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Paying for Justice

- February 2, 2008

Upon taking his seat at the center of the bench, Chief Justice John Roberts assumed the cause embraced by his predecessor—a judicial pay raise. In December, the House Judiciary committee voted 12-5 to raise the pay of judges on the U.S. District Courts to $218,000 (increasing it from its current level of $169,300), U.S. Courts of Appeals judges to $231,100 (currently $179,5000), and Supreme Court justices to $267,900 (currently $208,100). Yesterday, the Senate Judiciary committee approved a comparable bill giving federal judges a 29% pay raise.

The bills would restore judicial pay to the same level that judges would have received if Congress had granted them the same cost-of-living pay adjustments that other federal employees have received since 1989—not a full restoration but a significant one. Why did federal judicial pay fall behind other federal salaries? A large part of the explanation is that judicial pay raises since 1989 have typically been tied to pay raises for members of Congress.

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A number of members of Congress and justices have argued that judges are retiring because of the failure of their pay to keep pace. Justice Scalia noted that “More and more, we cannot attract the really bright lawyers. It’s too much of a sacrifice” (here). My colleague Paul Wahlbeck and Jim Spriggs studied retirements from the Federal Court of Appeals and discovered that “increases in salary reduce the expected number of Democrat and Republican retirements….” (1994, 589-560, gated here). A similar finding (for district courts) was reached by Deborah Barrow and Gary Zuk (gated, here).

Although Democrats have historically supported attempts to raise judicial salaries, there now appears to be bipartisan support for raising judicial salaries. Why? One possibility is that the bench is now dominated by jurists appointed by Republican presidents and the upcoming election may provide a Democrat with a large number of judicial vacancies. Such fear would inevitably be reinforced by the recent high-profile retirements of conservative judges (here, here) who left the bench and secured significantly higher salaries. Also note that there is an important provision in the bill that would create a disincentive to leaving the bench for higher paying private sector jobs: The bill reduces the pension benefit of a retired judge by $1 for every $2 he or she earns above the old salary. Why include this provision? Research by David Nixon and J. David Haskin shows that once judicial pensions became tied to current salary levels, raising judicial salaries induced retirements (gated here).

A second and very cynical explanation for the pay raise is that historically congressional salaries have been tied to judicial salaries. Is it possible that next year members of Congress will point out that they are paid much less than members of the executive and legislative branches and thus deserve a pay raise? Nah. That would be too crass. I am sure there is a good third explanation––it is the right thing to do. Perhaps, but let’s see first what Congress does next year with their own pay.