Background
History
The framers of the Constitution sought to protect judicial independence
by guaranteeing federal judges undiminished salaries while in office.
Realizing that the health and well-being of the judiciary depended
on furnishing judges with adequate compensation and that inflation
could render a once satisfactory compensation inadequate, the framers
decided to permit upward adjustments of judicial pay. They did so,
however, over the objection of James Madison who was concerned that
making judges beholden to Congress for periodic salary increases
could undermine their independence. History has vindicated both
sides in this debate.
Both the adequacy of judicial salaries and the controversy over
judicial cost-of-living adjustments (COLAs) continue to be vexing
issues. While federal judges received a cost-of-living salary adjustment
for FY 2002, it only marks their fourth COLA in the last nine years.
This is mainly because Congress blocks COLAs for judges when it
does not give itself a COLA. Congress has had this power because
of the now notorious “Section 140,” which was adopted
as part of a continuing resolution in 1981. Pursuant to Sec. 140,
no COLA for federal judges can take effect without being specifically
authorized by Congress.
Not only have judges been denied regular COLAs, the adequacy of
their compensation also has not been reviewed since the last Quadrennial
Commission report in 1989. A new commission was authorized by Congress
in the early 1990s, but never became operational.
Williams v. United States and Section 140
Sec. 140 conflicts with a provision in subsequently passed legislation,
the Ethics Reform Act of 1989, that specifies that judges (as well
as Members of Congress and top Executive Branch officials) are automatically
entitled to a COLA when General Schedule employees receive one under
the Comparability Act. Even though the Ethics Reform Act appeared
to supercede Section 140, Congress continued to abide by its mandate.
In 1998, the legality of Sec. 140 was challenged in Williams v.
United States, filed by twenty federal judges seeking to have the
court declare that Sec. 140 does not operate to prevent the payment
of COLAs due federal judges under the Ethics Reform Act. On July
15, 1999, the court ruled on a motion for summary judgment in favor
of the plaintiffs. The Court of Appeals for the Federal Circuit
issued its decision on February 16, 2001. It reversed the primary
holding of the lower court, stating that even though Congress enacted
into law a mechanism for annually adjusting the salaries of judges,
the COLAs permitted under the 1989 Ethics Reform Act do not vest
until the first day of the fiscal year in question. Consistent with
this view, the Court held that it is constitutionally permissible
for Congress to deny judges a COLA prior to the time it takes effect.
The Federal Circuit did affirm the lower court’s ruling on
Section 140, holding that Sec. 140 was not meant to be permanent
legislation and therefore was no longer viable. A petition for certiorari
was filed on July 26, 2001, by the judges in Williams v U.S. and
the ABA filed an Amicus brief in support of the petition for certiorari.
The Supreme Court declined to hear the case on March 5, 2002. Three
justices dissented: Breyer, Scalia and Kennedy. Justice Breyer,
writing for the three, issued a vigorous 14-page dissent. On April
15, 2002, the Supreme Court denied the plaintiffs’ petition
for rehearing.
107th Congress
During the early part of the 1st Session, the ABA and the Federal
Bar Association issued a joint report on the need for judicial pay
reform and presented it to Chief Justice William Rehnquist at a
news conference; both the event and the report received extensive
publicity.
Following the February 14th news conference, Rep. Judith Biggert
(R-IL) introduced H.R. 570, legislation that would repeal Sec. 140;
provide for automatic, annual cost-of-living adjustments (COLAs)
for judges; and restore six COLAs not granted during the 1990s by
increasing federal judicial pay by 9.6 percent. Similar legislation,
S. 1162, was introduced in the Senate on July 11, 2001, by Sens.
Dianne Feinstein (D-CA) and Fred Thompson (R-TN). Both bills were
referred to their respective Judiciary subcommittees, but have received
no action and are not likely to this Session.
Other than successfully obtaining a 3.4% COLA for judges for FY
2002, all judicial pay reform efforts stalled during the 107th Congress,
largely due to the dramatic shift in Congress’s agenda following
the September 11 attacks. In fact, it would not be an exaggeration
to characterize legislative activity on judicial pay last Congress
as taking one small step forward and two large steps backward.
The first back-peddling occurred during the 1st Session when the
conference report to the Commerce, Justice, State, Judiciary and
Related Agencies appropriation bill, which was signed into law as
P.L. 107-77. It contains provisions re-codifying Section 140 and
clarifying that it is meant to be permanent law, there by rectifying
the problems suffered by the original Section 140 (PL 97-42), which
prompted the Court of Appeals for the Federal Circuit in the Williams
case to declare it void.
The second step backward occurred during the last days of the 2nd
Session when Congress failed to waive Section 140 before it adjourned.
Since Congress did not finish work on all the appropriations bills
last year, it passed a continuing resolution to fund the government
through January 27, 2003. A provision waiving Section 140 should
have been included in the continuing resolution; it is unclear how
this oversight happened. Regardless, as a consequence, judges were
denied a COLA for FY 2003, while Congressional members and other
top government officials paid according to the Executive Schedule
received a 3.1% COLA for FY 2003. This situation prompted Chief
Justice William H. Rehnquist to visit the President of the United
States and ask him to intervene on the Judiciary’s behalf.
Congressional leaders promised that the 108th Congress would promptly
rectify the situation by waiving Section 140 retroactively.
Current Status
Although the issue of adequate pay for high-level federal officials
remains a very difficult and politically sensitive topic, it is
likely that the 108th Congress will address the inadequacy of judicial
compensation in the larger context of public service reform.
The second so-called “Volcker” Commission (officially
known as the National Commission on Public Service) issued its report
on the need for reform in the federal public service on January
7, 2003. The report emphasizes the gross inadequacy of federal judicial
pay and calls for immediate and substantial increase, as well as
delinkage of judicial pay from Congressional pay. Hopefully, this
will provide new impetus for remedial Congressional action.
H.R. 16 (Sensenbrenner, R-IL) and S. 101 (Hatch, R-UT), containing
Section 140 waivers, were introduced during the first days of the
new Congress. Unless Congress attaches a waiver of Section 140 to
its next continuing resolution, judges will have to await their
COLAs until both chambers return on January 27 and pass waiver legislation
for the President to sign.
Additional bills calling for more extensive judicial pay reforms
also are expected to be introduced this Session.
ABA Policy
The ABA supports legislative action to increase judicial compensation
and ensure regular cost-of-living increases for federal, state,
and territorial judges and the administrative judiciary, and urges
Congress to de-link Congressional pay from judicial pay. The ABA
also recommends periodic, systematic review of the adequacy of federal
judicial pay (along with the adequacy of pay for other top-level
government officials) in order to provide our judges with adequate
and fair compensation.
Key Points
• The Constitutional guarantees of life tenure and an undiminished
salary were designed to protect the independence of the federal
judiciary. In today’s environment, neither guarantee is secure.
While erosion of pay may not legally constitute a diminution in
salary, it undermines the purpose of the guarantee of an undiminished
salary. Similarly, the commitment to lifetime tenure is undermined
when inadequate judicial salaries deter candidates from seeking
appointment to the bench and discourage judges from remaining on
the bench.
• Federal judges have received only four cost-of-living
adjustments since 1993. Because judicial salaries have not kept
pace with inflation, judges have suffered approximately a 13.4
percent decline in purchasing power during that period. This erosion
in judicial pay has deprived judges (many of whom accepted significantly
reduced compensation to become judges) of the prospect of salary
stability during their tenure on the bench.
• While judicial salaries have steadily declined, private-sector
salaries of top attorneys have risen dramatically. Even though
rendering public service and serving in a lifetime appointment
are intangible benefits that help compensate for the reduced salary
levels associated with the bench, the disparity in salaries highlights
the extent of the financial sacrifice federal judges make to serve
the public and the lure of alternative private employment for
those who find themselves financially strapped. Concern is mounting
that the inadequacy of judicial salaries will adversely affect
the government’s ability to attract highly qualified judicial
candidates and to retain highly experienced judges.
• The specter of a declining salary in real terms discourages
potential candidates from seeking appointment to the bench. Promising
candidates who lack the independent means to meet current and
future financial obligations are especially likely to be deterred
by the prospect of a salary that does not even keep pace with
inflation. This could jeopardize the socio-economic pluralism
of the federal bench.
• Congress and the President should make a public commitment
to work together to permit the current annual pay adjustment mechanism
for judges, Members of Congress and high-level Executive Branch
officials to operate annually and automatically, as envisioned
by the Ethics Reform Act of 1989. If Members of Congress do not
want to award themselves annual COLAs, they should delink their
salaries from those of judges.
• Legislation should be enacted to increase judicial salaries
by 9.6 percent to remedy the salary erosion resulting from denial
of COLAs for fiscal years 1995-97 and 1999.
• Legislation also should be enacted to re-establish a
salary review commission, similar to past Quadrennial Commissions,
to recommend pay rates for Members of Congress, judges and appointed
officials in top Executive Branch positions on a regular basis.
Any such commission should be adequately funded and its members
appointed promptly, to ensure that it is operational within a
few months of its authorization.
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Last Updated:
January 9, 2003
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