of the Federal Courts], the real pay of federal judges has declined since 1969 by almost 24 percent, while the real pay of the average American worker during that time has increased by over 15 percent."

By way of comparison, the President of the United States is paid $400,000 annually; the Vice President receives $212,100, as does the Speaker of the House; and the Majority and Minority Leaders of the House and Senate are paid $183,500. Their constitutional co-equals, the 1300 men and women who sit on the federal bench, however, are paid significantly less. Circuit Judges receive $175,000 and District Court Judges receive $165,200 (a salary matching those of, for example, the president's speechwriter, press secretary and top political adviser, and House and Senate members without leadership posts.)

These salaries are miserly, given the earnings these men and women could garner if they had remained in private practice. We want men and women of the highest talent to sit on the federal bench -- but increasingly, doing so means asking them to make a huge financial sacrifice. Especially for those putting several children through school, and facing skyrocketing tuitions, the sacrifice may seem too great.

If this situation is not corrected, our federal judiciary is going to suffer. (Foreign judges are paid far, far better than their American counterparts -- rightly so, since nations that live by the rule of law need the best talent available to interpret and enforce that law fairly and justly.)

Proof that Underpayment Is Forcing Judges From the Bench

Currently, a large number of federal judges are leaving the bench because they simply cannot afford to stay. Chief Justice Roberts reported that "since 1990, 92 judges have left the bench. Of those, 21 left before reaching retirement age. Fifty-nine of them stepped down to enter the private practice of law." Viewed in historical context, these are striking -- and alarming -- numbers.

A few months ago, for example, one of the country's most highly regarded federal circuit judges resigned to go into private practice. Whether you agreed or disagreed with his markedly conservative judicial philosophy, there was no denying that Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit was as able as they come. Notably, forty-three of Luttig's forty-five law clerks went on to become Supreme Court law clerks -- showing both the esteem law students, and the professors who advise them have for Judge Luttig, and the esteem in which the Justices held this particular judge.

Yet Judge Luttig has resigned to become General Counsel of the Boeing Corporation. Luttig is only fifty-two -- and probably would have served with distinction on the Fourth Circuit, had he remained there, for at least eighteen years, assuming he was not elevated to the U.S. Supreme Court. (Luttig was constantly on the short list).

The salary gap is stark: As one observer noted, "Luttig's federal job figured to gross him $3.2 million in salary over his working life." At Boeing, Judge Luttig will probably earn that, if not more, in just a few years.

The American Bar Association, which has been concerned about this problem for years, has published study after study showing that Congress is choking the lifeblood of the federal judiciary by refusing to pay federal judges anything remotely approaching their worth in the marketplace.

Many who have left federal judgeships have spoken openly of how inadequate salaries forced their decisions. For example, former U.S. District Court Judge Joe Kendall, who sat for nine years in the Northern District of Texas, resigned in early 2002 to enter private practice, because he has two children about to enter college and another child with special needs. "I need to do what I'm doing," Judge Kendall explained, "I have financial concerns."

Similarly, Judge Alfred Lechner, Jr. resigned from the U.S. District Court in New Jersey because he had three kids in college, and their tuition exceeded his after-tax salary. Paying for college education of children has become a frequent reason to leave the bench.

Former U.S. District Judge for the Eastern District of Oklahoma Judge Michael Burrage, who resigned after six years on the bench, pointed out the low pay for federal judges is going to result in only having judges "who are filthy rich and for whom salary makes no difference. It is going to gut out a segment of very capable people."

If only the wealthy can serve as federal judges, it is going to influence the justice being dispensed by our federal courts -- which have always benefited from great diversity.

The System Has Broken Down Because Congress Is Ignoring the Constitution

To understand why the system has broken down, it is necessary to know how it is supposed to work. No one has explained it better than Alexander Hamilton, in Federalist Papers No. 78 through No. 83. Hamilton makes clear that the founders, in writing Article III of the Constitution, and thus creating the federal judiciary, sought to create an "independent" and co-equal branch. This was done by giving judges their offices "during good behavior," which (with rare exceptions) meant for life. Independence was also assured by preventing any reduction in a federal judge's salary.

The Constitution states that Congress cannot increase the President's salary while he is in office. (Accordingly, while the increase from $200,000 to $400,000 was enacted by Congress in 1999, and signed into law by President Clinton, it did not take effect until 2001, when President Bush entered the office). By comparison, the founders realized they had to not only forbid Congress from reducing federal judges' salaries, but specifically empower Congress to increase the salaries of federal judges to -- at a minimum, to keep pace with inflation.

Hamilton's explanation for this is very enlightening -- given current circumstances: The framer whose financial acumen launched the new nation's monetary system wrote, in Federalist No. 79, that since "the president is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to the end of it." Hamilton, recognizing how money can lose its value through inflation, explained this was the reason Congress must be able to increase the salaries of judges. "[W]ith regard to judges," he wrote,"who, if they behave properly, will be secure in their places for life, it may well happen . . . that a stipend, which would be very sufficient at their first appointment, would be too small in the progress of their services."

This, of course, is precisely what has happened. As Chief Justice John Roberts also reported, in his statement about the condition of the federal judiciary, if "Congress gave judges a raise of 30 percent tomorrow, judges would -- after adjusting for inflation -- be making about what judges made in 1969."

Clearly, federal judges are due for a very substantial increase in their salaries. It is pure politics -- from which judges were supposed, under our Constitution, to be immune -- that is resulting in their being underpaid and overworked -- for while their salaries are eroding, their case load increases annually.

Tying Judicial Salaries to Congressional Salaries Is Absurd

The current pay system, for both federal judges and Members of Congress, was adopted in 1989 as part of The Ethics Reform Act of 1989. Based on the recommendations of an independent commission that had looked at federal salaries in the legislative, judicial and executive branches, Congress opted for salary parity among the three branches -- understanding that disparities could seem to diminish the importance of the work of any branch that was underpaid. In particular, the Act equalized the salaries of Members of Congress, federal judges, and Executive Schedule Level II officers.

While this was good for Congress, it has proven a disaster for the judiciary. First, while Congress's members might like to believe their work is on a par with that of federal judges, that suggestion is, at best, a cruel joke.

Members of Congress work from Tuesday afternoon until Thursday morning (sometimes less) and take extended recesses. Even when in Washington, many fail to attend committee hearings, and miss votes on important matters. Federal judges -- especially district judges -- work a very full week, and are often found at the office in the early morning, into the evening, or both. District judges, in particular, must both issue opinions and preside over trials -- an exhausting workload, as presiding over a trial requires careful and unremitting attention to the evidence presented, while legal issues before the court may frequently be complex and subtle.

Consider, too, the differences in qualifications for the two jobs. To be a member of Congress one must simply be an American citizen of at least twenty-five years of age. No education, nor any experience, is required. No wonder that we've seen, serving in Congress, members from professions as varied as undertaker, plumber, exterminator, comedian, actor, and housewife -- to mention only a few. Granted, there are many exceptionally able members of the House and Senate (thankfully) -- and some who are trained as lawyer, and who therefore forego lucrative private sector salaries just as judges do. But there are more dullards, who if they don't get elected cannot find a comparable salary in the private sector.

Federal judges, by contrast, must have a law degree; many years' experience practicing law at the highest level; and often, experience as a state judge, as well. Typically, they are among the best and brightest of their profession. A poor ABA rating can sink a nominee, and despite the rifts caused by political confirmation fights, everyone on both sides of the aisle agrees that nominees, at a minimum, must be outstanding attorneys. And not only that: They must also have the temperament, intellect, and experience to command respect on the bench. (Who, for example, would pay Denny Hastert $200,000 a year to do anything?)

No wonder, then, that most men and women who are selected for the federal bench have been, or could be, among the highest-paid private-practice attorneys in the nation. The sort of person who is the ideal federal judge is usually also the ideal candidate to become a senior partner in a prestigious firm, or the general counsel of a major corporation.

What Hamilton observed at the founding of the nation is still true: "[T]here can be but few men in the society," he wrote, "who will have sufficient skill in the law to qualify them for the stations of judge." Hamilton -- and the founders -- saw legislators as everymen, but they saw judges as extraordinary. There is no evidence whatsoever that the founders saw the work as being on a par, even if they are constitutionally co-equals.

It's High Time -- and Shouldn't Be At All Controversial -- to Raise Judicial Salaries

While Congress is criticized every time its members raise their salaries, federal judges have never been criticized for being paid their worth. The explanation is obvious: Even when Congress' public approval rating is at its nadir (it has now sunk to sixteen percent), confidence in federal courts has remained in the forty to fifty percent range. And it stays strong even when Congress is attacking the courts for some ruling its members do not like.

It is long past time to break the link between congressional and judicial salaries. The rump session of the 109th Congress -- which, thus far, has done nothing of which it should be proud -- could do just that. It's time to resolve a national travesty: Federal judges are not paid anything close to their due.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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