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.

Ethics Reform Act. 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.

Linkage of Congressional and 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.

Section 140. 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.

Legislative Progress during the 110th Congress. Remedial legislation made significant headway during the 110th Congress but ultimately failed to be enacted. Many factors derailed the legislation, including a rapidly declining economy and the shift in focus due to the 2008 presidential election. Both the House and Senate Judiciary Committees had approved separate bipartisan bills to raise federal judicial salaries by 30 percent -- district judges would have been received $218,000 and courts of appeals judges would have received $231,100 .The legislation, H.R. 3753 and S. 1638, also included ABA-supported repeal of "Section 140," which requires affirmative congressional approval before judges receive a COLA, as well as other provisions on which we have no policy.

Federal Court Funding

Current Salaries:

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

Federal judges have not received a pay raise since 1992. Furthermore, they have not even received cost-of-living adjustments for six of those years--in 1994, 1995, 1996, 1997, 1999 and 2007. Even though judges were entitled to COLAs for five of those six years, as a result of the linkage of congressional COLAs to judicial COLAs, Congress’s decision to refuse to take their COLA in those years prevented judges from receiving them as well.

In addition, because the 107th and 110th Congresses failed to waive Section 140 in a timely fashion, judges were initially ineligible to receive COLAs in 2003 and 2010 while congressional members prepared to receive their COLAs. Even though both problems were eventually rectified and judges received their COLAs retroactively, these incidents needlessly strained inter-branch relations and demonstrated the insidious effect of retaining a provision that gives Congress the power to deny judges a COLA that their own members are scheduled to receive.

Since 1992, 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 12.5% 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. 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." Reminding us of what is at stake, he said, "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."

The 111th Congress included remedial action to enable federal judges to receive their COLA for 2009 in the omnibus appropriations bill for 2009. On March 11, President Obama signed P.L. 111-8, the Omnibus Appropriations Act of 2009, which waived Section 140 of Public Law 97-92, thereby authorizing Justices and judges of the United States to receive a 2.8 percent COLA for 2009, retroactive to January 1, 2009.

As of May 1, 2010, no further action is pending on with regard to federal judicial pay.

• 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.


• 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. Nonetheless, a comparison of the salaries of our federal judges with those of their peers in academia or private practice demonstrates the extent of the financial sacrifice federal judges make to serve the public and the lure of alternative private.


• In light of the current fiscal crisis facing the nation, it is not likely that action will be taken to restore judicial pay to fair and adequate levels this session. Nonetheless, neither Congress nor the President should simply ignore the underlying problems. Rather, legislation should be enacted to reform the current pay-setting mechanisms to prevent future pay erosion.


• Specifically, Section 140 should be repealed and a new pay mechanism should be enacted so that federal judges automatically receive cost-of-living adjustments when they come due, regardless of congressional action with respect to its own COLA.

The ABA urges Congress to enact legislation that will provide for a substantial pay increase and ensure regular cost-of-living adjustments for federal judges. Congress should de-link its 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.

An entire listing of ABA policies on federal judicial pay is available here.

May 1, 2009