Now, Rehnquist has support from the bipartisan National Commission on the Public Service, chaired by former Federal Reserve chair Paul Volcker. The commission has announced its support for federal judges' first major pay raise since 1991. Congress has passed a bill authorizing a 3.1 percent cost-of-living-adjustment (COLA) increase for federal trial judges, boosting their salaries up to $154,700. Under the same bill, appellate judges will receive a raise to $164,000 a year. President George W. Bush is expected to sign the measure. But as Rehnquist and the Volcker Commission have pointed out, the pay problem will persist if the judicial salary system itself is not reformed.
Years ago, Congress linked pay raises for federal judges to its own raises. Cynics viewed the move as a way for senators and congressmen to hide behind pay raises for judges when they wanted to give themselves pay hikes. Unfortunately for judges, the opposite has occurred. Because voters raise hell when Congress votes itself a raise, our elected representatives typically forego pay increases -- often with great fanfare for themselves. Meanwhile, our appointed federal jurists, most of whom give up lucrative private practices to become federal judges, sit silently by as their paychecks remain frozen. Moreover, judges are severely limited in their ability to earn outside income, so the lack of pay increases hits them doubly hard.
In its final report released Jan. 7, the Volcker Commission concluded, "Judicial salaries are the most egregious example of the failure of our federal compensation policies. Federal salaries have lost 24 percent of their purchasing power since 1969, which is arguably inconsistent with the Constitutional provision that judicial salaries may not be reduced by Congress."
To date, federal judges have received only four COLA increases from Congress over the last 10 years -- shrinking their buying power by more than 13 percent, according to the Judicial Conference of the United States. Consequently, some federal jurists are beginning to leave for private sector legal jobs -- where they easily can more than double their current salaries, according to the Volcker Commission.
From 1990 to May 30, 2002, more than 70 federal judges resigned or retired from the lifetime tenure of the bench. Of that number, 64 percent entered private practice. "There will always be a differential between the government and private sector pay for excellent lawyers," Rehnquist said. "But the judiciary, in particular, will be compromised if there is too wide a gap. At present time, there is not just a gap, there is a chasm."
Maureen Jennings, an attorney and editor of Fifth Circuit Civil News, a local monthly publication that covers the New Orleans-based U.S. Fifth Circuit Court of Appeals, agrees. "I strongly support pay raises for federal judges because they are so far out of sync with private sector compensation," Jennings says. "And we're not talking just a little bit here." The Fifth Circuit hires top students from the best law schools to clerk for the circuit judges, she says. After their one-year clerkships, some of those former students join a private firm, where -- with signing bonuses -- they immediately earn more than their old bosses as first-year lawyers. Something is clearly wrong with such a pay scale.
We recognize that pay raises for public officials will never be a popular cause. Federal judges hold their jobs for life, receive fine benefits and earn more than three times the wages of the average American. Critics of the proposed pay raises include Metairie-based attorney Sam Dalton, the dean of civil rights and criminal defense lawyers in Jefferson Parish. "They have a lifetime job with unbelievable benefits," he says. "[The Eastern District judges] have plenty help on their workload; they are not overworked. The Fifth Circuit isn't overworked either."
While we usually agree with Dalton on civil rights matters, we respectfully disagree with his analysis of federal judges' pay. Yes, lifetime tenure is a draw, but cutting one's earnings in half (or more) to serve the public is a steep price to pay. Moreover, judges are precluded from commenting on public controversies -- including their own pay -- so it's important that they not become targets of public ire on this issue. Ultimately, we answer critics of higher pay for judges this way: because America needs its best legal minds to decide increasingly complex litigation, the real beneficiary of a pay increase for federal judges is the public.
We also concur with the Volcker Commission's recommendation that Congress should "break the statutory link" between the salaries of members of Congress and those of judges and senior political appointees. The Volcker Commission stated that Congress must make the quality of public service its "paramount concern."
That principle should especially hold true with respect to our federal courts.