Congressional Inaction Threatens Judicial Independence

Tuesday, April 1, 2008 - 00:00

The sanctity of judicial independence, a fundamental tenant of the Constitution, has been steadily eroded commensurate with the erosion of judicial salaries.Our Founding Fathers buttressed the premise of judicial independence in Article III of the Constitution by prohibiting diminution of judicial salaries and guaranteeing life tenure, thereby empowering judges to make fair and impartial - but often unpopular - decisions, free from political or economic pressures.1 An unprecedented exodus of federal judges, as a result of inadequate judicial compensation (given the cost of living and the economic demands of raising and educating children) has resulted in a "constitutional crisis"2according to Chief Justice John G. Roberts.Failure to increase judicial compensation, and the consequent attrition of the federal judiciary, undermines judicial independence and the integrity of the Constitution.

Over the past few decades, the number of departures of federal judges has steadily increased.In the last eight years alone, at least forty-eight judges have left the federal bench, and another 20 judges are projected to leave before 2009.3Although some attrition is attributable to age and other factors, it is irrefutable that judicial salaries, which are contingent on congressional legislation, have not been increased to keep pace with inflation.The last substantial pay raise for federal judges was nearly twenty years ago.Although the average U.S. worker's wages have risen about 18% since 1969, when adjusted for inflation, federal judicial pay has declined about 24%4- in sharp contrast with judicial pay in foreign jurisdictions.For example, increases in judicial compensation in the United Kingdom and Canada have far exceeded the cost of living.5 Federal district court judges now receive only 50% of the salaries of their counterparts in England,6and 80% of their counterparts in Canada.7

The erosion of judicial independence is not without consequence.If the term of a judge is dictated by the financial ability to remain in the position, the threat to judicial independence is inherent.Knowing inadequate compensation may necessitate a return to the private sector, and fearing professional alienation, judges may be reluctant to take an unfavorable or unpopular position or may develop industry or law firm sensitivity for fear of impacting future employment opportunities.After all, human nature is what it is - a law firm may be disinclined to hire a judge that is perceived to dislike the firm or has ruled consistently against its clients.A federal judgeship should not become a stepping stone to private practice; the constitutional expectation is life tenure and judges should never have to be concerned about returning to future practice.The Constitution intended to insulate judges from precisely these influences.

The growing disparity in salaries between the judiciary and the private sector underscores the financial sacrifice made by federal judges and the lure of private practice. The day after leaving a clerkship, a federal judge's law clerk can make more as a first year associate at a law firm than a federal judge.As the value of judicial salaries continues to decline, the workload continues to increase, the nature of the work becomes more complex, and the promises of cost-of-living adjustments remain empty, there is an increased risk that judges will continue to leave the bench for other opportunities and promising talent will be less likely to accept appointment.Lawyers frequently decline judicial appointment because of concerns over subsistence.

Equally alarming is the prospect that inadequate compensation may diminish the ability to attract diverse candidates from the practicing bar, and the judiciary will inevitably lose the "war for talent." Not so long ago, about 65% of federal judges came from the practicing bar, with 35% from the public sector.Today, the numbers are reversed - about 60% of federal judges come from the public sector, with less than 40% from private practice.8 The benefit of a judiciary with diverse legal experience from the legal profession, including private practice, will be eroded if the composition of the federal bench is constrained by deficient judicial pay.

The failure of Congress to increase judicial salaries to keep pace with inflation is a substantial "diminution in compensation," tantamount to a constitutional violation of Article III.Although Chief Justice Roberts, in his 2007 Year-End Report on the Federal Judiciary, is optimistic about current congressional progress addressing the crisis, the fact remains that pay increase legislation is still pending but has not passed. Congress must act to eliminate decades of neglect to preserve judicial independence, to prevent the departure of a qualified, seasoned judiciary, and to attract diverse candidates to the bench.The federal judiciary must be provided with income commensurate with the honor and respect of the office, and consistent with the letter and spirit of the Constitution.

1See The Federalist No. 79 ( Alexander Hamilton).

2See Chief Justice John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary 1 (2007), available at http://www.uscourts.gov/newsroom/yearend06.pdf.

3See Chart on Circuit and District Judge Departures by Decade (March 15, 2007), http://www.uscourts.gov/judicialcompensation/departure.pdf.

4Roberts , supra, note 2, at 3.

5See Statement of Justice Stephen G. Breyer before the National Commission on the Public Service, July 15, 2002, at 4-5 (Chart 7 ), available at http://a257.g.akamaitech.net/7/257/2422/16jul20020700/www.supremecourtus.gov/publicinfo/speeches/ncps_project.pdf.

6 Testimony of Stephen Breyer, Associate Justice, Supreme Court of the United States, Before

the House Committee on the Judiciary, Subcommittee on the Courts, the Internet and Intellectual Property,

Oversight Hearing on "Federal Judicial Compensation," Apr. 19, 2007, at 5, available at http://judiciary.house.gov/media/pdfs/Breyer070419.pdf.

7American College Of Trial Lawyers, Judicial Compensation: Our Federal Judges Must Be Fairly Paid 7-8 (2007), available at http://www.actl.com/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=2729.

8Roberts, supra , note 2, at 3.