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An Independent Judiciary


America's federal courts have long been our nation's strongest safeguard of constitutional rights and liberties. When oppressed or aggrieved people have nowhere else to turn, the courts have always stood as a forum where they could be heard. What a pity it is, therefore, that America pays its federal judges far less than their counterparts in other Western nations whose legal traditions we share. Judges' pay for almost two decades has been pegged to congressional and executive branch salaries -- a political ploy adopted by Congress in an effort to soft-peddle legislative pay hikes in the face of voter hostility. However, instead of Congress hiding its own pay hikes behind those of judges and top administration officials, the effect of the Ethics Reform Act of 1989 has been to keep judicial and executive pay scales artificially low. When Congress returns after its current recess, it should take two steps to correct that anomaly: first, it should unhinge judicial and executive pay from congressional salaries; and second, it should raise judicial pay substantially, to levels commensurate with the important work that judges perform.

Over the past two decades, federal judges have received a few cost-of-living pay increases, but that has not kept judicial salaries on par with, for example, the salaries of law school deans -- or even top LSU law graduates in their first year of employment. Federal district judges currently earn $165,200 a year. That's certainly much more than the average American worker earns, but judges are called upon to fulfill extraordinary responsibilities -- and to remain free of political and other considerations.

The two countries whose legal systems most closely resemble our own -- Canada and England -- have no links between judicial salaries and legislative pay. Both nations also pay their federal judges substantially more than other government officials. Federal judges in Canada, for example, earn the equivalent of nearly $200,000 a year. In England, high court judges (the counterpart of federal district judges) earn the equivalent of more than $318,000 a year. There is no constitutional or legal basis for linking judicial pay to congressional pay. Furthermore, Congress rightly has to weigh political considerations before giving itself a pay raise, not the least of which is the appearance of self-interest. Such considerations should never factor into judicial pay rates.

Americans want to have faith in the impartiality and independence of their judges. Congress can instill that faith by separating judges' pay from congressional pay and then paying judges enough to attract the best and brightest of the legal profession. As a practical matter, the overwhelming majority of attorneys who accept federal judicial appointments take huge pay cuts. In recent years, a growing number of federal judges have been appointed in their mid-40s to early 50s, when lawyers are just reaching the peak of their earning potential. Locking in their salaries for life at that age, especially if they are still raising children, deters many of our nation's best lawyers from accepting or even considering a judicial appointment.

Time was, a federal judicial appointment was seen as the ultimate capstone of a successful legal career. No more. Among the dangers of not paying federal judges adequately is the risk that the federal bench will prove less appealing to America's best lawyers and more attractive to hacks and ideologues.

This is not a new problem. In 2003, we argued for reforming judicial pay scales. We cited a report issued that year by a non-partisan commission chaired by former Federal Reserve Board Chairman Paul Volcker, who commented that "lagging judicial salaries have gone on too long, and the potential for the diminished quality in American jurisprudence is much too large." The Volcker Commission urged Congress to pass an immediate and substantial increase in judicial salaries. In 1989, former Chief Justice William Rehnquist described the inadequacy of judicial salaries as "the single greatest problem facing the judicial branch." He reiterated those comments in 2003. Sadly, nothing changed: Congress responded to appeals by Volcker, Rehnquist, the American Bar Association and others by giving another cost-of-living adjustment -- one of only five in the past 14 years.

Over time, judicial pay has lagged farther and farther behind other positions in the legal profession. In 1969, federal judges' salaries were comparable to those of law school deans and generally higher than those of top law professors. Today, most law school deans earn twice what federal judges make. Most federal law clerks out-earn their judges the day after they leave their clerkships. Even at the current salary of more than $165,000 a year, over the past 40 years, federal district judges have lost nearly 25 percent of their compensation after adjusting for inflation, according to Bureau of Labor Statistics data and a report by the non-partisan American College of Trial Lawyers. Meanwhile, the same data show that the average American worker enjoyed an 18.5 percent increase adjusted for inflation. Something is obviously wrong with the way America pays its judges.

We recognize that pay raises for public officials is not a popular cause. Federal judges hold their jobs for life, receive fine benefits and earn several times the wages of the average American. At the same time, America needs its best legal minds to decide increasingly complex litigation and to instill faith in our legal system. Ultimately, the real beneficiary of an improved pay scale for federal judges is the public, and the public should demand that Congress act to pay judges adequately -- and independently of congressional pay.

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