You Be the Judge: Are Federal Judges Making Too Little Money?

At a time when millions and millions of Americans have lost much of their savings, are losing their jobs and homes, are seeking food assistance, have either no health insurance or inadequate coverage, and generally face historic economic insecurity, the hot issue within the world of lawyers is inadequate salaries of federal judges. After reading what follows, you be the judge. You decide whether our hearts should bleed for the plight of federal judges.

Recently, when a bill to bail out the automobile industry was killed in Congress so was a provision in it to give federal judges a 2.8 percent cost-of-living adjustment (COLA) in 2009. This is the same figure that is slated for Congress to receive, unless it votes against taking it. This event followed considerable moaning and groaning within the third branch of government in recent times.

Last January, Supreme Court Chief Justice John Roberts urged Congress again to make judicial pay a priority. As a result, the Senate Judiciary Committee approved a bill that would raise federal judicial pay by a whopping 32 percent. But the legislation died.

It is true that Judges have not received COLAs in six of the past 15 years. Moreover, although federal employees receive annual pay raises, federal judges have not received a pay raise since 1990, according to the Administrative Office of the U.S. Courts. Despite the occasional COLAs - this year's was worth 2.5 percent - judges' overall pay has declined by almost 24 percent since 1969, when adjusted for inflation. So far, you are thinking, what a sad story for the poor judges. But wait.

Let's look at the current salaries of federal judges: eight associate Supreme Court justices make $208,100, 179 court of appeals judges make a cool $179,500 and 678 district court judges make a nice $169,300. How many people you know make these kinds of salaries?

Judge Peter T. Fay of the 11th U.S. Circuit Court of Appeals recently gave a speech in which he decried the terrible salaries for federal judges. He said the morale nationally among federal judges has never been lower. Even more interesting, he said they are resigning in record numbers: four in 2008 and 38 in the past six years, and 100 since 1990. Just how awful are those numbers? For that you need to know the total number of federal judges nationally. There are close to 900 federal judges with lifetime appointments (there are others in a lower category handling special court duties, including bankruptcy court judges and magistrate judges). So, it looks like less than one percent leave annually, not exactly an exodus. In fact, this rate is remarkably low for any sector of the nation's workforce.

But wait, some other data have shown that 77 percent of those leaving the bench had reached retirement age. So, extremely few are actually leaving solely because of low salaries. And note this: Federal judges who have reached the age of 65 and have served at least 15 years have the right to retire while still retaining their full salary. They also have another option: They can take senior status and continue to work as long as they carry a caseload equal to 25 percent of those carried by judges on their court. How many people do you know that can retire on full salary after working for just 15 years at a job? Clearly, judges have a strong incentive to retire and cash in once age 65 is reached. But, like Fay, it seems that most judges keep working despite their awful salaries. But, it is true that even judges that retire often go to work for law firms. In fact, 64 percent of all the judges leaving in recent years went to work in the private sector, making high salaries there and often also collecting their full judge's salaries as well.

Fay himself has been on the bench for nearly 40 years. So, apparently, a low salary did not cause him to quit and seek a much higher salary in the private sector. Still, he proclaimed "Judicial salaries are an outrage. The situation is beyond embarrassment. It's insulting." According to Fay, a judge on the bench since 1993 has lost $208,000 in statutorily authorized pay that was specifically taken away from Congress. District judges should be making about $342,000, he said. As a result, the salary of a district judge has 25 percent less purchasing power than the $40,000 annual salary that judges received in 1970. Wow, that sounds awful. Those poor district judges are making just $169,300 a year now.

And note that besides their salaries federal judges receive incredibly good fringe benefits, far, far better than virtually all other workers in American society.

That low rate of judges quitting their jobs seems, logically, to indicate that being a being a federal judge is an extremely attractive job, notwithstanding any financial hardship. Consider these comparative advantages and benefits for choosing to be a federal judge rather than a very highly paid attorney in private practice or even a law professor. They have remarkable power and prestige. They have considerable influence over law and public policy, not to mention peoples' lives. Far more than the vast majority of private sector lawyers.

The proof that being a judge is also generally viewed as more prestigious than being a partner at a big law firm, even one who earns millions of dollars, is that so many of the latter eagerly accept appointments as federal judges. Even before he became Chief Justice of the Supreme Court, John Roberts had increased his level of prestige when he left his job as a partner at Hogan & Hartson (one of the nation's best law firms) to become a judge on the D.C. Circuit.

In more practical terms, it also turns out that judges work shorter hours and have better working conditions than their counterparts in private practice. Though judges may work hard, few of them work what is generally regarded as normal for very senior lawyers in prestigious law firms, which is typically 70 to 80 hour weeks. Nor do judges have to answer to demanding clients, nor cancel vacations or make other distasteful changes in their work schedules because of client needs or demands from senior partners in the firm. Even law professors face more demands.

It would also seem that judges generally have more interesting work than private sector attorneys. Often, federal judges work on extremely interesting constitutional and statutory cases, with an opportunity to make history (and some would say make law that only the legislative branch should do). Judicial decisions have more potential to make history than publications by law professors. And highly paid private sector lawyers often have to work much of the time on relatively boring issues to bring in big dollars.

And then there is job security guaranteed by the US Constitution. Under Article III of the Constitution federal court judges "hold their offices during good behavior with compensation which shall not be diminished during their continuance in office". This has been interpreted to give lifetime tenure to federal judges. Virtually no other American worker has such job security - absolute for life. Federal Judges can be removed only by impeachment. But they also can face criminal charges. As history has shown, even large, prestigious law firms go bankrupt. Only tenured law professors come pretty close to comparable job security.

On the negative side, it was reported in 2005 that there had been five assassinations within the federal Judiciary since 1975. But federal judges do get substantial protection. In fact, the primary statutory duty of the US Marshals Service is the protection of the Judiciary. Judges can obtain security measures in their homes and when appropriate receive personal security teams. Still, security concerns for federal judges remain.

So how do you feel now? You be the judge. Are federal judges really suffering from low salaries and bad working conditions? Do you think there is a problem finding high quality lawyers to take federal judge positions?