PENNIE & EDMONDS Jack B. Brooks, Chairman administrators of the rules of living in our society, it is of utmost importance that their material needs be accommodated with fair and adequate compensation, so that the singularly difficult work they do may be performed with highest concentration and efficacy by men and women of the very best qualifications, without distraction or worry over how to provide reasonable physical support for themselves and their families. Therefore, I ask your committee to pause and reflect upon what judges do and why that makes it absolutely essential for them to be fairly and adequately compensated. If we fall short of this goal, then loss of those most qualified and willing to do such demanding work will surely follow, to the detriment of our society and its justice system. I am certain that your committee can apply effective ways and means to bring into being a reasonable pay raise for federal judges, without the pitfalls and obstacles as were responsible for the most recent defeat. I urge you to use all of your position and power to produce such a result because, in these critical times, nothing could be more vital or important. At Issue JUDICIAL PAY RAISES Is the quality of the federal judiciary at stake? In late April Chief Justice William Rehnquist addressed the House Post Office and Civil Service Committee. "A quiet crisis" is brewing among the nation's judiciary, he told them in remarks excerpted below. The failure of Congress to approve a 51 percent pay raise had further damaged the morale of a federal judiciary "whose law clerks [overtake them in salaries] after only a few years in private practice." The legislative package proposed by the Judicial Conference and endorsed by the ABA consists of both a 30 percent raise to WILLIAM YES: REHNQUIST I believe that the inadequacy of current judicial salaries is the single greatest problem facing the judicial branch... that I have observed in my 17 years of judicial service. ... - I urge this Committee to support and the Congress to enact legislation that will immediately increase the pay of federal judges and provide a regular mechanism to evaluate and adjust their salaries in the future. At its last semiannual meeting in March, the Judicial Conference unanimously adopted a resolution calling for an immediate 30 percent increase in judicial salaries, coupled with provisions assuring that judicial officers receive regular periodic costof-living adjustments similar to those received by almost all other governmental personnel. ... A SMALLER INCREASE The Judicial Conference did not come lightly to this recommendation, nor did we ignore the recent unhappy history of salary increase proposals. We recognize that there was widespread public opposition to President Reagan's recommendations for an across the board raise for senior federal officials in the range of 50 percent. We believe, however, that a smaller increase of 30 percent for 42 ABA JOURNAL / JULY 1989 recapture lost purchasing power and periodic cost-of-living adjustments. Frank Askin, a professor of constitutional law at Rutgers University at Newark, disagrees that hefty raises are needed to attract qualified judicial candidates. He points out that many law professors and government and public-interest lawyers would consider an increase to $89,500 "a whopping pay raise." What the chief justice is really asking for, Askin argues, is a special subsidy to attract Wall Street lawyers to public service. federal judges is both publicly ac- This is not, in my view, fairly As a result of this proposal, the current salary of associate justices of the Supreme Court would rise from $110,000 to $143,000, the salary of circuit judges would rise from $95,000 to $123,500, and the salary of district judges would rise from $89,500 to $116,350.... Judicial salaries, which are constitutionally protected against diminution in amount, have over time been allowed to decline in real value to the point that federal judges are now among the lowest paid of all attorneys of similar age and experience in the legal profession.... INFLATION EROSION The extent of inflation erosion... has diminished the purchasing power of judicial salaries to little more than two-thirds of their 1969 level. ... Compensation levels in other sectors of the legal profession-private law firms, corporate practice, academia and the judiciary in other common law coun tries have surged well ahead of the federal judiciary. Having lived the last two decades in Washington, D.C., I am well aware of the traditional Washington response to statements like mine: Everyone wants to see evidence of the cataclysmic disaster that surely must be in the making. I will concede that the problem facing the federal courts does not have the graphic impact of an Alaskan oil spill or the high visibility of potentially poisoned fruit at the corner grocery store. For just this reason, this issue has aptly been termed a "quiet crisis." To say, however, that the inadequacy of judicial pay has effects that are gradual and insidious rather than sudden and explosive does not de tract from the seriousness of the judiciary's problem. Declining real salaries have contributed to an increased ate of departure from the feders' Dench. T7 have hampered efforts to recruit ghly qualified people for appointment to the bench, particularly people who are not independently wealthy and who have children still to cducate. And they have worsened the morale of federal judges who see the law clerks graduate to substantially higher salaries after only a few years in private practice. These are serious problems that only will grow... in the absence of remedial action by a concerned Congress. FRANK NO: ASKIN Chief Justice William Rehnquist does the American bar a great disservice when he infers that there are not many highly qualified, publicspirited lawyers who would be proud and honored to serve as federal judges for $89,500 a year, guaranteed for life. To claim, as the chief justice did in his Supreme Court press conference, that the current judicial salary levels pose a "most serious threat to the future of the judiciary and its continued operations" may tell us more about the company the chief justice keeps than it does about the willingness of thousands of American lawyers to provide public service as judges at current salary levels. The chief apparently believes that it is only the over-priced corporate lawyers who are qua ed to sit on the federal bench mittedly, those Wall Street types sneer at the present judicial pay scale. THE VIEW FROM ACADEMIA ernment attorneys who have traditionally provided the primary source of federal judicial appointments earn more than the judges now make. Recall that the chief justice himself received a pay increase when he traded his position in the Department of Justice for a Supreme Court seat. For the thousands of highly competent, dedicated lawyers who work for public-interest law firms, environmental protection agencies, public defender and poverty law of fices throughout this country, $89,500 a year would represent a whopping pay increase. LITMUS TESTS The real problem may be that nobody believes that a Bush administration would nominate such dedicated public-interest lawyers who fail to meet the Republican Party's political litmus test for judicial appointment. So instead we are threatened with the appointment of unsuccessful and unqualified party hacks as the only available alternative if we are unwilling to make federal judgeships financially attractive to the Wall Street types. But the fact is that relatively few of the 6,000 lawyers who teach full- Rather than surrender to this time at American law schools now kind of judicial blackmail, the public earn more than $89,500 a year. Many and bar should demand that federal of them are highly qualified for ap judicial appointments be removed pointment to the bench, and many from politics and that the nominatwould welcome such consideration. ing process be turned over to nonNor do any of the federal gov-partisan judicial selection committees Reprinted with permission of the New York Times. of the kind that Jimmy Carter experimented with in the late '70s. There would be little difficulty in finding extremely able attorneys ready and willing to accept some of the most prestigious jobs our nation has to bestow upon a member of the bar without lavishing upon them a standard of living far beyond that of the average American. I will concede that there are two inequities in the current judicial pay scales, having to do with seniority and geography. Unlike either high-level executive branch officials who serve at the pleasure of the president or members of Congress elected to fixed and (theoretically) limited terms, federal judges are appointed for life. It would not be inappropriate to provide them modest annual increments so long as they remain on active duty. A geographical salary differential would probably provoke more substantial objection, but it must be acknowledged that $89,500 does not represent identical compensation in New York City and Iowa City. Why not provide a cost-of-living bonus for jurists assigned to work in the "highrent" districts? But whatever modest increments the judges might receive should be based on such considerations of equity and fairness, not on the alleged unavailability of willing talent. ABA JOURNAL/JULY 1989 43 I am writing to you to enclose these articles which recently appeared in the Houston papers relative to the decision of Bankruptcy Judge Margaret Mahoney to leave the bankruptcy bench to reenter private practice with the law firm of Weil, Gotshal in its Houston office. The departure of Judge Mahoney is a direct result of the failure of Congress to pass salary legislation and the pending ethics legislation. This particular loss to the federal judiciary bothers me very much. Judge Mahoney was my immediate predecessor in this position here as Bankruptcy Judge in Minneapolis. She had several years of private practice before coming to the bench. She was highly respected by members of the judiciary and by the members of the bar that appeared before her. I think that she is precisely the type of judge the system needs to retain. She is not, I am sure, the first or the last young, energetic, and able jurist the Bankruptcy courts or the federal courts will lose because of the situation with respect to salary. We have corresponded in the past with regards to our thoughts on the salary situation. I thought that perhaps you would appreciate having this type of information for whatever use Representative Robert W. Kastenmeier August 17, 1989 Page 2 you might choose to make of it in the continuing discussions relating to salary legislation and ethics legislation in the federal judiciary, executive branch and Congress. Thank you again for your continuing interest. Very truly yours, NCD:kk Enclosures Nancy (C. Breher United States Bankruptcy Judge |