Federal Judiciary Compensation - Linkage as Part of the Problem
By Marion Edwyn Harrison (06/06/07)
The continuing, and worsening, problem of populating the Federal Judiciary, especially at the United States Courts of Appeals level, with individuals whom one would like to see on the Federal Bench is aggravated by the treatment United States Senate liberal activists have accorded too many nominees - a veritable long, drawn-out torturing. This Commentary is limited to another source of trouble, which has received scant productive attention - namely, a salary linkage which makes no serious sense.
The judgeship can be challenging and professionally rewarding but, alas, the pay is rather lousy. $175,100.00 for the Court of Appeals, $165,200.00 for the District Court may seem a substantial lifetime compensation. In fact, most attorneys and many academics of the calibre one wants on the Federal Bench already earn a good bit more than that. Hence, most nominees of that calibre would take an income cut.
Saving other considerations for another Commentary, let us review a strange historical system of measurement or alleged comparability. It frequently is referred to as “linkage.”
Those relatively few Senators and Representatives who seriously have viewed the subject believe in salary “parity” or “linkage” and for political reasons are afraid to raise their own salaries. In fact, a persuasive argument can be made that Presidential appointees, Senators and Representatives and all levels of Federal judge are underpaid but selling that proposition to voters is no facile task.
Why should the salary of a Federal judge be linked to that of a Member of Congress?
From 1967 until 1988 Congresses, and to some extent Presidents, goofed around with the Quadrennial Commission (“QC”), which was supposed to recommend salary adjustments. From 1970 henceforth the system has not functioned.
In 1975 something styled the Executive Salary Cost-of-Living Adjustment Act would have continued linkage between judicial and other salaries. With two exceptions, and that only after litigation, it went nowhere.
In 1986 Congress approved a radically reduced version of QC salary recommendations. In 1988 it rejected all of them.
In 1989 the Ethics Reform Act restored two cost-of-living adjustments and a comparability pay adjustment - more linkage to nonjudicial salaries. It also replaced the QC with the Citizens’ Commission on Public Service and Compensation, which also turned out to be ineffectual.
From 1993 to 2001 Congress allowed only three cost-of-living adjustments: 1998, 2.3%; 2000, 3.4%; 2002, 2.7% - roughly comparable with inflation of 1.6%, 3.4% and 1.6%. This lack of reality had the effect of reducing the value of judicial compensation inasmuch as the Consumer Price Index rose 25.5% 1993 - 2001 whereas those salaries rose 12.1%.
Salaries of United States District Judges, the trial judges, are linked to those of Members of Congress. Salaries of Federal Circuit Judges, who finally adjudicate all but about 80 appeals, well into the 90%+ range, technically are not linked but in practice are paid about 106% of trial-judge compensation. So both really are linked to Congressional salaries. There is no differential, however denominated, in salaries for trial or appellate judges living in high-cost metropolitan areas.
In the next Commentary we will discuss actual dollars of salaries and it will be obvious why many able and qualified academics and attorneys decline an offer of nomination unless they are sufficiently old likely to benefit by the retirement.
Suffice it to say for now that linkage of a judge’s salary to that of a legislator defies reason.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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