A major topic at the May 2007 Lawyers for Civil Justice Membership Meeting was that of Judicial Compensation. Essentially, our panelists and attendees wanted to know the following: is the current level of judicial compensation, which has seen a large comparative decrease over recent decades, high enough to ensure the sustainability of a highly qualified judiciary? One of our featured speakers, Judge D. Brock Hornby of the U.S. District Court of Maine, addresses this concern below in an article adapted from remarks made at the LCJ meeting. He begins by laying out some eye-opening facts. In June, Senators Leahy, Hatch, Reid, McConnell, Feinstein and Graham introduced S. 1638, which would increase federal judicial salaries. There is as yet no House bill.
The Facts
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Federal district judges earn $165,200. Federal bankruptcy judges and magistrate judges earn $151,984. They cannot receive honoraria. If they teach part-time (an activity that requires their chief circuit judge's permission), they are limited to extra earnings of about $25,000. The last actual salary increase for federal judges occurred in 1991. Federal judges have been denied even a cost-of-living increase in 6 of the past 14 years.
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Lawyer salaries in metropolitan areas now outpace federal judicial salaries to an astonishing degree. Brand new law graduates with no experience start at $160,000, plus signing bonuses of up to $35,000 (exclusive of judicial clerkship bonuses), far exceeding the salaries of federal trial judges. Equity partners, on average, range from $311,164 to $477,255 (according to Altman & Weil).
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Many employees in the Executive Branch earn much more than federal judges. For example, a "Deputy General Counsel (Litigation)" at the Commodity Futures Trading Commission may earn (exclusive of awards and bonuses) up to $208,994; a Securities and Exchange Commission "Supervisory Attorney-Advisor" up to $185,393; a "Human Capital Officer" at the Office of Thrift Supervision up to $242,250; and a "Supervisory IT Specialist" at the Comptroller of the Currency up to $225,000.
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Law Dean salaries at the top 25 law schools range up to $430,000. Senior law professors at those schools earn about $330,000, with the opportunity to increase their incomes substantially from outside consulting. In 2005, the median salary of all law deans in the country was $229,600. (By contrast, in 1969, federal judges generally earned more than the top law school deans.)
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Paul Volcker (former chair of the Federal Reserve System Board of Governors and two National Commissions on the Public Service) states that if federal judicial pay had increased by the same percentage as the total percentage change in American worker wages since 1969 (when judicial salaries were established by a Commission on Executive, Legislative, and Judicial Salaries), district judges now would earn $261,300. The amount for bankruptcy and magistrate judges would be $240,396.
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According to an American College of Trial Lawyers white paper, equivalent trial judges in Canada earn about $200,000 (U.S. dollars); in the United Kingdom, about $318,000 (U.S. dollars). I am informed that equivalent trial judges in Australia earn about $282,000.
These facts have all contributed to one hard reality: more than at any time in history, federal judges are leaving the bench in order to seek other compensation. Twenty-one life-tenured ( i.e ., not counting bankruptcy and magistrate) judges have resigned since January 2005, most of them seeking other employment. The number may be small by corporate standards but, if unchecked, the trend could alter the nature of judicial service, converting it to merely an intermediate step on the road to higher compensation elsewhere.
Other problems have manifested as well. Most people would agree that the federal judiciary should have a wide diversity of backgrounds. But the negative salary comparison reduces the number of private practitioners willing to consider a judgeship. Chief Justice Roberts' January 1, 2007 remarks include graphs demonstrating the phenomenon: during the Eisenhower administration, about 65% of federal judges were appointed from the practicing bar, and 35% from the public sector; now 60% are appointed from the public sector, and about 40% from private practice.
The salary discrepancy may also impair the judiciary's racial, ethnic and gender diversity as qualified candidates choose not to forego highly lucrative alternatives. For example, anecdotal evidence from Asian American lawyers suggests that some of their colleagues have turned down federal judgeships because of the salary (the nature of the appointment process makes it impossible to gather statistics), and some African American judges have left the bench for other, more financially rewarding, opportunities.
Since the Chief Justice urged a substantial salary correction on January 1, 2007, the measure has received support from scores of newspaper editorials; the American Bar Association; the National Policy Alliance; 130 Law School Deans; 60 general counsels of major corporations; the AFL-CIO; the United Food & Commercial Workers International Union; the International Brotherhood of Teamsters; the Communications Workers of America; the Laborers International Union of North America; the U.S. Chamber of Commerce; Sigma Pi Phi Fraternity; the National Bar Association; the Federal Bar Association; the National Association of Criminal Defense Lawyers; the Asian American Justice Center; the Hispanic National Bar Association; the Lawyers' Committee for Civil Rights under Law; the Mexican American Legal Defense and Education Fund; the Native American Rights Fund; the National Asian Pacific American Bar Association; the National Association for the Advancement of Colored People (NAACP); the National Association of Latino Elected and Appointed Officials; the National Congress of American Indians; the National Council of La Raza; the National Native American Bar Association; the California Association of Black Lawyers; the American College of Trial Lawyers; the Defense Research Institute; the Sierra Club; and others.
The Dilemma
Despite this hard evidence little is being done to enact a pay correction, and we know that Congress turned down even a $25,000 increase for federal judges just four years ago. Why the impasse? Perhaps reasons like these:
1. Some believe that a federal judge's salary is already too rich compared to what other Americans earn.
2. Some believe that federal judges have a cushy job compared to Congress and compared to private law practice.
3. There are intangible benefits to public service that some believe should compensate for the lower pay.
4. Some believe that federal judges should not earn more than members of Congress (who, they say, have a difficult job, must maintain two residences, and must run for reelection), yet the American taxpayer will not tolerate a raise for Congress.
5. Some harbor resentments against federal judges ( e.g. , for controversial judicial decisions; for the prohibition on cameras in federal courtrooms; or for judicial attendance at privately funded educational seminars).
6. Despite the salary, there still are people willing to take the job.
Let me be clear: No federal judge expects to be paid anywhere close to what a partner of a major metropolitan law firm earns. There are intangible rewards to public service. But judges also have economic needs, just like any other lawyers. Unlike election to Congress or some executive branch appointments, the choice to become a federal judge has traditionally been considered a lifetime commitment. As the income disparity becomes too great, more and more lawyers will choose not to make that commitment, just out of fairness to their families. (For a judicial parent, it can be difficult to justify limiting a child's college opportunities because of the parent's career choice, when that choice can so easily be altered.) And if public service is the goal, the judge can achieve that, along with better income, by teaching at a law school. Or the judge can go to nonprofit management or higher education administration. As the pay discrepancy grows, so too will the effect on who is willing to serve and for how long.
Much is at stake if there is no correction. Let me point to three consequences in addition to the effects on the composition of the federal bench which have already been mentioned. You will undoubtedly think of more.
1. In his testimony before the Senate Judiciary Committee in February, Justice Kennedy described judicial morale as the worst he had seen in all his years on the bench. I can confirm that. Federal judges are dispirited in the face of harshly critical political rhetoric; the practice of using criticism of federal judges as a political fundraising technique; and watching their law clerks leave to earn, immediately, far more than the judge. "Well, so what," you may ask. "Life is tough, and you made the choice!" I turn therefore to the second, but related, consequence.
2. In his testimony in April before a subcommittee of the House Judiciary Committee, Justice Breyer described the risk that the position of federal judge could become a stepping stone in a career rather than a cap stone. For the reasons already enumerated (including morale), federal judges who never expected to leave the bench are now beginning to contemplate that step. Do American citizens and businesses really want federal judges making decisions in their cases while scanning the market for their next job? Are we prepared for the phenomenon of law firms recruiting federal judges? Is that what the framers had in mind for the Third Branch?
3. Do we want two systems of federal civil justice? On the one hand, well-paid (former) judges working for private judging, mediation and arbitration organizations, which is where a significant number of federal judges who left the bench have gone. Those who can afford that service take their cases there. On the other hand, for the rest of the population, there are the public courts where judges are paid less. (Bear in mind that in private judging, mediation and arbitration, law is not articulated publicly, but privately, creating no precedents and providing no openness to public scrutiny.)
What Is To Be Done?
What will it take to turn the tide and gain a pay correction? Federal judges cannot do it - judges have no political constituency, and the image of judges with their hands outstretched for a salary increase is not an attractive rallying cry.
A judicial pay correction is an issue of good government. It is neither a populist nor a popular issue. It will take intensive, courageous and sustained commitment by congressional leadership, business and labor leadership, lawyer leadership, and citizen public interest organizations. And it will not happen easily.
A small raise could be worst of all. It would tell federal judges and judicial candidates how little the country values the institution and provoke widespread re-evaluation of the judicial career choice. At least until now, federal judges continue to hope that the political will to correct the situation will finally materialize.
Ultimately, this boils down to a very simple question: what kind of lawyers does this country want as its federal judges, and what does it want the judicial applicant pool to be? How long can we take the risk that the pool is being diminished in unacceptable ways, and that we are losing some of our best judges to other jobs at age 65, or even earlier?
If you are content with the composition of the federal bench as it is now and as it is developing, then you may disregard all that I have said. For you, this is a non-existent problem.
But as Justices Breyer and Alito intimated in their April testimony, I fear that we are approaching a tipping point in the nature of, and commitment to, federal judicial service. Until now, the federal judiciary has been the feather in the cap of American democracy at home and abroad. Can we restore this institution if it falters? How long are you willing to take that risk?
Published September 1, 2007.