President's Message 5

Chief Justice Roberts' Request for Federal Judicial Salary Increases

United States Supreme Court Chief Justice John Roberts recently devoted his entire 2006 Year-End Report to Congress to the issue of salaries for federal judges. While everyone agrees that we need good federal judges and we need to compensate them fairly, the Chief Justice's message seems hyperbolic and even insulting to many lawyers.

Let's review the existing situation. The Chief Justice is paid $212,000. His associate justices make $203,000. Federal appeals court justices earn $175,000 and federal district court judges make $165,200. The Chief Justice observes that while the average American worker's wages have risen 17.8 percent in real terms since 1969, those of federal judges have declined 23.9 percent.

Chief Justice Roberts comments that during the Eisenhower Administration roughly 65 percent of federal judges came from the "practicing bar" and 35 percent came from the public sector. (I assume by "practicing bar" he means those in private practice). Today, the numbers are almost reversed. He says "beginning lawyers fresh out of law school in some cities" will earn more in their first year than the federal judges. In the last six years, 38 federal judges have left the bench and returned to private practice, presumably to make more money. The Chief Justice called the lack of pay increases "grievously unfair" and said the situation "has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary." He says: "Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase."

Chief Justice Roberts' report raises a fair question about appropriate judicial compensation but then obscures that issue with unfortunate arguments and language. Perhaps, using the phrase "practicing bar" to refer to lawyers in private practice is standard Beltway terminology but it is unknown in my limited experience. It implies that "public sector" lawyers do not "practice" law. His argument also implies that there is something wrong with a substantial number of judges coming from the public sector. I assume he intended no insult but many government lawyers may feel slighted.

Presumably, the Chief Justice means that there is value in maintaining a high proportion of judges whose background is in private practice but he does not explain why. He also seems to assume that there is something wrong when judges want to make more money by returning to private practice. I do not know why some turnover in the federal judiciary is necessarily bad.

With respect to the potential harm to the Constitution, I note the President of the United States is paid $400,000 per year to be the "Leader of the Free World." The CEO's of major corporations receive compensation ten to a hundred times greater and their responsibilities are much less. Under the Chief Justice's analysis, this should be a constitutional calamity. Yet, there seems to be no shortage of qualified candidates for the job.

By comparison to federal judges' salaries, the Rhode Island Bar Association's recent survey of its members showed that 75 percent make less than $150,000 per year.

Fifty-percent make $100,000 or less. These groups include many very capable attorneys, particularly prosecutors, public defenders and other "public sector" lawyers.

A proper comparison of judicial compensation with people in private employment should consider "fringe" benefits that are an increasingly significant part of compensation. Federal judges receive an annuity equal to their full salary when they retire or go to senior status based on the "Rule of 80," i.e., if they serve for 15 years they can begin collecting at age 65; if they serve for 10 years, they can begin collecting at the age of 70. The judges do not contribute to this annuity. (They can also purchase an annuity for their spouses for up to half their salaries by contributing 2.2-3.5 percent of their salaries). The accountants tell me that for the district court judges in the "15 and 65" group, the annuity amounts to additional annual compensation of approximately $87,000, in other words, a subtotal of roughly $272,000 per year.

With respect to health coverage, the judges have access to the same plans as other federal employees and, generally speaking, pay one-third the cost of the coverage. The value of these plans varies but it is fair to say they are probably worth several thousand dollars a year. This raises the total compensation package to about $275,000 for district court judges.

While we did not ask the RIBA members about fringe benefits, I think that relatively few of our members in private practice get the same generous fringe benefits that the federal judges receive. Many of our members are probably funding their retirement plans in whole or in large part and similarly paying health care coverage out of their own pockets. I believe that for most in private employment, salaries may have risen but they are paying increasing proportions of their fringe benefits. The public employees may get fringe benefits somewhat comparable to the federal judges but most of them will make much less than the federal judges for their entire careers.

There is no doubt that federal judges work hard, but the average lawyer envies many aspects of their jobs: no troublesome clients, no pressures with respect to billable hours or firm revenue, eager clerks to help with the work and great respect in the community. Thus, as the Chief Justice notes, there is usually no shortage of qualified applicants for federal judgeships.

Chief Justice Roberts does not suggest how much of a salary increase federal judges should receive. It appears his goal is to attract more lawyers in private practice with high incomes, say $500,000 to $1 million. Assuming the salary is critical to them, federal judges would have to receive a substantial increase, at least $100,000, up to $265,000 for district court judges. That would be an increase of 60 percent, not counting the proportionate increase in the value of the annuity. That increase is politically unrealistic. Ninety-five percent of Americans would oppose it. I believe most lawyers would as well, though they might be reluctant to say so.

A politically realistic salary increase might be ten to twenty percent. This would increase district court judge's salaries by $16,500 to $33,000, to just under $200,000. A substantial raise, to be sure, but presumably still not enough to attract many big firm partners. Thus, the Chief Justice's goal of luring such lawyers may be out of reach.

In any event, any fair analysis of how much of a raise federal judges should receive must consider the total value of their compensation packages including annuities and health care benefits. Congress should compare the total package to those of the "average worker" in reaching a decision on the Chief Justice's request.