U.S. Judiciary: Congress Must Maintain Its Power Over Judicial Pay Increases


I disagree with the editorial of The Washington Post concerning federal judicial pay. The bill being considered in the House of Representatives, in particular, contains an unjustified squandering of Congressional power over the federal treasury.

I feel the Congress must jealously guard its power of the purse (U.S. Constitution, Article I, section 8). There are two bills being considered in the Congress: one in the House or Representatives (H.R. 3753) and the other in the Senate (S.1638). Both bills propose a substantial increase in judicial pay.

However, H.R. 3753, section 4, proposes to repeal the law requiring a specific authorization from Congress to increase judicial pay (Public Law 97-92, section 140). [Note: For more information on P.L. 97-92 and other laws regarding judicial pay, see a Congressional Research Service report on the issue.]

Federal judges must not compare their salaries with highly paid corporate lawyers. The fact is relatively few lawyers earn that income. The Empirical Legal Studies blog explains this point for the Juris Doctor class of 2006.

The sample includes–in order of size–private practice (55.8%), business (14.2%), government (10.6%), judicial clerks (9.6%), public interest (5.4%), and other (2.8%). Half of the graduates make less than the $62,000 per year median–but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.



If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right–i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

Moreover, highly paid corporate lawyers must be on call 24 hours a day to attend to the needs of their clients. Judges have the power to set their own schedule. Furthermore, as I wrote in a previous post,

Judge Richard Posner of the Seventh Circuit Court of Appeals argued that a salary increase for judges is not necessary as other perquisites are not included in the base salary (the value of the federal pension, health insurance benefits, ability to earn outside income).

Given the distribution of salaries provided by the Empirical Legal Studies blog, contrary to the argument of Chief Justice John Roberts, many good judges can come from lawyers who are not paid extraordinarily large salaries.

While both bills being considered in Congress are unacceptably expensive, the House bill unjustifiably cedes its power over the spending of federal taxpayer-provided funds.