An Unseen and Dangerous Phenomenon: Disinterest in a Federal Judgeship
By Marion Edwyn Harrison (03/07/07)
The legendary phoenix bird burned itself and rose from its own ashes. In Washington an unseen phenomenon sometimes means there was no life, hence no death, therefore no ash and no return to life.
A strange introduction to a NOTABLE NEWS NOW column? Yes, but it speaks to a strange absence. There is no truly strong, vigorous and high-priority movement in the White House, Office of Management and Budget, Department of Justice, United States Senate or House of Representatives to raise the salary of Federal judges. What, then, is the unseen and dangerous phenomenon? Too many qualified attorneys - from private practice and academe - whom we would like to see on the Federal Bench aren’t interested.
Of course, there is another compelling reason for that growing disinterest. What successful and qualified attorney in private practice, State judge, law dean or professor wants to risk the attempted ruin of his or her reputation by submitting to the protracted, sometimes endless, rack of the liberal torture chamber, formally known as the United States Senate? And to do so to accept a cut in compensation (as almost everyone except State judges, also mostly underpaid) would do?
The situation is serious - for the administration of justice, for litigants, for those serving on the Federal Bench. There are 26 Federal courts with “Judicial Emergencies,” as the Administrative Office of the United States Courts objectively defines that phrase. The 13 United States Courts of Appeals have 16 vacancies, only five nominations pending; the United States District, or trial, Courts have 41, with only 22 pending. The George W. Bush Administration is having trouble enough - indeed, outrageous trouble - getting a liberal-influenced Senate to “advise and consent” to nominations. To repeat the unseen phenomenon: Fewer individuals are willing to accept nomination.
We need not enumerate a hoard of figures to prove the point that Federal judges are under-compensated. A few examples suffice.
First, the kind economists and statisticians like: From 1969 to 2005 the pay gap between the average American worker and Federal trial judges, adjusted for inflation, has widened to 41.7%. (In other words, average U. S. worker pay rose 17.8%, Federal judicial pay declined 23.9%, both inflation-adjusted.) A more dramatic example: Deans at selected top law schools average $ 430,000.00 annually, senior professors $ 330,000.00; U.S. District Court judges are paid $ 165,200.00. An even more dramatic, if a bit wild, example: Many leading Manhattan law firms start a young associate at $ 160,000.00, often with a first-year $ 30,000.00 bonus - only $ 12,300.00 less than the salary of the Chief Justice of the United States. No surprise that in the past six years 38 judges have left the Federal Bench, 17 in 2005 and 2006.
Some people argue that retirement at full salary for life compensates for the lower active salary. For a handful it does. However, that benefit to be meaningful presupposes that the judge earned a good bit more before ascending the Federal Bench and became a judge at 60 or more years of age, to become eligible for that somewhat juicy retirement at age 70 and that the judge lived adequate years thereafter (as, of course, with enhanced life expectancy more Americans do). Obviously the retirement benefit means less to the individual who becomes a judge when far younger or who does not live well into the late 70s, 80s or beyond.
Liberals passingly may be pleased that fewer and fewer qualified individuals will accept a Bush judicial nomination. If the next Administration were liberal the unheralded phenomenon might rise to haunt it. Perhaps even worse, any such administration may nominate, and the Senate may confirm, unqualified people and/or those seeking appointment to promote judicial activism.
Whatever November 2008 may hold in store, it behooves this Administration vigorously to promote, and this 110th Congress to enact, substantial pay raises.
Were Congress to do so, it also ought to uncouple the equal, or any other, tie between salaries of Federal judges and Members of Congress. The issues are vastly different. That touch of objectivity, however, is unlikely. It surely is arguable that Members of Congress also are underpaid. Thus, if their salaries were to continue in tandem that price would be worth it.
Meanwhile, the unseen and dangerous phenomenon continues: Too few qualified individuals are receptive to a Federal judicial nomination.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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