WASHINGTON, DC, May 28, 2003—Today, American Bar Association President Alfred P. Carlton Jr., and Federal Bar Association President Kent S. Hofmeister presented a new report on the dire threat to the independence of the federal judiciary posed by the continuing erosion of federal judges’ salaries to Chief Justice of the United States William H. Rehnquist. Rehnquist, Carlton and Hofmeister were joined by Associate Justices Anthony M. Kennedy, David Hackett Souter, and Stephen G. Breyer today at the Supreme Court.

The report, “Federal Judicial Pay: An Update on the Urgent Need for Action,” concludes that years of Congressional neglect have caused federal judges’ salaries to lag far behind inflation, creating serious retention and recruiting problems for the federal judiciary. The presentation of the report follows the introduction earlier this month of legislation, cosponsored in the Senate by Sens. Orrin Hatch (R-UT), Patrick Leahy (D-VT) and others and in the House by Reps. Henry Hyde (R-IL), John Conyers (D-MI) and others, that would increase the salaries of all federal judges by approximately 16.5 percent.

“This report demonstrates that salary erosion is having a significant impact on retention for one of the most important jobs in America,” said Carlton. “In fact, these inadequate salaries are undermining the independence of our judiciary by making a mockery of our constitutional guarantee of life tenure for judges. By failing to provide federal judges with adequate, equitable and consistent salaries, we are eroding this crucial protection of our freedoms.”

According to the report, between 1969 and 2002 Supreme Court justices experienced a 37.3 percent loss in purchasing power while circuit and district court judges lost 23.5 percent over the same period. At the same time, when adjusted for inflation, the average American worker’s pay has increased by 17.5 percent.

“We are depriving our judges of the assurance of salary stability while they serve our country from the bench,” said Hofmeister. “Few people would willingly stand by and watch the power of their paycheck steadily shrink. Judges shouldn’t have to do that either.”

The erosion of federal judges’ salaries is making it increasingly difficult to lure candidates from private sector legal jobs. Indeed, an evaluation of district court appointments dating back to 1977 reveals that judges are increasingly drawn from the public sector. During the Carter administration, just under 50 percent of district court appointees came from the public sector. In the years since, however, that figure has steadily increased, with 57.54 percent of President Bush’s district court nominees coming from the public sector.

“American justice is best served when our judiciary is as diverse as we can make it. As we continue to strive for the most diverse federal judiciary possible,” said Carlton, “we cannot afford to lose the diversity of the bench that comes from the appointment of individuals of varying financial means who serve in different capacities in both the public and private sectors.”

“When the greatest minds in the legal private sector begin to lose interest in seeking federal judgeships,” said Hofmeister, “or when only those who are independently wealthy feel they can serve, something is badly wrong with our judicial compensation system.”

Judges’ salaries have eroded despite dramatic increases in the cost of living. Average home prices in the United States, for example, have climbed 42 percent and college costs soared 126 percent since 1969. “Over the past three decades, the salaries of federal judges have failed to keep pace with basic inflation, much less the skyrocketing costs of housing and college tuition,” said Carlton. “Something needs to be done.”

And, while federal judges’ salaries have failed to keep pace with inflation or increasing living expenses, their workloads are on the rise. The average caseload for district judges has grown from 339 cases per year in 1969 to 537 in 2002—an increase of almost 60 percent—while caseloads for circuit courts have more than tripled.

Most troubling, however, is the fact that more federal judges have left the bench in the past decade than in any other period in our country’s history. During the 1960s only a handful of Article III judges retired or resigned. In the 1970s, 1980s and 1990s, 118 judges left the bench. The pace has more than doubled since, with 77 Article III judges leaving the bench between 1990 and 2003. Of these, 22 left the bench in the first 30 months of this decade. Sixty-four of the 77 left the bench to take another job, including 51 who entered private legal practice and 16 (some 20 percent) who departed before reaching retirement age.

The ABA/FBA report, an update of a similar report issued in March 2001, recommends a number of steps that Congress and the administration should take to address the problem:

1. They should enact legislation instituting a significant pay raise for federal judges;

2. They should also ensure that the annual pay adjustment mechanism for judges, Members of Congress and high-level Executive Branch officials works automatically;

3. Section 140 of Public Law 97-92, which requires judges to get the express approval of Congress before they are awarded a standard COLA, is repealed. Because Congress has failed to provide federal judges with COLAs in five of the last ten years, judges have seen the purchasing power of their salaries decline by 9.8 percent in the last decade alone; and

4. Congress should reestablish and properly fund a salary review commission to regularly review and recommend pay rates for members of Congress, top Executive Branch officials and federal judges.

Electronic copies of ABA/FBA report are available on the ABA and FBA websites at: www.abanet.org/poladv/2003judpay.html or www.fedbar.org/wp-judpay03.html