Monday, January 05, 2004

The Courts: Paying Judges

On New Year’s Day, Chief Justice William Rehnquist issued his 18th annual “Year-End Report on the Federal Judiciary”. The Chief has two major gripes: Judges aren’t paid enough, and mandatory sentencing laws are crimping judicial independence. Congress should pay attention to these criticisms, especially in light of the Senate Democrats’ insistence that only “mainstream” judges be confirmed to the bench. Both Democrats and Republicans fail to recognize over-politicization of the judiciary has actual consequences.

The Chief Justice has no qualms about seeking a judicial pay raise. In 2001, district court judges were paid $145,100, the same salary as members of Congress; appellate judges earned $153,900; and Supreme Court justices, $178,300 (the Chief Justice received $186,300, the same salary as the vice president and the speaker of the House). These figures may seem high to the casual observer, but several factors need to be accounted for. First, judges are paid substantially less than they would earn in the private sector. This is true of almost any government position, but it’s particularly troublesome with judges, since low salaries will tend to lessen the quality of applicants, especially in the lower courts. A junior partner at a major law firm can easily earn $250,000 annually, almost twice a district judge’s salary.

Second, judicial caseloads have increased far more than salaries. In fact, salaries have been losing value in recent years because they’re not automatically indexed to adjust for inflation. From 1993 thru 2001, the real pay of judges declined about 13% because Congress would not provide adequate adjustments. The reason for this failure is simple: Judicial salaries are tied to legislative and executive salaries. Congress won’t raise the courts’ pay without raising their own, and the latter is perceived as politically unpopular most years. Had Congress allowed just the annual cost-of-living adjustments in full, district court judges in 2001 would have earned $159,300 rather than $145,100. At the same time, judicial caseloads, which are not tied to inflation or congressional action, have increased substantially. In 1969, a court of appeals judge handled about 123 cases annually; by 2001, that figure had jumped to 363 cases per judge. And when the Senate refuses to confirm judges for political reasons (or really any reason), this only increases the caseload on the remaining judges.

Third, judicial salaries are uniform throughout the country, whether a judge lives and works in an expensive area like San Francisco or a cheaper one like Topeka, Kansas. Most executive agencies vary their pay to account for differences in cost of living. But this is not the practice with judges, and it only creates another disincentive for individuals in major markets to stay in the private sector rather than take a low-paying district court judgeship.

To add insult to injury, Congress won’t even provide adequate funding for the judiciary as a whole. The Chief Justice’s report takes Congress to task for this neglect:
The Fiscal Year 2004 budget process has been a difficult one, and the Judiciary's appropriation for the fiscal year that began on October 1 will not be enacted until sometime in January, 2004, at the earliest. The delay in enacting an appropriations bill has disrupted the Judiciary and forced it to operate at inadequate levels of funding under continuing resolutions.

We appreciate that, for Fiscal Year 2004, the omnibus appropriations bill currently pending includes $222 million for new courthouse construction and $248 million to repair existing courthouses. The Judiciary's funding for Fiscal Year 2004 included in the omnibus appropriations bill, however, is inadequate.

The continuing uncertainties and delays in the funding process have necessitated substantial effort on the part of judges and judiciary managers and staff to modify budget systems, develop contingency plans, cancel activities, and attempt to cut costs. Many courts may face hiring freezes, furloughs, or reductions in force. I hope that the Congress will soon pass a Fiscal Year 2004 appropriation for the Judiciary, and that in future years the Judiciary's budget is enacted prior to the beginning of the fiscal year.
It’s inexcusable that the judiciary wasn’t fully funded at the start of the fiscal year last October. Even though the omnibus bill has been held up for political reasons, both the military and Homeland Security were fully funded at the start of the fiscal year. The judiciary is just as essential. Unfortunately, the judiciary’s funds are tied into the same appropriations bill with the executive departments of state, commerce, and justice. The judiciary is not considered important enough by the appropriations committees to merit a separate appropriations bill, as is the case with the White House and congressional budgets.

I don’t know how much the Chief Justice wants salaries raised, but personally I would not object to a massive increase. Even if we paid every judge on the federal bench $500,000 annually—about what a senior partner at a successful firm can earn even in a bad year—the cost to the taxpayers would only be about $500 million. Consider what Congress spends money on, and then ask yourself if we can take a half-billion of that to pay our judges competitively.

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