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A Pay Raise for Judges?

January 2, 2008 - by Donny Shaw

A pay raise for federal judges may be in the works when Congress returns in January. For the second year in a row, Chief Justice John Roberts (pictured) used his year-end report (pdf) on the Federal Judiciary to ask Congress to make approval of a bill to raise judicial salaries “a first order of business.” But unlike the report from 2006 (pdf), this year’s report contains a glimmer of hope. Just a few weeks earlier, the House Judiciary Committee approved by overwhelming majority a bill that would raise judicial salaries to the same relative level other federal employees for the first time since 1969.

Federal appeals court judges already make $175,100 and district court judges make $165,20, so why, one may ask, do they need a raise? Since the language was a little toned down in this year’s report, I’ll excerpt three arguments Roberts made in his report last year, showing how judges’ wages relate to academics and U.S. workers, and how the discrepancy is changing the Judiciary’s demographic.

  • “In 1969, federal district judges made 21% more than the dean at a top law school and 43% more than its senior law professors. Today, federal district judges are paid substantially less than — about half — what the deans and senior law professors at top schools are paid.”
  • “Adjusted for inflation, the average U.S. worker‘s wages have risen 17.8% in real terms since 1969. Federal judicial pay has declined 23.9% — creating a 41.7% gap.”
  • “In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed–roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.”

Not everyone in the the Federal Judiciary agrees with Roberts though. Last March, Judge Richard Posner of the Seventh Circuit Court of Appeals made several points challenging Roberts on the Becker-Posner blog. His argument is worth reading in its entirety, but I’ll excerpt just one of his points below.

>The most serious omission in Chief Justice Roberts’s report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay (the ceiling on outside income, apart from investment income and royalties, and a very low ceiling given current law school salaries—which benefits judges, since they can teach less to reach their ceiling, as it is an ever-diminishing percentage of a professor’s salary). The federal judicial pension is extremely generous—a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life; nor does he make any contribution to funding the pension. The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

The House’s bill, H.R.3753, would adjust judges’ salaries to where they would be if they had received regular cost-of-living adjustments since 1969 — about 41 percent. The Senate also has a bill, S.1638, which would raise the salaries of trial judges by 50 percent and the salaries of other federal judges by a commensurate amount.

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