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 measurement of the change in the compensation of private sector workers, was adopted as the basis for determining the amount of their salary adjustment. In practice, this has resulted in judges and other top-level officials receiving smaller cost-of-living adjustments than most other federal workers.

Consequently, the Ethics Reform Act contemplated that the political branches would adjust judges’ pay in two ways: (1) through automatic and annual pay adjustments based on changes in the ECI; and (2) by enacting 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.( In addition, Congress, of course, also has the power on its own initiative can draft and pass separate legislation authorizing a pay raise.)

Unfortunately, these pay-setting mechanisms have failed to operate as planned: since enactment of the Ethics Reform Act, which provided for pay raises that went in to effect in 1990 and 1991, and well as establishing new pay-setting mechanisms, judicial salaries have not been reviewed for adequacy by the commission; judges have not received every COLA to which they have been entitled, had the Ethics Reform Act operated as intended; and Congress and the President have not acted sua sponte to increase judicial salaries.

The core problem with the current procedures 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.

An additional source of friction results from Congress’s additional 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 funding 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.

Federal Court Funding

Current Salaries:

Supreme Court Justices	$203,000
Circuit Court Judges	$175,000
District Court Judges	$165,200
Bankruptcy & Magistrate Judges	$151,984

* The salaries of bankruptcy and magistrate judges are set at 92% of the salaries of district court judges

JFederal judges have not received a pay raise in 15 years. Furthermore, they have not even received cost-of-living adjustments six of the last 13 years --in 1994, 1995, 1996, 1997, 1999 and this year, 2007. Even though they were entitiled to COLAs, as were most federal workers, in five of those six year, Congress specifically prevented judges from receiving a COLA when it voted to deny its own members a COLA.

As a result, judges not only have failed to receive the psychic and financial reward of a salary increase since 1992, they also have witnessed the erosion of their salaries due to Congress’s failure to provide judges with regular COLAs to counteract the effects of inflation. In real dollar terms, judicial salaries have decreased in value by approximately 10% since 1991.

Years of congressional inaction with respect to judicial salaries is jeopardizing the future excellence of our federal judiciary. The Bench and Bar have been warning Congress for years that persistently inadequate salaries are undermining judicial independence by deterring lawyers from seeking a position on the bench and acting as a disincentive to remain on the bench for life. The late Chief Justice Rehnquist first raised this issue twenty years ago, and Chief Justice Roberts has done the same for the past two years.

The Bench and Bar, however, have been warning Congress for years. The late Chief Justice Rehnquist first raised this issue twenty years ago. Chief Justice Roberts has done the same for the past two years, and Justice Kennedy did not mince words when he testified in March 2007 in support of a pay increase: "Members of the federal judiciary consider the problem so acute that it has become a threat to judicial independence...Your judiciary, the Nation’s judiciary, will be diminished in its stature and its capacity if there is continued neglect of compensation needs."

Justice Kennedy did not mince words when he testified in March 2007 in support of a pay increase: "Members of the federal judiciary consider the problem so acute that it has become a threat to judicial independence...Your judiciary, the Nation’s judiciary, will be diminished in its stature and its capacity if there is continued neglect of compensation needs."

He reminded us of what is at stake: "A judiciary committed to excellence secures the Rule of Law..Without a functioning, highly qualified, efficient judiciary, no nation can hope to guarantee the prosperity and secure the liberties of its people."

1. Judicial salaries have not kept up with inflation.

Since the last pay raise took complete effect in 1992, when adjusted for inflation, the average American workers’ wages have risen 18.5%, and most federal workers’ pay has risen 15%. In contrast, the pay of federal judges has declined 10.8% as a result of their not receiving COLAs in 1994, 1995, 1996, 1997, 1999 and 2007. The cumulative compensation lost due to these denied COLAs totals $208,500 for district judges. Appellate judges have lost even more.

2. In addition to failing to keep up with inflation, judicial salaries no longer bear any reasonable relationship to the salaries of other professionals who hold jobs that provide a reasonable point of comparison.

• Law Clerks:While judges cannot -- and do not -- expect to receive salaries equal to those of their peers in private practice, it is of undoubted relevance when a judge’s law clerk is hired by a law firm that offers compensation greater than that earned by the judge. This is becoming a more common occurrence with each passing year.


• Law School Deans and Senior Professors: Judicial salaries also pale in comparison to those of law school deans and senior professors: the median salary for law school deans and senior professors is approximately $230,000 -- about 42% more than district court salaries. In 1969, federal judges were making about 20% more than the dean of Harvard Law School.


• Other Top-Level Governmental Workers: Judicial salaries have even fallen behind the salaries of attorneys and other professionals in other high-level positions in the federal government.

3. Current judicial salaries do not attract a diverse pool of candidates to the bench and act as a disincentive for experienced judges to remain on the bench for life.

• Recruitment: One of the distinguishing marks of our legal tradition is that our judges come from diverse backgrounds, including the highest ranks of the private bar. We rely on and need a judiciary with substantial experience and demonstrated excellence to handle complex cases that affect all our lives with the skill,insight and efficiency that comes from experience. Over the years, more and more judges have risen from the ranks of state judiciaries or from within the federal judiciary, where federal judicial salaries may be equivalent or even an improvement. While there is nothing wrong with that per se, extended and successful experience in the private sector brings a perspective and an independence that is vital to the judiciary.


• Life Tenure: Some of our most talented and experienced judges are electing to leave the bench. Since 1990, 100 Article III judges have left the bench through resignation or retirement, and many of them have noted that financial considerations were a big factor in their decision to leave. The judiciary is losing some of its most capable and experienced jurists, as well as the services of senior judges, who often work full time although they don’t have to. Their commitment and dedication has enabled the judiciary to keep up with its ever-increasing work load. Their departure is a real loss for the judiciary.

4. Judicial salaries have fallen below any reasonable measure of adequacy, appropriateness or fairness because of congressional inaction and failure to allow statutory pay-setting mechanisms to operate as intended.

Judges were prevented from receiving a COLA for 2007 because Congress refused to grant itself a COLA for FY 2007. During the final days of the 109th Congress, a continuing resolution to fund the government through February 15, 2007 was passed. At that time, Members decided to defer a decision on a 2007 COLA for judges and themselves until the next Congress. During the start of the 110th Congress, the Senate passed S. 197 (Leahy, D-VT) to waive Section 140, one of the necessary preconditions for judges to receive a COLA. However, the House never considered a waiver of Section 140 because congressional members, during debate on P.L. 110-5, the continuing resolution that funds the government for the remainder of 2007, voted to forego their COLA for the entire year, thereby also blocking judges from receiving a COLA in 2007.

Both the Senate and House Judiciary Committee have held hearings to examine the adequacy of judicial pay. Justice Kennedy (statement PDF) testified before the Senate Judiciary Committee on February 14, and Justices Breyer (statement PDF) and Alito (statement PDF)testified before the House Judiciary Subcommittee on the Courts, Internet and Intellectual Property on April 19, 2007. The ABA submitted a written statement for the April 19 hearing record.

On June 15, 2007, Senator Leahy, on behalf of himself, Senator Hatch (D-UT), Senator Reid (D-NV), Senator McConnell (R-KY), Senator Feinstein (D-CA), and Senator Graham (R-SC) introduced S.1638, the Federal Judicial Salary Restoration Act of 2007. Supported by the ABA, this bill provides for a 50% increase in current federal judicial salaries -- i.e., $247,800 for district and the Court of International Trade judges; $262,700 for appellate judges; $304,500 for Associate Justices; and $318,200 for the Chief Justice of the United States. Magistrate and bankruptcy judges’ salaries, which are statutorily set at a level equal to 92% of a district judge’s salary, also will increase proportionately. In his introductory remarks, Senator Leahy said, "Our democracy and the rights we enjoy depend on a strong and independent) judiciary. During the last few years it has been the courts that have acted to protect our liberties and our Constitution." This bipartisan legislation is supported by the American Bar Association, as well as many other legal advocacy groups, deans of 130 of the Nation's top law schools, civil rights groups, and business leaders. (Statements of support from many other entities may be accessed through both the ABA Resource Page on Judicial Pay (PDF) and the Administrative Office’s webpage on judicial pay.) A companion House bill is expected to be introduced after the August recess. President Bush has announced his support for a significant pay raise for judges.

A review of the legislative activity of the 107th, 108th and 109th Congress with regard to judicial pay, and a summary of Court of Appeals for the Federal Circuit Opinion, Williams vs. United States, 240 F.3d. 1366 ( Fed. Cir. 2001) (holding, inter alia, that Congress may deny COLAs to judges prior to vesting, which occurs on the first day of the fiscal year in question) may be accessed here.

In order to provide immediate relief:

• Congress should promptly pass legislation, such as S. 1638 (Leahy, D-VT) to substantially raise the 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. If enacted, S. 1638 would raise judicial salaries by 50 percent.

In order to provide lasting relief, Congress should reform the pay-setting mechanisms by taking the following actions:

• Congress 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 should repeal Section 140 of Pub. L. No. 107-77, which requires explicit congressional approval of any pay adjustment for the federal judiciary.


• Congress should pass 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 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 15 years. 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. Judicial salaries have not kept pace with inflation over the last 15 years. 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, law-school deans and professors 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 constitutional 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.