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Federal Judicial Compensation - Another View of the Growing Deficiency
By Marion Edwyn Harrison (06/07/07)
In yesterday's Commentary, which follows, we discussed the basically irrational and counterproductive linkage of salaries of Federal Judges to salaries of Members of Congress. That both are too low hardly justifies linkage. Let us now compare such judicial salaries to arguable frames of reference.
From 1994 through 2006 inflation totaled 36% while the increase in these judicial salaries (and, for that matter, of Members of Congress, as to whose salaries judicial compensation is linked) increased only 23.7%.
General Schedule (“GS”) Federal Government employees, factoring in average locality pay and a 2.2% January 2007 increase, received a 61% increase. Why GS personnel, all theoretically career, should have received about 2.5 times the rate of increase of the Federal Judiciary may be irrelevant or the question may raise the theoretical contention there is a disparity between the Executive Branch and the Judicial Branch in our Constitutionally mandated tripartite, or three branches or departments, Federal Government. The fact that (as of February 8, 2007) four Executive Branch personnel were paid more than any Federal judge other than a Supreme Court Justice, three more than all the foregoing, is dramatic ($ 186,251.00, $ 225,000.00, $ 275,000.00, $ 305,166.00) but probably irrelevant.
From 1969 through 2006 the average national nongovernmental wage increase opened a 43.3% gap over Federal judicial compensation. That surely is relevant.
The most relevant - hence, most compelling - consideration of all cannot readily or accurately be quantified. Most attorneys in private practice and many academics must take a pay cut to go on the Federal Bench. $ 175,100.00 for the Courts of Appeals, or $ 165,200.00 for United States District Courts, simply isn’t competitive. If the individual is in his or her late 50s or older a pay cut may not be hardship because the individual may have invested sufficiently to compensate for some or all the differential. Further, if health were to hold, the individual could retire at full salary for life at age 70 after 10 years service - or at age 65 after 15 years (but the latter severs some of his private higher-earning years).
In sum, the Federal Bench would be an economic diminution for many, doubtless most, of those people in their 40s and 50s we would like to see so serving.
The President and Congress clearly ought to be rectifying this dour situation. President George W. Bush in the 108th Congress (2003 - 2005) committed to legislation which would have authorized a 16.5% salary increase. Congress let it languish. Three Democratic Senators and two Representatives, a Democrat and a Republican, introduced similar legislation in the 109th Congress; same result. In short, the need has neither meaningful Presidential nor Congressional support. The American Bar Association (“ABA”), the largest lawyers’ organization, has attempted to stimulate legislation, thus far unsuccessfully. (ABA in too many ways has become a proponent of liberal issues, some of them ranging far beyond the traditional role of a legal organization or of ABA itself. The 2007 ABA is a far different entity in this regard than when I served on its Board of Governors, in its House of Delegates and as chairman of various internal bodies. However, its position on judicial compensation is sound but may have lost potency in view of so much unsound or arguably unsound other advocacy .)
This Commentary read with that of yesterday probably offers more statistics and rationale than a reader needs. Suffice it to say that beyond the obvious disinclination to submit to the prevailing Senatorial torture- chamber confirmation process, many ladies and gentleman of distinction whom we would like to see on the Federal Judiciary are declining for financial reasons. To paraphrase Hamlet, “Ay, there’s a second rub.”
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation
Previous Piece: Federal Judiciary Compensation - Linkage as Part of the Problem
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