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2006
Legislative Priorities
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Congress and the President determine the annual appropriation for the Federal judiciary and set the pay of the nearly 1,300 active and senior Federal judges constituting the Article III judiciary. (Congress, of course, also sets the pay of its Members and the President.) That the two other branches have full budgetary authority over the judiciary, a co-equal branch of government, whose independence is constitutionally protected through the dual guarantees of a salary that cannot be reduced during a judge’s service in office and life tenure during good behavior, adds to the dynamic tension inherent in a system that balances judicial independence with judicial accountability.
The Ethics Reform Act of 1989 (Pub.L. 101-194) created the current pay system for judges and Members of Congress. Under this law, the adequacy of the salaries of judges, Members of Congress and high-level Executive Branch officials was to be reviewed on a regular basis by a congressionally established Citizens’ Commission on Public Service and Compensation, which would make pay raise recommendations to Congress and the President. Further, judges, Congressional members and top-level Executive Branch employees were to receive a salary adjustment automatically whenever a cost-of-living adjustment (COLA) was conferred on Federal workers paid according to the General Schedule. The Employment Cost Index (ECI), a well-recognized index that measures changes in the compensation of private sector workers, was adopted as the basis for determining the amount of their salary adjustment.
Consequently, under current law, the political branches can adjust judges’ pay in three ways: (1) allow automatic and annual pay adjustments based on changes in the Employment Cost Index; (2) adopt pay raises recommended by the President to Congress, based on the report of a Congressionally established select commission appointed to review and consider the salaries of high-level Federal officials; or (3) pass special legislation authorizing a pay raise. .
Unfortunately, these pay-setting mechanisms have failed to operate as planned: the adequacy of judicial salaries has not been reviewed by a commission since 1989; Congress has not acted sua sponte to increase judicial salaries since 1989 (establishing salary increases that went into effect in 1990 and 1991); and judges have not received every COLA to which they were entitled, had the Ethics Reform Act operated as intended.
The core problem with the current procedure for setting judges’ pay is the statutory linkage of judicial salaries to the salaries of Members of Congress. This linkage causes Federal judges to suffer the consequences of Congress’ reluctance to award itself a pay increase or even to accept cost-of-living adjustments that have been provided by statute. Such reluctance stems largely from lawmakers’ concern over adverse public reaction to pay increases for themselves. This dynamic has suppressed the pay of judges and other Federal executives and subjected it to the ravages of inflation.
Congress also has the power to block judicial COLAs even when it does not block an adjustment for its own Members because of the now notorious "Section 140," which was adopted as part of a continuing resolution in 1981 and re-enacted into law in 2003. Pursuant to Section 140, no judicial COLA can take effect without specific authorization by Congress.
Judicial salaries are now so inadequate that they threaten the stability and diversity of the federal bench.
A. Federal Court Funding
Over the past three years, the judiciary has been forced to lay off personnel, prioritize workload, focus probation supervision on the highest risk offenders, cut public hours of clerks’ offices, establish moratoria on new construction projects, and defer maintenance and upgrades of facilities and equipment. While frugality and good management practices are laudable, these necessary cost-saving measures have intruded on the ability of some of the Federal courts to fulfill their constitutional and statutory mandates.
For FY 2006, the judiciary received an appropriation of $5.72 billion. Although it had asked for $5.95 billion, the appropriation, after rescissions, provided an overall increase of 5.4 percent above last year’s and was quite generous, given the tight fiscal environment and continuing need for funds to support troops and restoration efforts in Iraq. The increase has allowed the judiciary to fill some of the staffing positions lost during the last several years.
During this fiscal year, the judiciary also received $18 million in supplemental funding (FY 2006 Defense Appropriations Act, Pub. L. No. 109-148) for the judiciary’s hurricane relief efforts in the wake of the devastation wrought by Hurricanes Katrina and Rita in fall 2005 to court facilities and operations in Louisiana, Mississippi, Alabama and Texas. In addition, $38 million in supplemental funding also was provided to the General Services Administration (GSA) for cleanup, damage assessment and repair of Federal buildings, including United States courthouses.
The judiciary’s FY 2007 appropriation request of $6.26 billion represents an increase of 9.4 percent over FY 2006. The vast majority of the increase -- 86 percent—is required for mandatory pay, inflation and other adjustments in order to maintain current services, given the continuing growth in case filings. The House-passed FY 2007 appropriation bill that covers the judiciary, H.R. 5576, includes a $6.1 billion FY 2007 appropriation for the judiciary. The Senate Appropriations Committee has approved the same sum for the judiciary in its bill, which also contains a waiver of Sec. 140, the provision that requires judges to be given the affirmative approval of Congress for a cost-of-living adjustment.
In addition to fact that the nation’s fiscal priorities have shifted to funding anti-terrorism efforts, the judiciary attributes its recent budgetary woes to its annual appropriation being included in across-the board rescissions and to the amount of rent it must pay the GSA for use, maintenance and repair of its courthouses and other court facilities. While Congress has declined to exempt the judiciary from across-the-board cuts, it has been sympathetic to concerns over the disproportionate amount of the judiciary’s budget that goes to paying rent charged by GSA.
In his 2005 Year End Report on the Federal Judiciary, Chief Justice John Roberts, Jr., revealed that during FY 2005, the judiciary paid $926 million to GSA in rent, even though GSA’s actual cost for providing space to the judiciary was $426 million. He said, “The disparity between the judiciary’s rent and that of other government agencies, and between the cost to GSA of providing space and the amount charged to the judiciary, is unfair. The Federal judiciary cannot continue to serve as a profit center for GSA.”
During February 2006, Representative F. James Sensenbrenner (R-WI) introduced H.R. 4710, the Judiciary Rent Reform Act and Senator Arlen Specter (R-PA) introduced S. 2292, companion legislation, The bills, though different in minor ways, share the same fundamental purpose of relieving the courts of the burden of paying GSA “commercially equivalent” rent. Both would prohibit the GSA from collecting from the judiciary rent that involves the recovery of any prior capital expenditure. They would also bar GSA from collecting for any commercially equivalent rent charge that GSA does not itself incur, such as real estate taxes on federally-owned buildings. Only the Senate bill, which was approved in committee in April, has any received action.
A strong, responsive and fully functioning co-equal judicial branch is vital in safeguarding our liberties, upholding our constitution, settling international disputes and advancing the rule of law. In order to maintain a robust judiciary capable of dispensing timely and quality justice, funding must keep pace with growing caseloads and the operational and security needs of the Federal courts.
B. Judicial Pay
Judges received a1.9 per cent cost-of-living adjustment in 2006 and currently earn the following salaries:
It is anticipated that that federal judges will get a FY 2007 COLA. given that the House has passed H.R. 5576, the FY 2007 Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia and Independent Agencies spending bill without imposing a prohibition on a FY 2007 COLA for its Members (and thereby for judges also). Before a judicial COLA for FY 2007 is secure, however, the Senate has to accede, and a waiver of §140 has to be passed by both chambers, either as part of its appropriation bill or as a free-standing legislation. H.R. 5454 (Sensenbrenner, R-WI), which passed the House on September 26, 2006, contains the necessary waiver language.
Despite the fact that judges have received annual COLAs for the last seven years, the ABA remains concerned that judicial salaries remain inadequate and will deter many private attorneys of exceptional caliber from seeking judicial posts and discourage veteran judges from remaining on the bench for life. The adequacy of funding for judicial salaries for the operation of the Federal courts has implications for the vitality and independence of the Federal judiciary. For example, the rate at which judges retire from the bench and return to the public workforce continues to rise. Six judges retired in the first three months of 2005, compared to the four of all of 2004.
Concerned about the adequacy of executive and judicial compensation in the Federal government, the House Government Reform Subcommittee on the Federal Workforce and Agency Organization, held an oversight hearing on September 20, 2006, to examine the issue. The ABA submitted a written statement for the record.
The ABA supports S. 2276 (Feinstein, D-CA; Leahy, D-VT; and Kerry, D- MA) and H.R. 5014 (Schiff, D-CA and Biggert, R-IL), legislation introduced this session to provide Federal judges with a 16.5% salary increase; repeal Section 140; terminate the linkage between judicial cost-of living adjustments and those of Members of Congress; and provide judges with automatic COLAs based on the Employee Cost Index whenever General Schedule employees are entitled to receive a COLA. While we vigorously applaud the co-sponsors' efforts to address the serious problems with judicial pay, the ABA, in consultation with the Judicial Conference of the United States and other concerned organizations, based on an assessment of the current political and financial climate, decided not to launch another comprehensive lobbying effort to substantially reform judicial pay this Congress.
A. 108th Congress
1. Judicial Compensation
During the early months of the 1st Session of the 108th Congress, progress on judicial compensation reform was impressive: legislation was immediately enacted (H.R. 16, Sensenbrenner R-WI) to waive Section 140, retroactive to the beginning of the year, thereby providing judges with a 3.1% COLA for all of FY 2003. In addition, the National Commission on Public Service (the Volcker Commission) issued a report on the need for reform in the federal public service that emphasized the gross inadequacy of Federal judicial pay and called for an immediate and substantial increase, as well as delinkage of judicial pay from Congressional pay. As expected, the report helped generate renewed calls for Congressional action.
In May 2003, the ABA and the Federal Bar Association (FBA) presented the Chief Justice of the United States and three associate justices with a jointly written report on the need for judicial pay reform. The report, Federal Judicial Pay: an Update on the Urgent Need for Action, was well received by the media and Members of Congress. On May 7, Senators Hatch, Leahy, Cornyn, Kennedy, Durbin, Chambliss, Alexander and Collins introduced S.1023, calling for a 16.5% pay raise for Article III judges, bankruptcy and magistrate judges and Court of Claims judges. President Bush endorsed the legislation on May 9, 2003, after his Law Day Ceremony at the White House. Identical legislation -- H.R. 2118 (Hyde, R-IL, Conyers, D-MI) -- was introduced in the House the following week, on May 15.
Other judicial pay bills -- S. 1112 (Reid, D-NV) and S.786 (Leahy, D-VT) -- also were introduced but did not enjoy bipartisan support in Congress or the support of the Administration. The Reid bill would have raised judicial salaries by 25% and restored the real value of judicial salaries to that enjoyed in 1969, the benchmark year. The Leahy bill would have provided a deminimus raise (approximately 6%) and imposed prohibitions on judicial attendance at privately funded educational seminars.
S. 1023 was approved by the Senate Judiciary Committee in late May, after an amendment authorizing the use of electronic media in Federal courts was added. That provision, long sought by Senators Schumer (D-NY) and Grassley (R-IA) but opposed for years by many influential Members of Congress, thwarted further progress on this freestanding bill and its House counterpart.
Lobbying efforts shifted to working with the leadership to find a suitable vehicle to which the pay provisions could be attached without fanfare. Different approaches were discussed, including expanding the bills to include a pay raise for Members of Congress. Ultimately, the substance of S.1023 was added as an amendment to S.1585, providing appropriations for Commerce, Justice, the Judiciary and Related Agencies, and then approved by the Senate Appropriations Committee on September 4, 2003.
Unfortunately, the CJS bill and six other appropriations bills were incorporated into an omnibus conference report (H.R. 2673), which was crafted primarily by House Republicans. Despite the best efforts of many organizations, judicial pay provisions were not included in the conference report, which was passed by the House prior to adjournment. The Senate passed the omnibus package in January, and the President quickly signed it into law, P.L. 108-199. Even though success again proved to be elusive, pay reform legislation progressed farther during the 1st Session than it has in 15 years. In addition, Federal judges again received a COLA, amounting to 2.2% for FY 2004.
Although there was no action on judicial reform legislation during the 2nd Session, Congress did enact the necessary waiver of Section 140, thereby paving the way for a 2.5% judicial COLA in 2005.
2. Federal Court Funding
During the 2nd Session of the 108th Congress, the Federal courts had to take unprecedented steps to adhere to the judiciary's modest FY 2004 budget, including firing or furloughing more than 1300 employees and, in some instances, limiting probation and pretrial services and reducing hours of operation. The ABA's legislative efforts shifted to advocating for a definite, timely and adequate FY 2005 appropriation for Federal court operations.
The ABA became deeply concerned that Congress might resort to funding the government through a continuing resolution, which would have imposed a discretionary funding freeze at FY 2004 levels. This would have been disastrous for the Federal courts. The Federal Judiciary estimated that the imposition of a budget freeze, combined with the uncertainty of its duration, would require it to cut operating expenses by 50% and either fire or furlough up to 5,000 court employees, representing 20 percent of the probation and pretrial services officers and clerks' office personnel. Such a drastic downsizing would have crippled the ability of the courts to serve and protect the public. The impending financial crisis for the Federal Judiciary was averted on December 8, 2004 when President Bush signed into law (P.L. 108-447) H.R. 4818, the FY 2005 omnibus appropriation bill that incorporated the conference agreements for the nine unfinished appropriation bills, including the Commerce, Justice and State, the Judiciary and related agencies funding bill.
The final FY 2005 appropriation for the Federal judiciary was $5.42 billion, a 6.1 percent increase over the FY 2004 funding level. This amount reflected the government-wide rescission of .8% and an additional .25% rescission for all Commerce-Justice-State programs.
The Judicial Conference had requested $5.7 billion for FY 2005, with an increase of 5.6 % in the Salaries and Expense account, which covers mandatory expenses (such as judicial pay and retirement benefits) and discretionary expenses such as salaries for personnel, court operations, including rent for facilities, and drug testing and treatment programs under the auspices of probation and pretrial services.
Prior to enactment of the FY 2005 appropriation, the Executive Committee of the Judicial Conference, anticipating only a modest budgetary increase, adopted an interim financial plan that instituted additional cost-saving measures, including a two-year moratorium on 42 courthouse construction projects. As a result, even though the FY 2005 budget reflected only a 4.3% increase in the Salaries and Expense account, this amount was sufficient to maintain services at the 2004 levels without requiring further staffing reductions, though by no means enough to restore services to pre-2004 levels.
Defender Services, which comprise another component of the judiciary's budget, were funded at $667.3 million. The final omnibus bill also provided for an increase in the hourly rate paid for capital case representation from $125.00/hr to $160.00/hr, as well as allowing for an increase in the statutory case maximums. It did not include a raise in the rate of pay in non-capital cases.
B. 107th Congress
1. Judicial Pay
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. Rep. Judith Biggert (R-IL) introduced H.R. 570, legislation that would have repealed Sec. 140, provided for automatic, annual COLAs for judges, and restored the 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 received no action. For the rest of the 107th Congress, pay reform efforts stalled largely due to the dramatic shift in Congress's agenda following the 9/11 attacks.
Even though judges did get COLAs in 2002 and 2003, judicial salary reform efforts suffered two setbacks during the 107th Congress. The first setback occurred during the final days of the 1st Session, when provisions re-codifying Section 140 and clarifying that it is meant to be permanent law were enacted into law as part of the conference report to the Commerce, Justice, State, Judiciary and Related Agencies appropriations bill, P.L. 107-77. The second setback occurred during the last days of the 2nd Session and amply demonstrated why Section140 should never have been re-enacted: Congress failed to waive Section 140 as part of a continuing resolution to fund the government through 1/27/03 that was adopted just prior to adjournment. The year concluded with judges being denied a COLA for FY 2003 (later rectified), while Congressional members and other top government officials paid according to the Executive Schedule were slated to receive a 3.1% COLA, commencing January 2003. This situation strained interbranch relations and prompted Chief Justice William H. Rehnquist to visit the President of the United States and ask him to intervene on the judiciary's behalf.
2. Williams v. United States and Section 140
The Ethics Reform Act of 1989 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 supersede Section 140, Congress continued to abide by Section 140’s mandate.
In 1998, twenty Federal judges challenged the legality of Section 140 in Williams v. United States, filed on the District Court for the District of Columbia. 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, in a decision issued February 16, 2001, reversed the primary holding of the lower court, stating that even though Congress enacted into law a mechanism for automatically 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 it was not meant to be permanent legislation and therefore was no longer viable.
A petition for certiorari was filed in 2001 by the judges and the ABA filed an amicus brief in support of their petition. The Supreme Court declined to hear the case on March 4, 2002, (Justices Breyer, Scalia and Kennedy issued a scathing dissent) and denied the plaintiffs' petition for rehearing on April 15, 2002.
- 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. Judicial pay erosion undermines the purpose of the guarantee of an undiminished salary and inadequate judicial pay undermine commitment to lifetime tenure by deterring candidates from seeking appointment to the bench and discouraging judges from remaining on the bench.
- Judicial salaries have not kept pace with inflation over the last decade. 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 in value, private-sector salaries of top attorneys have risen dramatically over the last decade. 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.
- The inadequacy of judicial pay threatens the vitality of the Institution. It is incumbent upon Congress and the President to exercise the power entrusted to them by taking decisive action to restore judicial pay to fair and adequate levels and reform the current pay-setting mechanisms to prevent future pay erosion.
- Congress and the President should promptly enact legislation to substantially raise the base salaries of Article III Federal judges to a level that reflects the importance of their judicial function and ensures a reasonable relationship with other professional opportunities.
- Congress and the President should enact legislation to restore the Employment Cost Index adjustments for fiscal years 1995-97 and 1999.
- Congress and the President should amend the Ethics Reform Act of 1989 to break the statutory link that couples cost-of-living adjustments for Members of Congress with those of Federal judges.
- Congress and the President should repeal Section 140 of Pub. L. No. 107-77, which requires explicit Congressional approval of any pay adjustment for the Federal Judiciary.
- Congress and the President should enact legislation 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.
- The ABA vigorously supports S. 2276 (Feinstein, D-CA; Leahy, D-VT; and Kerry, D- MA) and H.R. 5014 (Schiff, D-CA and Biggert, R-IL), legislation introduced the 2 nd Session of the 109th Congress to provide Federal judges with a 16.5% salary increase; repeal Section 140; terminate the linkage between judicial cost-of living adjustments and those of Members of Congress; and provide judges with automatic COLAs based on the Employee Cost Index whenever General Schedule employees are entitled to receive a COLA.
2003 ABA FBA Report on Judicial Compensation
An Independent Judiciary: A Report by the Commission on the Separation of Powers and Judicial Independence (August 1997)
Congressional and Judicial Salaries Since 1993
VI. OTHER LINKS
U.S. Supreme Court
U.S. Federal Judiciary
Library of Congress: US Judicial Branch Resources
Thomas: Legislative Information on the Internet
Staff Contact: Denise Cardman, Deputy Director, Governmental Affairs Office
Updated: October 18, 2006